-^35 
 
 65 
 
 SMITH 
 JURISPRUDENCE . 
 
(5ornf U IGaui Btl^anl ICibtary 
 
HERBERT D. LAUaE 
 
 K 235.865'°'"^" ""'"^'^'fy Library 
 
 JURISPRUDENCE 
 
 BY 
 
 MUNROE SMITH 
 
 FKOFESSOR OF BOMAN LAW AND COMPAKATIVE JUKISPHUDENCK 
 COLUMBIA tTNIVERSITT 
 
 THE COLUMBIA UNIVERSITY PRESS 
 1909 
 
Cornell University 
 Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924017121645 
 
JURISPRUDENCE 
 
 A LECTURE DELIVERED AT COLUMBIA UNIVERSITY 
 
 IN THE SERIES ON SCIENCE, PHILOSOPHY AND ART 
 
 FEBRUARY 19, 1908 
 
 
COPYKIGHT, 1908, 
 
 By THE COLUMBIA UNIVERSITY PRESS. 
 Set up, and published May, 1908. 
 
JURISPRUDENCE 
 
 BY 
 
 MUNROE SMITH 
 
 PROFESSOR OF ROMAIT LAW AND COMPARATIVE JURISPRUDENCE 
 COLUMBIA UjnVEHSITT 
 
 THE COLUMBIA UNIVERSITY PRESS 
 1909 
 
K 
 
JURISPRUDENCE 
 
 OuE lives are controlled, to an extent which we do not 
 measure without eflPort, by rules of conduct which are im- 
 posed upon us by our environment and which we may not 
 contravene without endangering our existence, our welfare 
 or oiu- happiness. We do not ordinarily realize the multi- 
 plicity of these rules or their coercive operation, because our 
 acceptance of them is largely unconscious and om- obedi- 
 ence to them, the leading of a normal or regular life, is 
 largely automatic. When, however, we force ourselves to 
 consider all these rules, and when we attempt to classify 
 them, we see that some of them, such as the rules of health- 
 ful living, represent primarily the adaptation of our con- 
 duct to our physical environment ; others, such as the rules 
 of thrift, adaptation to what may conveniently be termed 
 our physical-social environment, that is, to those conditions 
 which result from the interaction and reciprocal modifica- 
 tion of human society and its environment; while a third 
 group of rules, which may be termed social, seems to be im- 
 posed upon us by the sentiments or the will of our fellow- 
 men. When rules which we assign to the physical or to the 
 physical-social group appear also, as they often do, in the 
 distinctively social group — when, for example, we find that 
 violations of the rules of health or of thrift are denounced 
 as immoral and are in some instances penalized by law — it 
 still remains true that these rules are not primarily social. 
 They do not originate in social opinion, and disregard of 
 
 5 
 
them is attended by risks which society has not created. 
 They receive the additional sanctions of morals and of law 
 because human interests are so solidary that the individual 
 cannot live or die or prosper or suffer for himself alone. 
 
 It may of course be queried whether we have any right to 
 consider human society as a thing distinct from its physical 
 environment, acting independently upon that environment 
 and imposing upon us, as individuals, rules of conduct 
 which are purely social. In the constitution of human so- 
 ciety, indeed, there is much that seems arbitrary, and in its 
 action there is much that is incalculable; but it is possible 
 that our inability to forecast social action is due solely to 
 the complexity of the phenomena, and that our impression 
 that society determines in any degree its own constitution 
 and conduct is an illusion. These questions, however, lie 
 outside of the field of jurisprudence. L The law with which 
 our science has to do assumes the existence of individual 
 wills and bases its authority upon a social will.J^ .Whether 
 the individual will is in any sense free; whether the social 
 will is the resultant of free individual wills or a direct and 
 independent product of the social life ; in what degree the 
 social life is itself controlled by forces which men do not 
 create and cannot control — these are questions which the 
 jurist gladly leaves to the psychologist, the sociologist and 
 the philosopher.^ 
 
 Legal rules, even when they are assignable, by virtue of 
 their origin, to the physical or to the physical-social group, 
 belong, as regards their legal quality, in the group of social 
 rules. In the same group we find a second body of rules 
 which we call moral; and in addition to legal rules and 
 moral rules we are aware of a third body of more or less 
 heterogeneous rules which you will permit me, for con- 
 venience, to call manners. 
 
 IWhat now is the characteristic which differentiates law 
 from manners and morals?: Obviously not the field in 
 
 6 
 
which it operates, not the flatters with which it deals. Law 
 has indeed a field, or a number of fields, in which it operates 
 alone. Law has created institutions of its own; and the 
 rules which shape these institutions and govern their opera- 
 tion had no previous existence in manners or in morals. To 
 a large extent, however, manners, morals and law cover the 
 same field. To knock a man down, for example, or to 
 wrest from him portable valuables is, in most instances, at 
 once unmannerly, immoral and illegal. Especially large 
 is the field which is common to law and to morals— so large, 
 indeed, that many time-honored definitions of law assume 
 a complete correspondence of law with morals, and it has 
 been possible to say, although erroneously, that law is sim- 
 ply applied morals. 
 
 It is equally impossible to find the distinguishing char- 
 acteristic of law in its purpose or end. The primary pur- 
 pose of law is the maintenance of the social order ; but this 
 purpose is also subserved, in large measure, by morals and 
 by manners. The graver disturbances of the established 
 social order are usually stigmatized as immoral. The ex- 
 istence, in the various fields of human effort, of accepted 
 and regular modes of activity does much to lessen the fric- 
 tion of social life ; and the established forms of social inter- 
 course, manners in the narrowest sense of the word, take 
 out of the struggle for existence much of its bitterness and 
 perhaps do more than either morals or law to prevent 
 breaches of the peace. 
 
 iThe ultimate purpose of the law, indeed, is not the main- 
 tenance of the social order but the assurance of the condi- 
 tions of social progress. That man shall obtain increasing 
 control over his physical environment ; that the relations of 
 men shall become more and more kindly; that human life 
 shall be more and more worth living— these are the final 
 objects of the law. To attain these ends individual effort 
 must not only remain worth while, it must be increasingly 
 
 7 
 
encouraged; in other words, competition must continue; 
 and yet anti-social activities must be increasingly re- 
 strained and there must be increasing cooperation. ^The 
 fundamental and eternal problem of human civilization is 
 the reconcihation of individual with social interests^; Such 
 progress as has thus far been made towards the solution of 
 this problem has been achieved by raising the plane of com- 
 petition and by increasing the range of cooperation. In 
 the methods of competition craft has replaced brute force, 
 and fair play is replacing craft. The objects of competi- 
 tion have become and are becoming less and less material: 
 honor is sought rather than wealth, and higher honor is ac- 
 corded for social service than for personal success. The 
 cooperation of the horde has been replaced by that of the 
 class and, in many fields, by that of the nation; interna- 
 tional cooperation exists and is increasing. All these ends, 
 however, are moral as well as legal ends, and higher ethical 
 ideals indicate lines of legal progress. 
 
