In a case for which he could find no prec edent, Jessel, M. R., said : "I am afraid that, whatever I may call my decision, it will, in effect, be making law, which I never have any desire to do ; but I cannot find that the point is covered by any decided case, or even appears to have been discussed in any decided case. The only satisfaction I have in deciding the point is this, that it will in all probability be carried to a higher court, and it will be for that court to make the law, or, as we say, declare the law, and not for me." L. R. 13 Ch. Div. 798, 805.
It has been said that the phrase judicial legislation carries on its face the notion of judicial usurpation, and is habitually used by the courts as a term of reproach; but it is contended by the writer who admits this current use of the phrase, that, properly used, It means the growth of the law at the hand of the judges, and in that sense, so far from being an evil, "it is a desirable, and indeed a necessary, feature of our sys tem." 5 Harv. L. Rev. 172. In the discus sion of the subject the writer last cited con siders that with respect to much that has been written on the subject of judicial legis lation, the meaning cannot be fully under stood without taking into consideration the different theories as to the nature of law. Those writers who accept the theory of Aus: tin and Bentham are naturally found to use the terms judge-made law and judicial legis lation as terms meriting contempt, and in deed Bentham so characterizes the whole common law. On the other hand, those writers who take the opposite view and maintain that the origin of law is not com mand but custom, not only eliminate from consideration the idea of judicial legislation, but go so far as to limit the function of the legislature itself in the effort "to assist so ciety in getting rid of its old customs and forming new ones." Supporters of this view are James C. Carter, Rep. Am. Bar Ass'n, 1890, and Prof. Hammond, 1 Bla. Com., Ham mond's ed. § 2. See James C. Carter's The Law, etc. The writer in the Harvard Law Review already cited discusses these con flicting views, giving preference to a third theory, intermediate between these two ex tremes, developed by Lawrence, Essay, Int. L., 2d ed. eh. i. The result Is that, in what has been written on the subject of judicial legislation by the advocates of these various theories, there is less difference than is ap parent on the surface, and that the process itself 'is recognized by all, though under different names. The importance of the sub ject is greatly enhanced in English law by the binding authority which is attributed to former decisions, and the reverence which is accorded to precedent. The conclusion reach ed is that judicial legislation is a necessary element in the development of the common law, but no precise rules can be laid down either as to the extent to which it should. properly go, or how far a judge, in carrying on the process, may undertake to discard old doctrines and substitute new ones.
Lord Esher, M. R., has attempted to dis tinguish between "fundamental propositions of law" which might be changed only by parliament, and the "evidence of the exist ence of such a proposition," which was with in the disposition of the court; 25 Q. B. Div. 57; but as it is very properly remarked, there is no test suggested to enable a court to make this discrimination.
"In substance the growth of the law is leg islative, and this in a deeper sense than that what the courts declare to have been the law is in fact new. It is legislative in its grounds. The very considerations which judges most rarely mention, and always with an apology, are the secret root from which the law draws all the juices of life. I mean, of course, considerations of what is expedi ent for the community concerned. Every im portant principle which is developed by liti gation is in fact and at the bottom the re sult of more or less definitely understood views of public policy; most generally, to be sure, under our practice and traditions, the unconscious result of instinctive prefer ' ences and inarticulate convictions, but none the less traceable to views of public policy in the last analysis." 0. W. Holmes, Jr., The Common Law 35.
"I cannot understand how any person who has considered the subject can suppose that society could have possibly gone on if the judges had not legislated, or that there is any danger whatever in allowing them that power which they have in fact exercised, to make up for the negligence or the incapacity of the avowed legislator. That part of the law of every country which was made by the judges has been far better made than that part which consists of statutes enacted by the legislature." Austin, note to• Lect. V.
"No intelligent lawyer would at this !lay pretend that the decisions of the courts do not add to and alter the law. The courts themselves, in the course pf the reasons given for those decisions, constantly and freely use language admitting that they do. . . . But English judges are bound to give their decisions in conformity with the settled gen eral principles of English law, with any ex press legislation applicable to the matter in hand, and with the authority of their prede cessors and their own former decisions. At the same time they are bound to find a de cision for every case, however novel it may be; and that decision will be authority for other like cases, in future; therefore it is part of their duty to lay down new rules if required." Pollock's Notes to Maine's Anc. Law 46. See also Pollock, Expans. of C. L. 49 ; 20 L. Q. R. 406.
In the appendix to Lewis' Law of Perpe tuity, in the Report of the Real Property Commissioners (1832), Lord Campbell, Chair man, it is said : "At an early period (18 Edw. I) an act, commonly called the statute de donis conditionalibus, created a direct perpetuity, by enabling parties to establish a perpetual and unalienable entail ; and this continued until the ingenuity and good sense of judges, withott the aid of the legislature, and in opposition to a positive act of parlia ment, enabled tenants in tail to unfetter their estates, in favor of the free circulation of property." "Judge-made law is subject to certain limitations. It cannot openly declare a new principle of law ; it must always take the form of a deduction of some legal principle whereof the validity is admitted, or of some application or interpretation of some statu tory enactment." Dicey, Law and Opinion in England 486.
See paper by A. H. F. Lefroy, 22 L. Q. Rev. 293, 416.
See JUDICIAL POWER ; DICTUM; JUDICIAL DECISIONS; PRECEDENTS ; LAW ; FICTIONS.