United States or Turkey ? Vote for the TOP Country of the Week !
They naturally exaggerated in some respects the completeness of the triumph. The English law has not yet been codified, and it was characteristic of the Benthamite school to exaggerate the facility of that process. In their hatred of 'judge-made law' they assumed too easily that all things would be arranged into convenient pigeon-holes as soon as 'Judge and Co. were abolished.
Any changes, required by the growth of new social conditions, had to be made under pretence of applying the old rules supposed to be already in existence. Thus grew up the system of 'judge-made law, which was to become a special object of the denunciations of Bentham. Child had noticed the incompetence of the country-gentlemen to understand the regulation of commercial affairs.
The legislation under Cromwell was all repealed; but the bulk, both under him and after, was far greater. For legislation seems to be considered a democratic idea; "judge-made law" to be thought aristocratic.
One fruitful source of all these evils was the 'judge-made' law, which Bentham henceforth never ceased to denounce. His ideal was a distinct code which, when change was required, should be changed by an avowed and intelligible process.
Some of these laws are of legislative origin; others are judge-made laws, brought out by the exigencies of special cases which came before the courts for determination. Some day they will, perhaps, become mere curiosities of jurisprudence; the "black laws" will be bracketed with the "blue laws," and will be at best but landmarks by which to measure the progress of the nation.
So is the book not one for lawyers alone; it seeks to cover both what has been accomplished by law-making in the past, and what is now being adopted or even proposed; the history of statutes of legislation by the people as distinct from "judge-made" law; how far legislatures can cure the evils that confront the state or the individual, and what the future of American legislation is likely to be.
'Our constitution, says Professor Dicey, 'is a judge-made constitution, and it bears on its face all the features, good and bad, of judge-made law. The law of landed property, meanwhile, was of vital and immediate interest to the country-gentleman. But, feeling his own incompetence, he had called in the aid of the expert.
Perhaps we begin to detect the prejudice in the general mind, which is notable in the works of a few earlier theorists, to prefer statute law to what is known as judge-made law, on that ground alone. The writer is not of the school that admits there is such a thing as judge-made law, but believes the phrase to be a misnomer, at least in ninety-nine cases out of a hundred.
The fact is, blasphemy is a judge-made crime, and the "blasphemer's" fate depends very largely on who tries him. Lord Coleridge holds one view of the law, Sir James Stephen another, and Justice North another still. Nay, the last judge differs even from himself.
Word Of The Day