Page:The Green Bag (1889–1914), Volume 20.pdf/70

 EDITORIAL DEPARTMENT of the pamphlet to lay the blame upon a sub ordinate rate clerk in the railroad he says it "adds neither dignity nor credence to the claim. It will be difficult for the defendant to convince the public that there has been a general conspiracy among subordinate rail road rate clerks throughout the country for the past twenty years to persecute it by forcing upon an unwilling and innocent beneficiary having expert traffic managers, secret and discriminatory rates in its favor without its consent and connivance." JURISPRUDENCE. " An Illustration of Legal Development — The Passing of the Doctrine of Riparian Rights," by Ralph H. Hess,,-1 merican Political Science Review (V. ii, p. 15). Written from the standpoint of a student of institutions rather than of a lawyer, this is in an interesting article on the process by which in the arid and semi-arid West the common law doctrines of the rights of riparian proprietors to the use of water have been supplanted by the doctrine that prior appro priation of the water gives the right to continue the use. JURISPRUDENCE. " An Introduction to the Law," by Hon. Benjamin F. Washer, Law Register (V. xxvii, p. 816.) JURISPRUDENCE. "Die Kunst der Rechtsanwendung zugleich ein beitrag zur methodenlehre der geisteswissenschaften," by Dr. Jur Lorenz Briitt Gerichtsassessor in Berlin. J. Guttentag, Berlin, 1907. JURISPRUDENCE. In the December Van Norden magazine (V. ii, p. 27) Professor Munroe Smith writes of " Statute and Judge Made Law " from the point of view of a pro fessor of comparative jurisprudence. He con tends that the flexible growth of law through judicial decisions slowly but surely adapting itself to change in economic and social condi tions is more effective than the spasmodic and unscientific work of our legislatures. JURISPRUDENCE. " Methods Followed in Germany by the Historical School of Law," by Rudolf Leonhard, Columbia Law Review (V. vii, p. 573). This address at the opening exercises of the Columbia School of Law points out as mistakes, now recognized as committed in Germany by the Historical School of Law, the subordination of law to

history and philology and the conflict between Romanistic and Germanistic lawyers arising from the separation of the Roman and German legal studies. The first led to the ignoring of practical matters, the second to a mis understanding of the real process of evolution of the modern German law. JURISPRUDENCE. "The Relation of Judicial Decision to the Law," by Alexander Lincoln, Harvard Law Review (V. xxi, p. 120). To the " legal fiction that law is an existing entity which is interpreted by the courts," Mr. Lincoln applies " some of the tests of com mon sense and ordinary experience " with the result of producing a well written and instructive article on a much discussed theme. His conclusion is " that by the rendering of judicial decisions the courts do make law, both in so far as they declare what in a certain situation are the legal rights and duties of the parties before them, thereby promulgating the law which is applicable to the particular case, and in so far as their decisions operate as sources of law, which serve as precedents for subsequent decisions. In the latter aspect judicial decisions become laws as we have de nned them, while in the former aspect they are to be viewed not as general rules of law, but rather as edicts having only a particular application. "We must also conclude- that the fiction that law is a complete existing entity which is merely interpreted by the courts, as well as the related fiction that every act at the time of its commission is governed by existing law, is not an accurate or correct expression of the truth. The law as an abstract entity is in truth nothing more than the sum of all the sources of law actually in existence, together with the potential changes and additions which may occur from future legislative enactments and judicial decisions. Those sources of law are undeniably interpreted by the courts, but at the same time the courts also make new law in the manner above described. The law governing a particular case, on the other hand, consists of the sources of law which may be applicable to it as declared by the court which decides the case. While any one may have an opinion as to how the case should be decided, the legal rights and duties are not determined, and the law, there fore, is not known until the court has passed upon it. To say, then, that the law pre viously existed, and therefore is not made by the courts, is entirely unsound.