273 



or the human king on earth," says Mr. Grote in his History of Greece, " is not a lawmaker 

 but a judge" {Aiicient Law, Chap. i). Hence, in the history of nations, legislation is a 

 phenomenon of comparatively late appearance, coming into existence only as its neces- 

 sity, as a curb upon irresponsible power, becomes developed. 



This ancient view of the function of government was well expressed in the cry of the 

 Israelites to Samuel : 1 Sam., chap. viii. 19, 20 : 



" Nay, but we will have a king over us, that we may be like all the nations, and that 

 our king may judge us, and go out before us, and fight our battles." 



(h) The doctrine of Austin may, however, be briefly refuted by considering the conse- 

 quences logically involved in it. It is avowedly founded on the rule of stare decisis, of 

 which, indeed, it purports to be but an expression. It will therefore apply to the deci- 

 sions of the courts (m the construction and effect of statutes, equally as to their decisions 

 on other questions. Whatever doubts and conflicts may have arisen with reference to 

 the application of the rule in other respects, it has never been s-uggested that there is 

 any distinction to be made between its application to acts of the legislature, or ordinary 

 statutes, and its application to rules otherwise established. Hence it follows that the 

 ordinary legislature cannot enact a valid law as to matters of private right ; for such 

 law, or supposed law, cannot be enforced otherwise than by the courts, and is, there- 

 fore, without a sanction— which, according to the theory, is an essential element of a 

 true law— until it be so recognized ; and, if the courts fail to recognize it, or give it an 

 erroneous construction, it can never become law. In this respect, statutes stand in pre- 

 cisely the same category as customs or principles of natural right, which, according to 

 the theory, cannot become law until adopted by the courts. 



Nor can there be any law of any kind binding on the judges. For, being vested with 

 legislative power, they can, if they please, disregard the decisions of their predecessors, 

 not only with impunity, but without blame. For the legislative power is, in its essential 

 nature, an arbitrary power, and to be exercised according to the maxim, voluntas stel pro 

 ratione, and the rule applies, legt s posteriores abrogant priores. 



Hence, as the ultimate consequence of the doctrine, we must conclude that law is in 

 fact impossible, and that the sole standard of men's rights must always consist in the 

 fluctuating and unforeseeable opinions, or rather decisious, of the courts ; and this, in 

 fact, it is to be apprehended, is something like the condition to which the influence of 

 this pernicious doctrine upon modern lawyers has reduced the law in this country at the 

 present day. 



(i) The doctrine of our own law is thus expressed by approved authorities : " Even a 

 series of decisions," says Chancellor Kent, "are not always conclusive evidence of the 

 law, and the revision of a decision very often resolved itself into a mere question of 

 expediency, depending upon the consideration of the importance of certainty in the rule 

 and the extent of property to be affected by a change in it. Lord Mansfield frequently 

 observed that the certainty of a rule was often of much more importance in mercantile 

 cases than the reason of it, and that a .settled rule ought to be observed for the sake of 

 property ; and yet perhaps no English judge ever made greater innovations or improve- 

 ments in the law, or felt himself less embarrassed with the disposition of the older cases 

 wlien they came in his way to impede the operation of his enlightened and cultivated 

 judgment." "The lave of England," he observed, " would be an absurd science, were it 

 founded upon precedents only " (1 Kent's Com., 47). 



As is said by Chancellor Went worth, speaking of this maxim : " While another maxim 

 —humanum ast ejrarg— remains true, there must occasionally be a reconsideration and 

 overruling of former judgments. If on a reexamination the former error is clear, our 

 duty is plain ; we must be, as Lord Coke said Sir John Fortescue was, ' not amongst the 

 number of those qui suos amassent errores, but one of those who yielded to the truth when 

 he found it ' " (Preface to 10 Coke). 



The function of the judge is thus admirably explained by Hobbes : " The interpretation 

 of the law of nature is the sentence of the judge constituted by the sovereigu authority 

 to hear and determine such controversies as depend thereon, and consisteth in the 

 application of the law to the present case. For, in the act of judicature the judge doth 



