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The Emperor was also Chief Justice, and questions were being constantly brought to him to decide. From him there was no appeal, and his decisions made the law upon which all lesser judges based their rulings. And curiously enough we are dealing most extensively in judge-made law even today.
Briefly, however, I am content to say that, while he starts from Bentham, and admits Bentham's fundamental principles, he has become convinced by experience that Bentham's onslaught upon 'judge-made law, and legal fictions, and the 'fee-gathering' system, was in great part due to misunderstanding. The law requires to be systematised and made clear rather than to be substantially altered.
These laws were either written in detail, or consisted of certain acknowledged ancient maxims of which the Brehon made the application in each particular case, answering to what we call "Judge-made law."
These laws were either written in detail, or consisted of certain acknowledged ancient maxims of which the Brehon made the application in each particular case, answering to what we call "Judge-made law."
Even in this country we have had complaints of judge-made law; even in this country, where the standard of morality is higher than in almost any other part of the world; where, during several generations, not one depositary of our legal traditions has incurred the suspicion of personal corruption; where there are popular institutions; where every decision is watched by a shrewd and learned audience; where there is an intelligent and observant public; where every remarkable case is fully reported in a hundred newspapers; where, in short, there is everything which can mitigate the evils of such a system.
This is the way you make laws for your dog, and this is the way the judges make laws for you and me. The 'tyranny of judge-made law' is 'the most all-comprehensive, most grinding, and most crying of all grievances, and is scarcely less bad than 'priest-made religion. Legal fictions, according to him, are simply lies.
Then other judges construed his decisions as law, and the lesser courts cited the upper ones, until Gibbon says, "There grew up such a mass of judge-made laws that a skilful lawyer could prove anything, and legal practise swung on the ability to cite similar cases and call attention to desired decisions." In America we are now back exactly to the same condition.
It is not to be inferred from this name that the laws are judge-made.
But judge-made law, where there is an absolute government and a lax morality, where there is no bar and no public, is a curse and a scandal not to be endured. It is time that the magistrate should know what law he is to administer, that the subject should know under what law he is to live.
It was a characteristic error to exaggerate the simplicity of their problem, and to fail to see that 'judge-made' law corresponds to a necessary inductive process by which the complex and subtle differences have to be gradually ascertained and fitted into a systematic statement. One other remark suggests itself.
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