SOCIAL REGULATION 267 



eign. Austin was not an historian, but a philosopher who based his 

 theories upon the facts that came under his immediate observation. 

 His insight into contemporary matters was keen and accurate, and 

 although his admiration for judge-made, or as he has called it, 

 " judiciary law," was by no means unbounded, his analysis of its 

 real nature is one of the best parts of his book. He made, however, 

 an admission which certainly goes far towards upsetting his theory 

 that the courts exercise a delegated legislative power. After declar- 

 ing that " the sovereign administering the law through subordinate 

 courts of justice is the author of that measureless system of judge- 

 made law or rules of law made judicially which has been established 

 by those subordinate tribunals in directly exercising their judicial 

 functions," Austin goes on to say: " In this country, where the rules 

 of judge-made law hold a place of almost paramount importance in 

 our legal system, it can hardly be said that Parliament (the so-called 

 legislature) is the author of those rules. It may, indeed, be said that 

 Parliament, by not interfering, permits them to be made, and, by 

 not repealing them by statute, permits them to exist. But, in truth, 

 Parliament has no effective power of preventing their being made, 

 and to alter them is a task which often baffles the patience and skill 

 of those who can best command parliamentary support." 1 



Now this remark is interesting because it would seem that the 

 legislature is constantly acquiring greater capacity of controlling 

 and reversing judge-made law. In the past we have seen cases where 

 the legislature has found it impossible to carry out its will, and where 

 courts have virtually made a statute of no effect by their interpreta- 

 tion. This was true in the celebrated case of the English Statute 

 of Uses, which was designed to prevent the creation of subordinate 

 interests in land, but is commonly said to have resulted only in the 

 addition of three words to every conveyance. A very striking 

 example in later days is the decree of the French Government of 

 National Defence in 1870 repealing the provision in the constitution 

 of the year VIII that protected public officials from suit or prose- 

 cution. The decree was intended to remove all hindrances in the 

 way of bringing the officials before the ordinary courts; but the 

 Tribunal of Conflicts decided that it applied only to their personal 

 protection, and did not affect the principle of the separation of 

 powers which, as understood in France, forbids the ordinary judges 

 to pass upon the legality of official acts. This example of the exer- 

 cise of power by a court to defeat the intent of the legislature is 

 certainly very recent, but it could hardly have occurred except in 

 the revival of the ordinary functions of government after a period 

 of revolution. 



Austin's Jurisprudence, Campbell's Students' Ed., p. 99. This does not 

 appear in the original edition of Austin's work. 



