Moreover, this very experiment was tried in the code of Frederick the Great and failed utterly as was to be expected. For why should we hope that the executive commission would possess more foresight than the legislature? It is a lesson of all legal history that the most we may achieve in advance is to lay down a premise or a guiding principle and that the details of application must be the product of judicial experiment and judicial experience.
In a much-quoted case of the fourteenth century, counsel reminded the Court of Common Pleas that if it did not follow its own decisions no one could know what was the law. One of the judges interposed the suggestion that it was the will of the justices. "Nay," corrected the chief justice, "law is reason."26 In this antithesis between will and reason we have the root of the matter. Mere will, as such, has never been able to maintain itself as law. The complaint of our sovereign peoples that their will is disregarded must be put beside the querulous outburst of James I, "Have I not reason as well as my judges?"27 the attempt of Frederick the Great to put all interpretation of law in the hands of a royal commission, and the futile attempt of Napoleon's code to prevent the growth of a judge-made law. There is no device whereby the sovereign, whether King Rex or King Demos, may put mere will into laws which will suffice for the administration of justice.
25 "Nature and Sources of Law," Sec. 370. 26 Langbridge's case, Y.B. 19 Ed. Ill, 375. 27 "Prohibitions del Roy," 12 Rep. 63.
To sum up, I think the difficulties involved in the relation of courts to legislation grow out of (1) over-minute lawmaking which imposes too many hard and fast details upon the courts, (2) crude legislation, which leaves it to courts to work out what the legislature purported to do but did not, (3) absolute theories, both of law and of lawmaking, which lead both courts and legislatures to attempt too many universal rules, to attempt to stereotype the ideas of the time as law for all time, and have led courts at times to enforce too strongly the doctrines of the traditional system, at the expense of newer principles, and finally (4), by no means least, insufficient attention to the problem of enforcement of rules after they are made. Enforcement and application are the life of law. But we have spent our whole energies upon making rules and have seemed to rely on faith that they would vindicate themselves. More than anything else, attention to procedure and to the enforcement of rules and their application in practice will relieve the present tension. The Puritan ideal of judicial machines bound down by a multitude of detailed rules has proved inadequate. If legal history may be vouched, the way out lies in strong courts with full powers of doing justice, guided by principles furnished by the lawgiver, but not hampered by an infinity of rules, the full effect whereof in action no one can hope to foresee.