Page:Harvard Law Review Volume 5.djvu/198

1 82 HARVARD LAW REVIEW. one, and is thus disposed of. If the present facts do not directly fall within any case, or any hard-and-fast rule already settled, the first inquiry of the judge is for decided cases similar to this. Instances are produced, each showing the law on a particular state of facts, and presenting an analogy to the case in hand more or less direct. These cases are scrutinized, classified, distin- guished ; the wider principles which they illustrate, and which are claimed by the contending parties to include the present case, are determined and tested by a comparison with other branches of the law; and thus a decision is finally reached. Paley has given the following description of the process: "It is by the urging of the different analogies that the contention of the bar is carried on; and it is in the comparison, adjustment, and reconciliation of them with one another, in the discerning of such distinctions, and in the framing of such a determination as may either save the various rules alleged in the cause, or, if that be impossible, may give up the weaker analogy to the stronger, that the sagacity and wisdom of the court are exercised." x Austin quotes this passage, and separates the process into that of extracting the law, the ratio decidendi, from the cases, and then applying it. But Paley's statement is valuable as calling attention to the frequent failure of the common-law judges to distinguish between these two processes. Often, as has been well said, they do not extract a rule and then apply it, but determine the rule by applying it? Mr. Pollock, in an ingenious essay on the " Science of Case Law," 3 has compared the reasoning of a system of case law to the method of a natural science, and has pointed out how the fundamental assumption of the uniformity of law is as necessary in the one as that of nature is in the other. Without this assumption the argument from precedent means nothing; unless the former case was decided under the same law, it is not a precedent at all. 4 Yet as the natural science grows, expands, develops, with each new experiment, so the decision in each case is a step in the growth of the law, a new datum for future reasoning. 5 As this 1 Paley, Moral Philosophy, II. 259. 2 Markby, Elements of Law (3d ed.), s. 100. Maine seems to have the same point in mind when he says (Ancient Law, 9th ed., 32) that we are " not in the habit of throwing into precise language the legal formulas which we derive from the precedents." 8 Essays in Jurisprudence, 237. 4 Hammond, notes to Blackstone, I. 222. 6 Maine, Ancient Law (9th ed.), 31-2.