In thus recognizing, as I do, that the power to declare the law carries with it the power, and within limits the duty, to make law when none exists, I do not mean to range myself with the jurists who seem to hold that in reality there is no law except the decisions of the courts.I think the truth is midway between the extremes that are represented at one end by Coke and Hale and Blackstone and at the other by such authors as Austin and Holland and Gray and Jethro Brown.The theory of the older writers was that judges did not legislate at all.A pre-existing rule was there, imbedded, if concealed, in the body of the customary law.All that the judges did was to throw off the wrappings, and expose the statue to our view.36 Since the days of Bentham and Austin, no one, it is believed, has accepted this theory without deduction or reserve, though even in modern decisions we find traces of its lingering influence.Today there is rather danger of another though an opposite error.
From holding that the law is never made by judges, the votaries of the Austinian analysis have been led at times to the conclusion that it is never made by anyone else.Customs, no matter how firmly established, are not law, they say, until adopted by the courts.37 Even statutes are not law because the courts must fix their meaning.That is the view of Gray in his "Nature and Sources of the Law." 38 "The true view, as I submit," he says, "is that the Law is what the Judges declare; that statutes, precedents, the opinions of learned experts, customs and morality are the sources of the Law." 39 So, Jethro Brown in a paper on "Law and Evolution," 40 tells us that a statute, till construed, is not real law.It is only "ostensible"law.Real law, he says, is not found anywhere except in the judgment of a court.In that view, even past decisions are not law.The courts may overrule them.For the same reason present decisions are not law, except for the parties litigant.Men go about their business from day to day, and govern their conduct by an ignis fatuus.The rules to which they yield obedience are in truth not law at all.Law never is , but is always about to be.It is realized only when embodied in a judgment, and in being realized, expires.There are no such things as rules or principles:
there are only isolated dooms.
A definition of law which in effect denies the possibility of law since it denies the possibility of rules of general operation 41 must contain within itself the seeds of fallacy and error.Analysis is useless if it destroys what it is intended to explain.Law and obedience to law are facts confirmed every day to us all in our experience of life.If the result of a definition is to make them seem to be illusions, so much the worse for the definition; we must enlarge it till it is broad enough to answer to realities.The outstanding truths of life, the great and unquestioned phenomena of society, are not to be argued away as myths and vagaries when they do not fit within our little moulds.If necessary, we must remake the moulds.We must seek a conception of law which realism can accept as true.Statutes do not cease to be law because the power to fix their meaning in case of doubt or ambiguity has been confided to the courts.One might as well say for like reasons that contracts have no reality as expressions of a contracting will.The quality of law is not withdrawn from all precedents, however well established, because courts sometimes exercise the privilege of overruling their own decisions.
