Opinion of this passage?

[A18]

Robert Rantoul, 1836:

..

It is said by writers on the subject, that there are numerous principles of the common law, which are definitely settled and well known, and that the questionable utility of putting these into the form of a positive and unbending text, is not sufficient to outweigh the advantages of leaving them to be applied by the courts, as principles of common law, whenever the occurrence of cases should require it. How can that which is definitely settled and well known, be applied otherwise than as a positive and unbending text? It is because judge-made law is indefinitely and vaguely settled, and its exact limits unknown, that it possesses the capacity of adapting itself to new cases, or, in other words, admits of judicial legislation. [] Imperfect statutes are, therefore, commended because they leave the law, in the omitted cases, to be enacted by the judges. Why not carry the argument a little further, and repeal the existing statutes, so that the judges may make all the laws? Is it because the Constitution forbids judges to legislate? Why, then, commend the legislation of judges? [] The law should be a positive and unbending text, otherwise the judge has an arbitrary power, or discretion; and the discretion of a good man is often nothing better than caprice, as Lord Camden has very justly remarked, while the discretion of a bad man is an odious and irresponsible tyranny. . . . Judge-made law is ex post facto law, and therefore unjust. An art is not forbidden by the statute law, but it becomes by judicial decision a crime. A contract is intended and supposed to be valid, but it becomes void by judicial construction. The legislature could not effect this, for the Constitution forbids it. The judiciary shall not usurp legislative power, says the Bill of Rights: yet it not only usurps, but runs riot beyond the confines of legislative power. Judge-made law is special legislation. The judge is human, and feels the bias which the coloring of the particular case gives. If he wishes to decide the next case differently, he has only to distinguish, and thereby make a new law. The legislature must act on general views, and prescribe at once for a whole class of cases. No man can tell what the common law is; therefore it is not law: for a law is a rule of action; but a rule which is unknown can govern no man's conduct. Notwithstanding this, it has been called the perfection of human reason. [] The common law is the perfection of human reason,--just as alcohol is the perfection of sugar. The subtle spirit of the common law is reason double distilled, till what was wholesome and nutritive becomes rank poison. Reason is sweet and pleasant to the unsophisticated intellect; but this sublimated perversion of reason bewilders, and perplexes, and plunges its victims into mazes of error. The judge makes law, by extorting from precedents something which they do not contain. He extends his precedents, which were themselves the extension of others, till, by this accommodating principle, a whole system of law is built up without the authority or interference of the legislator. The judge labors to reconcile conflicting analogies, and to derive from them a rule to decide future cases. No one knows what the law is, before he lays it down ; for it does not exist even in the breast of the judge. All the cases carried up to the tribunal of the last resort, are capable of being argued, or they would not be carried there. Those which are not carried up are not law, for the Supreme Court might decide them differently. Those which are carried up, argued, and decided, might have been decided differently, as will appear from the arguments. It is, therefore, often optional with the judge to incline the balance as he pleases. In forty per cent, of the cases carried up to a higher court, for a considerable term of years, terminating not long ago, the judgment was reversed. Almost any case, where there is any difference of opinion, may be decided either way, and plausible analogies found in the great storehouse of precedent to justify the decision. The law, then, is the final will or whim of the judge, after counsel for both parties have done their utmost to sway it to the one side or the other. No man knows what the law is after the judge has decided it. Because, as the judge is careful not to decide any point which is not brought before him, he restricts his decision within the narrowest possible limits; and though the very next case that may arise may seem, to a superficial observer, and even upon a close inspection by an ordinary mind, to be precisely similar to the last, yet the ingenuity of a thorough-bred lawyer may detect some unsuspected shade of difference upon which an opposite decision may be founded. Great part of the skill of a judge consists in avoiding the direct consequences of a rule, by ingenious expedients and distinctions, whenever the rule would operate absurdly: and as an ancient maxim may be evaded, but must not be annulled, the whole system has been gradually rendered a labyrinth of apparent contradictions, reconciled by legal adroitness.

Rantoul was, as you might have guessed, a member of the contemporary codification movement.

Discuss.

[Bono]

I disagree. The process of common-law emergence is a bottom-up process, and therefore is inherently driven by market forces, arriving at spontaneous order. In contract, statutory law always requires a massive state apparatus, allows for little to no flexibility and is a top-down process. Libertarians do well to oppose it.

[Sam Spade]

I think the process is a bit more complex than Bono puts it.  That's all. 

All in all, I would lean more towards the common law as a basis for legal principles than statutory law, especially in cases where the statutory law merely defers to appointed agencies to create regulations or make decisions.  That is, of course, the modern trend, and has been so for the past 75 years or so.  I would be more inclined to have statutory law as the basis where this deference is not made, since I still view the legislature as closer to the intentions of the society rather than the judiciary.

But each one of these bases for legal principles has its own faults.

[Beet]

I think the process is a bit more complex than Bono puts it.  That's all. 

All in all, I would lean more towards the common law as a basis for legal principles than statutory law, especially in cases where the statutory law merely defers to appointed agencies to create regulations or make decisions.  That is, of course, the modern trend, and has been so for the past 75 years or so.  I would be more inclined to have statutory law as the basis where this deference is not made, since I still view the legislature as closer to the intentions of the society rather than the judiciary.

But each one of these bases for legal principles has its own faults.

Congress delegates the creation of federal regulations to agencies in large part because it does not have the institutional resources to do so effectively itself. And therein lies the dilemma. I would generally favor statutory law in so far as it is practicable. However, the common-law/statutory law split in the U.S. allows parties that disagree with executive interpretation of laws or rules to appeal to an additional party, and that would seem to be a critical part of the balance of powers between different branches.

[Sam Spade]

I think the process is a bit more complex than Bono puts it.  That's all. 

All in all, I would lean more towards the common law as a basis for legal principles than statutory law, especially in cases where the statutory law merely defers to appointed agencies to create regulations or make decisions.  That is, of course, the modern trend, and has been so for the past 75 years or so.  I would be more inclined to have statutory law as the basis where this deference is not made, since I still view the legislature as closer to the intentions of the society rather than the judiciary.

But each one of these bases for legal principles has its own faults.

Congress delegates the creation of federal regulations to agencies in large part because it does not have the institutional resources to do so effectively itself. And therein lies the dilemma. I would generally favor statutory law in so far as it is practicable. However, the common-law/statutory law split in the U.S. allows parties that disagree with executive interpretation of laws or rules to appeal to an additional party, and that would seem to be a critical part of the balance of powers between different branches.

True, but in the context of agency regulation, the power of the judiciary is often limited to analysis of whether the regulatory power may be found within the language and effect of the statute itself.  And because of Chevron, it is rare that the judiciary interferes with agency rule-making or decision-making at the generic level or, quite frankly, at any level. 

I am not suggesting that the modern agency apparatus should be dismantled, or is in any way unnecessary.  But I think the balance of power is not nearly as even as it should be.  This should directly lead into the next discussion - where regulatory law has gone the last 30 years - that being from direct regulation by the government to the government requiring private entities to regulate on their own, under federal guidelines.

But, although I feel like the topic of regulatory law is inherently related to A18's message, it's probably not where he headed towards, so I'll drop it, for now.