§ 52 Relation of Legislation to Other Sources
So great is the superiority of legislation over all other methods of legal evolution, that the tendency of advancing civilisation is to acknowledge its exclusive claim, and to discard the other instruments as relics of the infancy of law. The expressed will of the state tends to obtain recognition not only as the sole formal source of law, but as its exclusive material source also. Statute law has already become the type or standard, from which the other forms are more or less abnormal variations. Nothing is more natural than this from our modern point of view, nothing less natural from that of primitive jurisprudence. Early law is conceived as jus (the principles of justice), rather than as lex (the will of the state). The function of the state in its earlier conception is to enforce the law, not to make it. The rules so to be enforced are those rules of right which are found realised in the immemorial customs of the nation, or which are sanctioned by religious faith and practice, or which have been divinely revealed to men. It is well known that the earliest codes were the work, not of mortal men, but of the gods.116 That the material contents of the law depend upon the express or tacit will of the state, that principles sanctioned by religion or immemorial usage are laws only so long as the prince chooses to retain them unaltered, that it is within the powders and functions of political rulers to change and subvert the laws at their own good pleasure, are beliefs which mark considerable progress along the road of political and legal development. Until such progress has been made, and until the petrifying influence of the primitive alliance of law with religion and immutable custom has been to some extent dissolved, the part played by human legislation in the development of the legal system is necessarily small, and may be even non-existent. As it is the most powerful, so it is the latest of the instruments of legal growth.
In considering the advantages of legislation, it will be convenient to contrast it specially with its most formidable rival, namely precedent. So considered, the first virtue of legislation lies in its abrogative power. It is not merely a source of new law, but is equally effective in abolishing that which already exists. But precedent possesses merely constitutive efficacy; it is capable of producing very good law—better in some respects than that which we obtain by way of legislation—but its defect is that, except in a very imperfect and indirect manner, its operation is irreversible. What it does, it does once for all. It cannot go back upon its footsteps, and do well what it has once done ill. Legislation, therefore, is the indispensable instrument, not indeed of legal growth, but of legal reform. As a destructive and reformative agent it has no equivalent, and without it all law is as that of the Medes and Persians.
The second respect in which legislation is superior to precedent is that it allows an advantageous division of labour, which here, as elsewhere, results in increased efficiency. The legislature becomes differentiated from the judicature, the duty of the former being to make law, while that of the latter is to interpret and apply it. Speaking generally, a legal system will be best administered, when those who administer it have this as their sole function. Precedent, on the contrary, unites in the same hands the business of making the law and that of enforcing it.
It is true, however, that legislation does not necessarily involve any such division of functions. It is not of the essence of this form of legal development that it should proceed from a distinct department of the state, whose business it is to give laws to the judicature. It is perfectly possible for the law to develop by a process of true legislation, in the absence of any legislative organ other than the courts of justice themselves. We have already noticed the existence of this judicial legislation, in considering the various forms of subordinate legislative power. The most celebrated instance of it is the case of the Roman praetor. In addition to his purely judicial functions, he possessed the jus edicendi, that is to say, legislative powers in respect of the matters pertaining to his office. It was customary for each praetor at the commencement of his term of office to publish an edictum containing a declaration of the principles which he intended to observe in the exercise of his judicial functions. Each such edict was naturally identical in its main outlines with that which preceded it, the alterations made in the old law by each successive praetor being for the most part accepted by his successors. By this exercise of legislative power on the part of judicial officers, a very considerable body of new law was in course of time established, distinguished as the jus praetorium from the older jus civile. Powers of judicial legislation, similar in kind, though less in extent, are at the present day very generally conferred upon the higher courts of justice. Yet though not theoretically necessary, it is certainly expedient, that at least in its higher forms the function of law-making should be vested in a department of the state superior to and independent of the judicature.
A third advantage of statute law is that the formal declaration of it is a condition precedent to its application in courts of justice. Case-law, on the contrary, is created and declared in the very act of applying and enforcing it. Legislation satisfies the requirement of natural justice that laws shall be known before they are enforced; but case-law operates retrospectively, being created pro re nata, and applied to facts which are prior in date to the law itself.117
Fourthly, legislation can by way of anticipation make rules for cases that have not yet arisen, whereas precedent must needs wait until the actual concrete instance comes before the courts for decision. Precedent is dependent on, legislation independent of, the accidental course of litigation. So far as precedent is concerned, a point of law must remain unsettled, until by chance the very case arises. Legislation can fill up a vacancy, or settle a doubt in the legal system, as soon as the existence of this defect is called to the attention of the legislature. Case-law, therefore, is essentially incomplete, uncertain, and unsystematic; while if statute law shows the same defects, it is only through the lethargy or incapacity of the legislature. As a set-off against this demerit of precedent, it is to be observed that a rule formulated by the judicature in view of the actual case to which it is to be applied is not unlikely to be of better workmanship, and more carefully adapted to the ends to be served by it, than one laid down a priori by the legislature.
Finally, statute law is greatly superior to case-law in point of form. The product of legislation assumes the form of abstract propositions, but that of precedent is merged in the concrete details of the actual cases to which it owes its origin. Statute law, therefore is brief, clear, easily accessible and knowable, while case-law is buried from sight and knowledge in the huge and daily growing mass of the records of bygone litigation. Case-law is gold in the mine—a few grains of the precious metal to the ton of useless matter—while statute law is coin of the realm ready for immediate use.
This very perfection of form, however, brings with it a defect of substance from which case-law is free. Statute law is embodied in an authoritative form of written words, and this literary expression is an essential part of the law itself. It is the duty of the courts to apply the letter of the law. They are concerned with the spirit and reason of it only so far as the spirit and reason have succeeded in finding expression through the letter. Case-law, on the contrary, has no letter. It has no authoritative verbal expression, and there is no barrier between the courts of justice and the very spirit and purpose of the law which they are called on to administer. In interpreting and applying statute law, the courts are concerned with words and their true meaning; in interpreting and applying case-law, they are dealing with ideas and principles and their just and reasonable contents and operation. Statute law is rigid, straitly bound within the limits of authoritative formulae; case-law, with all its imperfections, has at least this merit, that it remains in living contact with the reason and justice of the matter, and draws from this source a flexibility and a power of growth and adaptation which are too much wanting in the litera scripta of enacted law.