Judicial-legislative competence and law’s form are separable but linked questions

Evidence

This kind of issue, it will be observed, always involves two subordinate issues which are distinct and yet almost inextricably linked together. The question has to be asked: With respect to this particular matter, is the legislature as an institution a more appropriate agency of settlement than a court? But since a legislature can ordinarily act only by the method of passing a statute, the question must also be asked: Is it desirable that the law in this area should take the form of an enactment rather than of unwritten grounds of decision? — Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process, 6

Categorization

• DEFINE: Distinguishes institutional-competence from law-form questions for choosing between court and legislature.
• XREF: connects to: Courts make law only as a byproduct of their adjudicative function — Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process: Basic Problems in…, 15; A general clause accepted without debate grew into Germany’s dominant corrective rule — Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process: Basic Problems in…, 4704