Page:Harvard Law Review Volume 12.djvu/566

546 546 HARVARD LAW REVIEW. a rule or standard already declared for the guidance of the courts in its construction. For example, when the first court decided that " heirs at law " in a gift of personalty did not mean heirs at law at all, but some- thing very different, that was a question of fact. When the second court decided the same point, that was a question of law because g rule had been established. When the third court decided that heirs at law in a gift of realty and personalty meant heirs at law, that was a mixed question of law and fact, because, although there was a rule of law, the court held that the rule was not applicable to that case. I respectfully submit that the learned author's definition of law is inadequate, and that law, or what in our language passes for law, comprises every judicial decision which is so made and recorded as to become a precedent for future cases, whether the judge who made the decision had a rule for his guidance or not. It is astonishing with what tenacity we cling to the notion that the administration of justice presupposes the existence of a body of law imposed upon the judges by some external force. We shake off the notion that law is the mandate of the sovereign only to sub- stitute the mandate of society or the " social standard of justice " or some other unseen power. The idea that a body of picked men can administer justice and serve the ends of peace and security for which courts are established without being told what to do by some outsider cannot get a lodgment because our brains are pre- occupied by " law," and yet we see the workings of our courts of justice every day and our judges seem to be free agents except as they respect the decisions of other judges who have preceded them ; and we feel just as secure under this system as if we were living under a code of forty volumes. If we feel reasonably certain that cases are going to be decided in the future as they have been in the past, what more do we need in the way of law ? Take a simple illustration. A man has two sons. The elder robs an apple-orchard. The father takes him in the act and applies the switch. The younger brother watches the operation. The father has never commanded his sons not to rob apple-orchards but the younger boy knows by long experience that the administration of parental justice is uniform. For the purpose of promoting good order in that family, that single case has all the effect of a positive command. If the father chooses to say as he wields the switch, "I am doing this because I do not approve of stealing," that