Front Page Titles (by Subject) Conclusion - Freedom and the Law (LF ed.)
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
Conclusion - Bruno Leoni, Freedom and the Law (LF ed.) 
Freedom and the Law, expanded 3rd edition, foreword by Arthur Kemp (Indianapolis: Liberty Fund 1991).
About Liberty Fund:
This work is copyrighted by the Institute for Humane Studies, George Mason University, Fairfax, Virginia, and is put online with their permission.
Fair use statement:
Perhaps the best procedure to follow in writing this conclusion is to try to reply to some of the questions that my readers would probably ask me if they could. In fact, I was asked such questions when the contents of this book were delivered as lectures.
Of course, we could take into consideration many other questions, but those mentioned above seem to be the salient points arising from a possible discussion of the whole matter.
1.What do I mean when I say (in chapter 8) that public opinion “is not everything”? As far as the first question is concerned, I maintain that not only may public opinion be wrong, but it may also be corrected by resorting to reasonable argument. True enough, this may be a long-drawn-out process. It took more than a century for people to become acquainted with socialist ideas; it will certainly take a considerable time for them to reject these ideas, but this is no reason to give up the attempt.
While the trend against individual freedom is still the prevailing one in countries comparatively undeveloped according to Western standards, it is already possible to realize from several symptoms that people have learned some lessons in those countries of the West in which the limitation of individual freedom through a corresponding expansion of enacted law, preached more or less openly by socialist leaders as a necessary condition for the advent of a “better world,” has proved to be very little counter-balanced by the alleged advantages of such legislation. Today we can already observe, for instance, a recession of socialism in England, Germany, and possibly France, as far as the so-called nationalization of industry is concerned. It is obvious that as a result of this recession individual initiative in the economic field is being gradually liberated from the threat of further interference on the part of the government. Recent books, like that of an ex-Labourite in England, Mr. R. Kelf-Cohen, are rather illuminating in this regard.
What is characteristic of the socialistic solution of the so-called social problem is not the end of promoting public welfare and eliminating, as far as possible, poverty, ignorance, and squalor, for this end is not only perfectly compatible with individual freedom, but may also be considered as complementary to it. The very core of the socialist solution is the peculiar way its supporters propose to reach that end, namely, by resorting to a host of officials acting in the name of the state and limiting accordingly, if not suppressing altogether, private initiative in economics as well as in several other fields that are inextricably connected with the economic domain.
If socialism consisted chiefly, as many persons still believe, in its declared aims, it would probably be difficult to convince people to give it up in the near future. It is quite possible, on the other hand, to convince people that what is wrong with socialism is not its professed aims, but the means purportedly necessary for their achievement. The naïveté of the socialist view as far as the means are concerned is really surprising. As the above-mentioned author points out,
There was magic in the words “public board” or “public corporation.” They were to be staffed by selfless men of outstanding ability, devoted to the national interest. We assumed that such men were to be found in large numbers; naturally they had no chance to come forward in the degenerate capitalistic era in which we were living.
We also assumed that the workers in the industries would be transformed by the Act of Nationalization and devote themselves to the national interest.
Thus, the combination of selfless management and selfless workers would bring about the brave new world of socialism—so utterly different from capitalism.1
A similarly incredible naïveté has been typical of such famous leaders of the Labour movement in Great Britain as Sidney and Beatrice Webb, who placed, as Kelf-Cohen says, great reliance on “independent and disinterested experts” in the new socialist state. They had, as the same author says,
great faith in the reasonableness of the human being who could always be swayed by facts duly collected and published. . . . They, of course, believed that once the personal element represented by the capitalists had disappeared, the character of all persons connected with these industries would be so profoundly changed that the industries would in fact represent a new way of life. . . . As the Webbs had little understanding of the function of management and the responsibility for making decisions, which is a vital part of that function, they failed to realise that a conglomeration of committees and disinterested experts would still leave it necessary for responsible management to do the work. They tended to identify at the back of their minds the responsibility of management with the greed of capitalism.2
Finally, Kelf-Cohen proves quite conclusively that the same naïveté was shown by the members of the Labour Government in the period from 1945-1950. In fact, the British Labourites are not alone in this attitude, which is common to all advocates of publicly owned enterprises that are to be operated on a commercial basis. In the long run this attitude cannot last. The innumerable failures of publicly owned enterprises are being slowly but surely realized by people at large. Public opinion will be forced to change accordingly.
