 section 11 of Jurisprudence. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer please visit LibriVox.org. Recording by Ian Stewart, Rosanna, Victoria, Australia. Jurisprudence by John Salmond, Chapter 7. Legislation. Chapter 7. Legislation. Section 50. The nature of legislation. Legislation is that source of law which consists in the declaration of legal rules by a competent authority. It is such an enunciation or promulgation of principles as confers upon them the force of law. It is such a declaration of principles as constitutes a legal ground for their recognition as law for the future by the tribunals of the state. Although this is the strict and most usual application of the term legislation, there are two other occasional uses of it which require to be distinguished. It is sometimes used in a wide sense to include all methods of lawmaking. To legislate is to make new law in any fashion. Any act done with the intent and the effect of adding to or altering the law is in this wider sense an act of legislative authority. As so used legislation includes all the sources of law and not merely one of them. There can be no law says Austin without a legislative act. Thus when judges establish a new principle by means of a judicial decision they may be said to exercise legislative and not merely judicial power. Yet this is clearly not legislation in the strict sense already defined. The law creative efficacy of precedent is to be found not in the mere declaration of new principles but in the actual application of them. Judges have in certain cases true legislative power as where they issue rules of court. But in ordinary cases the judicial declaration of the law unaccompanied by the judicial application of it has no legal authority whatever. So the act of the party sent to a contract in laying down rules of special law for themselves to the exclusion of the common law may be regarded as an exercise of legislative power. But though they have made law they have made it by way of mutual agreement for themselves not by way of authoritative declaration for other persons. The writers who make use of the term in this wide sense divide legislation into two kinds which they distinguish as direct and indirect. The former is legislation in the narrow sense the making of law by means of the declaration of it. Indirect legislation on the other hand includes all other modes in which the law is made. In a third sense legislation includes every expression of the will of the legislature whether directed to the making of law or not. In this use every act of parliament as an instance of legislation irrespective altogether of its purpose and effect. The judicature as we have seen does many things which do not fall within the administration of justice in its strict sense. Yet in a wider use the term is extended to include all the activities of the courts. So here the legislation does not confine its action to the making of law yet all its functions are included within the term legislation. An act of parliament may do no more than ratify a treaty with a foreign state or alter the calendar or establish a uniform time throughout the realm or make some change in the style and title of the reigning sovereign or alter the coinage or appropriate public money or declare war or make peace or grant a divorce or annex or abandon territory. All this is legislation in a wide sense but it is not that declaration of legal principles with which as one of the sources of law we are here alone concerned. Law that has its source in legislation may be most accurately termed enacted law or other forms being distinguished as unenacted. The more familiar term however is statute law as opposed to the common law but this though sufficiently correct for most purposes is defective in as much as the word statute does not extend to all modes of legislation but is limited to acts of parliament. Blackstone and other writers use the expressions written and unwritten law to indicate the distinction in question. Much law however is reduced to writing even in its inception besides that which originates in legislation. The terms that arrived from the Romans who meant by us non scriptum customary law or other whether enacted or unenacted being us scriptum. We shall see later that according to the older theory as we find it in Blackstone and his predecessors all English law proceeds either from legislation or from custom. The common law was customary and therefore adopting the Roman usage unwritten law all the residue was enacted and therefore written law. Section 51 supreme and subordinate legislation. Legislation is either supreme or subordinate the former is that which proceeds from the supreme or sovereign power in the state and which is therefore incapable of being repealed annulled or controlled by any other legislative authority. Subordinate legislation is that which proceeds from any authority other than the sovereign power and is therefore dependent for its continued existence and validity on some superior or supreme authority. The legislation of the imperial parliament is supreme for what the parliament does no authority upon earth can undo while other forms of legislative activity recognized by the law of England are subordinate. They may be regarded as having their origin in a delegation of the power of parliament to inferior authorities which in the exercise of their delegated functions remains subject to the control of the sovereign legislature. The chief forms of subordinate legislation are five in number. One, colonial. The powers of self-government entrusted to the colonies and other dependencies of the crown are subject to the control of the imperial legislature. The parliament at Westminster may repeal, alter or supersede any colonial enactment and such enactments constitute accordingly the first and most important species of subordinate legislation. Two, executive. The essential function of the executive is to conduct the administrative departments of the state but it combines with this certain subordinate legislative powers which have been expressly delegated to it by parliament or pertain to it by the common law. A statute, for example, occasionally entrusts to some department of the executive government the duty of supplementing the statutory provisions by the issue of more detailed regulations bearing on the same matter. So it is part of the prerogative of the crown at common law to make laws for the government of territories acquired by conquest and not yet possessed of representative local legislatures. Three, judicial. In the same way certain delegated legislative powers are possessed by the judicature. The superior courts have the power of making rules for the regulation of their own procedure. This is judicial legislation in the true sense of the term differing in this respect from the so-called legislative action of the courts and creating new law by way of precedent. Four, municipal. Municipal authorities are entrusted by the law with limited and subordinate powers of establishing special law for the districts under their control. The enactments so authorised are termed bylaws and this form of legislation may be distinguished as municipal. Five, autonomous. All the kinds of legislation which we have hitherto considered proceed from the state itself, either in its supreme or in one or other of its many subordinate departments. But this is not necessary the case, for legislation is not a function that is essentially limited to the state. The declaration of new principles amounts to legislation not because it is the voice of the state, but because it is accepted by the state as a sufficient legal ground for giving effect to those new principles in its courts of justice. The will of the state is indeed, as we have already seen, the one and only formal source of law. But it does not follow from this that the word of the state is the sole form of that material source of the law which is called legislation. In the allowance of new law, the state may harken to other voices than its own. In general indeed, the power of legislation is far too important to be committed to any person or body of persons, save the incorporate community itself. The great bulk of enacted law is promulgated by the state in its own person, but in exceptional cases it has been found possible and expedient to entrust this power to private hands. The law gives to certain groups of private individuals limited legislative authority touching matters which concern themselves. A railway company, for example, is able to make bylaws for the regulation of its undertaking. A university may make statutes binding upon its members. A registered company may alter those articles of association by which its constitution and management are determined. Legislation, thus affected by private persons, and the law so created, may be distinguished as autonomic. There is a close resemblance between autonomic law and conventional law, but there is also a real distinction between them. The creation of each is a function entrusted by the state to private persons. But conventional law is the product of agreement and therefore is law for none except those who have consented to its creation. Autonomic law, on the contrary, is the product of a true form of legislation and is imposed by superior authority in in VITOS. The act of a general meeting of shareholders in altering the articles of association is an act of autonomous legislation because the majority has the power of imposing its will in this respect upon a dissentient minority. All the shareholders may in fact agree, but the law creating efficacy of their resolution is independent of any such accidental unanimity. We may say, if we please, that with respect to consenting shareholders, the resolution is an agreement, while with respect to dissentience, it is an act of legislative authority. The original articles of association, on the other hand, as they stand when the company is first formed, constitute a body of conventional, not autonomic law. They are law for all shareholders by virtue of their own agreement to become members of the company and are not the outcome of any subsequent exercise of legislative authority vested in the majority. Section 52, relation of legislation to other sources. So great is the superiority of legislation over all other methods of legal evolution that the tendency of advancing civilisation is to acknowledge its exclusive claim and to discard the other instruments as relics of the infancy of law. The expressed will of the state tends to obtain recognition not only as the sole formal source of law, but as its exclusive material source also. Statute law has already become the type or standard from which the other forms are more or less abnormal variations. Nothing is more natural than this from our modern point of view. Nothing less natural from that of primitive jurisprudence. Early law is conceived as yours, the principles of justice, rather than as legs, the will of the state. The function of the state in its earlier conception is to enforce the law, not to make it. The rules so to be enforced are those rules of right which are found realised in the immemorial customs of the nation, are which are sanctioned by religious faith and practice, are which have been divinely revealed to men. It is well known that the earliest codes were the work not of mortal men, but of the gods, that the material contents of the law depend upon the expressed or tacit will of the state, that principles sanctioned by religion or immemorial usage are laws only so long as the prince chooses to retain them unaltered, that it is within the powers and functions of political rulers to change, and subvert the laws at their own good pleasure are beliefs which mark considerable progress along the road of political and legal development. Until such progress has been made and until the petrifying influence of the primitive alliance of law with religion and immutable custom has been to some extent dissolved. The part played by human legislation in the development of the legal system is necessarily small and may be even non-existent, as it is the most powerful, so it is the latest of the instruments of legal growth. In considering the advantages of legislation it will be convenient to contrast it specially with its most formidable rival, namely precedent. So considered the first virtue of legislation lies in its abrogative power. It is not merely a source of new law, but is equally effective in abolishing that which already exists. But precedent possesses merely constitutive efficacy. It is capable of producing very good law, better in some respects