At least in some countries, a final function of the courts is the power to create and develop the law. The law they make is known as “case law” or “judge-made law” in Latin countries, jurisprudence. This power results from the judges’ universal right to construe and interpret statutes, and in Anglo-Saxon countries, to decide what is the common law when there is no statute covering the question at issue.
On account of the deficiencies and ambiguities of language and the carelessness and incompetency of parliamentary drafters, statutes’ meaning is frequently not clear. When the judges are called on to apply them, they must decide what the legislature intended them to mean. It often happens that the statute has no meaning at all since the question raised in connection.
With it is one which never occurred to the legislature, and that body could not, therefore, have intended to deal with it or express any opinion on it. In such a case, it belongs to the judges to determine not what the legislature meant but to guess what it would have intended on a point not present; if the point had been present, that is, they must legislate to fill up the casus omissus.
This is not only the right of the judge but a duty. Thus in France, the civil code declares that 3% judge who refuses to decide a Case on the pretext that the law is silent or obscure or insufficient may be prosecuted on the charge of denying justice to the litigant. In these circumstances, the judge must necessarily make the law.
In this way, the Roman judges built up an immense body of law from the meager fabric of the Twelve Tables, and in like manner, the body of the English common law owes its existence in large measure to the judges. Professor Dicey remarks that a large part and many would add the best part of England’s law is judge-made law.
It-in eludes the greater part of the law of contract, almost the whole of the law of torts, all the rules or doctrines of equity, and the body of law known as the “conflict of laws,” or, as it is sometimes called, the body of private international law. This vast body of law was never enacted by parliament and is not recorded in the statute books; it is the judges’ work and is to be found in the reports of the courts.
It may also be added that many important acts of parliament are little more than statutory declarations of the law, which had already been built up by the courts. Likewise, in some continental European countries, they were judicial. Precedents play a much less important role than in England; the quantity of judge-made law is considerable. Thus in France, almost the whole body of administrative law (the Droit administrative) has been built up by the Council of State’s decisions, the supreme administrative court 9f the country.
Nevertheless, there is a school of jurists who maintain that in such cases, what the judge really does is not to “make” the law but to “find” it. That is, he merely determines what is the existing custom concerning the point at issue and officially stamps it with his approval.
This was the view of the late James C. Carter, an eminent American lawyer, who maintained that the common law judges in Anglo-Saxon countries were not the common law creators, but rather its discoverers. This was the orthodox theory long followed. It assumed that the common law was nothing but customary law and that the function of the judge was merely to find it, not to make it. Therefore, the courts’ reported decisions were merely evidence of the customs and the law derived therefrom, not the law’s sources itself.
But the preponderance of juristic opinion today is that the judges, at least of Great Britain and America, make law utilizing the precedents they establish through their decisions. However, the notion of “judge~made” law has from the first found able critics, such as Bentham, and they do not lack today. The idea connotes “judicial usurpation” of functions that properly belongs only to the legislature.
But the better opinion is that judicial legislation is a necessary element in the development of the common law. “Human affairs being what they are,” said Lord Bryce, “there must be a loop-hole “for expansion or extension in some part of every scheme of government, and if the constitution is rigid, Flexibility must be supplied from the minds of the judges.
The decisions of the courts which make or declare the law are known as precedents. Precedents have doubtless exercised great influence in all law systems, but their influence has been especially great in the Anglo-American system. In Great Britain, the British colonies and dominions, and the United States, a precedent has authority; it is not merely evidence of the law but also a law source. The courts, in principle, are bound t6 follow it. In France, Germany, and on the Continent generally, where the law is codified, however, judicial precedents are not binding even upon the inferior courts they have no more legal authority than the Opinions of text writers and commentators, though in practice great respect is shown them and they are often followed.
Sir Frederick Pollock, an eminent English jurist, compares the case law system to the method of natural science. As science grows and develops with each new experiment, so are decisions in each case a step in law growth, a new datum for future reasoning. The underlying principle of a decision that constitutes a precedent is called the ratio decidendi. Anything said by the judge who is not required to support the decision is obiter dicta, and it has not the force of law and is not binding upon the judges in future cases.
Precedents are of two general kinds: first, those who create law for the future and those who merely declare the preexisting law. The latter are naturally much more numerous than the former, though creative precedents are far more important. Precedents have also been classified as authoritative and persuasive. An authoritative precedent is one which the judges in future-cases must follow whether they approve it or not. A persuasive precedent is not obligatory but will be taken into consideration and given such weight as in the opinion of the judge it seems to deserve. Examples of authoritative precedents are the decisions of the superior courts, which are binding upon all inferior courts; examples of persuasive precedents are foreign courts’ decisions (especially as among Anglo-Saxon countries).
The Principle of Stare Decisis.
As stated above, judicial precedents of an authoritative character are generally binding on the judges; they are at liberty to depart from them. Superior courts may even overrule them when in the Opinion of the judge, and they are wrong because, contrary to law or reason, albeit in practice, this is rarely done in the United States or the British Empire.
In those countries, the doctrine of stare decisis is a fundamental principle of jurisprudence. While it tends to sacrifice the rational development of the law to the maintenance of certainty, it is believed that the advantages of the latter outweigh in the long run the disadvantages.
When a precedent has been established, rights become vested under it, and contracts are entered into the expectation that it will be maintained. Therefore, justice may require that the precedent be allowed to stand, although it was originally founded on error. “It is better,” said Lord Eldon, “that the law should be certain than that every judge should speculate upon improvements in it.” But on the continent of Europe, a different view and practice prevail.
There it is believed that the disadvantage of following an outworn precedent or one which was wrong from the first is greater than the temporary or occasional inconvenience or injustice which may result from disregarding it.
Therefore, the development of the law should proceed along the lines of rational principles and abstract justice rather than upon the strict rule of stare decisis. As to which system possesses the preponderance of advantage, there will probably always be a difference of opinion and practice.