 We gain our first glimpse of the distinguishing charac- 
 teristic of law, and perhaps of that of morals also, when we 
 note the different results that attach to the disregard or 
 violation of different rules of social conduct. If the rule 
 infringed be one of manners simply, there is usually a so- 
 cial reaction of surprise, attended commonly by ridicule of 
 the offender. If the rule infringed be one of morals, the 
 social reaction is more energetic: it is more than a surprise, 
 it is a shock, and it is attended by more or less heated dis- 
 approval, which may range from contempt through scorn 
 to loathing. In the mind of the offender himself there is a 
 reflex of the social disapproval; there is the prick of con- 
 science, the sense of shame; and if he be a religious man 
 and his offense be one that his religion brands as a sin, there 
 will be a sense of divine displeasure. J' Arnold defined relig- 
 ion as morality touched with emotion^ but there is a marked 
 element of emotion in morality itself, independent of 
 
 8 
 
religion. All these reactions, it will be noted, are 
 purely psychical, and the penalties which follow breaches 
 of manners and morals operate upon the offender's 
 feelings. ^Law, on the other hand, encourages cer- 
 tain courses of conduct by the assurance of advantages 
 and discourages other courses of conduct by imposing dis- 
 advantages or penalties which aif ect the property or the 
 person; and these purely legal consequences may be. en- 
 forced, in case of need, by the entire physical power of the 
 community.J 
 
 We note further, and this brings us to a second differ- 
 entia of law, that the advantages which follow the obser- 
 vance of legal rules and the disadvantages or penalties 
 which attend the disregard or violation of such rules do not 
 attach solely by virtue of the social sentiment or opinion, 
 but by virtue of the social will. In civilized communities 
 this social will is formulated through special processes and 
 usually by special organs. The processes are mainly polit- 
 ical and the organs are for the most part governmental. 
 In constitutions adopted by the people, in acts passed by 
 representative bodies, in orders of administrative officers 
 and in decisions of courts we find, authoritatively stated, 
 the rules of law, the advantages which attach to their ob- 
 servance, the disadvantages or penalties which follow their 
 disregard or violation. The rules of manners and of mor- 
 als, on the other hand, are not stated in any such authori- 
 tative form. In early society, indeed, authority over the 
 entire field of conduct is usually accorded to priests, and in 
 later stages of social development this authority frequently 
 persists in the field of morals ; but in an advanced civiliza- 
 tion it tends to disappear. It may still be asserted, and it 
 may long command extensive recognition; but the recog- 
 nition becomes less and less general, and morals, like man- 
 ners, tend to rest directly upon social sentiment and opin- 
 ion. They are matters of usage. 
 
 9 
 
To affirm that law is formulated through special pro- 
 cesses, and chiefly by special organs of the community, is 
 not to deny that its rules are largely determined by social 
 sentiment. 4 Manners and morals are, to a large extent, 
 antecedent to law, and social usage has always furnished 
 much of the material of which law has been made. In the 
 earliest stages of legal development usage apparently fxu"- 
 nishes all the material ; it is converted into law simply by 
 adding the support of social force; and in every state of 
 social progress new law is made by the recognition and en- 
 forcement of established customs. Manners, morals and 
 law, all appear to rest ultimately upon social utility. The 
 conversion of usage into law, the decision whether any 
 particular rule of conduct shall be supported by the physi- 
 cal power of the community, is clearly a question of social 
 expediency. Social utility or expediency is determined, in 
 the whole field of conduct, by the social judgment, and so- 
 cial force can be exercised only by virtue of the social wilLX 
 The social judgment, however, is usually inarticulate ; it re- 
 veals itself as sentiment. In the matters with which the law 
 deals, we call this sentiment the sense of justice. The so- 
 cial will, likewise, is, in most instances, liot aimless indeed, 
 but only vaguely aware of its true aim ; it manifests itself 
 as impulse to do something, to sweep aside or crush some- 
 thing that is felt to be alien and hostile. As it is the pri- 
 mary function of practical ethics to interpret moral emo- 
 tion and to give articulate form to the moral sentiment, so 
 5^ it is the primary function of practical jurisprudence to in- 
 terpret the sense of justice and to formulate in legal rules 
 those ends toward which the social will is blindly groping^ 
 Ulpian's "nomen iuris a iustitia" although indefensible 
 from the philological point of view, is good philosophy, t In 
 the interpretation of the social sentiment and the social will 
 judges and legislatures have indeed an authority which no 
 men or bodies of men possess in the fields of manners and 
 
 10 
 
morals: even when they misinterpret the general sense of 
 justice and thwart the general will, the rules which they 
 lay down are law. Such law, however, has no root, and, if 
 it be not formally abrogated or superseded, it becomes a 
 dead letter. In the long run, general sentiment and opin- 
 ion control not only the finding and making of law, but also 
 its enforcement..^ 
 
 Persistent disregard of general sentiment on the part of 
 lawfinders or lawmakers is exceptional; in the democratic 
 state it is almost impossible. I Conflicts between general 
 sentiment and positive law arise, as a rule, only when so- 
 cial changes have made the established legal rules unsatis- 
 factory.* Such conflicts take the form of agitation for the 
 reform of the law, and they cease when the law is suitably 
 amended. Conflicts between sectional or local or class sen- 
 timent and the general law arise, on the contrary, in every 
 type of state, and such conflicts are practically incessant. 
 •Powerless, as a rule, to control lawfinding or lawmaking, 
 adverse minority sentiment makes itself felt in resistance 
 to the enforcement of the law ; and under favoring circum- 
 stances the resistance may result in the nullification of the 
 law. From such results it is sometimes inferred that the 
 physical sanctions of the law are less coercive than the psy- 
 chical sanction of opinion, even when the opinion is that of 
 a portion of the community only, of a locality or of a social 
 group. It should be noted, however, that when the law is 
 worsted in these conflicts it does not put forth its full 
 power. It is defeated because it binds its own hands. 
 Laws are nullified, for example, because local administra- 
 tive authorities are legally independent of the central ad- 
 ministration, or because juries are permitted by the law to 
 interpret the law as they see fit. It may not be advisable to 
 destroy or seriously to limit local self-government because 
 Sunday-closing laws are locally nullified, or to empower 
 judges to set aside verdicts in criminal cases because busi- 
 
