All law is not made by the legislature. In England most of it is made by the law courts. There is more law to be found in the law reports than in the Statute book. But all law, however made, is recognised and administered by the courts, and no rules are recognised and administered by the courts which are not rules of law. It is therefore to the courts and not to the legislature that we must go in order to ascertain the true nature of the law.
The law may be defined as the body of principles recognised and applied by the state in the administration of justice. In other words, the law consists of the rules recognised and acted on by courts of justice.
To this definition the following objection may be made. It may be said “ In thus defining law by reference to the administration of justice, you have reversed the proper order of ideas, for law is first in logical order and the administration of justice second. The latter, therefore, must be defined by reference to the former, and not vice versa. Courts of justice are essentially courts of law, justice in this usage of speech being merely another name for law. The administration of justice means the enforcement of the law. The laws are the commands laid by the state upon its subjects, and the law courts are the organs through which these commands are enforced. Legislation, direct or indirect, must precede adjudication. Your definition of law is therefore inadequate, for it runs in a circle. It is not permissible to say that the law is the body of rules observed in the administration of justice, since this function of the state must itself be defined as the application and enforcement of the law.“
This objection is based on an erroneous conception of the essential nature of the administration of justice. The primary purpose of this function of the state is that which its name implies; to maintain right, to uphold justice, to protect rights, to redress wrongs. The administration of justice may be defined as the maintenance of right or justice within a political community by means of the physical force of the state, and through the instrumentality of the state’s judicial tribunals. Law is secondary and unessential. It consists of the authoritative rules which judges apply in the administration of justice, to the exclusion of their own free will and discretion. For good and sufficient reasons the courts which administer justice are constrained to walk in predetermined paths. They are not at liberty to do that which seems right and just in their own eyes. They are bound hand and foot in the bonds of an authoritative creed which they must accept and act on without demur. This creed of the courts of justice constitutes the law, and so far as it extends, it excludes all right of private judgment. The law is the wisdom and justice of the organised commonwealth, formulated for the authoritative direction of those to whom the commonwealth has delegated its judicial functions. What a litigant obtains in the tribunals of a modem and civilised state is doubtless justice according to law, but it is essentially and primarily justice and not law. Judges are appointed, in the words of the judicial oath, “ to do right to all manner of people, after the laws and usages of this realm ” Justice is the end, law is merely the instrument and the means, and the instrument must be defined by reference to its end.
It is essential to a clear understanding of this matter to remember that the administration of justice is perfectly possible without law at all. Howsoever expedient it may be, howsoever usual it may be, it is not necessary that the courts of the state should, in maintaining right and redressing wrong, act according to those fixed and predetermined principles which are called the law. A tribunal in which right is done to all manner of people in such fashion as commends itself to the unfettered discretion of the judge, in which equity and good conscience and natural justice are excluded by no rigid and artificial rules, in which the judge does that which he deems just in the particular case, regardless of general principles, may not be an efficient or trustworthy tribunal, but is a perfectly possible one. It is a court of justice which is not also a court of law.
Moreover, even when a system of law exists, the extent of it may vary indefinitely. The degree in which the free discretion of a judge in doing right is excluded by predetermined rules of law is capable of indefinite increase or diminution. The total exclusion of judicial discretion by legal principle is impossible in any system. However great is the encroachment of the law, there must remain some residuum of justice which is not according to law; some activities in respect of which the administration of justice cannot be defined or regarded as the enforcement of the law. Law is a gradual growth from small beginnings. The development of a legal system consists in the progressive substitution of rigid pre-established principles for individual judgment, and to a very large extent these principles grow up spontaneously within the tribunals themselves. That great aggregate of rules which constitutes a developed legal system is not a condition precedent of the administration of justice, but a product of it. Gradually, from various sources; precedent, custom, statute; there is collected a body of fixed principles which the courts apply to the exclusion of their private judgment. The question at issue in the administration of justice more and more ceases to be: “What is the right and justice of this case?” and more and more assumes the alternative form “What is the general principle already established and accepted, as applicable to such a case as this?” Justice becomes increasingly justice according to law, and courts of justice become increasingly courts of law.