2.Is there any possibility of applying the “Leoni model” to present-day society? What I said above gives me the opportunity to answer the second question relating to the possibility of applying in present-day society what some of my dear friends and auditors at Claremont humorously called the “Leoni model.” The displacement of the center of gravity of legal systems from legislation to other kinds of law-making processes cannot be attained in a short time. It can, however, be the result of a change in public opinion concerning the scope and significance of legislation with reference to individual freedom. History shows us other examples of a similar process. Classical Greek law, based on legislation, gave way to Roman law, based mainly on the authority of the jurisconsults, customs, and judiciary law. When a Roman emperor of Greek descent, Justinian, tried later to revive the Greek idea of legislative law by putting in force, as if it were a statute, a huge collection of opinions of classical Roman jurisconsults, his attempt eventually underwent a similar fate by becoming the basis of a lawyers” law that lasted for centuries until modern times.
True, history never repeats itself in the same way, but I would not go so far as to say that it does not repeat itself in other ways. There are countries at present in which the judiciary function performed by judges officially appointed by the government and based on the enacted law is so slow and cumbrous, not to say expensive, that people prefer to resort to private arbiters for the settlement of their disputes. Further, whenever the enacted law appears to be too complicated, arbitration is often likely to abandon the basis of enacted law for other standards of judgment. On the other hand, businessmen like to resort, whenever possible, to bargaining rather than to official judgments based on the enacted law. Although we lack statistical figures relating to most countries, it seems reasonable to think that this trend is increasing and could be deemed as a symptom of a new development.
Another indication of a trend in the same direction may be seen in the behavior of people who willingly renounce in some countries, at least to a certain extent, their right to take advantage of discriminatory statutes like the Landlord and Tenant Acts, which enable one of the parties to violate previous agreements, for example, by the renewal or nonrenewal of leases, the ability of the landlord to increase the rent, etc. In these cases, the deliberate attempt made by the legislators to disrupt, through an enacted law, previous engagements freely entered into and kept, proves a failure, notwithstanding the obvious interest that one of the parties could have in invoking the law.
A characteristic feature of some legislative measures in this respect, at least in certain countries, is the fact that the discriminatory practices introduced by the enacted law were and/or are obligatory, i.e., have or had to take place even in the face of previous agreements between the parties concerned, while in other cases agreements reached later in spite of the enacted law could be violated according to that law by one of the parties, the other party being left defenseless. In such cases the legislators were obviously concerned about the—for them—unwelcome possibility that the privileged party might renounce his privileges by making and keeping other agreements, not only because of his ideas of honesty in entering into or keeping agreements, but also because his valuation of his own interests might differ from that of the legislators. In such cases we see apparently paradoxical instances of nonlegislated law prevailing over legislated law, as a sort of unrecognized, but still effective, “common law.”
A more general phenomenon that must be taken into consideration in this respect is the evasion of the enacted law in all cases in which the evaders feel that they have been unjustly treated by contingent majorities within legislative assemblies. This happens notably in connection with heavy progressive taxation. True, one must distinguish between one country and another in this respect, but there are many reasons to think that the phenomenon of evasion of heavy progressive taxation is much more general and widespread in the countries of the West than is officially admitted or possibly recognized. One could also refer, in this respect, to the increasing practice in the United States of creating foundations and other tax-exempt organizations, the purpose of which, among others, is the transference of both “capital and annual income away from a corporation.”3
No less interesting in this connection is the real attitude of people as compared with the legislative law prohibiting habits and forms of behavior that are commonly considered, on the other hand, as falling within the field of morality and left to private judgment.
As signs of a possible recession of legislation in these fields one could cite, for instance, the strictures of some contemporary American sociologists against the attempts to enforce morals by way of the law (as still happens in some states where, for instance, people “vote dry and drink wet”) or the recommendations of a very recent British report, in which it is stated:
It is not in our view the function of the law to intervene in the private lives of citizens or to seek to enforce any particular pattern of behavior further than is necessary to carry out the purposes we have outlined. . . . to preserve public order and discipline, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others. . . .4
Finally, ignorance of what very many statutes entail or even of their very existence and a corresponding negligence in abiding by the enacted law on the part of the man in the street (notwithstanding the classic rule that ignorance of the law is no defense) must also be brought into the picture to give an adequate idea of the limits of the legislation which is officially “in force,” but not effective in many cases.
