§ 69 Respective Functions of Judges and Juries
The division of judicial functions between judge and jury creates a difficulty in the theory of precedent which requires some consideration. It is commonly said that all questions of fact are for the jury, and all questions of law for the judge. But we have already seen that original precedents are answers to questions of fact, transforming them for the future into questions of law. Are such precedents, then, made by juries instead of by judges? It is clear that they neither are nor can be. No jury ever answers a question on principle; it gives decisions, but no reasons; it decides in concreto, not in abstracto. In this respect the judicial action of juries differs fundamentally from that of judges. The latter decide on principle, whenever this is possible; they formulate the ratio decidendi which underlies their decision; they strive after the general and the abstract, instead of adhering to the concrete and the individual. Hence it is that the decision of a judge may constitute a precedent, while that of a jury cannot. But in composite tribunals, where the jury decides the facts and the judge the law, how does the judge obtain any opportunity of establishing precedents and creating new law? If the matter is already governed by law, it will of course fall within his province; but if it is not already so governed, is it not a pure question of fact which must be submitted to the jury, to the total destruction of all opportunity of establishing any precedent in respect of it? The truth of the matter is that, although all questions of law are for the judge, it is very far from being true that all questions of fact are for the jury. There are very extensive and important portions of the sphere of fact which fall within the jurisdiction of the judge, and it is within those portions that the law-creating operation of judicial decisions takes place. No jury, for example, is ever asked to interpret a statute or, speaking generally, any other written document. Yet unless there is already some authoritative construction in existence, this is pure matter of fact. Hence that great department of case-law which has its origin in the judicial interpretation of statute law. The general rule—consistently acted on, though seldom expressly acknowledged—is that a judge will not submit to a jury any question which he is himself capable of answering on principle. Such a question he answers for himself; for since it can be answered on principle, it provides a fit occasion for the establishment of a precedent and a new rule of law. It ought to be a matter of law, and can only become what it ought to be, by being kept from the jury and answered in abstracto by the judge. The only questions which go to a jury are those questions of fact which admit of no principle, and are therefore the appropriate subject-matter of those concrete and unreasoned decisions which juries give.169
We have said that this rule, though acted on, is not expressly acknowledged. The reason is that judges are enabled to avoid the acknowledgment through recourse to the declaratory theory of precedent. As between judge and jury this theory is still in full force and effect, although when the rights and privileges of juries are not concerned, the courts are ready enough at the present day to acknowledge the essential truth of the matter. As between judge and jury, questions of fact are withdrawn from the exclusive cognizance of the latter by means of the legal fiction that they are already questions of law. They are treated proleptically as being already that which they are about to become. In a completely developed legal system they would be already true questions of law; the principle for their decision would have been already authoritatively determined. Therefore the judges make bold to deal with them as being already that which they ought to be, and thus the making of the law by way of precedent is prevented from openly infringing upon the rights of juries to decide all questions which have not already been decided by the law.