than that which we obtain by way of legislation. But its defect is that, except in a very imperfect and indirect manner, its operation is irreversible. What it does, it does once for all. It cannot go back upon its footsteps and do well what it has once done ill. Legislation therefore is the indispensable instrument, not indeed of legal growth, but of legal reform. As a destructive and reformative agent it has no equivalent and without it all law is as that of the Medes and Persians. The second respect in which legislation is superior to precedent is that it allows an advantageous division of labor, which here as elsewhere results in increased efficiency. The legislature becomes differentiated from the duty couture. The duty of the former being to make law. All that of the latter is to interpret and apply it. Speaking generally a legal system will be best administered when those who administer it have this as their sole function. Precedent, on the contrary, unites in the same hands the business of making the law and that of enforcing it. It is true however that legislation does not necessarily involve any such division of functions. It is not of the essence of this form of legal development that it should proceed from a distinct department of the state, whose business it is to give laws to the duty couture. It is perfectly possible for the law to develop by a process of true legislation in the absence of any legislative organ other than the courts of justice themselves. We have already noticed the existence of this judicial legislation in considering the various forms of subordinate legislative power. The most celebrated instance of it is the case of the Roman Praetor. In addition to his purely judicial functions he possessed the use edicendi, that is to say legislative powers in respect of the matters pertaining to his office. It was customary for each praetor at the commencement of his term of office to publish an edictum containing a declaration of the principles which he intended to observe in the exercise of his judicial functions. Each such edict was naturally identical in its main outlines with that which preceded it. The alterations made in the old law by each successive praetor being for the most part accepted by his successes. By this exercise of legislative power on the part of judicial officers a very considerable body of new law was in course of time established, distinguished as the use praetorium from the older use sevilla. Powers of judicial legislation similar in kind, though less in extent, are at the present day very generally conferred upon the higher courts of justice. Yet they're not theoretically necessary it is certainly expedient that at least in its higher forms the function of lawmaking should be vested in a department of the state superior to and independent of the judicature. A third advantage of statute law is that the formal declaration of it is a condition precedent to its application in courts of justice. Case law on the contrary is created and declared in the very act of applying and enforcing it. Legislation satisfies the requirement of natural justice that laws shall be known before they are enforced. But case law operates retrospectively being created pro- reignata and applied to facts which are prior and date to the law itself. Fourthly legislation can by way of anticipation make rules for cases that have not yet arisen whereas precedent must need wait until the actual concrete instance comes before the courts for decision. Precedent is dependent on legislation independent of the actual course of litigation. So far as precedent is concerned a point of law must remain unsettled until by chance the very case arises. Legislation can fill up a vacancy or settle a doubt in the legal system as soon as the existence of this defect is called to the attention of the legislature. Case law therefore is essentially incomplete, uncertain and unsystematic. While if statute law shows the same defect it is only through the lethargy or incapacity of the legislature. As a set off against this demerit of precedent it is to be observed that a rule formulated by the duty couture in view of the actual case to which it is to be applied is not unlikely to be of better workmanship and more carefully adapted to the ends to be served by it than one laid down a priori by the legislature. Finally statute law is greatly superior to case law in point of form. The product of legislation assumes the form of abstract propositions but that of precedent is merged in the concrete details of the actual cases to which it owes its origin. Statute law therefore is brief clear easily accessible and knowable while case law is buried from sight and knowledge in the huge and daily growing mass of the records of bygone litigation. Case law is gold in the mine, a few grains of the precious metal to the ton of useless matter while statute law is coin of the realm ready for immediate use. This very perfection of form however brings with it a defect of substance from which case law is free. Statute law is embodied in an authoritative form of written words and this literary expression is an essential part of the law itself. It is the duty of the courts to apply the letter of the law. They are concerned with the spirit and reason of it only so far as the spirit and reason have succeeded in finding expression through the letter. Case law on the contrary has no letter it has no authoritative verbal expression and there is no barrier between the courts of justice and the very spirit and purpose of the law which they are called on to administer. In interpreting and applying statute law the courts are concerned with words and their true meaning. In interpreting and applying case law they are dealing with ideas and principles and their just and reasonable contents and operation. Statute law is rigid straightly bound within the limits of authoritative formulae. Case law with all its imperfections has at least this merit that it remains in living contact with the reason and justice of the matter and draws from this source of flexibility and the power of growth and adaptation which are too much wanting in the literal script of enacted law. Section 53 codification. The advantages of enacted law so greatly outweighs its defects that there can be no doubt as to the ultimate issue of its rivalry with the other forms of legal development and expression. The whole tendency in modern times is towards the process which since the days of Bentham has been known as codification. That is to say the reduction of the whole corpus eurus so far as practicable to the form of enacted law. In this respect England lags far behind the continent. Since the middle of the 18th century the process has been going on in European countries that is now all but complete. Nearly everywhere the old medley of civil canon customary and enacted law has given place to codes constructed with more or less skill and success. Even in England and the other countries to which English law has spread tentative steps are being taken on the same road. Certain isolated and well-developed portions of the common law such as the law of bills of exchange of partnership and of sale have been selected for transformation into statutory form. The process is one of exceeding difficulty owing to the complexity and elaboration of English legal doctrine. Many portions of the law are not yet ripe for it and premature codification is worse than none at all. But the final result is not doubtful. Codification must not be understood to involve the total abolition of precedent as a source of law. Case law will continue to grow even when the codes are complete. The old theory now gradually disappearing but still true in most departments of the law is that the common law is the basis and groundwork of the legal system legislation being nothing more than a special instrument for its occasional modification or development. Unenacted law is the principle and enacted law is merely accessory. The activity of the legislature is called for only on special occasions to do that which lies beyond the constructive or remedial efficacy of the common law. Codification means not the total disappearance of case law but merely the reversal of this relation between it and statute law. It means that the substance and body of the law shall be enacted law and that case law shall be incidental and supplementary only. In the most carefully prepared of codes subtle ambiguities will come to light real or apparent inconsistencies will become manifest and omissions will reveal themselves. No legislative skill can effectually anticipate the complexity and variety of the facts. The function of precedent will be to supplement, to interpret, to reconcile and to develop the principles which the code contains. Out of the code itself therefore a body of case law will grow as a judicial commentary and supplement. It will be expedient from time to time that this supplementary and explanatory case law be itself codified and incorporated into successive editions of the code. But so often as this is done the process of interpretation will begin again with the like results. Section 54 the interpretation of enacted law. We have seen that one of the characteristics of enacted law is its embodiment in authoritative formulae. The very words in which it is expressed the letter a scriptor constitute a part of the law itself. Legal authority is possessed by the letter no less than by the spirit of the enactment. Other forms of law with the exception of written conventional law which in this respect stands by the side of statutory have no fixed and authoritative expression. There is in them no letter of the law to stand between the spirit of the law and its judicial application. Hence it is that in the case of enacted law a process of judicial interpretation or construction is necessary which is not called for and respect of customary or case law. By interpretation or construction is meant the process by which the courts seek to ascertain the meaning of the legislature through the medium of the authoritative forms in which it is expressed. Interpretation is of two kinds which continental lawyers distinguish as grammatical and logical. The former is that which regards exclusively the verbal expression of the law. It does not look beyond the littera legis. Logical interpretation on the other hand is that which departs from the letter of the law and seeks elsewhere for some other and more satisfactory evidence of the true intention of the legislature. It is essential to determine with accuracy the relations which subsist between these two methods. It is necessary to know in what circumstances grammatical interpretation is alone legitimate and when on the contrary it is allowable to accept instead the divergent results that may be attainable by way of logical interpretation. In other words we have to determine the relative claims of the letter and the spirit of enacted law. The true principles on this matter seem to be the following. The duty of the duty couture is to discover and act upon the true intention of the legislature. The men's or sentential legis. The essence of the law lies in its spirit not in its letter. For the letter is significant only as being the external manifestation of the intention that underlies it. Nevertheless in all ordinary cases the courts must be content to accept the littera legis as the exclusive and conclusive evidence of the sentential legis. They must in general take it absolutely for granted that the legislature has said what it meant and meant what it has said. Itascriptum S is the first principle of interpretation. Judges are not at liberty to add to or take from or modify the letter of the law simply because they have reason to believe that the true sentential legis is not completely or correctly expressed by it. That is to say in all ordinary cases grammatical interpretation is the sole form allowable. To this general principle there are two exceptions. There are two cases in which the littera legis need not be taken as conclusive and in which the sentential legis may be sought from other indications. The first of these cases is that in which the letter of the law is logically defective. That is to say when it fails to express some single definite coherent and complete idea. The logical defects by which the littera legis may be affected are three in number. The first is ambiguity. For a statute instead of meaning one thing may mean two or more different things. In such case it is the right and duty of the courts to go behind the letter of the law and to us attain from other sources as best they can