 11 
 
ness or labor interests make it difficult to punish illegal 
 combinations ; but these or similar changes in the law can 
 be made if such be the general will. 5; 
 
 Z The strength of the law lies in the fact that its physical 
 sanctions operate, or can be made to operate, with equal 
 force throughout the entire area of a state and among all 
 classes. The weakness of general opinion lies in the fact 
 that it operates less strongly on men's minds than does the 
 opinion of their locality and that of their class.*^ Especially 
 strong is the influence of group opinion, and it is strongest 
 in the smallest and most homogeneous groups. The 
 pressure of social opinion seems to vary inversely as 
 the square of the social distance. Hence the tendency of 
 all usage to variation and to particularism; hence the lusty 
 growth, at all times, of group morals— morals of the class, 
 of the profession, of the business, of the gang. Left to it- 
 self, enforcing itself only by the pressure of social opinion, 
 our existing morality would tend to revert to its primitive 
 form, the usage of the horde. The higher social utilities 
 which the rules of general morals represent could never 
 have prevailed over the interests of the horde or of the tribe 
 or of the class through any appeal to reason or to individual 
 interest ; for feeling is stronger than reason and group feel- 
 ing is stronger than self-interest. The agencies which in 
 the past have slowly subordinated group morals to general 
 morals, and by which general morals were perhaps first 
 formulated, are religion and law. Every religion that has 
 developed beyond the stage of a clan cult has, on the whole, 
 lent its psychical sanction to the more general morals ; and 
 the religious sanction, like the legal, can be made to operate 
 with equal force over indefinite areas and upon all social 
 classes. The law, in so far as it has had to deal with moral 
 questions, has likewise put its special sanction, that of 
 physical force, behind general morals. In the early stages 
 of civilization, religion apparently played the more im- 
 
 12 
 
portant part in formulating the rules of general morals 
 and in securing their triumph ; in later periods and at the 
 present time law has possibly become the more efficient 
 agency. Rehgion influences the believer only; law coerces 
 even the anarchist. Confessions are divided into sects, and 
 churches are organized, in some instances, along the lines 
 of class cleavage; states grow larger by conquest or by 
 federation, and modern states are becoming increasingly 
 democratic. 
 J Our analysis of social rules and of their operation upon 
 the individual is not complete without a word regarding 
 constraints that are neither purely psychical nor purely 
 physical but economic.^ A religious association, possessing 
 at the outset no means of securing obedience except those 
 which are purely psychical, may come to exercise so gen- 
 eral an influence over the minds of men that individuals 
 cast out from its communion are completely boycotted and 
 can obtain none of the necessities of life. A relatively small 
 number of persons, united by ties of class interest, may so 
 monopolize land or other means of production that no one 
 can live by his labor except upon the terms which the group 
 prescribes. A larger number of persons, similarly united 
 by the ties of class interest, may so monopolize the labor 
 market that no one outside of their association can obtain 
 regular employment and that the production of goods be- 
 comes impossible except upon the terms which they dictate. 
 There have been periods in which such associations or 
 groups have become states, or at least governments. This 
 was the case in the middle ages with the Christian church, 
 the feudal nobility and some of the city guilds; and the 
 rules established by these associations became law in the 
 strictest sense of the word, since they were generally ac- 
 cepted and were supported by physical force. In the dem- 
 ocratic state, however, with monarchic or representative 
 government, such associations are not permitted to exercise 
 
 13 
 
permanently an economic constraint which parallels and 
 possibly neutralizes the constraints imposed by the general 
 will and applied through governmental organs. If the 
 ends which such associations pursue are approved by the 
 social judgment, the constraints are legalized, but the asso- 
 ciations are brought under legal control. Otherwise, their 
 efforts to exercise an irresistible extra-legal constraint are 
 repressed as illegal conspiracies. The democratic state is 
 rightly jealous of its monopoly of coercion, for its govern- 
 ment alone can be trusted to exercise coercion in the in- 
 terests of liberty. 
 
 By way of summing up the results thus far reached, I 
 suggest, with all deference to the superior authority of the 
 specialists in ethics, that ^morals is that part of the social 
 order which is supported by social opinion, touched with 
 more or less emotion ; and, with more confidence, I describe 
 law as that part of the social order which by virtue of the 
 social will may be supported by physical f orce4 
 
 » Law is in part found, in part made ; that is, it is estab- 
 lished partly by decisions and partly by legislation. Of 
 these processes the decision is not only the older but the 
 more important and the more persistent. A decision is not 
 alone the termination of a pending controversy, it is also a 
 precedent for future decisions. To us, to-day, the word 
 suggests primarily a judicial decision ;;^but^here were de- 
 cisions before there were courts, and decisions that make 
 law are still rendered to-day outside of the courts. The 
 primitive himian community resembles those lowest forms 
 of animal life which exercise with the whole body a num- 
 ber of functions which the higher animals exercise only 
 through special organs. The primitive decision is a com- 
 munity-decision, and its earliest form is the lynching or 
 running-out of the individual who has violated one of the 
 rules of conduct which the community feels to be f unda- 
 
 14 
 
mental,! In somewhat more advanced communities there 
 is another very important form of community-decision. 
 When a man has slain another in self-defence or in rightful 
 vengeance, the community may intervene to protect him 
 from blood-feud, just as to-day the community, acting 
 through special organs, absolves from responsibility the 
 individual who has shot a burglar at night in his bedroom. 
 In both cases the slaying of the wrongdoer precedes the de- 
 cision that he has been rightfully slain ; but in both cases the 
 decision in favor of the man who has taken the law into his 
 own hands recognizes that what he has taken into his own 
 hands is law. 
 
 t After the establishment of courts, community-decisions 
 tend to disappear in that part of the law with which the 
 coiu-ts are competent to deal. In those parts of the law, 
 however, in which the courts are not competent, in political 
 law, for example, community-decisions have continued to 
 establish law in modern times. All unwritten constitutions 
 rest on precedents, and constitutional precedents are set 
 whenever acts of power are supported or accepted by the 
 whole community. And in the international community 
 the only rules that are strictly legal are those which have 
 been enforced in the past, and will therefore presumably be 
 enforced in the future, by the international community, the 
 concert of powers. The rest of what we call international 
 law is as yet only international morals and manners. 
 
