Moreover, considerations of expediency frequently produce rules which impose responsibilities on individuals quite independent of any moral considerations of desert. For example, a master, however careful he may be in the procuring of servants and the supervision of their conduct, may yet be held responsible for some injury inflicted on an innocent third person by the carelessness of the servant in discharging his duties. Considerations of these sorts may better be called considerations of public policy than of ethics. A situation must always be looked for in which neither judicial experience nor legislative prevision has provided the judge with authority to bind him or even, except in the most general way, to guide him in arriving at his decision. Hence the trained, intelligent, and upright administrator must always be a factor in the legal system. But he will more and more find aid in the necessary experimentation he is called upon to make, from materials furnished him by the research and reflection of workers in the allied fields of ethics, economics, politics, and sociology.

15. Legislation.-In modern times the state itself, through its special law-making organs, the various bodies possessing the power of legislation, undertakes more and more actively the direct formulation of rules for the guidance of the courts in administering justice. Precedents are created only when a new situation is presented to the court in an actual case calling for decision. Hence if the legal result of a particular transaction is uncertain because no precedent is yet formulated which settles its lawful

ness, none but the adventurous will embark on it. Legislation can resolve the doubt beforehand, and enable a man to know with greater certainty what his rights and duties with respect to the contemplated transaction will be. Thus legislation is the

chief instrument by which a regular and systematic development of the law, keeping pace with economic or social changes, is possible.

Moreover, legislation can repeal or amend for future cases the rules formulated by custom or judicial decision. Unlike these latter sources of law, it can change as well as create law. If a customary or judicial rule is deemed to work injustice because of changed social conditions or because of changed ideals of justice, an act of the legislature can abolish the rule and substitute a new one. Thus in several states the judicially formulated rule known as the "fellow servant rule," to the effect that a master is not responsible to one employee for injuries caused by the negligence of a fellow employee, has been abolished, and in others materially altered, by statute.

16: Interpretation of statutes.-As has already been pointed out," the very letter of a statute has the force of law. Hence the courts are frequently called on to decide what the legislature meant by a particular form of expression. In this task it is the duty of the court to look first to the letter of the act in question: the literal meaning of the words and phrases used, together with any light thrown on the matter by the context. If a single and definite meaning can thus be arrived at it must be declared by the

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court to be the law. The court has no authority in such a case to go behind the letter of the law because of a belief that the law is unwise, or even that it did not accurately express the intent which its makers had in mind.

If, however, the letter of the law is ambiguous or inconsistent, it is then the duty of the court to seek to interpret it by inquiring as to the spirit of the rule and the relative consistency of possible reasonable interpretations with the legal system as a whole and with the requirements of justice which the system aims at. Here, too, the object of the court is to arrive at the meaning which the lawmaker had in mind, but since literal interpretation is insufficient to disclose that definitely, recourse is had to the presumption that the legislature intended to promulgate that rule which seems to the judge the fairest and wisest of all the possible interpretations of which the language of the statute is, in his opinion, susceptible.

Further than this genuine interpretation cannot go. The courts must not, under the guise of interpretation, try to make the legislature say what it has not meant to say. But it is often true that the legislature had not at all in mind the particular point in litigation. No genuine interpretation of its intention is then possible, since it had no intention. The case before the court must, however, be decided; and for this purpose the court must supplement the defective statute by a rule formulated precisely as precedents are formulated where the existing body of law provides no rule for decision. It is mislead

ing to call this process interpretation. It is really judicial law-making.

17. Relative contribution of the sources.-In spite of the fact that the direct creation of legal rules by the legislative organs of the state is the most conspicuous feature of modern law-making, the legislative activity has been in the main directed to the organization and administration of the government; to regulations of a public character, such as provisions for the collection of the revenue, for the maintenance and regulation of public highways, the licensing of special trades, and other administrative acts. In the great field of private law regulating the relations of individuals with each other, a field from which the vast majority of the every-day subjects of litigation arise, our legal system is still essentially the product of judicial decisions. Legislative invasion of this field is in the main only for the purpose of amendment of detail.

Moreover, the Anglo-American law has hitherto been curiously inhospitable to legislative innovation in the system developed by the courts. Legislation, before it can become a part of the system, has to be interpreted by the courts, and there has been a tendency, at least during the last two centuries or more, to make the interpretation such as will produce the least possible alteration in the body of principles already developed. A conspicuous instance of the discrimination against legislatively made law is the refusal of the courts to indulge in such analogical reasoning from legislation as they employ in devel

oping new rules from judicially formulated principles. At present in Anglo-American law, a statute is never reasoned from. It is interpreted only according to its letter. Doubtless this attitude of the courts has in great measure been justified by the character of much of the legislation of the past, due to the conditions under which it was produced. But it is scarcely to be expected, nor is it to be desired, that this conservatism shall be permanent. Not only is scientific legislation by a specialized law-making organ of the state theoretically possible, but the experience of other countries, conspicuously Germany, shows that this possibility may be realized. When such a time arrives, legislation may well be recognized as capable not only of correcting errors and amending details of judicially formulated law, but also of introducing new principles or altering the old, where, under social conditions essentially different from those in which they were first developed, they have ceased to work out justice.9

18. Codification. In many jurisdictions attempts have been made to reduce the whole legal system to the form of enacted law. This is spoken of as codification, and the result as a code, though the term is often less accurately applied to any logical arrangement of the statutory law of a jurisdiction. In other jurisdictions a partial codification has been made of particular portions of the law, such as the law of negotiable instruments, of sales, and of partnership.

› See for excellent discussion Pound, Common Law and Legislation, 21 Harvard Law Review, 383, and compare Carter, J. C., Law, Its Origin, Growth, and Function, 204-220.