the true intention which has thus failed to attain perfect expression. When a statutory provision is capable of two meanings it is commonly though not invariably the case that one of these is more natural obvious and consonant with the ordinary use of language than the other. The interpretation of an ambiguous law is therefore of two kinds according as it accepts the more natural and obvious meaning or rejects it in favor of another which conforms better to the intention of the legislature though worse to the familiar usages of speech. The former mode of interpretation is termed literal or strict and the latter may be distinguished as equitable. The general principle is that interpretation must be literal unless there is some adequate reason to the contrary. In the absence of sufficient indications that the legislature has used words in some less natural and obvious sense their literal and ordinary signification will be attributed to them. The maintenance of a just balance between the competing claims of these two forms of interpretation is one of the most important elements in the administration of statute law. On each side there are dangers to be avoided undue laxity on the one hand sacrifices the certainty and uniformity of the law to the arbitrary discretion of the judges who administer it. While undue strictness on the other hand sacrifices the true intent of the legislature and the rational development of the law to the tyranny of words. Scheray ledges said the Romans non hoc est verba carum tenere sel vim ac potestatum. A second logical defect of statutory expression is inconsistency. A law instead of having more meanings than one may have none at all. The different parts of it being repugnant so as to destroy each other's significance. In this case it is the duty of the duty couture to ascertain in some other way the true cententee oligus and to correct the letter of the law accordingly. Lastly the law may be logically defective by reason of its incompleteness. The text of the neither ambiguous nor inconsistent may contain some lacuna which prevents it from expressing any logically complete idea. For example where there are two alternative cases the law may make provision for one of them and remain silent as to the other. Such omissions the courts may lawfully supply by way of logical interpretation is to be noted however that the omission must be such as to make the statute logically incomplete. It is not enough that the legislature meant more than it said and failed to express its whole mind. If what it has said is logically complete giving expression to a single intelligible and complete idea the courts have no lawful concern with anything else that the legislature may have meant but not said. Their duty is to apply the letter of the law therefore they may alter or add to it so far as is necessary to make its application possible but they must do nothing more. It has been already said that there are two cases in which logical interpretation is entitled to supersede grammatical. The first of these namely that of some logical defect in the literal legis has been considered. The second is that in which the text leads to a result so unreasonable that it is self-evident that the legislature could not have meant what it has said. For example there may be some obvious clerical error in the text such as a reference to a section by the wrong number or the omission of a negative in some passage in which it is clearly required. In considering the logical defects of the literal legis we have tacitly assumed that by going behind the defective text it is always possible to discover a logically perfect sententee legis. We have assumed that the whole duty of the courts is to ascertain the true and perfect intention which has received imperfect expression. This is not so however. In a great number of cases the defects of the literal legis are simply the manifestation of corresponding defects in the sententee. If the legislature speaks ambiguously it is often because there is no single and definite meaning to be expressed. If the words of the legislature are self-contradictory it is possibly due to some repugnancy and confusion in the intention itself. If the text contains omissions which may get logically imperfect the reason is more often that the case in question has not occurred to the mind of the legislature than that there exists with respect to it a real intention which by inadvertence has not been expressed. What then is the rule of interpretation in such cases? May the courts correct and supplement the defective sententee legis as well as the defective litera legis? The answer is that they may and must. If the letter of the law is logically defective it must be made logically perfect and it makes no difference in this respect whether the defect does or does not correspond to one in the sententee legis itself. Where there is a genuine and perfect intention lying behind the defective text the courts must ascertain and give effect to it. Where there is none they must ascertain and give effect to the intention which the legislature presumably would have had. If the ambiguity, inconsistency or omission had been called to mind this may be regarded as the dormant or latent intention of the legislature and it is this which must be sought for as a substitute in the absence of any real and conscious intention. In the case of the sententee as formally in that of the litera legis it is to be noticed that the only defects which the courts may remedy are logical defects. That the intention of the legislature is ethically defective is not a fact with which the judicature has any concern. The sententee legis might have been wiser, juster or more expedient had it been wider or narrower or other than it actually is but the courts have no authority to detract from it add to it or alter it on that account. It may be that had a certain case being brought to the notice of the legislature the statute would have been extended to cover it but so long as it is logically complete and workable without the inclusion of this case it must stand as it is. If a statute makes a provision as to sheep which in common sense ought to have been extended to goats also this is the affair of the legislature not of the courts. To correct the sententee legis on logical grounds is a true process of interpretation. It fulfills the ultimate or dormant if not the immediate or conscious intention of the legislature but to correct it on ethical grounds is to assume and exercise legislative power. Summary legislation it's three senses one all forms of lawmaking divided into direct legislation and indirect legislation. Two all expression of the will of the legislature. Three the creation of law by way of authoritative declaration. Law divided into enacted statute written and unenacted common unwritten. Legislation divided into supreme and subordinate supreme by the imperial parliament and subordinate divided into one colonial two executive three judicial four municipal five autonomous. Historical relation of legislation to other sources of law superiority of legislation over other sources of law codification interpretation divided into grammatical based on the littera legis exclusively and logical divided into littera legis logically defective which is in turn divided into ambiguous inconsistent incomplete and littera legis containing self-evident error strict and equitable interpretation extensive and restrictive interpretation. End of section 11 recording by Ian Stewart, Rosanna, Victoria, Australia. Section 12 of Juris Prudence. This is a LibriVox recording all LibriVox recordings are in the public domain. For more information or to volunteer please visit LibriVox.org recording by Annie Roo. Juris Prudence by John Salmond. Chapter 8 Custom Section 55. The early importance of customary law. The importance of custom as a source of law continuously diminishes as the legal system grows as an instrument of the development of English law in particular it has now almost ceased to operate partly because it has to a large extent been superseded by legislation and precedent and partly because of the very stringent limitations imposed upon its law creating efficacy. The legal requirements of valid custom being such as few customs can at the present day conform to. In earlier times however it was otherwise it was long the received an official theory of English law that whatever was not the product of legislation had its source in custom. Law was either the written statute law or the unwritten common or customary law. Precedent was not conceived as being itself a legal source at all for it was how to operate only as evidence of those customs from which the common law proceeded. Lex at Consuitudo Angle was the familiar title of our legal system. The common law of the realm and the common custom of the realm were synonymous expressions. It may be gravely doubted whether at any time this doctrine expressed the truth of the matter but it is clear that it was much truer in the early days of our legal history than it subsequently became and it remained the accepted theory long after it had ceased to retain any semblance of the truth. For some centuries past the true sources of the great bulk of our law have been statute and precedent not statute and custom and the common law is essentially case law not customary law. Yet we find Hale in the 17th century and Blackstone in the 18th laying down the older doctrine as still valid in the words of Blackstone The municipal law of England may with sufficient propriety be divided into two kinds the Lex non-scripta the unwritten or common law and the Lex scripta the written or statute law. The Lex non-scripta or unwritten law includes not only general customs or the common law properly so-called but also the particular customs of certain parts of the kingdom and likewise those particular laws that are by custom observed only in certain courts and jurisdictions such language is an echo of the past not an accurate account of the facts of the present day nevertheless even now custom has not wholly lost its efficacy it is still one of the legal sources of the law of England and an examination of its nature and operation pertains to modern juridical theory and not merely to legal history or antiquities section 56 reasons for the reception of customary law the reasons for attributing to custom the force of law have been already briefly indicated in relation to legal sources in general we have seen that in the first place custom is the embodiment of those principles which have commended themselves to the national conscience as principles of truth justice and public utility the fact that any rule has already the sanction of custom raises a presumption that it deserves to obtain the sanction of law also via cheetah via tutta speaking generally it is well that the courts of justice in seeking for these principles of right which it is their duty to administer should be content to accept those which have already in their favor the prestige and authority of long acceptance rather than attempt the more dangerous task of fashioning a set of principles for themselves by the light of nature the national conscience may well be accepted by the courts as an authoritative guide and of this conscience national custom is the external and visible sign custom is to society what law is to the state each is the expression and realization to the measure of men's insight and ability of the principles of right and justice the law embodies those principles as they commend themselves to the incorporate community in the exercise of its sovereign power custom embodies them as acknowledged and approved not by the power of the state but by the public opinion of the society at large nothing therefore is more natural than that when the state begins to evolve out of the society the law of the state should in respect of its material contents be in great part modeled upon and coincident with the customs of the society when the state takes up its function of administering justice it accepts as true and valid the rules of right already accepted by the society of which it is itself a product and it finds those principles already realized in the customs of the realm as those custom develop and alter with change of circumstance and the growth of public enlightenment the state is wisely content to allow such development and modification to reflect themselves in the law which it administers the influence of custom upon law however is characteristic rather of the beginnings of the legal system than of its mature growth when the state has grown to its full strength and stature it