The more that people become aware of these limits of legislation, the more they will accustom themselves to the idea that present-day legislation, with its pretence of covering all patterns of human behavior, is actually much less capable of organizing social life than its supporters seem to believe.
3.Supposing that the above-mentioned possibility exists, how can the “golden rule” referred to here enable us to distinguish the area of legislation from common-law area? What are the general boundaries of the domains to be respectively allotted to legislation and to the common law according to the model? To the third question I wish to reply that the “golden rule” mentioned in the preceding pages could not be changed into a rule of thumb sufficient in itself to enable us to say when legislation is to be resorted to instead of common law. Other requirements are obviously needed to decide whether legislation is necessary or not in any particular situation. The “golden rule” has only a negative meaning, since its function is not that of organizing society, but that of avoiding as far as possible the suppression of individual freedom in organized societies. It enables us, however, to sketch some boundaries in this respect, to which I referred in the introductory chapter in summarizing in advance some of the points to be made in these lectures when I said that we should reject legislation whenever (a) it is used merely as a means of subjecting minorities in order to treat them as losers in the field, and (b) it is possible for individuals to attain their own objectives without depending upon the decision of a group and without actually constraining any other people to do what they would never do without constraint.
Another criterion already anticipated in the introductory chapter and resulting from the “golden rule” is that the presumed profitability of the legislative process as compared with other law-making processes should be assessed very carefully in all cases where the legislative process is not to be rejected for the above-mentioned reasons. Whatever is not positively proved as worthy of legislation should be left to the common-law area.5
I would agree that the attempt to define on these bases the boundaries between the areas to be allotted respectively to legislation and to common law is likely to be very difficult in many cases, but the difficulties are not a good reason to give up the attempt.
On the other hand, if it were possible to outline in advance all the applications of the “golden rule” to the definition of the boundaries between the area of common law and that of legislation, and if, moreover, these applications were to be included in the present book, the whole purpose of my thesis would be simply defeated, since the applications themselves could be considered as constituting the clauses of a code. It would be altogether ridiculous to attack legislation while at the same time presenting the draft of a code of one’s own. What one ought always to keep in mind is that, according to the common-law or to the lawyers’-law point of view, the application of rules is an ever-continuing process. Nobody can bring the process to its conclusion by himself and within his own time. I may add that, according to my view, everybody should prevent other people from attempting to do just that.
4.Who will appoint the judges or lawyers or other honoratiores of that kind? The fourth question—“Who will appoint the judges or lawyers or other honoratiores to let them perform the task of defining the law?”—is one that, like the preceding, may have a misleading implication. Once again it seems to be implied that the process of appointing judges and the like, as well as that of defining boundaries between the respective areas of legislation and of common law, is to be performed by certain definite persons at a definite time. In fact, it is rather immaterial to establish in advance who will appoint the judges, for, in a sense, everybody could do so, as happens to a certain extent when people resort to private arbiters to settle their own quarrels. The appointment of judges on the part of the authorities is carried out, by and large, according to the same criteria that would be used by the man in the street. For the appointment of judges is not such a special problem as would be, for example, that of “appointing” physicists or doctors or other kinds of learned and experienced people. The emergence of good professional people in any society is only apparently due to official appointments, if any. It is, in fact, based on a widespread consent on the part of clients, colleagues, and the public at large—a consent without which no appointment is really effective. Of course, people can be wrong about the true value chosen as being worthy, but these difficulties in their choice are inescapable in any kind of choice. After all, what matters is not who will appoint the judges, but how the judges will work.
I have already pointed out in the introductory chapter the possibility that judiciary law may undergo some deviations the effect of which may be the reintroduction of the legislative process under a judiciary guise. This tends to happen first of all when supreme courts are entitled to have the last word in the resolution of cases that have already been examined by inferior courts and when, moreover, the supreme courts” decisions are taken as binding precedents for any similar decisions on the part of all other judges in the future. Whenever this happens, the position of members of the supreme courts is somewhat similar to that of legislators, although by no means identical.
In fact, the power of supreme courts is usually more important under a common-law system than under other legal systems centered around legislation. The latter try to attain the “consistency of judicial decision” through the binding force of precisely formulated rules. The former usually perform the task of introducing and keeping that consistency through the principle of precedent whenever a common opinion among judges or lawyers would not be likely to emerge. In fact, all common-law systems probably were and are based somehow on the principle of precedent (or of “president,” as the English lawyers of the Middle Ages used to say) although this principle is not to be simply confused with that of binding precedent in the common-law systems of the Anglo-Saxon countries at the present time.
