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THE JUDGE AS A LEGISLATOR

The old Blackstonian theory of pre-existing rules of law which judges found, but did not make, fitted in with a theory still more ancient, the theory of a law of nature. The growth of that conception forms a long and interesting chapter in the history of jurisprudence and political science.[1] The doctrine reached its highest development with the Stoics, has persisted in varying phases through the centuries, and imbedding itself deeply in common forms of speech and thought, has profoundly influenced the speculations and ideals of men in statecraft and in law. For a time, with the rise and dominance of the analytical school of jurists, it seemed discredited and abandoned.[2] Recent juristic thought has given it a new currency, though in a form so profoundly altered that the old theory survives

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  1. Salmond, "The Law of Nature," 11 L. Q. R. 121; Pollock, "The History of the Law of Nature," 1 Columbia L. R. II; 2 Lowell, "The Government of England," 477, 478; Maitland's "Collected Papers," p. 23.
  2. Cf. Ritchie, "Natural Rights."