Page:Harvard Law Review Volume 5.djvu/197

JUDICIAL LEGISLATION. l8l of the cases themselves can an exact analysis of the methods of the common law be reached. But in the inquiry what the Eng- lish system does, as distinguished from what other systems do, or what might conceivably be done, the conception of the judicial function which presents itself to the judge himself is of the first importance. The distinguishing feature of the English law is the binding authority which it attributes to a former decision. This respect for precedent, in which our system is unique, 1 has much impor- tance in the present inquiry. It is the circumstance, together with the absence of codification, which gives rise to the cardinal feature of our law, i. e., that it is bound up with the facts of particular cases. It is this feature which furnishes a clew to the characteristic processes of the common law. 2 The method by which a case is decided may be briefly stated as follows : After the necessary analysis of the facts, the first question for the court is whether the same facts have been passed on before. If so, the inquiry is closed. 3 This case falls within the rule of the earlier law of the realm and against the law of reason, but also against the law of God!' (Doct. & Stud., appendix.) 1 Markby, Elements of Law (3d ed.), s. 92. So Sir Henry Maine says (Early Hist. Inst., 3d ed., 47) : " Nowhere is anything like the same dignity as with us attributed to a decided 'case,' and I have found it difficult to make foreign lawyers understand why their English brethren should bow so implicitly to what Frenchmen term the 'jurispru- dence ' of a particular tribunal." 2 Markby (3d ed.), s.98, couples with this feature of the common law its ex post facto quality, and regards these two as the most significant among the several properties of " judiciary law " enumerated by Austin. It may be doubted, however, whether Markby in saying this, does not overrate the importance of the latter quality as a distinction be- tween the common law and statute law. It seems to be one of form rather than sub- stance. It is true that with a new state of facts it is in a sense impossible to say, under our system, that the law exists before the case is decided. Yet if principles exist which make it certain how the case will be decided, it is the same, from a practical point of view, as if the law previously existed. Statute law, on the other hand, exists in form before the determination of a case ; yet in the event, which too often occurs, of a well- founded uncertainty what construction will be put upon the statute, its substantial ex post facto quality when the case is decided is plain. 8 /. <?., this is so in a system of case law carried to its strict logical extreme, of which the English theory in regard to the decisions of the House of Lords is an instructive instance (see Blackburn, J., in I Q. B. D. 515, 528; Pollock, Science of Case Law, Essays in Jurisprudence, 237). The right to overrule former cases does not materially alter the theory. The later court may, as in England, be required to accept the error on these facts, or may, perhaps more rationally, be allowed to disregard it as an erroneous application of the sources from which the earlier tribunal reasoned, and to fall back on those sources themselves.