The division of judicial functions between judge and jury creates a difficulty in the theory of precedent which requires some consideration. It is commonly said that all questions of fact are for the jury, and all questions of law for the judge. But we have already seen that original precedents are answers to questions of fact, transforming them for the future into questions of law. Are such precedents, then, made by juries instead of by judges? It is clear that they neither are nor can be. No jury ever answers a question on principle; it gives decisions, but no reasons; it decides in concreto, not in abstracto. In this respect the judicial action of juries differs fundamentally from that of judges. The latter decide on principle, whenever this is possible; they formulate the ratio decidendi which underlies their decision; they strive after the general and the abstract, instead of adhering to the concrete and the individual. Hence it is that the decision of a judge may constitute a precedent, while that of a jury cannot. But in composite tribunals, where the jury decides the facts and the judge the law, how does the judge obtain any opportunity of establishing precedents and creating new law? If the matter is already governed by law, it will of course fall within his province; but if it is not already so governed, is it not a pure question of fact which must be submitted to the jury, to the total destruction of all opportunity of establishing any precedent in respect of it? The truth of the matter is that, although all questions of law are for the judge, it is very far from being true that all questions of fact are for the jury. There are very extensive and important portions of the sphere of fact which fall within the jurisdiction of the judge, and it is within those portions that the law-creating operation of judicial decisions takes place. No jury, for example, is ever asked to interpret a statute or, speaking generally, any other written document. Yet unless there is already some authoritative construction in existence, this is pure matter of fact. Hence that great department of case-law which has its origin in the judicial interpretation of statute law. The general rule—consistently acted on, though seldom expressly acknowledged—is that a judge will not submit to a jury any question which he is himself capable of answering on principle. Such a question he answers for himself; for since it can be answered on principle, it provides a fit occasion for the establishment of a precedent and a new rule of law. It ought to be a matter of law, and can only become what it ought to be, by being kept from the jury and answered in abstracto by the judge. The only questions which go to a jury are those questions of fact which admit of no principle, and are therefore the appropriate subject-matter of those concrete and unreasoned decisions which juries give.[[169]]
We have said that this rule, though acted on, is not expressly acknowledged. The reason is that judges are enabled to avoid the acknowledgment through recourse to the declaratory theory of precedent. As between judge and jury this theory is still in full force and effect, although when the rights and privileges of juries are not concerned, the courts are ready enough at the present day to acknowledge the essential truth of the matter. As between judge and jury, questions of fact are withdrawn from the exclusive cognizance of the latter by means of the legal fiction that they are already questions of law. They are treated proleptically as being already that which they are about to become. In a completely developed legal system they would be already true questions of law; the principle for their decision would have been already authoritatively determined. Therefore the judges make bold to deal with them as being already that which they ought to be, and thus the making of the law by way of precedent is prevented from openly infringing upon the rights of juries to decide all questions which have not already been decided by the law.
SUMMARY.
| Precedents | Declaratory—evidence of old law. | |
| Original—sources of new law. | ||
| The declaratory theory of precedent. | ||
| Precedents | Authoritative. | |
| Foreign decisions. | ||
| Persuasive | Decisions in other parts of the Empire. | |
| Privy Council decisions. | ||
| Judicial dicta. | ||
| Precedents | Absolutely authoritative | Decisions of superior Court. |
| Decisions of House of Lords. | ||
| Decisions of Court of Appeal. | ||
| Conditionally authoritative—All others. | ||
| Conditions of the disregard of a precedent. | ||
| 1. Decisions erroneous | Contrary to law. | |
| Unreasonable. | ||
| 2. Rejection of it not mischievous as unsettling the law. | ||
| Effect of lapse of time on precedents. | ||
| Distinction between overruling and refusing to follow. | ||
| Precedents constitutive and not abrogative. | ||
| Qualifications of the rule. | ||
| Ground of the authority of precedent. | ||
| The progressive transformation of fact into law. | ||
| Rationes decidendi. | ||
| The determination of questions on principle and on authority. | ||
| Judicial dicta contrasted with judicial decisions. | ||
| Sources of judicial principles. | ||
| Respective functions of judge and jury. | ||
CHAPTER X.
LEGAL RIGHTS.
§ 70. Wrongs.
We have seen that the law consists of the principles in accordance with which justice is administered by the state, and that the administration of justice consists in the use of the physical force of the state in enforcing rights and punishing the violation of them. The conception of a right is accordingly one of fundamental significance in legal theory, and the purpose of this chapter is to analyse it, and to distinguish its various applications. Before attempting to define a right, however, it is necessary to define two other terms which are closely connected with it, namely, wrong and duty.
A wrong is simply a wrong act—an act contrary to the rule of right and justice. A synonym of it is injury, in its true and primary sense of injuria (that which is contrary to jus), though by a modern perversion of meaning this term has acquired the secondary sense of harm or damage (damnum) whether rightful or wrongful, and whether inflicted by human agency or not.
Wrongs or injuries are divisible for our present purpose into two kinds, being either moral or legal. A moral or natural wrong is an act which is morally or naturally wrong, being contrary to the rule of natural justice. A legal wrong is an act which is legally wrong, being contrary to the rule of legal justice and a violation of the law. It is an act which is authoritatively determined to be wrong by a rule of law, and is therefore treated as a wrong in and for the purposes of the administration of justice by the state. It may or may not be a wrong in deed and in truth, and conversely a moral wrong may or may not be a wrong in law. Natural and legal wrongs, like natural and legal justice, form intersecting circles, this discordance between law and fact being partly intentional and partly the result of imperfect historical development.
In all ordinary cases the legal recognition of an act as a wrong involves the suppression or punishment of it by the physical force of the state, this being the essential purpose for which the judicial action of the state is ordained. We shall see later, however, that such forcible constraint is not an invariable or essential incident, and that there are other possible forms of effective legal recognition. The essence of a legal wrong consists in its recognition as wrong by the law, not in the resulting suppression or punishment of it. A legal wrong is a violation of justice according to law.