Page:Harvard Law Review Volume 5.djvu/210

194 194 HARVARD LAW REVIEW. appears in an interesting essay by Sir Samuel Romilly, 1 in the course of which he ridicules the notion that Paley's competition of analogies has any application to statute law. 2 It is true that in form statute law appears to preclude anything like judicial legislation. The law already exists. All that the judge has to do is, first, to define its terms, and then to apply them to the facts in hand. Yet the difference between this pro- cess and that of dealing with case law is more one of form than substance, and though its field may be more limited and its pres- ence less conspicuous, the same judicial development is believed to be a necessary result. This is due to the same causes of growth which we have seen in the common law: first, to the peculiar features of our system, such as the effect which it gives to a decision and the function of the court in dealing with the jury; second (and this was the point which Bentham overlooked), to the true nature of the reasoning process necessarily involved in applying any law to facts. The facts presented by cases are not cast in forms. The combinations are infinitely various, and the question of classification, as in every branch of scientific inquiry, is a relative one. According as you are dealing with one or another of their characteristics, the same facts may be regarded as x or y. There is thus the same "competition of analogies" as in case law, the same conflict of statutory rules as of judicial principles. One statute, for example, may prescribe a rule for innkeepers, another for carriers. A new kind of person may then appear who resembles in some respects a carrier, in others an innkeeper; and it becomes the duty of the court to say to which class he belongs. 3 This being so, the judicial declaration, which our system treats as a binding precedent, that the statutory rule applies to fact A, does not apply to A plus B, but does again when C is added, has, as in the common law, the effect of shaping and moulding the rule. A set of subsidiary rules, abso- lute or presumptive, grows up to determine what facts fall within its different terms. By the ramification of these minor rules, which are in turn adjusted and consolidated, the original law, couched in general terms, is, within its limited sphere, restricted 1 29 Edinburgh Review, 217. 2 The error of this passage is pointed out in 2 Austin's Jurisprudence (4th ed.), 653. 8 See the case of the sleeping-car, infra. The bicycle, the electric car, and many other modern inventions might be used to illustrate the same point.