 The processes by which early society develops judicial 
 and legislative organization have only recently begun to 
 be understood. As regards European communities, we 
 can now say with confidence that neither lawfinding nor 
 lawmaking has any historical connection with the authority 
 of a patriarch to settle disputes of his descendants and to 
 lay down rules for their future conduct. In general, it 
 may be said that the more light we get on the conditions 
 prevailing in really primitive human society, the less we see 
 
 15 
 
of anything resembling a patriarch. Ages seem to have 
 been necessary for the establishment of marital and pater- 
 nal authority, and ages more for the development of the 
 patriarch ; nor is any patriarchate so complete as that of the 
 Romans known to have existed among any other European 
 people. The earliest European court was not patriarchal 
 but popular. In it the community still acted collectively, 
 but it acted not as a mob but as an orderly assembly. The 
 assembly court had from the outset special lawfinding or- 
 gans; it gradually developed special organs of decision; 
 and the modification, rearrangement or combination of 
 those organs have produced every type of modern court. 
 
 C Legislation, as we know it, has two historical roots: for- 
 mal agreement of the community (which originally, it 
 seems, had to be unanimous) and the order issued by the 
 war-lord to the people under arms. From the power of the 
 military leader to issue orders to his men was derived, when 
 temporary leadership grew into permanent kingship, the 
 power to issue orders in time of peace J Among European 
 peoples, however, such orders were not originally regarded 
 as laws in any proper sense, but merely as administrative 
 measures ; and neither among the Germans nor among the 
 Romans could such orders be enforced, originally, by any 
 means other than a fine, legally limited in amount. I Only 
 in proportion as a king gained power by conquest did his 
 ordinance power expand into anything like legislative 
 power; and it amounted to general legislative power 
 only when the king became an absolute monarchy. In 
 the modern state the executive order has shrunk into 
 something like its original dimensions, while the general 
 power of the people to legislate by agreement is still ex- 
 ercised directly or through representatives. 
 
 I Even in the earliest stages of legal development, when 
 the social will manifests itself directly in social action— in 
 
 16 
 
lynchings, for example— there are experts to tell the com- 
 munity why it acts as it does. These experts are not law- 
 yers only; they belong to the single undifferentiated 
 profession from which have emerged all the professions of 
 civilized life; they are experts in all matters natural, 
 human and divine; they formulate the rules of health, of 
 thrift, of manners and of morals. All this knowledge 
 is one body of wisdom, and aU these rules are part of the re- 
 ligion of which these men are the priests. In their undiffer- 
 entiated activity we are nevertheless able to recognize spe- 
 cial fields of legal action.J They define not only the cases 
 in which individuals may rightly be slain or be thrust out 
 into the deserts or forests, but also the cases in which clan 
 feud may be rightly raised or private vengeance rightly 
 taken. They also devise the earliest methods of deciding 
 doubtful cases and of terminating controversy. Among 
 the early Romans the legal activity of the priests had be- 
 come so highly specialized that not only was there a class 
 of priests whose business was chiefly legal, but there were 
 three boards of these priests: one for interstate relations, 
 another for the public law of Rome, and a third for the 
 private law. 
 
 After courts of justice were established, the priestly law- 
 finder was succeeded and displaced, in European legal de- 
 velopment, by the secular lawfinder, whom the Romans 
 described as the jurisprudent or jurisognsjilt, the Germans 
 as the Wiseman or lawspeaker. ^.These lawfinders were un- 
 official persons : they were neither elected by the assembly 
 nor appointed by king or magistrate. They emerged from 
 the body of the people by a natural selection; they were en- 
 titled to declare the law because they knew the law. Con- 
 clusive, of course, as to the authority of a new lawspeaker 
 was the general opinion of the older and recognized law- 
 speakers. These experts were not judges in our sense, nor 
 did they directly decide controversies. In the early Euro- 
 
 ir 
 
pean court a governmental chairman heard the pleadings 
 of the parties, but he was not necessarily a lawyer. The 
 decision was rendered originally by the whole body of the 
 freemen, as among the Germans ; in a more advanced stage 
 of development it was rendered, as in Greece and repub- 
 lican Rome, by a larger or smaller body of citizens, or by a 
 single citizen ; but even when, as at Rome, the decision on 
 the law and the facts was rendered by a single citizen, he 
 was not necessarily learned in the law. The naturally 
 selected unofficial experts informed the chairman of the 
 court whether the pleadings were regular; and it was from 
 such experts that the people or their representatives learned 
 the rules of law which should govern their decisions. Out- 
 side of court these experts gave legal advice to individuals. 
 They accordingly combined the functions of the modern 
 lawfinding judge and of the modern counselor. 
 
 The modern type of court with which we are all familiar 
 was constructed at Rome in the early Empire, and was con- 
 structed again a thousand years later in Norman England, 
 by the simple expedient of selecting a jurist or wiseman 
 for chairman of the court. This change substituted for the 
 naturally selected unofficial lawfinder an artificially se- 
 lected official lawfinder. In the English type of court pop- 
 ular cooperation in the administration of justice reappears 
 in the jury ; but, as the decision of the people in the earliest 
 European court was guided by the instruction of the ex- 
 pert, so the decision of the modern jury is guided by the 
 learned judge. 
 
 After the judges were taken out of the general body 
 of experts, the remainder of the legal profession (includ- 
 ing certain elements which were not historically derived 
 from the lawspeaking or jurist class) was organized either, 
 as in England, in the two groups of barristers and solicitors 
 or, as in imperial Rome and in the United States, in a 
 single undifferentiated body of practising lawyers. 
 
