We must agree that the conclusion is sound. It is not, however, a reductio ad absurdum. The idea, it is true, is well nurtured by tradition that legal rights and duties in relation to a certain act are legally established at the time of the commission of the act, — that one having an accurate knowledge must know what acts are justifiable in law. This theory, however, is simply another legal fiction which is not supported by experience. It is, in fact, only when the court has passed upon the question that the character of legal rights is finally determined, and no previous opinion, no matter how eminent the source, can have weight if it be contrary to the court's decision.

In reality it is simply the sources of law, as we have already described them, which exist at the time of the act in controversy, to which sources the contestants may subsequently appeal when they are before the court. From those sources any one may form an opinion as to the law governing the legal relationship of the parties, but the only authoritative opinion is that expressed by the court before whom the case goes for judgment and by whom the legal rights of the parties are determined and protected. By the rendering of its decision the law governing the case in fact then for the first time comes into existence, as an edict or promulgation by the state through its court, and no one can foretell with entire certainty what that law will be.

2. By the decision the court makes law so far as its judgment serves as an authority for future decisions.

That the decision becomes upon its rendition a part of what we have called the sources of law is perfectly clear and uncontrovertible. It may operate either to affect some previous positive rule of law (one of the four sources as we have defined them), to assist in the formation of a new positive rule of law, or to create a new analogy (another of the four sources). Whether the decision thereby becomes law which is made by the court may depend somewhat upon our definition of the term "law." Let us, then, now undertake to form a definition of a law which shall correspond with our conception of its nature and attributes.

When we speak of laws we have in mind authoritative rules laid down by the government under which we live, governing our civil conduct as individual members of the state and fixing our legal rights and duties. Their most essential attribute, perhaps, is their authoritativeness or enforceability. Statutes are a notable example of what we mean by laws, but they do not include all laws. The

rule that one man owes another the duty to use reasonable care not to injure him, though not statutory, is also a law to which each person is subject. In fact, any rule which is regarded by the courts as authoritative comes within our conception of a law.

Those rules, however, which have a compelling force and effect upon the courts are evidently simply statutes and judicial precedents, which are coincident with the first three sources of law as before described, that is, the rules of law as we have called them, as distinguished from principles of public policy. All these rules of law are to a marked degree authoritative, while on the other hand principles of public policy have only a persuasive force, so far as they appeal to the reason of the court.

The three rules of law, as we have seen, consist of statutes, which originate directly with the legislature, and positive rules of law and analogous decisions, both of which are more or less direct emanations from the courts.

I therefore suggest as a definition that a law is a rule of civil conduct declared either directly by the legislative branch of the government as a statute, or indirectly by the judicial branch as a necessary result of judicial decisions. This definition I submit is sound in theory, and is also in accord with our ordinary idea of the nature of a law.

According to this definition the court by every decision to some extent makes law, since thereby some pre-existing positive rule of law is amplified or qualified, some new one is formed, or some new analogy is created.

CONCLUSION.

Unless there be some hidden error in our reasoning or some false application of our common experience, we must conclude that by the rendering of judicial decisions the courts do make law, both in so far as they declare what in a certain situation are the legal rights and duties of the parties before them, thereby promulgating the law which is applicable to the particular case, and in so far as their decisions operate as sources of law, which serve as precedents for subsequent decisions. In the latter aspect judicial decisions become laws as we have defined them, while in the former aspect they are to be viewed not as general rules of law, but rather as edicts having only a particular application.

We must also conclude that the fiction that law is a complete existing entity which is merely interpreted by the courts, as well

as the related fiction that every act at the time of its commission is governed by existing law, is not an accurate or correct expression of the truth. The law as an abstract entity is in truth nothing more than the sum of all the sources of law actually in existence, together with the potential changes and additions which may occur from future legislative enactments and judicial decisions. Those sources of law are undeniably interpreted by the courts, but at the same time the courts also make new law in the manner above described. The law governing a particular case, on the other hand, consists of the sources of law which may be applicable to it as declared by the court which decides the case. While any one may have an opinion as to how the case should be decided, the legal rights and duties are not determined, and the law, therefore, is not known until the court has passed upon it. To say, then, that the law previously existed, and therefore is not made by the courts, is entirely unsound.