Today both the legislators and judges of supreme courts perform the task of keeping the legal system on some kind of rails, and precisely because of this both legislators and judges of supreme courts may be in a position to impose their own personal will upon a great number of dissenters. Now, if we admit that we have to reduce the powers of the legislators in order to restore as much as possible individual freedom, understood as the absence of constraint, and if we agree also that the “consistency of judicial decision” must be reserved for the very purpose of enabling individuals to make their own plans for the future, we cannot help suspecting that the establishment of a legal system that could result in emphasizing in its turn the powers of particular individuals like judges of supreme courts would be a deceptive alternative.
Fortunately, even supreme courts are not at all in the same practical position as legislators. After all, not only the inferior courts, but also the supreme courts may issue decisions only if asked to do so by the parties concerned; and although supreme courts are in this respect in a different position from inferior courts, they are still bound to “interpret” the law instead of promulgating it. True, interpretation may result in legislation, or, to put it better, in a disguised legislation, whenever judges stretch the meaning of existing written rules in order to reach a completely new meaning or when they reverse their own precedents in some abrupt way. But this surely does not warrant the conclusion that supreme courts are in the same position as legislators, who can, as Sir Carleton Kemp Allen would say, “make new law in a sense which is quite precluded to the judge.”6
On the other hand, under the system of “binding” precedent, supreme courts too may be bound, like the House of Lords in Great Britain, by their own precedents, and while the inferior courts are officially bound by the decisions of the higher courts, “the humblest judicial officer” (as the above-mentioned author rightly says) “has to decide for himself whether he is or is not bound, in the particular circumstances, by any given decision” of the higher courts or even of the supreme courts.7 Obviously this makes for a considerable difference between judges of supreme courts and legislators as far as the unwelcome imposition of their respective wills on a possibly great number of other dissenting people is concerned. Of course, there may be a great difference between one supreme court and another in this respect. Everybody knows, for instance, that the power of the Supreme Court of the United States is much broader than that of the corresponding supreme court of Great Britain, i.e., the House of Lords. The most obvious difference between the two Anglo-Saxon systems is the existence of a written constitution in the American system, the equivalent of which does not exist in the British system. It has already been pointed out by some American theorists in recent times8 that the problem of precedent where a written constitution is involved is an entirely different matter from that in case law.
Added to the problem of ambiguity [i.e., in the words of the Constitution] and the fact that the framers [of it] may have intended a growing instrument, there is the influence of Constitution worship. This influence gives great freedom to the court. It can always abandon what has been said in order to go back to the written document itself. It is a freedom greater than it would have had if no such document existed. . . . Indeed, by admitting appeal to the Constitution, the discretion of the court is increased. . . . The possible result of this in some fields may seem alarming.9
In such cases, as the author wisely adds (quoting Justice Frankfurter of the United States Supreme Court), “ultimate protection is to be found in the people themselves.”
In fact, a system of checks and balances could easily be developed within the judiciary in this respect, just as a corresponding system has been developed, notably in the United States, among the different functions or “powers” within the political organization. If the position of a supreme court like that of Great Britain, which is bound by its precedents, seems inadequate in meeting with changes and new exigencies, and it is assumed, on the contrary, that a supreme court must be allowed to reverse its precedents or to change its previous interpretation of the written law, i.e., of the written constitution, like the Supreme Court of the United States, special devices could still be introduced to limit the power of supreme courts as far as the binding character of their decisions is concerned. For example, unanimity could be requested for decisions that reverse long-established precedents or that change substantially previous interpretations of the constitution. Other checks could also be devised; it is not my task to suggest them here.
What has been pointed out in regard to the position of supreme courts as compared with that of legislators is even more obviously true in regard to inferior courts and ordinary judges in general. They cannot be considered as legislators, not only because of their psychological attitude towards the law, which they commonly intend to “discover” rather than to “create,”10 but also and above all because of their fundamental dependence on the parties concerned in their process of “making” the law. No insistence on the interference of personal factors in this process of making the law can make us forget this basic fact. There has been a good deal of agitation on the part of some people over the fact that the private feelings and personal situations of the judges may possibly interfere with their judiciary function. One wonders why these people seem to have paid no attention to the corresponding and much more important fact that private feelings and personal situations can interfere as well with the activity of the legislators and through it, much more profoundly, with the activity of all members of the society concerned. If such interferences cannot be avoided, and if we have a choice, it seems much better to prefer those which are less far-reaching and decisive in their effects.
