SUPREME COURT ON JUDICIAL LEGISLATION. 329 few who had given any thought at all to the subject, and received the ready acquiescence of the legal profession. Since then they have been often quoted approvingly from the Bench, and if a great pre- ponderance of judicial opinions is to be conclusive of the question, they correctly represent to-day the nature of our unwritten law. The majority of philosophical and non-judicial writers, on the other hand, have regarded Blackstone's conclusions as superficial and unsound. Austin, the best known of these, speaks of" the childish fiction employed by our judges that judiciary or common law is not made by them, but is a miraculous something made by nobody, existing, I suppose, from eternity, and merely declared from time to time by the judges," ^ and announces his own opinion to be that the ratio decidendi (or the ground or principle of a judicial deci- sion which is not merely an application of pre-existing law) is itself a law, or performs the functions of a law.^ The issue framed by this conflict of opinion can be thus stated : Does a judge, in de- ciding a case in which he is not directed by statute or bound by judicial precedent, create the law announced by his decision? It is obvious that an agreed definition of the word " law " in this issue is an indispensable requisite of an intelligent discussion. In- deed the absence of such an agreement will account for much of the difference of opinion upon the main inquiry. Whether law is the command of a sovereign, or exists in the customs of society independently of such command, or is measured and defined by the development of the opinion of the community upon questions of ethics, are abstract questions of legal philosophy of which a uni- versally acceptable solution has yet to be found ; and those who have written of judicial legislation have held widely differing views upon them. It seems proper, therefore, before proceeding further, to say that the writer ventures no opinion regarding these ques- tions, and that for the purposes of this article a definition will be assumed, and the word " law " will be used as meaning a rule of conduct enforced by the process of the courts. This is the law with which judges have to deal. The word " legislation " will mean the process by which such a rule is created. That an Act of the legislature is such a process, and that such Acts make but a small part of the rules which it is the duty of courts to enforce, all
- Jurisprudence (4th ed.), Vol. II. p. 655.
^ Jurisprudence, Vol. II. p. 649. In accord, see also Maine's Ancient Law, p. 14; Holland's Jurisprudence, Chap. V. pp. 53, 56; Digby's " History of the Law of Real Property," p. 63 ; Markby's Elements of Law, p. 61.
