Bar Associations that the judges do declare law also be fore custom establishes it. Let us admit that judges must declare new principles sometimes which are not customs, but
only reasoning and common sense. Judge
made law should ever be behind the common thought but not too far be hind. . . .
“I do not think that I would ask any judge to change the law of real prop erty, of notes and bills, agency or com
mercial law generally, for the relations governed by these branches of the law have not changed. But where the rela tions between the parties have changed by force of modern conditions, why
should not judges make the changes a part of the system of law? I do not
499
to pronounce as law this recognized public opinion? Judges did this in times past, and they should not fear to do it now. “There are objections to legislation as a method of reaching scientific law, which are inherent in the system of
popular law-making, and the objections which are the most obvious are common to all legislation in all governments, and are not necessarily a criticism of our form of government. The history of law
shows that all important legislation is a compromise; it never expresses exactly
what anybody wants. Friends and opponents finally meet on some neutral ground, not quite satisfactory to either.
the law of master and servant, employer
There may be, and usually is, an honest difference of opinion as to the advisabil ity of serious legislation. Dicey, in his ‘Law and Public Opinion,‘ asserts that
and employee. I think that public opinion is demanding this. I would
ing, of which Bentham complains, is
think that I would be unwilling that
there should be judge-made changes in
broaden the rule of negligence and nar
row the rule of assumption of risk, mak ing the employer liable in many cases
now covered by the fellow-servant rule, and making him liable for negligence in more cases where the furnishing of better
appliances would have prevented the accident. "This, I think, would be in accord
ance with public opinion. ‘Common thought’ or ‘public opinion’ do not mean the thought or opinion of all the people. There are many who have no thoughts or opinions upon many subjects. They do not need to have. The public opinion upon a subject is the best general opinion on that subject of the many
who are acquainted with it. We have seen well discussed by laymen these questions of law bearing upon the rela tions of employers and employees, and the general trend of the discussion seems to be in favor of wide modification.
Why should the judges hesitate then
the ‘sinister interest’ affecting law-mak not necessarily selfish or dishonest — that it is much more likely to be stupid. "I am not willing to admit that politics is responsible for all the evils of
our system of legislation. We find the same defects in countries where politics are comparatively pure. So long as we submit to untrained men this important function of making law, we must expect
disappointment. I do not know what the remedy is, but it seems to me that the suggestion is worthy of some considera tion, that all the administrative func
tions of the state should be performed, as now, by a legislature elected by the people, but that substantive law should be made only by a board of trained experts also chosen by the people. Jud ge made law is at least made by experts;
legislation is not." The report of the committee “on
judiciary department" was accepted, the association thus going on record against an elective judiciary. Last year the
