286 HISTORY OF LAW 



representation is not inconsistent with a low grade of intelligence. 

 The representatives are directly interested in the subject-matter of 

 legislation. They legislate for themselves and their constituents. In 

 a sense it is optional whether the laws they enact shall be obeyed 

 or go into desuetude. The judicial functions are discharged by 

 representatives. They prescribe a rule governing a past concrete 

 transaction between definite individuals. There is a fitness required 

 for the discharge of this function determined by education and public 

 test at the bar. The representation is narrow with a high grade of 

 intelligence. The judges are disinterested they are umpires with 

 a power behind them to enforce their judgment. The fundamental 

 difference between legislative and judicial functions is that the former 

 is an effort to answer an indefinite number of hypothetical questions 

 to arise in the future the latter, a definite answer to an existing 

 question raised in the past. 



But the tendency of modern American courts is so to formulate 

 their judgments as to provide an answer to hypothetical questions 

 between future litigants. In this sense there is a tendency on the 

 part of the court not merely to legislate specially but broadly. 



There is a theory that legislation is a conscious expression of the 

 jural needs of the people. Statutory laws are said to be " analogous 

 to the voluntary resolutions of a person for self-improvement." * 



Another says, "A people's thought, habit, will, and purpose infuse 

 themselves into and make the law." 2 



This view is consistent with compact and homogeneous commun- 

 ities where the connection between the public and the law-maker or 

 judge is close, but it is submitted that in America, excepting on great 

 public questions on which public opinion is strong, legislation does 

 not reflect public opinion and frequently is special legislation in 

 disguise. This is an unfortunate result of the indifference of the 

 public, of our system of legislation, and of " the truth often illustrated 

 that a small body of men deeply interested and able easily to cooper- 

 ate is more powerful than a vast body of men less deeply interested 

 and unfavorably circumstanced for cooperation." 3 



It is submitted that the same truth holds good where a body of 

 professional experts dealing with a special kind of learning inter- 

 venes between the public and the expression of public needs in the 

 courts, and that thereby the public voice is not effective in declaring 

 its jural needs. It is believed that the characteristics of law are 

 affected by the source of the law. This source is either popular or 

 professional. The former contributes simplicity, adaptability, and 

 progress the latter technicality, rigidity, and conservatism. In 



1 Address of Mr. Carter, President of the Am. Bar Ass'n, 1885, p. 224. 



2 Address of Mr. Tucker, President of the Am. Bar Ass'n, 1893, p. 206. 

 Autobiography of Herbert Spencer, vol. I, p. 433. 



