Essays in Jurisprudence And Ethics

and Austin may consider the matter more deeply, and answer that Parliament indeed makes law, but the judges make it?and sometimes unmake it?also. But we are not yet at the root of things. The judges are causa proxima of the law settled by their decisions, but not causa efficiens. They cannot lay down anything of their own motion. A judge may write a legal book; but, however much better it may be than another man's book, it is equally powerless to make a binding rule for future decisions. The Courts can expound the law with authority only upon the occasions given to them when the judicial machinery is properly set in motion. So then we may say that as cloth is made by the weaver, though the machinery of the loom is beyond his comprehension,the part of our law which we call " judge-made" is really made by the people who start and keep going the processes of litigation. These people, it is needless to say, are the suitors. It is also needless to say that the declaration and amendment of the law, so far as it is effected by judicial decisions, is effected at the suitors' expense. The weaver is paid for making cloth, but the suitor pays for making law. So far as this expense enures to the benefit of the public by making the law more certain, it might seem that the suitors are unjustly charged with it. A man may well think it hard to be first led into difficulties by the imperfection of the law, and then made to pay for mending it. For these and other reasons certai...