 18 
 
When we say that law is established by decisions, we do 
 not mean that the condemnation or acquittal of a person 
 accused of crime or the rendering of a judgment for the 
 plaintiff or for the defendant in a civil case establishes the 
 law. tit is in the determination of the legal question at 
 issue, by the recognition and formulation of the legal rule 
 which governs the case, that the law is established. This, 
 as we have seen, has always been the work of experts. That 
 part of the law which the Romans described as the custom- 
 ary or unwritten law, which we describe as common law or 
 case-law, is, in reality, §jinply expert opinion. The un- 
 written law of Rome consisted, in the republican period, 
 of the "responses" of the unofficial jurists, in the imperial 
 period of the responses of the jurists who were authorized 
 to respond and who, for the most part, were imperial 
 judges. Old German tribal law was found in the "wis- 
 doms" or "dooms" of the wisemen or lawspeakers ; English 
 and American common law consists of the opinions ren- 
 dered in court by learned judges, 'i 
 
 These experts, it should be noted, have always been men 
 engaged in the practical application of the law; and their 
 opinions have always been given in connection with cases 
 actually in litigation and in view of the facts of each spe- 
 cial case. Lit should be noted, further, that the unsup- 
 ported opinions of single experts have rarely been regarded 
 as authoritative. The response of the single jurist at 
 Rome, the wisdom of the single lawspeaker among the 
 Germans, was regarded as establishing the law only in so 
 far as it was accepted by the whole body of legal experts. 
 Similarly, in the latest stage of legal development, the 
 opinions which are cited as authoritative are those rendered 
 on appeal by courts of final instance. It should be added 
 that the dodejgj bench always depends largely on the bar 
 to cast light on all sides of a difficult legal question, and 
 that, in the English and American practice, the authority 
 
 19 
 
of a decided case may always be impugned on the ground 
 that it was not fully argued. To make owe description of 
 unAvritten or case-law completely accurate, we should 
 therefore say that it is deliberate and accordant expert 
 opinion. ;( 
 
 u While the expert lawfinders have always claimed that 
 they were following precedents and abiding by the rules 
 laid down in decided cases, they have always exercised 
 great freedoi|i in the interpretation of earlier decisions. 
 In the development of the customary or unwritten law it 
 has always been assumed that the law which is found in 
 decided cases existed somewhere before the cases were 
 decided. One of the oldest German words for law is ewa, 
 that which has always been. Of this eternal law the wis- 
 dom or dooms pronounced by the wisemen were simply the 
 accepted statements. This is still the orthodox doctrine 
 of all courts of justice.j^TFrom it is derived the very im- 
 portant inference that the form in which a rule has been 
 stated in earlier cases is not binding ; it is always admissible 
 to re-examine the cases and to restate the rule. The pos- 
 sibilities of change and development inherent in such a 
 theory are obviously very great; they have been sufficient 
 to enable the coiuis to meet, by constant re-interpretation, 
 most of the needs of a progressive society.^! It was in fact 
 mainly by interprejation that the Roman law and the Eng- 
 lish law were developed from rude customs into the stately 
 fabrics beneath whose shelter all civilized peoples except 
 the Chinese and the Mohammedans are now living.:; 
 
 In connection with the development of the rules of the 
 unwritten law there also gradually appears a set of more 
 general rules described as principles. These present them- 
 selves as propositions of which the ordinary rules are 
 merely corollaries ; and from these principles are frequently 
 derived, in case of need, entirely new rules. The eternal 
 existence of these principles is asserted with even ^eater 
 
 20 
 
energy and persistence than is the eternal existence of the 
 special rules ; but here also it is recognized that no partic- 
 ular statement of a principle is definitive. 
 
 When we make abstraction from the time-honored fic- 
 tions of the lawfinders, and consider what European legal 
 experts, priests, lawspeakers and judges have actually 
 been doing in the twenty-three hundred years over which 
 our observation extends, it is impossible, I think, to deny 
 that their methods have been scientific — far more scientific 
 than their own description of their methods. I The fun- 
 ;J( damental assumptions upon which all their work has been 
 based are obviously these: that law exists for the protec- 
 tion of social interests, and that social interests are more 
 truly reflected in social feeling, in the general sense of jus- 
 tice, than in any reasoned theories. In their effort to give 
 to the social sense of justice articulate expression in rules 
 and in principles, the method of the lawfinding experts has 
 always been experimental. The rules and principles of 
 case-law have never been treated as :^q^ ^M^JS ^^* ^s 
 working hypotheses, continually retested in those great 
 laboratories of the law, the courts of justice. Every new 
 case is an experiment ; and if the accepted rule which seems 
 applicable yields a result which is felt to be unjust, the rule 
 is reconsidered. It may not be modified at once, for 
 the attempt to do absolute justice in every single case 
 would make the development and maintenance of general 
 rules impossible ; but if a rule continues to work injustice, 
 it will eventually be reformulated. The principles them- 
 selves are continually retested ; for if the rules derived from 
 a principle do not work well, the principle itself must ulti- 
 mately be re-examined.it 
 
 The further this process is carried, the more does the 
 conscious recognition of social utility become the real, al- 
 though unavowed, basis of decisions— "the secret root," as 
 Holmes says in his Common Law, "from which the law 
 
 21 
 
draws all the juices of life." Iln novel eases, however, espe- 
 cially when their novelty is due to changed social conditions 
 —in cases, that is, in which the sense of social utility has 
 not yet attained its reasoned justification — the finding of 
 new law is always controlled by feeling rather than by 
 reason.! 
 LThat legal experts have not generally described their 
 methods as experimental and inductive is probably due to 
 the fact that the scientific character of such methods has 
 not been generally recognized until modern times. 
 Through the ages in which deduction from unquestioned 
 premises was regarded as the only scientific mode of 
 thought, the lawyers not unnaturally endeavored to rep- 
 resent their premises as absolute and unchanging and their 
 method as purely deductive.^ 
 
 J^ Great as are the possibilities of the development, by 
 interpretation, of law which has no objective existence ex- 
 cept in its interpretation, these possibilities are not unlim- 
 ited. In all law, and most of all in law established by decis- 
 ions, there is a tendency to persistence, a resistance to change. 
 This is true of all law, because society demands not only 
 that the rules of law be just, but also that they be certain. 
 It is especially true of case-law, because the development 
 of this law is wholly in the hands of lawyers, who are gen- 
 erally more conservative than laymen. Their conservatism 
 is rational, because they xmderstand, better than laymen, 
 the meaning and the value of the accepted principles and 
 rules of the unwritten law ^ and it is valuable to society, 
 because these principles and rules represent the abiding 
 sense of justice, as against momentary gusts of popular 
 feeling, and the accumulated experience of centuries, as 
 against impressions derived from situations which are ex- 
 ceptional and which may be transitory. 1 Legal conser- 
 vatism, however, is a constant impediment to necessary 
 
 22 
 
changes ; if it cannot prevent, it delays them; and the delay 
 which it causes is most constant in case-law. j{ A current 
 of decisions may be diverted, but it cannot well be made to 
 flow backward ; and if its direction is to be seriously modi- 
 fied, it will not turn abruptly but will sweep round slowly 
 in a very long curve. Accordingly, in periods of rapid 
 social change, law is made by other processes than those 
 which we have been considering. 
 
