The Green Bag VOL. XVII.
No. lo
BOSTON
OCTOBER, 1905
LEGITIMATE FUNCTIONS OF JUDGE-MADE LAW BY H ANN is TAYLOR, LL.D. (Edin. and Dub.) THE comparative method of investi prevails in parts of the British Empire and gating the origin and growth of gov in the United States under the name of the ernment and law, which begins with their common law of England. My primary pur germs in primitive society, attempts to ex pose to-day, will be to demonstrate that no plain their nature and meaning through the matter where the developments of these record of their development. Perhaps the rival systems may be studied, the facts most important single revelation which this appear, in the history of each, first, that the new method of investigation has made to primitive customary law inevitably crystal students of jurisprudence, is embodied in lizes into an unelastic, written code; second, the explanation of the subtile and silent that after a society has outgrown the straitprocess through which the primitive and jacket in which it thus incases itself at the unelastic codes of infant states are ex outset, it is only possible through the panded and adapted, mainly through the agency of judge-made law to expand and agency of judge-made law, to the ever- adapt such a jacket to the larger conditions changing conditions of progressive socie arising out of the after-growth. In other ties. If a state may be compared to a words, that the subtle process of thus ex watch, its case or outer shell represents the panding and adapting primitive written state's political constitution, while its inner codes, even when organic, to the ever-in mechanism represents the code of municipal creasing wants of progressive societies, is law by which the state's internal affairs are too refined for formal legislation, which regulated. The primary purpose of the new must ever remain as it has ever been, the science known as comparative politics, is to mere handmaid of judicial interpretation. classify and label the outer shells of states JUDGE-MADE LAW AT ROME as represented by their political constitu As Roman jurisprudence has the longest tions; the primary purpose of the new sci ence, -known as comparative jurisprudence, known history of any set of institutions, is to classify and label the municipal codes and as the character of the changes through by which the internal affairs of states are which it has passed are very well understood, governed. So far/ the world has given birth it is possible to outline its development as a to only two great systems of jurisprudence; whole. Such an outline should begin with there are really but two great codes of the fact that, at the outset, Roman law was municipal law whose principles have seri simply the code of a single city-state, a ously influenced modern civilization. As code that grew out of a body of unwritten the Greek genius lacked the capacity to municipal customs, a special knowledge of produce a philosophy of law, legal science which was for a long time confined to an must be regarded as a Roman creation, aristocracy or oligarchy who claimed to be jurisprudence as a Roman invention. As the sole repository of the principles by the jurisprudence of the western world, which controversies should be determined. Roman law has but one rival, and that is The departure which took .place at Rome the system with a Teutonic base, which from that condition of things, was simply a