acquires more self-confidence and seeks to conform national usage to the law rather than the law to national usage its ambition then is to be the source not merely of the form but of the matter of the law also but in earlier times it has perforced to content itself with conferring the form and nature of law upon the material content supplied to it by custom a second ground of the law creative efficacy of custom is to be found in the fact that the existence of an established usage is the basis of a rational expectation of its continuance in the future justice demands that unless there is good reason to the contrary men's rational expectations shall so far as possible be fulfilled rather than frustrated even if customs are not ideally just and reasonable even if it can be shown that the national conscience has gone astray in establishing them even if better rules might be formulated and enforced by the wisdom of the judicature it may be yet wise to accept them as they are rather than to overturn all those expectations which are based upon established practice section 57 the requisites of a valid custom in order that a custom may be valid and operative as a source of law it must conform to certain requirements laid down by law the chief of these are the following number one reasonableness a custom must be reasonable malus ousus avolendus est the authority of usage is not absolute but conditional on a certain measure of conformity with justice and public utility it is not meant by this that the courts are at liberty to disregard a custom whenever they are not satisfied as to absolute rectitude and wisdom or whenever they think that a better rule could be formulated in the exercise of their own judgment this would be to deprive custom of all authority either absolute or conditional the true rule is that a custom in order to be deprived of legal efficacy must be so obviously and seriously repugnant to right and reason that to enforce it as law would do more mischief than that which would result from the overturning of the expectations and arrangements based on its presumed continuance and legal validity we shall see when we come to discuss the theory of precedent how the authority of judicial decisions is in general similarly conditional rather than absolute a precedent which is plainly and seriously unreasonable may be overruled instead of followed we are told in the old books that a similar rule obtains in respect of the authority of acts of parliament themselves it was once held to be good law that an unreasonable act of parliament was void this indeed is no longer so for the law creating authority of parliament is absolute certain forms of subordinate legislation however are still subject to the rule in question an unreasonable bylaw for example is as void and unauthoritative as an unreasonable custom or precedent number two opinion necessitatis the second requisite of a valid custom is that which commentators on the civil law term opinion necessitatis by this is meant the conviction on the part of those who use a custom that it is obligatory and not merely optional custom merely as such has no legal authority at all it is legally effective only because and in so far as it is the expression of an underlying principle of right approved by those who use it when it is based on no such ethical conviction or opinion necessitatis when those who use it hold themselves free to depart from it if they will it is of no legal significance the only customs which are a source of law are those which are observed by the community as determining the rights and duties of its members three conformity with statute law the third condition of legal validity is that a custom must not be contrary to an act of parliament we shall see that certain forms of custom possess not merely constitutive but also limited abrogative power being capable of derogating from the old law as well as of creating new but no custom of any sort is of any validity against statute law the authority of legislation is in English law higher than that of custom by no length of disquietude can a statute become invalid and by no length of contrary usage can its provisions be modified in the smallest particular the common law will yield to immemorial usage but the enacted law stands forever it must not be supposed that this rule is one of necessity derived by logical inference from the nature of things it is nothing more than a positive principle of the law of England and a very different rule was adopted by roman law and by the various continental systems derived from it there the recognized maxim is lex posterior derogate priori the latter rule prevails over the earlier regardless of their respective origins legislation has no inherent superiority in this respect over custom if the enacted law comes first it can be repealed or modified by later custom if the customary law is the earlier it can be similarly dealt with by later enacted law if says sevigny we consider customs and statute with respect to their legal efficacy we must put them on the same level customary law may complete modify or repeal a statute it may create a new rule and substitute for it the statutory rule which it has abolished windshield the power of customary law is equal to that of statutory law it may therefore not merely supplement but also derogate from the existing law and this is true not merely of rules of customary law intersay but also of the relations of customary to statute law four immemorial antiquity the fourth requisite of the validity of a custom relates to the length of time during which it has been established here it is necessary to distinguish between two kinds of customs namely those which are general the customs of the realm prevailing throughout the whole territory governed by the legal system and those which are local being limited to some special part of the realm the rule of English law with respect to the necessary duration of a custom is that one which is merely local must have existed from time immemorial in this case of other customs however there is no such requirement it is therefore sufficient that the usage should be definitely established and its duration is immaterial a local custom must make up for the limited extent of its application by the long duration of its existence but other customs derive from their generality such measure of authority as does not require to be supplemented by length of days we shall see later how the idea of immemorial custom was derived by the law of England from the canon law and by the canon from the civil law time immemorial or time whereof the memory of man runs not means in the civil and canon law and in the systems derived therefrom and originally meant in England also time so remote that no living man can remember it or give evidence respecting it custom was immemorial when its origin was so ancient that the beginning of it was beyond human memory so that no testimony was available as to a time when it did not as yet exist in the 13th century however a very singular change took place in the meaning of the term the limit of human memory ceased to be a question of fact and was determined by a very unreasonable rule of law which still remains in force in consequence the interpretation put by the judges upon the statute of Westminster passed in the year 1275 it became an established legal principle that the time of memory reached back as far as the commencement of the reign of Richard I and no further from that day to this the law has remained unaltered the discordance between the memory of man as it is in fact and as it is in law has been steadily growing with the lapse of years so that at the present day the law of England imputes to living men a faculty of remembrance in standing back for seven centuries there is perhaps no more curious example of the conservatism of our law the rule therefore that a particular custom is invalid unless immemorial means in practice this that if he who disputes its validity can prove its non-existence at any time between the present day and the 12th century it will not receive legal recognition it is not necessary for the upholder of it to approve affirmatively its existence during the whole of that period if he can prove that it has existed for a moderate period say 20 years from the present day this will raise a presumption of its immemorial antiquity which must be rebutted by him who disputes it it is not difficult to understand the reason which induced the law to impose this stringent limitation upon the efficacy of local customs it was designed in the interest of a uniform system of common law for the whole realm had all manner of usages been recognized without any such limitation as having the force of special law the establishment and maintenance of a system of common law would have been rendered all but impossible customary law and customary rights infinitely various and divergent would have grown up so luxuriously as to have choked that uniform system of law and rights which it was the purpose of the royal courts of justice to establish throughout the realm origin of the rule as to time of memory the requirement of immemorial antiquity was introduced into English law courts of the 12th or 13th century from canon law in two respects the canonist developed and rendered more definite the somewhat vague and indeterminate theory of customary law which we find in the writings of the Roman lawyers in the first place clear recognition was accorded to the distinction between juice commune and consue to theines the former being the common general or written law of the whole church or the latter consisted of the divergent local and personal customs which were added to or substituted for the juice commune in particular places or in respect of particular persons this nomenclature where the conceptions expressed by it passed from the canon law to the law of England in the second place the canonists attempted to supply a defect of the civil law by laying down a fixed rule as to the necessary duration of customs they determined that non consuetudo was to be held valid so as to derogate from the juice commune unless it was prescripta that is to say unless it had endured during the legal period of prescription consuetudo prescripta prejudicat jury commune what then was the period of prescription required on this point we find no agreement among the doctors for there were several different forms of prescription known to roman law and there was no unanimity among canonists in the selection of any one of them as a test of the validity of custom many favored the adoption of the ordinary decinio prescription of roman land law and held that a custom must have endured for 10 years at least but need have lasted no longer others demanded 40 years since this is the prescription required as against the church by the legislation of justinian at one time however there was a widely held opinion that the true time of prescription required to enable a custom to derogate from the common law of the church was time immemorial ilia consuetudo prejudicat jury cuius non ecstat memoria hominem this conception of time of memory as a period of prescription was derived from the civil law immemorial prescription was there a mode of acquiring servitudes ductus aque quius origo memoriam exicitat jury constituti loco habitor the canon law adopted this rule and made a more extensive use of it immemorial prescription became a supplementary mode of acquisition available in all cases in which there was no shorter period of prescription to which a claimant might have recourse from canon law it passed into the laws of france germany and england as already stated then many canons recognize time immemorial not merely as a period of prescription but as a condition of the validity of customary law suarez writing at the end of the 16th century tells us indeed in the course of an exhaustive examination of the theory of customary law that in his day this doctrine was no longer received long before suarez however it had established for itself a secure place in the law of england the canonical principles of consuetudo racinobilius el prescripta and of tempest immemorial were in the 13th century at the latest incorporated in our legal system by these ecclesiastical lawyers who laid the foundations of it this indeed was the only form of prescription which obtained recognition from the common law we find the rule settled with perfect definiteness in the earliest year books of edward the first five conformity with the common law the fifth and last requirement of a valid custom is that unless immemorial it must be consistent with the common law