The errors which these fictions have introduced have had one important practical effect in that they have caused the Supreme Court of the United States, in the decisions to which we have before alluded, in effect to neglect the decisions of the state courts on the ground that they wrongly interpreted the law, in cases where, as a court of the United States, it was bound by the Judiciary Act of 17891 to respect the laws of those states. The tremendous mistake which the court has thereby made and its results are clearly pointed out by Mr. Justice Field in his dissenting opinion in Baltimore & Ohio R. R. Co. v. Baugh.2 The ordinary practice, however, of courts which follow the common law is otherwise, since in cases where the law of a certain jurisdiction becomes material, the decisions of its courts are held to be conclusive as an authority or source of law.

Instead of being a complete existing entity we observe that law is ever in a process of growth. This growth is accomplished, aside from statutory changes, in two ways: first, by the extension and development of legal rights by analogy; and secondly, by the application of the principles of public policy, whether descended from the past or originally discovered or developed. In that part of the domain of law where the legal rights of parties in certain relationships or under certain circumstances are less fully determined, the decision of a particular case rests less upon rules of law and analogy with previous decisions, and more upon a consideration of the prin2 149 U. S. 368.

1 C. 20, § 34, I Stat. at L. 92.

ciples of public policy. One there especially observes law in the process of growth, seeking to solve with justice a conflict between opposing interests. In other words, we see law in the making where judicial precedents cannot be found and the case is decided on general principles of public policy, becoming afterwards itself a striking precedent for similar cases.

It seems needless to attempt to call attention in detail to branches of the law which will support these observations. The growth of the law relating to rights of labor unions to interfere with the relationship between an employer and his employees is a most interesting example, showing the many new questions which have arisen as to what conduct on their part will be and what will not be held to be justifiable, and the new classes of legal rights and duties thereby created.

In each case where a decision is made, since every case must present some new aspect though differing in degree, there is some conflict which is solved by the decision, and some incongruity removed. By the decision and from the conflict a new resulting relative legal right is born, which right is applied to the facts as they existed, and at the same time adds to the sources of law.

Instead, then, of being a complete and unchangeable body or entity, law is something incomplete and imperfect, but containing a wonderful power for adaptability and growth. It is true that law in the abstract can be applied to every case, since every case must be decided. The conclusion is not, however, that law is already complete, but that law is made in order to decide the case. The system is complete because of the fact that judges can and do make law, and so the system can be applied to all possible new circumstances. Judges do not enact laws as a legislature does, nor do they act arbitrarily, but they do make laws indirectly in the course of giving their decisions, and since they must decide a case in one way or the other, they cannot avoid so doing.

Law is not an eternal truth, but a human and finite method of settling controversies and governing the relations of individuals, in which all differences are not errors, and which is adapted to suit the needs and express the ideals of the community over which it reigns.

BOSTON.

Alexander Lincoln.

HARVARD LAW REVIEW.

Published monthly, during the Academic Year, by Harvard Law Students.

LANGDELL HALL. The new Law School building, Langdell Hall, of which we publish an illustration in this issue, will be ready for complete occupancy in the course of this month. In its present form it comprises only the center and the southern wing of the building as ultimately planned. It includes three lecture rooms, three reading-rooms, a faculty room, and the Dean's room, besides thirteen rooms for professors and rooms for the librarian and for his assistants. The shelf space, now only half its final size, has a capacity of 150,000 volumes. The first and third year classes will use Langdell Hall; the second year class will continue to use Austin Hall. The two buildings are connected by an underground passageway.

THE LAW SCHOOL. The registration in the School on November 15 the last twelve years is shown in the following table:

for