5.If we admit that the general trend of present-day society has been more against individual freedom than in favor of it, how could the said honoratiores escape the trend? A reply may be given, in this connection, to the fifth question: How could judges, any better than legislators, escape the contemporary trend against individual freedom?
To give a sensible answer to this question, we should first discriminate between judges of inferior courts and those of a supreme court. Moreover, we should distinguish between supreme court judges who are in a position to change the law by reversing their precedents and supreme court judges who are not in that position. It is obvious that whatever may be the personal attitude of a judge toward the above-mentioned trend, judges of inferior courts are limited in the extent to which they are free to follow the trend if this is in contrast with the opinion of superior courts. The judges belonging to superior courts are limited, in their turn, in the extent to which they are free to follow the trend if they cannot at will reverse their precedents or if there is some device, such as the requirement of unanimity, to limit the effects of their decisions upon the whole legal system.
Besides, even if we admit that judges cannot escape the contemporary trend against individual freedom, we must admit that it belongs to the very nature of their position towards the parties concerned to weigh their arguments against one another. Any a priori refusal to admit and weigh arguments, evidence, etc., would be inconceivable according to the usual procedures of all courts, at least in the Western world. Parties are equal as regards the judge, in the sense that they are free to produce arguments and evidence. They do not constitute a group in which dissenting minorities give way to triumphant majorities; nor can it be said that all the parties concerned with more or less similar cases decided at different times by different judges constitute a group in which majorities prevail and minorities have to give way. Of course, arguments may be stronger or weaker, just as the buyers or sellers in the market may be stronger or weaker, but the fact that every party can produce them is comparable to the fact that everybody can individually compete with everybody else in the market in order to buy or sell. The whole process implies the basic possibility of an equilibrium in a sense very similar to that of the market, and notably of a market in which prices may be fixed by arbiters freely entitled to do so by the parties concerned. To be sure, there are differences between the latter kind of market and the ordinary one. Since the parties have entitled the arbiter to terminate the bargaining by fixing the prices, they have committed themselves in advance to buy or to sell at those prices, while in an ordinary market there is no commitment until the price has been agreed upon between the parties concerned.
In this respect, the position of the parties before a judge is similar to some extent to that of individuals belonging to a group. Neither the losing party at a trial nor the dissenting minority in a group is in a position to refuse to accept the final decision. On the other hand, however, the commitment of the parties before a judge has very definite limits, not only as far as the final decision is concerned, but also with reference to the process by which that decision is reached. Notwithstanding all formalities and artificial rules of procedure, the underlying principle of a judgment is to determine which of the parties is right and which is wrong, without any automatic discrimination of the kind present in group decisions, such as, for instance, by majority rule.
Once again history has something to teach us in this connection. The compulsory enforcement of judicial decisions is a comparatively late development of the law-making process through judges, lawyers, and people of that kind.
As a matter of fact, the enforcement of a decision reached on a fundamentally theoretical basis (i.e., finding which of the parties is right according to some recognizable standards) was for a long time deemed incompatible with any enforcement of that decision through some kind of coercive intervention against the losing party. This explains why, for instance, in the old Greek judicial procedure, the fulfillment of judicial decisions was left to the parties, who had undertaken on oath to abide by the decision of the judge; and why in the whole classical world kings and other military chiefs used to put aside the emblems of their power when requested by some parties to decide a case.
The same idea of a difference in kind between judicial decisions and other decisions relating to military or political questions underlies the fundamental distinction between governmental power (gubernaculum) and the judicial function (jurisdictio) which the famous English lawyer of the Middle Ages, Bracton, used to stress so much. Although this distinction was and is now again in danger of being lost through later developments in the constitutional history of England, its importance for the preservation of individual freedom against the power of government in that land and, to a certain extent, in other countries which have imitated England in modern times, cannot be overemphasized by all those who know that history.11 Unfortunately, today the overwhelming power of parliaments and of governments tends to obliterate the distinction between the legislative or executive power, on the one hand, and the judicial power, on the other, which has been considered one of the glories of the English constitution since the times of Montesquieu. This distinction, however, is based on an idea that people at present seem to have lost sight of: Law-making is much more a theoretical process than an act of will, and as a theoretical process it cannot be the result of decisions issued by power groups at the expense of dissenting minorities.