that it must be consistent with statute law is as we have already seen a rule applicable to all customs whatever whether immemorial or not that it must be consistent with the common law is a rule applicable only to recent customs and not to those which have the prestige and authority of immemorial antiquity modern custom possesses constitutive but no abrogative power it must operate in the spaces left vacant by the law already established it may supplement the law but cannot derogate from it immemorial custom on the other hand can destroy as well as create so far as the common law is concerned though as against the statute law it is as powerless as the most ephemeral usage the combined effect of the various rules which we have considered is to render custom less and less important as a source of new law as the legal system develops the sphere within which custom is operative grows gradually smaller for in the first place custom cannot derogate from statute law and this latter tends progressively to absorb into itself the whole of the common law in the second place the requirement of immemorial antiquity precludes local custom from operating as an instrument of fresh legal growth such customs may now be proved and applied for the first time but they cannot now for the first time come into existence in the third place all recent custom must be consistent with the law as already established whether common or statutory as the law develops and completes itself therefore it is less and less room left for the constitutive operation of custom there are fewer vacancies within which customary law may grow it is for this reason that the growth of general customary law has already all but ceased until a comparatively recent date a great part of mercantile law was so imperfectly developed as to leave very considerable scope for the operation of mercantile custom the law as to negotiable instruments for example was chiefly customary law but at the present day our mercantile law is so complete that it is only comparatively rare cases that the custom of merchants has any opportunity of serving is the ground of new principles section 58 conventional custom custom which does not fulfill the requirements hitherto considered by us does not necessarily fail of all legal effect it cannot indeed operate as a source of law by virtue of its own inherent authority yet it may nevertheless become legally operative by being incorporated into agreements through the tacit consent of those who make them custom so operative may be distinguished as conventional it is a rule of English law as well as of other systems that where a contract is made in any matter in respect of which an established custom exists it must be interpreted by reference to that custom and the parties must be deemed to have intended in the absence of any expression of contrary intent to adopt it as one of the terms of their agreement in contractibus tacite venuant equa sunt moris e consuetudinis for example a felice of agricultural land is made in any district in which there are established usages as to the mode of agriculture and as to the relative rights and liabilities of landlord and tenant the parties must be taken to have agreed to those usages as terms of the bargain unless they have expressly or implicitly shown an intention to the contrary in the same way a mercantile contract must be taken to incorporate any usages of trade which are relevant to its subject matter in this manner customs which are not in themselves authoritative as sources of law or rights may become indirectly operative through the added authority of agreement but the law and rights so produced are in reality conventional and not customary it is sometimes not easy to determine whether a custom is operative directly and as such or only indirectly as accessory to a contract and the distinction has not always been sufficiently averted to section 59 theories of customary law so far we have been concerned rather with those positive rules of English law which determine the validity and effect of custom than with the abstract theory of the matter this portion of the juridical theory however has been the subject of considerable discussion and difference of opinion and it is not free from apparent difficulties we have to consider two opinions which differ materially from that which is here accepted as correct the first of these is a characteristic feature of foreign and more especially German jurisprudence its reception being chiefly due to the influence of it essentially consists in this that custom is rightly to be considered as a formal and not merely as a material source of law according to this doctrine custom does itself confer the force and validity of law upon the principles embodied in it it does not merely provide the material contents which derive their validity as law from the will of the state it operates directly through its own inherent force and authority not indirectly by reason of its recognition and allowance by the supreme authority and force of the state the will of the state is not admitted to the exclusive source of legal validity it has no preeminence in this respect above the will of the people as manifested in national usage custom is regarded as the expression of the national will and conscience and as such it confers immediately the authority of law upon all principles approved by it the will of the state is simply a special form of the popular will and these are of equal authority it will be enforced by the state through its courts of justice because it is already law it is not because it will be so enforced that it is law thus it is said by arns german jurist of repute customary law contains the grounds of its validity in itself it is law by virtue of its own nature as an expression of the general consciousness of right not by virtue of the sanction express or tacit of any legislature so windshide in custom is manifested the conviction of those who use it that such custom is law rect and this conviction is the source of the authority and the validity of customary law for the ultimate source of all positive law is national reason and this national reason can establish law in two different ways namely immediately and immediately immediately through representation it creates law by means of legislation immediately it creates law by means of custom notwithstanding the credit of the great names by which this theory is sanctioned it is rightly and all but unanimously rejected by english jurists custom is a material not a formal source of law its only function is to supply the principles to which the will of the state gives legal force law is law only because it is applied and enforced by the state and where there is no state there can be no law the popular conscience is in itself as powerless to establish or alter the law of the land as it is to deal in like fashion with the laws of nature from custom as from any other source the state may draw the material contents of the rules to which it gives the form and nature of law but from no other source than the will of the state itself can this form or nature be itself derived a second theory of customary law is that which we may term the austinian as having been advanced by austin and generally received by his followers austin rightly repudiates the german theory on the ground already indicated that custom is not a formal but merely a material source of law the rejection of this and other allied confusions of thought is indeed one of the great services which he and his school have rendered to legal science nevertheless his own theory cannot be regarded as wholly satisfactory for he in his turn confounds the legal and the historical sources of the law and erroneously regards custom as one of the latter rather than as one of the former he considers that the true legal source of customary law is to be found in the precedence in which custom received for the first time judicial recognition and enforcement customary law is for him simply a variety of case law it is case law in which pre-existing customs have served as the historical sources from which the courts have drawn the matter of their decisions the judges are conceived as basing their judgments upon custom just as on other occasions they may base them on justinian's digest or on the law of nature it follows from this that a custom does not acquire the force of law until it has actually come to the notice of the courts and received judicial approval and application if it is never disputed and therefore never requires enforcement it never acquires the force of law at all law-styled customary says austin is not to be considered a distinct kind of law it is nothing but judiciary law founded on an interior custom this opinion however seems inconsistent with the established doctrines of english law as to this matter custom is not law because it has been recognized by the courts but because it will be so recognized in accordance with fixed rules of law if the occasion arises its legal validity is not dependent upon the accidents of litigation a custom does not wait to be put on the nature of law until it has been actually enforced by the courts any more than an act of parliament or an agreement is destitute of legal efficacy until it has required and received judicial recognition this recognition may make a custom part of the common law as being thereafter entitled to judicial notice but it was part of the law already the austinian theory forgets that the operation of custom is determined by fixed legal principles just as much as the operation of precedent itself these two are coordinate legal sources and each operates independently of the other custom does not enter the law through precedent any more than precedent through custom a custom is taken as the ground of judicial decision just as an act of parliament is so taken in each case the law has been already made and the judicial decision merely applies to it section 60 custom and prescription the relation between custom and prescription is such as to demand attention here although the theory of the latter will receive further consideration in another place custom is long usage operating as a source of law prescription is long usage operating as a source of rights that the lands in a certain burrow have from time immemorial on the death of an owner in test date descended to his youngest son is a custom and is the source of a rule of special customary law excluding in that burrow the common law of primogenitor but that john styles the owner of a certain farm and all his predecessors in title from time immemorial have used a way over the adjoining farm is a prescription and is the source of a prescriptive right of way vested in john styles regarded historically the law of prescription is merely a branch of the law of custom a prescription was originally conceived as a personal custom that is to say a custom limited to a particular person and his ancestors or predecessors in title it was distinguished from a local custom which was limited to an individual place not to an individual person local and personal customs were classed as the two species of particular customs and as together opposed to the general customs of the realm coke distinguishes as follows between custom ie local custom and prescription in the common law a prescription which is personal is for the most part applied to persons being made in the name of a certain person and of his ancestors or those whose estate he half or in body's politic or corporate and their predecessors and a custom which is local is alleged in no person but laid within some manner or other place since prescription and custom were thus regarded as two species of the same thing we find as might be expected that they are originally governed by essentially similar rules of law the requisites of a valid prescription were in essence the same as those of a valid custom both must be reasonable both must be immemorial both must be consistent with statute law and so on it was only by a process of gradual differentiation and by the latter recognition of other forms of prescription not known to the early law that the difference between the creation of customary law and the creation of prescriptive rights has been brought clearly into view in the case of custom for example the old rule as to time immemorial still subsists but in the case of prescription it has been superseded by the statutory rules contained in that most unfortunate specimen of legislative skill the prescription act a prescriptive right to light for example is now finally acquired by enjoyment for 20 years usage during this period is now an