330 HARVARD LAW REVIEW. will agree. The question whether the remaining part is not made by the courts themselves is the question of judicial legislation with which this article is concerned ; and that question, under the defi- nitions assumed, seems to be one of small difficulty. The rules which courts will enforce can only be known by the rules which courts do enforce, and which are to be found in their decisions. Whatever adds to or subtracts from these rules is legislation. By reason of the importance attached by our system of law to judicial precedent, the decision of a particular case extends its efifect to subsequent cases arising upon the same facts, and announces not only a rule for the determination of the case in which it is made, but a general rule for all cases to which it is applicable, — a rule, that is to say, which until it is changed is included in the body of rules enforceable by the courts, and is, therefore, according to the definition, a rule of law. In this narrow view, whenever a judge takes a rule, no matter where he finds it, provided it is not in an Act of the legislature or in the decisions of the courts, and, by en- forcing it in a particular case, adds it to the rules which courts will thereafter enforce, he necessarily legislates. That to assume the definitions of law and of legislation begs the whole question of judicial legislation, as commonly discussed, is doubtless true ; but to discuss that question is foreign to the present purpose. In examining the discussions by the courts of the issue thus raised with respect to judicial legislation we are met on the very threshold of our inquiry by'the question whether it can ever, in a judicial sense, be decided by the courts; whether, that is, upon any state of facts a court can be compelled to decide it in order to de^ cide the case. Is it anything more than a question of legal and philosophical speculation, and can it in any given case be brought within the boundaries of that law which judges must pronounce in order to do justice between litigants? This is a question not readily or confidently to be answered, yet one which, as the writer thinks, is finally capable of an affirmative reply. In cases calling for the application of the law of a foreign jurisdiction a court may be called upon to decide whether the decisions of the foreign courts are or are not laws. The opinions expressed by judges upon the nature of thejr own action in particular cases are of necessity mere obiter dicta. It is impossible for any state of facts squarely to prcr sent to a court the question whether it has itself made law.^ 1 The case of Pierce v. Pierce, 46 Ind. 86, is interesting in this connection. By the twenty-fifth section of an Act of Indiana of 1852, three-fourths of the property
