semblance, there is no new law made. The two cases are truly, to use the common phrase, "on all fours": in Austin's language, the judiciary law deducible from the first decision is merely applied to the second 25. Very often, however, the new case is only analogous to the old ones, that is, it only possesses some of the properties of the class or classes of cases contemplated by former rules. Here there is no rule applicable, and, so far as the new decision constitutes a rule for the future, the judge derives that new rule from previous ones, whether statutory or judicial, by a "consequence built upon analogy 26" An instance of this is the extension of a statute, unequivocally expressed, to objects within its scope but not within its provisions; or to objects which, though not within its scope, because not existent at the time of making, are analogous to those within either the provisions or the scope". Competition of opposite analogies. This is a subject started by Paley in his Moral and Political Philosophy, under the title "The Administration of Justice 28" Paley's remarks were commented on by Sir S. Romilly in the Edinburgh Review"; and the original together with the comment has prompted one or two not very intelligible paragraphs in Austin's principal lecture on Judiciary Law. The somewhat specious phrase of Paley appears to indicate a state of things arising rather from the minuteness and multiplicity of pre-existing rules, whether statute or judiciary, than from a special characteristic of one or the other kind. I am inclined however to believe that Paley, 25 Ib. 37. pp. 648, 9. 26 Ib. 37. pp. 660, 661. 27 Ib. 660, also see above, pp. 238, 9. 29 Vol. 29. p. 224. Read particularly the passage "When a point of law, &c." quoted in the text of the article, directly after that quoted in the note "After all the certainty &c.," which it directly follows in the original (pp. 258, 9 of the 20th ed. of Paley). Note also the words "so far as the same was argued or adjudged upon principles of common law" (p. 260). in the passage which gave rise to Austin's disquisition on this subject, had really in view rather the application of judiciary than of statutory rules. As to the expression "brought within a fixed rule by analogy" to which Austin objects, it is, no doubt, incorrect, but Paley's true meaning is expressed clearly enough in the very next words, where he says that the pending question may hold a relation by analogy to different rules31. This is the "competition of opposite analogies"-one inviting the judge to decide the case, and therefore model the new rule, analogously to the old rule A, the other analogously to the old rule B. And this competition is the very difficulty which the judge has to surmount, by comparison, adjustment and reconciliation of the analogies with one another, or by giving up the weaker to the stronger3: so that Sir S. Romilly is undoubtedly wrong in making Paley regard it as a means of surmounting difficulty, in the application either of statutory or judiciary law3. I also think he is wrong in supposing Paley not to be speaking principally, or even solely, of judiciary law. Austin shews, rightly enough, that this competition of opposite analogies may arise from inconsistent statutes or inconsistent parts of a single statute, as well as from inconsistent precedents. But there is much truth in the idea which I cannot but think was present to the minds of both Paley and Romilly; that such competition will at any rate arise less in statute than in judiciary law. In the former the rules may be general and few: in the latter 30 Austin 37. p. 661. 31 Paley 1. c. p. 259. 32 Austin 37. p. 661. A much better statement of the case than that given by the same author at p. 654. 33 See Paley 1. c. 259, 269. Also Austin 37. p. 662. 36 Austin 37. p. 662. they must be special and numerous. In the worst case of the former-piecemeal legislation and mangling by a committee of amateurs-there is at least the attempt to take a wide and prospective view, on the passing of each several enactment. In the best case, the rules would form part of a balanced and comprehensive system, which would reduce the "competition of analogies" to the least possible degree 98. 37 The expressions here used are somewhat too strong for the case which I had in mind. At any rate the institution of Standing, or Grand, Committees bids fair to remove much of this reproach from the English House of Commons. From the short experience which we have had of these bodies, they appear to do their work of legislation not only in a scientific manner but in a spirit very free from party feeling. 38 See Austin's remarks on Savigny's treatise Vom Beruf, &c. Lect. 39, p. 687, note 79. CHAPTER VI. · CASE LAW: ITS ADVANTAGES AND DISADVANTAGES. AUSTIN completes his survey of judiciary legislation by considering certain groundless objections to it, certain real objections to it, and the possibility of excluding it by codes or systems of statute law. I shall examine these subjects in order, only premising that I may be obliged to class some of Austin's real objections among the groundless ones, and that I postpone the subject of codification to the last chapter of this part. The objections, which are mainly derived from Bentham, turn upon the makers of the law in question, the manner in which it is made, and the character of the law when made. The makers of judiciary law. The irresponsibility, or insufficient responsibility, of the judges to the community, is urged by Romilly': to which Austin adds the greater opportunity which is afforded for sinister proceedings, by judiciary than by direct legislation. The latter author, however, shews that the above objection, raised by Romilly, is rather to our own particular constitution than to judiciary law in general2. It is in Austin's own argument that the strength of the 1: Ed. Rev. 1. c. pp. 231, 2. He also adds the impossibility of one man being able to legislate on all branches of law. This is really an objection to the extensive mass of our jurisprudence. It would clearly be better, if possible, to reduce that mass, than to make all our judges specialists. 2 Austin 38. p. 664. objection lies. Granted an unprincipled government, with judges dependent on it, the ends of such a government will be attained with greater ease through the less observed action of the Courts, than through the open and odious method of direct legislation. With ourselves this objection seems at present to have no weight whatever. Hallam indeed considers that the irremoveability of our judges does not entirely secure their independence. But scarcely any one would now maintain that their hope of future preferment has the least influence upon their administration of justice and the judiciary legislation resulting from it. Against any risk of arbitrary conduct on their part we have a sufficient guarantee in the high character of the body from which the judges rise, in the influence of that body upon them, and the control exercised by public opinion upon both*. Manner in which judiciary law is made. A tenable objection, according to Austin, is the haste with which this kind of law is made, in the hurry of judicial business. This, though it may be a common fault in judiciary legislation, is by no means an inherent or essential one. Instances are quoted by Austin and his editors of solemn and deliberate judiciary law. The opportunities for such legislation might be increased, or the evil of hasty legislation diminished, by two means, which would probably meet with a very different amount of favour from the profession. 1. By appointing more judges, and so giving more time for each case. 2. By formally recognising a much higher degree of authority, in cases decided on appeal, than that allowed (if any) to others. I feel, however, that practical suggestions would come better from those who are 3 Constitutional History of England, Ch. 15. To this argument might of course be added the dependence of the Lord Chancellor's tenure of office upon the ministry of which he forms part. 4 See Austin 38. pp. 666, 7. 5 Austin 39. pp. 672, 3, note 70. Also note 33 on p. 545. |