absolute title instead of as at common law merely evidence of usage during the time of memory summary historical importance of customary law reasons for the recognition of customary law requisites of valid custom one reasonableness two opinio necessitatis three consistency with statute law for immemorial antiquity unless general history of this rule five consistency with the common law unless immemorial conventional customs theories of the operation of custom as a source of law one sevignes custom a formal source two austens custom and historical source relations between custom and prescription end of section 12 section 13 of jurist prudence this is a LibriVox recording all LibriVox recordings are in the public domain for more information or to volunteer please visit LibriVox.org recording by Colleen McMahon jurist prudence by John Salmon section 13 chapter 9 precedent part 1 section 61 the authority of precedence the importance of judicial precedence has always been a distinguishing characteristic of English law the great body of the common or unwritten law is almost entirely the product of decided cases accumulated in an immense series of reports extending backwards with scarcely a break to the reign of Edward the first at the close of the 13th century orthodox legal theory indeed long professed to regard the common law as customary law and judicial decisions as merely evidence of custom and of the law derived therefrom this however was never much better than an admitted fiction in practice if not in theory the common law in England has been created by the decisions of English judges neither Roman law however nor any of those modern systems which are founded upon it allows any such place or authority to precedent they allow to it no further or other influence than that which is possessed by any other expression of expert legal opinion a book of reports and a textbook are on the same level they are both evidences of the law they are both instruments for the persuasion of judges but neither of them is anything more English law on the other hand draws a sharp distinction between them a judicial precedent speaks in England with authority it is not merely evidence of the law but a source of it and the courts are bound to follow the law that is so established it seems clear that we must attribute this feature of English law to the peculiarity powerful and authoritative position which has been at all times occupied by English judges from the earliest times the judges of the king's courts have been a small and compact body of legal experts they have worked together in harmony imposing their own views of law and justice upon the whole realm and establishing thereby a single homogeneous system of common law of this system they were the creators and authoritative interpreters and they did their work with little interference either from local custom or from legislation the centralization and concentration of the administration of justice in the royal courts gave to the royal judges a power and prestige which would have been unattainable on any other system the authority of precedence was great in England because of the power the skill and the professional reputation of the judges who made them in England the bench has always given law to the bar in Rome it was the other way about for in Rome there was no permanent body of professional judges capable of doing the work that has been done for centuries in England by the royal courts section 62 declaratory and original precedence in proceeding to consider the various kinds of precedence and the methods of their operation we have in the first place to distinguish between those decisions which are creative of the law and those which are merely declaratory of it a declaratory precedent is one which is merely the application of an already existing rule of law an original precedent is one which creates and applies a new rule in the former case the rule is applied because it is already law in the latter case it is law for the future because it is now applied in any well-developed system such as that of modern england declaratory precedents are far more numerous than those of the other class for on most points the law is already settled and judicial decisions are therefore commonly mere declarations of pre-existing principles original precedents however though fewer in number are greater in importance for they alone develop the law the others leave it as it was and their only use is to serve as good evidence of it for the future unless required for this purpose a merely declaratory decision is not perpetuated as an authority in the law reports when the law is already sufficiently well evidenced as when it is embodied in a statute or set forth with fullness and clearness in some comparatively modern case the reporting of declaratory decisions is merely a needless addition to the great bulk of our case law it must be understood however that a declaratory precedent is just as truly a source of law as is one belonging to the other class the legal authority of each is exactly the same speaking generally the authority and legal validity of a precedent do not depend on whether it is or is not an accurate statement of previously existing law whether it is or is not it may establish as law for the future that which it now declares and applies as law the distinction between the two kinds turns solely on their relation to the law of the past and not at all on their relation to that of the future a declaratory precedent like a declaratory statute is a source of law though it is not a source of new law here as elsewhere the mere fact that two sources overlap and that the same legal principle is established by both of them does not deprive either of them of its true nature as a legal source each remains an independent and self-sufficient basis of the rule we have already referred to the old theory that the common law is customary not case law this doctrine may be expressed by saying that according to it all precedents are declaratory merely and that their original operation is not recognized by the law of england thus Hale says in his history of the common law quote it is true the decisions of courts of justice though by virtue of the laws of this realm they do bind as a law between the parties there too as to the particular case in question till reversed by error or attained yet they do not make a law properly so called for that only the king and parliament can do yet they have a great weight and authority in expounding declaring and publishing what the law of this kingdom is especially when such decisions hold a consonancy and congruity with resolutions and decisions of former times end of quote Hale however is evidently troubled in mind as to the true position of precedent and as to the sufficiency of the declaratory theory thus set forth by him for elsewhere he tells us inconsistently that there are three sources of english law namely one custom two the authority of parliament and three quote the judicial decisions of courts of justice consonant to one another in the series and succession of time end of quote in the court of chancery this declaratory theory never prevailed nor indeed could it having regard to the known history of the system of equity administered by that court there could be no pretense that the principles of equity were founded either in custom or legislation for it was a perfectly obvious fact that they had their origin in judicial decisions the judgment of each chancellor made law for himself and his successors quote it must not be forgotten says sir george jessel that the rules of courts of equity are not like the rules of the common law supposed to have been established from time immemorial it is perfectly well known that they have been established from time to time altered improved and refined from time to time in many cases we know the names of the chancellors who invented them no doubt they were invented for the purpose of securing the better administration of justice but still they were invented end of quote both at law and in equity however the declaratory theory must be totally rejected if we are to attain to any sound analysis and explanation of the true operation of judicial decisions we must admit openly that precedents make law as well as declare it we must admit further that this effect is not merely accidental and indirect the result of judicial error in the interpretation and authoritative declaration of the law doubtless judges have many times altered the law while endeavoring in good faith to declare it but we must recognize a distinct law creating power vested in them and openly and lawfully exercised original precedents are the outcome of the intentional exercise by the courts of their privilege of developing the law at the same time that they administer it section 63 authoritative and persuasive precedents decisions are further divisible into two classes which may be distinguished as authoritative and persuasive these two differ in respect of the kind of influence which they exercise upon the future course of the administration of justice an authoritative precedent is one which judges must follow whether they approve of it or not it is binding upon them and excludes their judicial discretion for the future a persuasive precedent is one which the judges are under no obligation to follow but which they will take into consideration and to which they will attach such weight as it seems to them to deserve it depends for its influence upon its own merits not upon any legal claim which it has to recognition in other words authoritative precedents are legal sources of law while persuasive precedents are merely historical the former established law in pursuance of a definite rule of law which confers upon them that effect while the latter if they succeed in establishing law at all do so indirectly through serving as the historical ground of some later authoritative precedent in themselves they have no legal force or effect the authoritative precedents recognized by English law are the decisions of the superior courts of justice in England the chief classes of persuasive precedents are the following one foreign judgments and more especially those of American courts two the decisions of superior courts in other portions of the British empire for example the irish courts three the judgments of the privy council when sitting as the final court of appeal from the colonies four judicial that is to say statements of law which go beyond the occasion and lay down a rule that is irrelevant or unnecessary for the purpose in hand we shall see later that the authoritative influence of precedents does not extend to such a bitter dicta but they are not equally destitute of persuasive efficacy footnote persuasive efficacy similar in kind though much less in degree is attributed by our courts to the civil law and to the opinions of the commentators upon it also to English and American textbooks of the better sort and a footnote section 64 the absolute and conditional authority of precedents authoritative precedents are of two kinds for their authority is either absolute or conditional in the former case the decision is absolutely binding and must be followed without question however unreasonable or erroneous it may be considered to be it has a legal claim to implicit and unquestioning obedience where on the other hand a precedent possesses merely conditional authority the courts possess a certain limited power of disregarding it in all ordinary cases it is binding but there is one special case in which its authority may be lawfully denied it may be overruled or dissented from when it is not merely wrong but so clearly and seriously wrong that its reversal is demanded in the interests of the sound administration of justice otherwise it must be followed even though the court which follows it is persuaded that it is erroneous or unreasonable the full significance of this rule will require further consideration shortly in the meantime it is necessary to state what classes of decisions are recognized by English law as absolutely and what is merely conditionally authoritative absolute authority exists in the following cases one every court is absolutely bound by the decisions of all courts superior to itself a court of first instance cannot question a decision of the court of appeal nor can the court of appeal refuse to follow the judgments of the house of lords two the house of lords is absolutely bound by its own decisions quote a decision of this house once given upon a point of law is conclusive upon this house afterwards and it is impossible to raise that question again as