If the basic importance of this idea is realized again in our time, the judicial function will recover its true significance and legislative assemblies or quasi-legislative committees will lose their hold on the man in the street. On the other hand, no single judge would be so powerful as to distort by his personal attitude the process through which all the arguments of all the parties could compete with one another and to dominate at will a situation similar to that described in Tennyson’s lines:
Where Freedom slowly broadens down
from precedent to precedent.
THE LAW AND POLITICS
This series of lectures under the general heading “The Law as Individual Claim” was given at the Freedom School Phrontistery in Colorado Springs, Colorado, December 2-6, 1963. The Phrontistery (after the Greek word for “a place for thinking”) was an experimental six-month program that ran from November 1963 through April 1964. It offered eighteen selected students the opportunity for intensive individual study on questions of human liberty. It was intended to develop material for a curriculum for a proposed Ramparts College liberal arts program.
Eleven distinguished scholars gave lectures at various times throughout the period. In addition to Dr. Leoni, the lecturers included: Drs. G. Warren Nutter, Roger J. Williams, Arthur A. Ekirch, Milton Friedman, Sylvester Petro, Ludwig von Mises, Oscar W. Cooley, James J. Martin, F. A. Harper, and Gordon Tullock.
A version of the first chapter appeared in 1964 in a slightly different form in Archives for Philosophy of Law and Social Philosophy, Hermann Luchterhand Verlag, Berlin, Germany.
Chapter 3 was based largely on two earlier articles: “The Economic Approach to Politics,” Il Politico, Vol. 26, No. 3, 1961, pp. 491-502; and “The Meaning of “Political” in Political Decisions,” Political Studies, Vol. 5, No. 3, October 1957, pp. 225-239.
Chapter 4 was based on “Political Decisions and Majority Rule,” Il Politico, Vol. 25, No. 4, 1960, pp. 724-733.
These lectures were not originally footnoted. Notes have been added for this edition.
[1 ] R. Kelf-Cohen, Nationalization in Britain: The End of a Dogma (London: Macmillan, 1958), Preface, p. v.
[2 ] Ibid., p. 12.
[3 ] Cf., in this connection, M. Friedman, op. cit., pp. 290 ff. and quotations therein.
[4 ] Wolfenden Report, the Committee on Homosexual Offences and Prostitution (1959). However, as an example of a contrary, “reactionary” view, we may cite the Maccabean lecture in jurisprudence delivered at the British Academy by the Hon. Sir Patrick Devlin, March, 1959, and published by the Oxford University Press under the title, The Enforcement of Morals.
[5 ] A practical way of reducing the scope of legislation could be that of resorting to legislation itself—for instance, by introducing a clause in the written constitutions of the countries concerned, with the object of preventing legislatures from enacting statutes about certain kinds of matters and/or prescribing unanimity or qualified majorities before certain statutes could be put into effect. The requirement of qualified majorities in particular could prevent groups within a legislature from bribing other groups in order to sacrifice dissenting minorities, by rendering the consent of these minorities indispensable for the approval of the law. This procedure was suggested by Professor James Buchanan at the meeting of the Mont Pèlerin Society in Oxford, England, September, 1959.
[6 ] Carleton Kemp Allen, Law in the Making (5th ed.; Oxford: at the Clarendon Press, 1951), p. 287.
[7 ] Ibid., p. 269.
[8 ] Cf., for example, F. H. Levi, An Introduction to Legal Reasoning (4th ed.; University of Chicago Press, 1955), pp. 41 ff.
[9 ] Ibid., pp. 41-43.
[10 ] As Carleton Kemp Allen would say, judges “make” law only in a secondary sense, as “a man who chops a tree into logs has in a sense made the logs. . . . Mankind, with all its resource and inventiveness, is limited in its creative power by the physical material vouchsafed to it. Similarly the creative power of the courts is limited by existing legal material at their command. They find the material and shape it. The legislature may manufacture entirely new material.” (Op. cit., p. 288.)
[11 ] The most accurate and brilliant treatment of this point that I know of is contained in Constitutionalism: Ancient and Modern by Charles Howard McIlwain (Cornell University Press, originally published in 1940 and since re-edited).