 One of these processes is that by which the j^i^torian Igvj^ 
 was developed at Rome and ^uity in England, tin both 
 instances new law was made and enforced by executive 
 or administrative authority, and in both instances this new 
 law was developed experimentally in the administration 
 of justice between litigants. J It was thus substantially the 
 same process by which the older law had been developed; 
 but the old precedents were disregarded and a fresh start 
 was made. Both at Rome and in England the new law was 
 framed by experts: at Rome by the jurists who sat in the 
 councils of the praetors, in England by a special court with 
 its own bar. In both instances admirable results were 
 achieved ; but in both instances the production of new law 
 through these administrative agencies ceased when the 
 social needs which had set them in motion were satisfied. 
 The praetors and chancellors began to adhere with increas- 
 ing strictness to the precedents established by their prede- 
 cessors ; the new law became relatively stable ; and the en- 
 suing legal development proceeded along the old fines of 
 interpretation until legislation became active. 
 
 In modern times, however, the making of law by the 
 decisions of administrative authorities is reappearing. On 
 the continent of Europe there are regular administrative 
 courts, and their decisions not only control the working of 
 the administrative machinery, but affect the interests of in- 
 dividuals. In our coimtry administrative tribunals are 
 multiplying in the form of federal and state commissions, 
 
 23 
 
which are clothed with quasi- judicial as well as with quasi- 
 legislative powers and which are meeting new social ex- 
 igencies by decisions as well as by administrative orders. 
 When, as is the case both in Europe and in the United 
 States, certain matters fall exclusively within the jurisdic- 
 tion of these administrative authorities, their decisions 
 create new law, t In Europe it is recognized that adminis- 
 trative judges should be experts alike in administration 
 and in law. In the United States, where administrative 
 tribunals are comparatively new and their importance is 
 imperfectly realized, this double qualification is not as yet 
 demanded.! 
 u Legislation is confined, in early stages of legal develop- 
 ment, to matters of policy and is chiefly employed for the 
 adoption of temporary measures in the face of special ex- 
 igencies4 The abiding social order, the ancient law, is too 
 sacred a thing to be changed consciously and openly. 
 tWhen early legislation touches the field of general law it 
 is usually declaratory, that is, it simply affirms the law 
 already recognized and enforced in the decision of contro- 
 versies. Such declaratory legislation first appears, in 
 many communities, in connection with early attempts to 
 set forth the law as a whole, that its provisions may be 
 better known^lThe use of legislation, whether popular, 
 royal or representative, as a means of changing the gen- 
 eral law comes late in European political life. The idea 
 that the law stands in need of constant change and that the 
 necessary changes are normally to be accomplished by 
 legislation is an idea that appears only in a very advanced 
 civilization^ In the Roman Empire it appeared only in 
 the period of decline and decay. In the West Gothic and 
 Frankish Empires legislation was fairly frequent because 
 of the persistence of late Roman traditions. In mediaeval 
 Eui'ope, after the ninth century, there was little legislation 
 except in church councils and in the free cities ; and in the 
 
 24 
 
HERBERT D. LAUl 
 
 cities legislation was active only when they had attained a 
 high degree of economic and political development, t In 
 the modern European states there was little reformatory 
 legislation before the eighteenth century, nor did statutory 
 law gain anything like its modern volume before the nine- 
 teenth century, jj 
 
 u The increasing part played by legislation in late periods 
 of legal development is due in some measure to the in- 
 creased rapidity of social Qhange, in some measure to an 
 exaggerated faith in the power of law to modify social con- 
 ditions and to remedy social evils, but in the main, ap- 
 parently, to the fact that there are certain portions of the 
 law which courts are wholly unable to develop and certain 
 other portions in which judge-made law is less satisfactory 
 than enacted law.^ Political law, constitutional and ad- 
 ministrative, is usually beyond the competence of courts. 
 This part of the law, developed during long stretches of 
 time by commiuiity-decisions, is at last embodied in stat- 
 utes and in written constitutions. Again, that part of the 
 law which expresses interests which are primarily social 
 tends always, and particularly in a democratic society, to 
 be formulated by the direct assertion of the general will. 
 Finally,*there is a considerable part of the law which is 
 distinctly arbitrary. Here also there must be rules; but 
 from the point of view of justice it seems immaterial what 
 the rules shall be. Here certainty, not justice, is the im 
 perative social demand, and here the movement toward 
 legislation begins at a very early periodJ[ 
 
 After ceding all these fields to legislation, a large do- 
 main may yet be reserved for the tentative development of 
 law by the courts. J To the courts may be left that part of 
 the law which primarily subserves the interests of indi- 
 viduals, which accordingly grants to individuals a large 
 measure of liberty, and which, for this reason, has to deal 
 with extremely varied and highly complex relations. In 
 
 25 
 
this part of the law the demand for justice is more im- 
 perative than the demand for certainty. This part of the 
 law, roughly speaking, is the law of personal property, of 
 contracts and of torts. To the very end of the Roman 
 Empire this part of the law remained embodied in decided 
 cases, and the same is true to-day among all Enghsh- 
 speaking peoples. 1 The belief, so generally held to-day, 
 that in a really advanced civilization legislation must cover 
 the whole field of the law, that the finding of law by coiu-ts 
 is a remnant of archaic conditions destined gradually to 
 disappear — this belief has no basis except in the conditions 
 existing to-day in continental Europe and in those coun- 
 tries which have derived their institutions from continental 
 Europe. But in continental Europe, from the dissolution 
 of the Prankish Empire until the estabhshment of national 
 states, the political and legal development was abnormal. 
 In the Roman Empire, and in England after the Norman 
 conquest, there were at all times organs capable of finding 
 general law as well as organs capable of making such law, 
 and there was always a central authority able to subor- 
 dinate local law to general law. Both in the Roman and 
 in the English legal development, accordingly, it was pos- 
 sible to create general or common law by decisions as well 
 as by legislation. In continental Europe the national state 
 developed much later than in England: in Germany and 
 in Italy it was not organized until the nineteenth century. 
 Until it was organized there were no efficient organs for 
 finding or making national law. When it was organized, 
 the existing law was in the main provincial or local; and 
 the provincial and local laws were so firmly estabhshed 
 that national law could be produced only by legislation, 
 and a complete body of national law could be created only 
 by codification. 
 
