In what has been said we have tried briefly to elucidate the principles governing the doctrine of precedents. Now we must inquire, from a critical and historical point of view, how this system of the participation of the courts in lawmaking has worked out in practice. I believe that on the whole we shall have to give an unfavorable answer: the system as such, it seems to me, will have to be called a failure. A number of reasons for this assertion may be furnished; but before we do so briefly, let us call attention to what appear to be the positive advantages of the system.
First of all, there can be no question that where the courts assist in law-formation, the authority, or rather the external importance, of the judges is greatly increased. If a decision has an effect beyond the concrete case, it will be of interest to persons not parties to the case, and the importance attaching in strictness to those decisions only which create precedents will -be ascribed, in the long run, to all decisions of those whose decisions may create precedents. The rulings of the courts will have greater weight than is the case in countries where their functions are of a merely declaratory nature. It is easily understood that, in the course of time, the respect due to the functions of the judges becomes respect for their persons; although it must be stated that there are other considerations contributing to the high outward consideration in which English judges are held.
The authority of the judge will also be increased, under the conditions set forth above, by the additional fact that he does not suffer from the defects of the law in the same manner as a judge with exclusively declaratory functions. With us, if a judge with strict conscientiousness applies the law as he finds it, recognizing gaps as such and declining to supply deficiencies by his own arbitrary will (as happened for instance in the well-known case of the theft of electrical current), he is apt to be blamed for the faults of the legislator. The supposition that our judges do not know the ways of the world is due to a great extent to the conscientious and correct conception they have of the duty which at the present day is imposed upon them. In England, of course, a similar reproach is not possible.14 There, gaps in the law have to be filled, and the courts cannot decline the rendering of a decision on the ground that there is no statute covering the case. Their activity in improving the state of the law is likely to make prevalent the notion that if the courts can't find a remedy none is to be found simply because the law prevents it. Consequently the tendency is to put the blame upon the law instead of the judges, and this tendency is favored by the habit of the courts of criticizing, often without mercy, a state of the law which they disapprove.
14 See footnote 7 ante.
Finally, it may perhaps be another advantage (although persons of a very scientific turn of mind may incline to call it a disadvantage) that the field for textual controversies is greatly narrowed by the lawmaking character of all decisions, even the interpretative ones. Generally speaking, where a doubt has arisen regarding the interpretation of a rule, that doubt must be considered as solved as soon as a decision has been rendered; it rarely happens in such cases that a textual controversy continues against the ruling of the court.15 In connection with this we may mention the further fact that the lawmaking character of the decisions seems to tend towards a reduction in the number of appeals on points of law. When a point of law has once been determined, nobody is likely to raise it again, while with us it is always possible for a different ruling to be made, so that the court may be, and actually is, asked to rule on the same question again and again. What is true regarding appeals is presumably true also with regard to new suits; thus there would seem to be little doubt that this lawmaking character of decisions tends to restrain the litigiousness of the public.