tem of adherence to the course of development of the law through decided cases becomes conspicuous. A certainty that the court, even in an untrodden field, will be guided by the judicial experience of the past, and will reach its principle of decision by lines of reasoning tested and accredited by professional usage, enables the lawyer to advise his client and the client to engage in his enterprise with confidence in the uniform and definable development of the law to cover the new situation.

11. The persuasive sources of law in generalLegal reasoning and persuasive precedent. Those sources of law which have been spoken of as persuasive may perhaps be most appropriately discussed at this point, since from the point of view of the student of law they get their chief significance as the sources guiding judicial discretion where the authoritative sources fail to furnish a binding rule. It is a peculiarity of the Anglo-American system which cannot be too often emphasized, that not merely when the legislator has laid down a rule but, under the doctrine of stare decisis, when a court of superior authority has provided a precedent, the court cannot exercise its discretion. It is only when the question raised is an open one within the jurisdiction, when the judges are not concluded by an existing rule of law, that they may look further afield for help in the creation of a new precedent, or even in the decision of the particular case in hand. It has already been said that the chief source of guidance in such a situation is the judge's own trained reason, operating on the various analogies found in existing law

to the situation in hand, and informed by his political, economic, and ethical views. Another and valuable source of guidance is in what have been spoken of as persuasive precedents-the decisions of the courts of other jurisdictions in similar cases, and especially decisions of courts administering the same systems of law as his own. Thus, precedents from Massachusetts, though not in the strict sense of the term authoritative sources of law for Illinois, are treated with great respect in the courts of the sister state. While they have no binding force, they carry weight, not merely because of the merits of the reasoning they exhibit, but because of the reputation of the bench as expert in the law. They are taken in a measure on faith, as any expert opinion is sure to be. In this sense they are authorities.

12. Professional opinion.-A weight scarcely to be distinguished from that attaching to precedents from other jurisdictions is given to the current opinion of the bar of the jurisdiction itself. As Professor Gray says: "That the bar who practice before a judge would be universally or generally of opinion that a certain decision ought not to be made, although not conclusive on his judgment, ought to have and does have an influence on him, and an influence of a distinctly more stringent character than the knowledge or belief that the unlearned laity would disapprove of the decision."

13. Juristic writing.-Again, closely allied to this form of expert opinion, is the authority of the jurist, exerted through his legal writings-commen6 Gray, The Nature and Sources of the Law, § 558.

taries, criticisms, and text books. In the civil law this form of persuasive authority is of cardinal importance. In this legal system no law-conferred authority is given to precedent. There is no assumption such as prevails in our law that an earlier decision is necessarily correct. Hence one tribunal may decide a case in one way today, and tomorrow a second tribunal, or conceivably even the same one, may decide a precisely similar case in a different way. The principal check on the actual occurrence of such a possibility lies in the weight given in civil law countries to the writings of men learned in the law. In the Anglo-American system, on the other hand, the criticism and suggestion of juristic writers are available to the courts only in the cases where the creation of a precedent is possible. Often, however, their writings, through their influence on the legislature, have been the means of securing legal reform. It is frequently objected that the doctrine of stare decisis is an element of weakness in our legal system, an artificial weighting in favor of the reasoning processes of earlier judges, as against the judges and jurists of today. On the other hand, the very establishment of a comparative scale of values among the sources from which the courts draw their rules has its advantages in producing that certainty and orderly development in the law which is an essential to both the stability and the progress of society. Moreover, the superior weight given to decided cases as a source is not by any means a purely arbitrary thing. The principles embodied in them have been worked out under conditions

especially favorable to the production of rules of justice. The judge is not a mere theorist. He is an administrator of justice, a decider of actual cases between real men, and the responsibility of his position is concretely brought home to him by the consequences of his decisions to the litigants who stand before him. Moreover, the public nature of his office, the attention not only of his professional associates but of the community in general, which his powers as an administrator focus upon him, as well as the allied forces of professional tradition, all contribute to give a special value to the doctrine he establishes by his decisions.

It is true, on the other hand, that the enormous and rapidly increasing bulk of the case law and the difficulty inherent in the form in which it is found make the task of the jurist in analyzing, arranging, and criticizing this material more and more necessary. At those points in the system where no settled precedent prevents further judicial development, his expert suggestion is becoming increasingly valuable to the judge, and where the existing law, whether embodied in custom, precedent, or legislation, needs alteration, amendment, or repeal, as well as where it may well be supplemented by new rules, the jurist's work is of similarly valuable service to the legislator.

14. Public policy and natural law. No external authority of the persuasive kind can justify a judge in disregarding his own convictions of what is required in the case before him by the various considerations of public policy and natural law, or natural

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justice. He may use the experience of other jurisdictions, the opinions of the legal profession, and the theories of jurists to guide his own reason. He may well pause and reflect before he renders a decision that runs counter to the weight of this authority, but his first duty where he must create a precedent is to administer justice according to a principle which commends itself to his own judgment. This means that in the main he must be swayed by considerations of an ethical character.

But it must be recognized that the fields of law and social ethics are not entirely coincident. In the first place, because of the character of its primary sanction, the external and physical power of the state, the law must leave untouched as beyond the reach of its machinery much conduct which, though morally wrong, cannot be corrected by legal processes. This limitation on the power of legal tribunals is further emphasized by the necessary generality of legal rules and principles, which cannot take account of the special circumstances of particular cases, circumstances which may make just the difference between moral justification of an act and the absence of such justification. On the other hand this requirement of a uniform and general rule for the guidance of human conduct, makes it necessary for the legal system to provide many rules in matters morally indifferent. The classic example is the rule of the road which in America requires one to turn to the right-in England the requirement is to turn to the left. Either rule serves its purpose, which is merely to secure uniformity of conduct.