Dalhousie Law Journal


Frank P. Grad


Legislation, Ascendancy, Legal Problem, statutory law, Judge-made law, darling of legal philosophers


Law making in our time depends on legislation, and our primary reliance on statutory law is being increasingly recognized, even though, as James Williard Hurst recently put it, "Judge-made law is still the darling of legal philosophers."' It has also remained at the misplaced center of much of our legal education.' I hope to trace the movement toward the full acceptance of statutes as a source of law, including brief notes on early twentieth century efforts to salvage the common law through the machinery of law revision commissions and through the Restatements developed by the American Law Institute. The New Deal Legislation of the 1930's not only applied legislation to the solution of the economic, social, and, ultimately legal problems of its times, but it also changed the very nature of the legislative product. The ascendancy of legislation resulted not only in a far greater legislative output, but also in the development of massive programmatic legislation, unique in its character and different in kind from the narrow, limited statutes that had preceded it. So significant is this new form that some of the older rules of statutory construction seem hardly relevant in their application. But the new legislative approach, here referred to as programmatic legislation, imposes a responsibility for legal training which develops to the fullest the ability to use legislation as the way to solve today's legal problems.

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