 iThe work of the legislator is akin to the work of the 
 judge, in that it is his business to express the social will in 
 
 26 
 
the form of rules. In the work of the legislator a higher 
 degree of skill is required than in the work of the courts, 
 because rules laid down in statutes are less easily amended 
 than rules laid down in decisions. A representative leg- 
 islature, in particular, is a cumbrous piece of political ma- 
 chinery, not easily set in motion; and if a law be ill-con- 
 sidered or badly drawn, it will do much harm before it 
 arouses enough resentment to secure its amendment or 
 repeaLS In modern European countries, including Great 
 [Britain, these considerations have led to the development 
 of a class of legislative experts, men who are primarily 
 trained lawyers but who are also trained legal draftsmen, 
 and who hold permanent appointments in the govern- 
 mental service. These experts not only draw all bills 
 which are introduced by the government, but they examine 
 bills introduced by private members of the legislative body ; 
 and it is usually impossible for a private member to secure 
 the adoption of a bill unless it be put in such form as the 
 governmental experts deem satisfactory. Under the in- 
 fluence of this body of legislative experts, a scientific theory 
 of legislation has obtained general acceptance, tit is rec- 
 ognized that no finite intelligence can anticipate the vari- 
 ous situations to which a proposed law may become ap- 
 pUcable or the varying conditions under which it may be 
 applied. A modern European statute accordingly lays 
 down the principles that are to be applied or indicates the 
 ends that are to be attained, and leaves the detailed rules 
 which shall give effect to the legislative purpose to be 
 formulated in administrative orders or to be worked out in 
 decisions. 4 In the United States the legislative expert is 
 only beginning to appear and is still in the unofficial stage 
 of development. Under these conditions it is not sur- 
 prising that our theory of legislation is that of a past age. 
 Our legislators try to do too much, and by attempting to 
 provide for all contingencies they not only embarrass the 
 
 27 
 
administration and the courts, but in many cases they; 
 defeat their own piu-poses. 
 
 *The making of a code, especially of a civil code, which 
 sets forth the rules of the private law, that is, the law of 
 property, of contracts, of family and of inheritance, is the 
 most difficult work in the field of legal science. The suc- 
 cessful solution of this problem presupposes a large and 
 well reasoned body of case-law and numerous well digested 
 systematic treatises. No single expert has ever con- 
 structed a satisfactory civil code: the work must be done, 
 as it has been done in modern European states, by a com- 
 mission of experts.^ The most scientific process which has 
 ever been employed in the work of codification is that which 
 was employed in the German Empire in the construction 
 of the existing civil code. A committee on plan and method 
 was appointed in the spring of 1874. In the autumn of 
 the same year, in accordance with the recommendation of 
 this first committee, a commission of eleven eminent jm-ists 
 was constituted, with the chief justice of the highest im- 
 perial court as its president. In the year 1887 a complete 
 first draft was presented to the government. In 1888 this 
 was published, with five volumes of "motives." An enor- 
 mous amount of expert criticism appeared in this and the 
 ensuing years. All this criticism was carefully digested 
 by governmental experts. Their digest was arranged in 
 the order of the sections of the draft code and was pub- 
 lished in 1894. With the aid of this digest a second com- 
 mission revised the draft of 1887, and a greatly improved 
 second draft was published in 1895. After further slight 
 revision by a committee of the Imperial Diet, the code was 
 adopted in 1896, and it went into force in 1900. 
 
 The occupation of any portion of the legal field by writ- 
 ten law, constitutional or statutory, in no wise terminates 
 the activity of the courts in that field ; it does not even ter- 
 
 28 
 
minate their lawfinding power. Z Scientific legislation 
 recognizes fully that the detailed rules which are needed 
 to give effect to a legislative pohcy musit be worked out 
 partly or wholly by the courts^ .Unscientific legislation 
 requires from the courts something more than this sub- 
 sidiary lawfinding; it requires corrective interpretation. 
 The same is true of the most thoroughly considered and 
 most carefully drawn laws, when the social conditions to 
 which they must be applied have undergone serious 
 changes, f According to the theory of the separation of 
 powers, the covu^s should not use their power of inter- 
 pretation for the purpose of correcting or amending legis- 
 lation; they should apply the written law as it is written, 
 leaving to the legislatures the task of improving it. Prac- 
 tically, however, this course would result in so much incon- 
 venience and injustice as to arouse public resentment, not 
 against the legislatures but against the courts. The gen- 
 eral purpose of the law, it would be said, is evident; why 
 do the courts not endeavor to realize that purpose? This 
 accordingly is what the courts try to do. For more than 
 two thousand years it has been an accepted legal principle 
 that, in interpreting the written law, effect should be given, 
 as far as possible, to the spirit and intent of the law. Here 
 again the possibihties of lawfinding under cover of inter- 
 pretation are very great.;i jl distinguished German jurist, 
 Windscheid, has remarked that in interpreting legislation 
 modern courts may and habitually do "think over again 
 the thought which the legislator was trying to express," 
 but that the Roman jurist went further and "thought out 
 the thought which the legislator was trying to think. "4 Of 
 this freer mode of interpretation Windscheid might have 
 found modern examples. ^The president of the highest 
 French court, M. Ballot-Beaupre, explained, a few years 
 ago, that the provisions of the Napoleonic legislation had 
 been adapted to modern conditions by a judicial inter- 
 