if it was res integra and could be re-argued and so the house be asked to reverse its own decision end of quote three the court of appeal is it would seem absolutely bound by its own decisions and by those of older courts of coordinate authority for example the court of exchequer chamber in all other cases save these three it would seem that the authority of precedence is merely conditional it is to be noticed however that the force of a decision depends not merely on the court by which it is given but also on the court in which it is cited its authority may be absolute in one court and merely conditional in another a decision of the court of appeal is absolutely binding on a court of first instance but is only conditionally binding upon the house of lords section 65 the disregard of a precedent in order that a court may be justified in disregarding a conditionally authoritative precedent two conditions must be fulfilled in the first place the decision must in the opinion of the court in which it is cited be a wrong decision and it is wrong in two distinct cases first when it is contrary to law and secondly when it is contrary to reason it is wrong as contrary to law when there is already in existence an established rule of law on the point in question and the decision fails to conform to it when the law is already settled the sole right and duty of the judges is to declare and apply it a precedent must be declaratory whenever it can be that is to say whenever there is any law to declare but in the second place a decision may be wrong as being contrary to reason when there is no settled law to declare and follow the courts may make law for the occasion in so doing it is their duty to follow reason and so far as they fail to do so their decisions are wrong and the principles involved in them are of defective authority unreasonableness is one of the vices of a precedent no less than of a custom and of certain forms of subordinate legislation it is not enough however that a decision should be contrary to law or reason for there is a second condition to be fulfilled before the courts are entitled to reject it if the first condition were the only one a conditionally authoritative precedent would differ in nothing from one which is merely persuasive in each case the precedent would be effective only so far as its own intrinsic merits commended it to the minds of successive judges but where a decision is authoritative it is not enough that the court to which it is cited should be of opinion that it is wrong it is necessary in innumerable cases to give effect to precedents notwithstanding that opinion it does not follow that a principle once established should be reversed simply because it is not as perfect and rational as it ought to be it is often more important that the law should be certain than that it should be ideally perfect these two requirements are to a great extent inconsistent with each other and we must often choose between them whenever a decision is departed from the certainty of the law is sacrificed to its rational development and the evils of the uncertainty thus produced may far outweigh the very trifling benefit to be derived from the correction of the erroneous doctrine the precedent while it stood on reversed may have been counted on in numerous cases as definitely establishing the law valuable property may have been dealt within reliance on it important contracts may have been made on the strength of it it may have become to a great extent a basis of expectation and the ground of mutual dealings justice may therefore imperatively require that the decision though founded in error shall stand in violet nonetheless communus error facet use footnote it is to be remembered that the overruling of a precedent has a retrospective operation in this respect it is very different from the repeal or alteration of a statute end of footnote quote it is better said lord elden that the law should be certain than that every judge should speculate upon improvements in it end of quote it follows from this that other things being equal a precedent acquires added authority from the lapse of time the longer it is stood unquestioned and unreversed the more harm in the way of uncertainty and the disappointment of reasonable expectations will result from its reversal a decision which might be lawfully overruled without hesitation while yet new may after the lapse of a number of years acquires such increased strength as to be practically of absolute and no longer a merely conditional authority this effect of lapse of time has repeatedly received judicial recognition quote viewed simply as the decision of a court of first instance the authority of this case not withstanding the respect due to the judges who decided it is not binding upon us but viewed in its character and practical results it is one of a class of decisions which acquire a weight and effect beyond that which attaches to the relative position of the court from which they proceed it constitutes an authority which after it is stood for so long a period unchallenged should not in the interest of public convenience and having regard to the protection of private rights be overruled by this court except upon very special considerations for 12 years and upwards the case has continued unshaken by any judicial decision or criticism end of quote quote when an old decided case has made the law on a particular subject the court of appeal ought not to interfere with it because people have considered it as establishing the law and have acted upon it end of quote the statement that a precedent gains in authority with age must be read subject to an important qualification up to a certain point a human being grows in strength as he grows in age but this is true only within narrow limits so with the authority of judicial decisions a moderate lapse of time will give added vigor to a precedent but after a still longer time the opposite effect may be produced not indeed directly but indirectly through the accidental conflict of the ancient and perhaps partially forgotten principle with later decisions without having been expressly overruled or intentionally departed from it may become in course of time no longer really consistent with the course of judicial decision in this way the tooth of time will eat away an ancient precedent and gradually deprive it of all its authority the law becomes animated by a different spirit and assumes a different course and the older decisions become obsolete and inoperative to sum the matter up we may say that to justify the disregard of a conditionally authoritative precedent it must be erroneous either in law or in reason and the circumstances of the case must not be such as to make applicable the maximum communist error facet use the defective decision must not by the lapse of time or otherwise have acquired such added authority as to give it a title to permanent recognition notwithstanding the vices of its origin the disregard of a precedent assumes two distinct forms for the court to which it is cited may either overrule it or merely refuse to follow it overruling is an act of superior jurisdiction a precedent overruled is definitely and formally deprived of all authority it becomes null and void like a repealed statute and a new principle is authoritatively substituted for the old a refusal to follow a precedent on the other hand is an act of co-ordinate not of superior jurisdiction two courts of equal authority have no power to overrule each other's decisions where a precedent is merely not followed the result is not that the later authority is substituted for the earlier but that the two stand side by side conflicting with each other the legal antonomy thus produced must be solved by the act of a higher authority which will in due time decide between the two competing precedents formally overruling one of them and sanctioning the other as good law in the meantime the matter remains at large and the law uncertain end of section 13 recording by Colleen McMahon section 14 of jurisprudence this is a LibriVox recording all LibriVox recordings are in the public domain for more information or to volunteer please visit LibriVox.org recording by Colleen McMahon jurisprudence by John Salmond section 14 chapter 9 precedent part 2 section 66 precedence constitutive not abrogative we have already seen the falsity of the theory that all precedents are declaratory we have seen that they possess a distinct and legally recognized law creating power this power however is purely constitutive and in no degree abrogative judicial decisions may make law but they cannot alter it for where there is settled law already on any point the duty of the judges is to apply it without question and they have no authority to substitute for it law of their own making their legislative power is strictly limited to supplying the vacancies of the legal system to filling up with new law the gaps which exist in the old to supplementing the imperfectly developed body of legal doctrine this statement however requires two qualifications in the first place it must be read subject to the undoubted power of the courts to overrule or disregard precedence in the manner already described in its practical effect this is equivalent to the exercise of abrogative power but in legal theory it is not so the overruling of a precedent is not the abolition of an established rule of law it is an authoritative denial that the supposed rule of law has ever existed the precedent is so treated not because it is made bad law but because it has never in reality made any law at all it is not conformed to the requirements of legal efficacy hence it is that the overruling of a precedent unlike the repeal of a statute has retrospective operation the decision is pronounced to have been bad ab initio a repealed statute on the contrary remains valid and applicable as to matters arising before the date of its repeal the overruling of a precedent is analogous not to the repeal of a statute but to the judicial rejection of a custom as unreasonable or is otherwise failing to conform to the requirements of customary law in the second place the rule that a precedent has no abrogative power must be read subject to the maxim quote fieri non-debit factum valid it is quite true the judges ought to follow the existing law whenever there is any such law to follow they are appointed to fulfill the law not to subvert it but if by inadvertence or otherwise this rule is broken through and a precedent is established which conflicts with pre-existing law it does not follow from this alone that this decision is destitute of legal efficacy for it is well known maxim of the law that a thing which ought not to have been done may nevertheless be valid when it is done if therefore a precedent belongs to the class which is absolutely authoritative it does not lose this authority simply because it is contrary to law and ought not to have been made no court for example will be allowed to disregard a decision of the house of lords on such a ground it must be followed without question whether it is in harmony with prior law or not so also with those which are merely conditionally authoritative we have already seen that error is only one of two conditions both of which are requisite to render allowable the disregard of such a precedent and in this respect it makes no difference whether the error consists in a conflict with law or in a conflict with reason it may well be better to adhere to the new law which should not have been made than to recur to the old law which should not have been displaced section 67 grounds of the authority of precedence the operation of precedence is based on the legal presumption of the correctness of judicial decisions it is an application of the maxim a matter once formally decided is decided once for all the courts will listen to no allegation that they have been mistaken nor will they reopen a matter once litigated and determined that which has been delivered in judgment must be taken for established truth for in all probability it is true in fact and even if not it is expedient that it should be held as true nonetheless Expedit Ray Publiquet Utsit Finis Litium when therefore a question has once been judicially considered and answered it must be answered in the same way in all subsequent cases in which the same question again arises only through this rule can that consistency of judicial decision be obtained which is essential to the proper administration of justice hence the effect of judicial decisions in excluding the arbitrium euticus for the future in providing predetermined answers for the questions