In considering the advantages of legislation, it will be convenient to contrast it specially with its most formidable rival, namely precedent. So considered, the first virtue of legislation lies in its abrogative power. It is not merely a source of new law, but is equally effective in abolishing that which already exists. But precedent possesses merely constitutive efficacy; it is capable of producing very good law—better in some respects than that which we obtain by way of legislation—but its defect is that, except in a very imperfect and indirect manner, its operation is irreversible. What it does, it does once for all. It cannot go back upon its footsteps, and do well what it has once done ill. Legislation, therefore, is the indispensable instrument, not indeed of legal growth, but of legal reform. As a destructive and reformative agent it has no equivalent, and without it all law is as that of the Medes and Persians.
The second respect in which legislation is superior to precedent is that it allows an advantageous division of labour, which here, as elsewhere, results in increased efficiency. The legislature becomes differentiated from the judicature, the duty of the former being to make law, while that of the latter is to interpret and apply it. Speaking generally, a legal system will be best administered, when those who administer it have this as their sole function. Precedent, on the contrary, unites in the same hands the business of making the law and that of enforcing it.
It is true, however, that legislation does not necessarily involve any such division of functions. It is not of the essence of this form of legal development that it should proceed from a distinct department of the state, whose business it is to give laws to the judicature. It is perfectly possible for the law to develop by a process of true legislation, in the absence of any legislative organ other than the courts of justice themselves. We have already noticed the existence of this judicial legislation, in considering the various forms of subordinate legislative power. The most celebrated instance of it is the case of the Roman praetor. In addition to his purely judicial functions, he possessed the jus edicendi, that is to say, legislative powers in respect of the matters pertaining to his office. It was customary for each praetor at the commencement of his term of office to publish an edictum containing a declaration of the principles which he intended to observe in the exercise of his judicial functions. Each such edict was naturally identical in its main outlines with that which preceded it, the alterations made in the old law by each successive praetor being for the most part accepted by his successors. By this exercise of legislative power on the part of judicial officers, a very considerable body of new law was in course of time established, distinguished as the jus praetorium from the older jus civile. Powers of judicial legislation, similar in kind, though less in extent, are at the present day very generally conferred upon the higher courts of justice. Yet though not theoretically necessary, it is certainly expedient, that at least in its higher forms the function of law-making should be vested in a department of the state superior to and independent of the judicature.
A third advantage of statute law is that the formal declaration of it is a condition precedent to its application in courts of justice. Case-law, on the contrary, is created and declared in the very act of applying and enforcing it. Legislation satisfies the requirement of natural justice that laws shall be known before they are enforced; but case-law operates retrospectively, being created pro re nata, and applied to facts which are prior in date to the law itself.[[117]]
Fourthly, legislation can by way of anticipation make rules for cases that have not yet arisen, whereas precedent must needs wait until the actual concrete instance comes before the courts for decision. Precedent is dependent on, legislation independent of, the accidental course of litigation. So far as precedent is concerned, a point of law must remain unsettled, until by chance the very case arises. Legislation can fill up a vacancy, or settle a doubt in the legal system, as soon as the existence of this defect is called to the attention of the legislature. Case-law, therefore, is essentially incomplete, uncertain, and unsystematic; while if statute law shows the same defects, it is only through the lethargy or incapacity of the legislature. As a set-off against this demerit of precedent, it is to be observed that a rule formulated by the judicature in view of the actual case to which it is to be applied is not unlikely to be of better workmanship, and more carefully adapted to the ends to be served by it, than one laid down a priori by the legislature.
Finally, statute law is greatly superior to case-law in point of form. The product of legislation assumes the form of abstract propositions, but that of precedent is merged in the concrete details of the actual cases to which it owes its origin. Statute law, therefore is brief, clear, easily accessible and knowable, while case-law is buried from sight and knowledge in the huge and daily growing mass of the records of bygone litigation. Case-law is gold in the mine—a few grains of the precious metal to the ton of useless matter—while statute law is coin of the realm ready for immediate use.
This very perfection of form, however, brings with it a defect of substance from which case-law is free. Statute law is embodied in an authoritative form of written words, and this literary expression is an essential part of the law itself. It is the duty of the courts to apply the letter of the law. They are concerned with the spirit and reason of it only so far as the spirit and reason have succeeded in finding expression through the letter. Case-law, on the contrary, has no letter. It has no authoritative verbal expression, and there is no barrier between the courts of justice and the very spirit and purpose of the law which they are called on to administer. In interpreting and applying statute law, the courts are concerned with words and their true meaning; in interpreting and applying case-law, they are dealing with ideas and principles and their just and reasonable contents and operation. Statute law is rigid, straitly bound within the limits of authoritative formulae; case-law, with all its imperfections, has at least this merit, that it remains in living contact with the reason and justice of the matter, and draws from this source a flexibility and a power of growth and adaptation which are too much wanting in the litera scripta of enacted law.
§ 53. Codification.
The advantages of enacted law so greatly outweigh its defects that there can be no doubt as to the ultimate issue of its rivalry with the other forms of legal development and expression. The whole tendency in modern times is towards the process which, since the days of Bentham, has been known as codification, that is to say, the reduction of the whole corpus juris, so far as practicable, to the form of enacted law. In this respect England lags far behind the Continent. Since the middle of the eighteenth century the process has been going on in European countries, and is now all but complete. Nearly everywhere the old medley of civil, canon, customary, and enacted law has given place to codes constructed with more or less skill and success. Even in England, and the other countries to which English law has spread, tentative steps are being taken on the same road. Certain isolated and well-developed portions of the common law, such as the law of bills of exchange, of partnership, and of sale, have been selected for transformation into statutory form. The process is one of exceeding difficulty, owing to the complexity and elaboration of English legal doctrine. Many portions of the law are not yet ripe for it, and premature codification is worse than none at all. But the final result is not doubtful.
Codification must not be understood to involve the total abolition of precedent as a source of law. Case-law will continue to grow, even when the codes are complete. The old theory, now gradually disappearing, but still true in most departments of the law, is that the common law is the basis and groundwork of the legal system, legislation being nothing more than a special instrument for its occasional modification or development. Unenacted law is the principal, and enacted law is merely accessory. The activity of the legislature is called for only on special occasions to do that which lies beyond the constructive or remedial efficacy of the common law. Codification means not the total disappearance of case-law, but merely the reversal of this relation between it and statute law. It means that the substance and body of the law shall be enacted law, and that case-law shall be incidental and supplementary only. In the most carefully prepared of codes subtle ambiguities will come to light, real or apparent inconsistencies will become manifest, and omissions will reveal themselves. No legislative skill can effectually anticipate the complexity and variety of the facts. The function of precedent will be to supplement, to interpret, to reconcile, and to develop the principles which the code contains. Out of the code itself, therefore, a body of case-law will grow, as a judicial commentary and supplement. It will be expedient from time to time that this supplementary and explanatory case-law be itself codified and incorporated into successive editions of the code. But so often as this is done, the process of interpretation will begin again with the like results.