Opposed, however, to these advantages of the system, which we may readily admit, there are grave objections, whereby in practice the whole system impresses one as extremely dangerous. I shall note the following:
15 It will be different where writers may deny that the decision creates a precedent, by calling atttention to earlier decisions.
First of all, statutory law tends to become secondary to case-law. There is no occasion for the legislature to act when the courts can supply a remedy. Case-law easily becomes the more important and legislation becomes paralyzed because the spur of necessity is lacking. If notwithstanding this fact considerable portions of the law of England have actually been codified, that may be explained by the present current of historical development which involves a gradual abandonment of case-law and likewise of customary law. This is a phase of evolution which unfortunately cannot be more fully discussed in this place.
Further, it is not correct to say that the flexibility of English law is secured by the binding force of decisions. On the contrary, the result is a remarkable rigidity in the growth of law; the process of growth simply cannot go on because a later court is bound by what an earlier one has decided. We must by no means lose sight of the rule already mentioned that lapse of time cannot deprive a precedent of its force. The backwardness of English law, frequently so strongly marked, is attributable to a great extent to the rule of "stare decisis." The proposition that this rule actually causes stagnation of legal development may be shown historically by an interesting example which is frequently not understood among us: the body of equitable rules. Originally, there was in England, aside from statutes, no law but customary law or what is known as the Common Law. In an early period the Lord Chancellor began to grant, in cases where the Common Law afforded no remedy, a kind of protection based on fairness and justice, which was at first a matter of discretion but later was conceded as a matter of right.
In this way arose the courts of equity, and from their decisions a complete system known as equity developed, which was distinct from and not infrequently directly opposed to the Common Law. Without entering on the question of the relations of Equity and the Common Law, which is now purely historical anyhow, we may content ourselves with stating that Equity, which in its beginnings was pure case-law, had by the beginning or middle of the nineteenth century become so ossified and rigid that it was practically impossible any longer to get justice in the courts on merely equitable claims.16 Here was a test of the practicability of the system, and the assertion will scarcely be contradicted, that the system failed. Incidentally I may remark that to-day there is no longer a separate body of equity law, and what is more important, there is no possibility of one arising again. For the great reform of the courts, in 1873, abolished the distinction between Common Law and Equity, a fact which obviously we cannot treat here in detail.
After this historical digression let us return to our proper subject. A danger of the system of precedents is also apparent in this, that not only the law which judges of genius have found, but equally the products of stupidity and misconceptions (such as after all, lawyers, even English lawyers, are sometimes capable of) lives forever and remains a binding rule. This fault has been well recognized in England, and we often find in the books a warning that a poor judge can do more harm than many an able one can do good.