Page:Harvard Law Review Volume 5.djvu/188

172 172 HARVARD LAW REVIEW. JUDICIAL LEGISLATION: ITS- LEGITIMATE FUNC- TION IN THE DEVELOPMENT OF THE COM- MON LAW. THE phrase "judicial legislation" carries on its face the notion of judicial usurpation. It is habitually used by our courts with this sense of reproach. The same disapproval is apparent when Bentham, expressing theories very different from those of the judges, designates the whole common law as "judge-made law." But if judicial legislation be understood to mean the growth of the law at the hands of the judges, — and it is in this sense that the term will here be used, — it will not do to assume that it is merely an evil. I shall endeavor to show, on the con- trary, that it is a desirable, and indeed a necessary, feature of our system. The subject will be discussed in the following order: (i.) Certain questions in regard to the nature of law, and the bearing of these questions upon our topic, will be first considered. (2.) Some characteristic features of the common law will be ex- amined, with a view to showing that growth at the hand of the judge is a necessary consequence of its methods of reasoning, its mode of dealing with cases, and the machinery by which its oper- ations are carried on. (3.) It will then become important to ob- serve that the same features of our system which bring about this result in the common law lead also to judicial growth in the appli- cation of statute law. (4.) These considerations will furnish a basis for certain conclusions in regard to the question of this essay, namely, the proper function of the judge in the development of the law. I. The nature of law, a question which underlies the whole philosophy of jurisprudence, is far beyond the reach of this essay. It is, however, so connected with the subject of judicial legislation that to clear the ground for a proper understanding of the latter, notice must be taken of certain leading opinions on the deeper question. It is indeed impossible to deal intelligently with the present topic without some consideration of the terms "law" and " legislation." For the definition of law which is generally accepted at the