calling for consideration in future cases and therefore in establishing new principles of law the questions to which judicial answers are required are either questions of law or a fact to both kinds the maxim rest yudicata pro veritate accipitur is applicable in the case of questions of law this maxim means that the court is presumed to have correctly ascertained and applied the appropriate legal principle the decision operates therefore as proof of the law it is or at all events is taken to be a declaratory precedent if the law so declared is at all doubtful the precedent will be worth preserving as useful evidence of it but if the law is already clear and certain the precedent will be useless to preserve it would needlessly cumber the books of reports and it will be allowed to lapse into oblivion in the case of questions of fact on the other hand the presumption of the correctness of judicial decisions results in the creation of new law not in the declaration and proof of old the decision becomes in a large class of cases an original precedent that is to say the question thus answered ceases to be one of fact and becomes for the future one of law for the courts are now provided with a predetermined answer to it and it is no longer a matter of free judicial discretion the arbiterium yudicus is now excluded by one of those fixed and authoritative principles which constitute the law for example the meaning of an ambiguous statute is at first a pure question of fact when for the first time the question arises whether the word cattle as used by the statute includes horses the court is bound by no authority to determine the matter in one way or the other the occasion is one for the exercise of common sense and interpretive skill but when the question has once been decided it is for the future one of law and no longer one of fact for it is incumbent on the courts in subsequent cases to act on the maximum res yudicata pro vera tate and to answer the question in the same way as before the operation of original precedence is therefore the progressive transformation of questions of fact into questions of law the growth of case law involves the gradual elimination of that judicial liberty to which it owes its origin in any system in which precedents are authoritative the courts are engaged in forging fetters for their own feet there is of course a limit to this process for it is absurd to suppose that the final result of legal development will be the complete transformation of all questions of fact into questions of law the distinction between law and fact is permanent and essential what then is the limit to what extent is precedent capable of affecting this absorption of fact into law in respect of this law creating operation of precedents questions of fact are divisible into two classes for some of them do and some do not admit of being answered on principle the former are those the answer to which is capable of assuming the form of a general principle the latter are those the answer to which is necessarily specific the former are answered by way of abstraction that is to say by the elimination of the immaterial elements in the particular case the result being a general rule applicable not merely to that single case but to all others which resemble it in its essential features the other class of questions consists of those in which no such process of abstraction no such elimination of immaterial elements as will give rise to a general principle is possible the answer to them is based on the circumstances of the concrete and individual case and therefore produces no rule of general application the operation of precedent is limited to one only of these classes of questions judicial decisions are a source of law only in the case of those questions of fact which admit of being answered on principle these only are transformed by decision into questions of law for in this case only does the judicial decision give rise to a rule which can be adopted for the future as a rule of those questions which belong to the other class are permanently questions of fact and their judicial solution leaves behind it no permanent results in the form of legal principles for example the question whether the defendant did or did not make a certain statement is a question of fact which does not admit of any answer save one which is concrete an individual it cannot be answered on principle it necessarily remains therefore a pure question of fact the decision of it is no precedent and establishes no rule of law on the other hand the question whether the defendant in making such a statement was or was not guilty of fraud or negligence though it may be equally a question of fact nevertheless belongs to the other class of such questions it may well be possible to lay down a general principle on a matter such as this for it is a matter which may be dealt with in abstracto not necessarily in concreto if therefore the decision is arrived at on principle it will amount to an original precedent and the question together with every other essentially resembling it will become for the future a question of law predetermined by the rule thus established a precedent therefore is a judicial decision which contains in itself a principle the underlying principle which thus forms its authoritative element is often termed the ratio decedente the concrete decision is binding between the parties to it but it is the abstract ratio decedente which alone has the force of law as regards the world at large the only use of authorities or decided cases says sir george jessal is the establishment of some principle which the judge can follow out in deciding the case before him the only thing says the same distinguished judge in another case in a judge's decision binding as an authority upon a subsequent judge is the principle upon which the case was decided this is the true significance of the familiar contrast between authority and principle it is often said by judges that in as much as the matter before them is not covered by authority they must decide it upon principle the statement is a short indication of the impending establishment of an original precedent it implies two things first that where there is any authority on the point that is to say where the question is already one of law the duty of the judge is simply to follow the path so marked out for him and secondly that if there is no authority and if therefore the question is one of pure fact it is his duty if possible to decide it upon principle that is to say to formulate some general rule and to act upon it thereby creating law for the future it may be however that the question is one which does not admit of being answered either on authority or on principle and in such a case a specific or individual answer is alone possible no rule of law being either applied or created although it is the duty of courts of justice to decide questions of fact on principle if they can they must take care in this formulation of principles to limit themselves to the requirements of the case in hand that is to say they must not lay down principles which are not required for the due decision of the particular case or which are wider than is necessary for this purpose the only judicial principles which are authoritative are those which are thus relevant in their subject matter and limited in their scope all others at the best are of merely persuasive efficacy they are not true raciones decedente and are distinguished from them under the name of dicta or obiter dicta things said by the way the prerogative of judges is not to make law by formulating and declaring it this pertains to the legislature but to make law by applying it judicial declaration unaccompanied by judicial application is of no authority section 68 the sources of judicial principles whence then do the courts derive those new principles or raciones decedente by which they supplement the existing law they are in truth nothing else than the principles of natural justice practical expediency and common sense judges are appointed to administer justice according to law so far as the law extends but so far as there is no law then justice according to nature where the civil law is deficient the law of nature takes its place and in so doing puts on its character also but the rules of natural justice are not always such that any man may know them and the light of nature is often but an uncertain guide instead of trusting to their own unguided instincts in formulating the rules of right and reason the courts are therefore wisely in the habit of seeking guidance and assistance elsewhere in establishing new principles they willingly submit themselves to various persuasive influences which the destitute of legal authority have a good claim to respect and consideration they accept a principle for example because they find it already embodied in some system of foreign law for since it is so sanctioned and authenticated it is presumably a just and reasonable one in like manner the courts give credence to persuasive precedence to judicial dicta to the opinions of text writers and to any other forms of ethical or juridical doctrine which seem good to them there is however one source of judicial principles which is of special importance and calls for special notice this is the analogy of pre-existing law new rules are very often merely analogical extensions of the old the courts seek as far as possible to make the new law the embodiment and expression of the spirit of the old of the ratio oris as the romans called it the whole thereby becomes a single and self-consistent body of legal doctrine containing within itself an element of unity and of harmonious development at the same time it must be remembered that analogy is lawfully followed only as a guide to the rules of natural justice it has no independent claim to recognition wherever justice so requires it is the duty of the courts in making new law to depart from the ratio juris antiqui rather than severely to follow it it is surprising how seldom we find in judicial utterances any explicit recognition of the fact that in deciding questions on principle the courts are in reality searching out the rules and requirements of natural justice and public policy the measure of the prevalence of such ethical over purely technical considerations is the measure in which case law develops into a rational and tolerable system as opposed to an unreasoned product of authority and routine yet the official utterances of the law contain no adequate acknowledgement of this dependence on ethical influences the very considerations it has been well said which judges most rarely mention and always with an apology are the secret route from which the law draws all the juices of life the chief reason of this peculiarity is doubtless to be found in the fictitious declaratory theory of precedent and in the forms of judicial expression and reasoning which this theory has made traditional so long as judges affect to be looking for and declaring old law they cannot adequately express the principles on which they are in reality making new section 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 desidenti 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 those 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 we have said that this rule though acted on is not expressly acknowledged the reason is the judges are unable to avoid the acknowledgement 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 letter 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 summary precedence declaratory evidence of old law original sources of new law the declaratory theory of precedent precedents are authoritative or persuasive persuasive or foreign decisions decisions in other parts of the empire privy council decisions and judicial dicta authoritative precedents can be absolutely authoritative decisions of superior court decisions of house of lords decisions of court of appeal or conditionally authoritative all others conditions of the disregard of a precedent one decision erroneous contrary to law or unreasonable two rejection of it not mischievous as unsettling the law effect of lapse of time on precedence distinction between overruling and refusing to follow precedence constitutive and not abrogative qualifications of the rule ground of the authority of precedent the progressive transformation of fact into law ratione's decedent day the determination of questions on principle and on authority judicial dicta contrasted with judicial decisions sources of judicial principles respective functions of judge and jury end of section 14 recording by collie mcman