Now it may be supposed that his task of making law will inspire the judge with greater courage, strengthen
16 Comp., i.a., the account given by Birrell, "Century of Law Reform," pp. 177-202. Birrell concludes with these words: "Judge-made law has played its part. To statute law belongs the future. Let us pray for well-drawn statutes." confidence in himself, spur him on to greater efforts. However, the fact does not altogether support such a supposition. Of course, I do not mean to sit in moral judgment on the members of English courts; I wish to speak merely of the possibilities of the system. Well-reasoned policy, it seems, should always reckon with possibilities, never with probabilities. Now it would seem pretty certain that, generally speaking, the court, and particularly a very hard-worked English court, will be inclined to hunt for a precedent that will fairly fit the case. Is not the very essence of the system of following precedent to be found in the tendency towards relieving the Court from the necessity of using his own judgment, of the act of creation, as Oertmann has appropriately called it? Do we not even now complain of a tendency that turns our judges into unthinking parrots of other people's opinions? Do not forget that in England there is not merely a te'ndency to follow precedent, but that adherence to precedent is compulsory.17
Furthermore, even where precedent does not form an obstacle to development but carries on the growth of the law, there are still great drawbacks to the system. Growth under such conditions will ever be utterly without regularity, a piecemeal development without great, comprehensive ideas. There will be stop-gap decisions, tiding over from one case to the next, and serving the moment, but yet having effects on all future time, and full of inconsistencies. There can be no such thing as the harmonious and permanent solution of great problems. The disconnected, unmethodical condition of English law, with its numerous inconsistencies, that are attractive to none but historians and romanticists, is caused to a great extent by the system of following precedent.
17 The chase of the precedent is well described in Hatschek, "Englisches Staatsrecht," vol. i, pp. 102 seq.