638 PRIVATE LAW 



belong rather to the section of Private International Law than to 

 ours. 



I believe, however, that there is one problem brought daily to the 

 attention of the practicing American lawyer, which, while of ancient 

 origin, is now fast coming to the acute stage, and to the verge of 

 radical treatment, which belongs peculiarly to the law itself, without 

 any adverse claim on behalf of the professors of ethics or sociology 

 or political science. I refer to the problem as to how the law itself 

 should be authoritatively declared and evidenced. 



It is a familiar fact that in every English-speaking community 

 the body of the law is divided into two portions: first, the so-called 

 judge-made law, which is to be found in records and reports of the 

 decisions and sayings of judicial officers; and second, the statute 

 law, which consists of enactments by parliaments, congresses, or 

 legislatures, together with executive regulations and municipal 

 ordinances adopted under powers lawfully delegated by legislative 

 authority. According to the theory of English jurisprudence, the 

 so-called judge-made law was not made by the judges at all, but 

 existed, although not written, as the ancient and general custom of 

 the English-speaking people, and in the shape of ethical rules which 

 they had tacitly recognized and adopted; but the authoritative 

 evidence of such a custom was the decision of a court, and by the 

 doctrine of stare decisis such a decision when once made became 

 conclusive evidence, conclusive within the territorial jurisdiction 

 of the court until overruled by some higher tribunal, conclusively 

 establishing the existence of some rule which thereafter could not 

 be changed except by legislative enactment. 



This judge-made law has been called by its admirers the perfection 

 of human reason; and theoretically there is no other method equally 

 efficacious of finding out what is the true rule of law applicable to 

 any given state of things. It may be well to analyze the theory 

 of judge-made law and recall to mind the reason why it is theoret- 

 ically superior to the work of the wisest legal philosopher, in order 

 that we may realize more clearly why the theory is becoming less 

 and less justified by the practical results, and why, as a result to 

 some extent of the rapid growth of the English-speaking world in 

 the nineteenth century and of the rapidly increasing complexity 

 of our civilization, and to some extent of mere lapse of time, it is weak- 

 ening and showing signs of an early breakdown unless at least some 

 radical remedy is adopted. 



The theory of judge-made law, the theory underlying the system 

 by which the decision of a court in a litigated case becomes the 

 highest evidence and conclusive evidence of the existence of a pre- 

 viously unwritten rule of law, involves in the first place the assump- 

 tion that the case is a genuine controversy, involving two or more 



