266 SOCIAL REGULATION 



day only with the consent of representative bodies, which are intended 

 for that purpose to reflect public opinion. 



Such a relation to politics is not limited to statutes. Law is 

 created every day by bodies of learned lawyers. It takes the form 

 of precedents established by courts of justice in the course of the deci- 

 sion of actual cases, the so-called judge-made law; nor is this process 

 confined to jurisprudence affecting private persons. The distinction, 

 indeed, between public and private law in no way coincides with the 

 difference between statutory and judge-made law; for, in the first 

 place, private law is freely made or changed by statute; and in the 

 second place, the most important body of judge-made law in Continen- 

 tal Europe to-day is the French droit administratif, which regulates 

 the official rights and duties of state functionaries and is, therefore, 

 pure public law. In this connection it may be noted, in passing, that 

 in Anglo-Saxon countries the administration of public law can be 

 safely intrusted to the ordinary courts, because there are always in 

 them a number of judges who have had actual experience of public 

 life. Chief Justice Marshall could hardly have laid, as he did, the 

 foundations of constitutional interpretation had it not been for his 

 knowledge of national affairs acquired in the public service, and the 

 same principle applies to every court when called upon to deal with 

 questions that touch administration. A certain sprinkling of judges 

 with political experience is needed to supplement those trained simply 

 by study and at the bar. This is one of many cases where the 

 efficiency of a public body depends upon the presence in small 

 quantities of what in large doses would be a poison. 



A full discussion of the relation of politics in the larger sense of 

 the word to judge-made law would entail an examination of many 

 conflicting theories of jurisprudence. In his Beruf unserer Zeit fur 

 Gesetzgebung und Rechtswissenschaft, Savigny, the most celebrated 

 opponent of codification, declared that, for the most part, law, like 

 language, has developed by a process of natural growth in accord- 

 ance with the character of the people. Von Ihering, pushing 

 Savigny's comparison of the growth of law and language farther, 

 perhaps, than the author really intended, criticised his theory, and 

 insisted that, instead of developing by the same quiet, unconscious 

 process as the rules of grammar, law was, and always had been, the 

 result of a struggle between conflicting aims and principles. As this 

 is not intended to be a discourse on jurisprudence, but merely an 

 attempt to point out certain relations existing at the present day, 

 it is not necessary to consider how far such doctrines are really in 

 conflict, and how far each of them is historically true. Nor is it 

 necessary for our purpose to analyze Austin's theory that law is a 

 command, and that courts in establishing precedents are creating 

 law by virtue of a legislative power delegated to them by the sover- 





