Page:Harvard Law Review Volume 12.djvu/567

LA IV AND FACT. ' SA7 reason may indicate a little more clearly to the younger son just what path he must avoid in order to avoid the switch, but the connection between the act and the switch may be so obvious as to render explanations unnecessary. Is it hard to conceive of a silent man at the head of a family meting out punishments and rewards in his court of justice so impartially and so judicially that his boys will be as well behaved and will know as well what they ought to do and what they ought not to do as if they were governed by a code of laws? When Bentham wrote of " Sham Law," and " Spurious Law," and " Judge-made Law " and " Ex Post Facto Law " the bar was set against him partly because his manner was not conciliatory, but mainly, I fancy, because of a confusion in the use of terms. His statement that " in the domain of common law everything is fiction except the power exercised by the judge " ^ seems extravagant, but so far as it asserts that what we call the common law springs from the power of the judge to decide the case before him, it can hardly be questioned. The sole power of the judge is to decide the case before him. But in deciding that case he has a right to respect the decisions of his predecessors, and that right becomes a binding obligation upon him when he sees that respect for precedents is all that separates order from chaos in the administration of justice. Now when you have, first, a judgment, and secondly, respect for that judgment as a precedent, you have a first-rate substitute for law, and you secure in the course of time a much greater certainty in the administration of justice than you could get without prece- dents under the most voluminous code that was ever written. How the lawyers and judges came to put the cart before the horse by assuming that law preceded judgment is a question for the black-letter men. It may be as Bentham intimates, that the judges adopted this device in order to lend a fictitious authority to their judgments. We can well imagine that it was easier for a judge to dispose of a disappointed suitor by saying: " Thus saith the Law," than by saying : " I have decided against you because that is my opinion of the merits of your case." It seems more probable, however, that " law " came to be used in a double sense because, as Bentham points out, " the individual decree has the effect of law, of a real law, issued by the legislator acknowledging 1 Works of Bentham, iii, 223. 71