 29 
 
pretation in "le sens evolutif." "We do not inquire," 
 he said, "what the legislator willed a century ago, but what 
 he would have willed if he had known what oiu* present 
 conditions would be.'ljf In English-speaking countries this 
 freer mode of interpretation has always been applied to the 
 unwritten or common law, and it is usually applied to the 
 written law with a degree of boldness which is very closely 
 proportioned to the difficulty of securing formal amend- 
 ment. Thus![the rigidity of our federal constitution has 
 constrained the Supreme Court of the United States to 
 push the interpreting power to its furthest limits. This 
 tribunal not only thinks out the thoughts which the Fathers 
 were trying to think one hundred and twenty years ago, 
 but it undertakes to determine what they would have 
 thought if they could have foreseen the changed conditions 
 and the novel problems of the present day. It has con- 
 strued and reconstrued the constitution in "the evolutive 
 sense," until in some respects that instrument has been re- 
 constructed. Jl 
 
 t Every science classifies the phenomena with which it 
 deals. In the law classification is especially necessary be- 
 cause, without classification of persons, of acts and of rela- 
 tions, it would obviously be impossible to lay down any 
 general rules^ In the early stages of legal development 
 classification is crude : persons are either fully capable and 
 responsible or completely incapable and irresponsible ; acts 
 by which property may be transferred or debt created are 
 limited in number, and such acts are valid or invalid ac- 
 cording as certain forms are or are not rigidly observed. 
 I In early law certainty is far more important than equity. 
 In the later stages of legal development classification be- 
 comes increasingly refined, and, correspondingly, the law 
 becomes more and more equitable ; for equity, in last analy- 
 sis, means discrimination. To this process, however, 
 
 30 
 
there are necessary limits. In its most advanced develop- 
 ment the law necessarily deals with typical persons, typical 
 acts and typical relations ; for if it should attempt to deal 
 specially with variations from the normal type it would 
 lose all certainty. In becoming absolute equity it would 
 cease to be law.JjDModern society, however, provides spe- 
 cial organs of discrimination, in such institutions, for ex- 
 ample, as the pardoning power and the jury. The great 
 social advantage of the jury is that it can bend the law in 
 hard cases without creating authoritative precedents.! 
 
 t Every science, again, analyzes the phenomena with 
 which it has to deal. J In the law every act is resolved into 
 its inward and its outward elements: crime becomes a 
 combination of wrongful intent and illegal conduct; con- 
 tract becomes a meeting of two corresponding wills in cor- 
 responding declarations. Every legal relation is resolved 
 into its constituent powers or rights; and in spite of the 
 very great variety of legal relations, the variety of legal 
 rights is seen to be limited. 
 
 ^ The conception of the legal right is to-day so famihar, 
 and it seems so simple, that we can hardly realize with what 
 difficulty it was attained. But as early law was wholly 
 remedial and the substantive legal order which the rem- 
 edies supported was only slowly recognized, so the legal 
 right long lay concealed behind the correlative and essen- 
 tially ethical notion of the duty. 3 Brunner tells us that in 
 the Germanic languages the word RecM, whether used in 
 the sense of right or of law, is clearly younger than the other 
 words for law; and Hozumi assures us that the Japanese 
 language had no expression for the legal right until 1868, 
 when a word was coined by a Japanese writer who had 
 studied European law at Leyden. Andjonly in our own 
 time has it been clearly perceived that' the legal right, pre- 
 viously regarded as the atom of all legal relations, is itself 
 a combination of a definite interest and a limited power.3 
 
 31 
 
and that these two elements are separable. LThis was one 
 of Jhering's great contributions to jurisprudenee.^ Coup- 
 ling this analysis with Burgess's sharp distinction between 
 state and government, we see that it is in no sense inexact, 
 as has been frequently asserted, to speak of public legal 
 rights. Of course limited powers can not be attributed to 
 the state, because the state is legally omnipotent; but 
 limited powers may properly be attributed to any organ 
 of government, and our public rights are in fact a combina- 
 tion of definite public interests with limited governmental 
 powers. The possible developments of this line of thought 
 in private and in public law are as yet imperfectly reahzed. 
 
 i The final task of legal science is the orderly and conve- 
 nient arrangement of all the institutions and rules of the 
 law, public and private, substantive and remedial, in a 
 logical system.^ The difficulties of this problem are very 
 great, because of the innumerable points at which each part 
 of the law touches every other part. Interrelations so com- 
 plicated that the mind must work in a fourth dimension 
 to apprehend them cannot be satisfactorily exhibited along 
 the single line of a topical arrangement. 
 
 I have already indicated that[Jbhe formulation of legal 
 rules and principles has been, in the main, the work of 
 practical jurists, men actively engaged in the administra- 
 tion of justice. The same statement may be made as re- 
 gards legal classification and analysis, both in Roman and 
 in English law. Not only has most of this work been done 
 in the judicial laboratory, in connection with the discussion 
 and decision of concrete cases, but the results obtained are 
 largely embodied in judicial opinions. Moreover, the liter- 
 ature in which these results are presented has for the most 
 part been produced by practical jurists. Nearly all the 
 juristic writers of the Roman Empire were imperial judges 
 
 (a few only were law professors) , and their writings were 
 substantially digests of the practice of the imperial su- 
 
 32 
 
preme coiirt. In English-speaking countries the legal 
 literature has been less important; in these countries legal 
 classification and analysis, like the rules of the law, are for 
 the most part to be sought in the law reports ; but in these 
 countries, as at Rome, the most valuable contributions in 
 these fields of legal science have been made by practical 
 lawyers, by judges or by members of the bar.i| In this re- 
 spect, again, the continental European development, dur- 
 ing the middle ages and in modern times, has been differ- 
 ent. In consequence of the arrested development of 
 national law, recourse was had to the compilations of Jus- 
 tinian ; because of the antiquity of these compilations their 
 study centered in the universities; andjfrom the eleventh 
 century down to the present time nearly all the legal litera- 
 ture was written by professors. These writers were, in- 
 deed, by no means out of touch with the administration of 
 justice. Not only were some of them judges, but until 
 comparatively recent times university law faculties were 
 frequently called upon to decide difficult cases. The rela- 
 tion between legal literature and applied law was, how- 
 ever, fundamentally different from that which existed in 
 the most productive period of Roman jurisprudence and 
 exists in English-speaking countries. It was a relation not 
 of dependence but of control^! The constructive work of 
 the academic writers was based chiefly on that part of the 
 Roman legal literature which is preserved in the Digest 
 of Justinian. In this literature they had at their disposal 
 a rich and admirably reasoned body of case-law. The de- 
 centralized administration of justice in the secular courts 
 was producing no case-law comparable with the Roman in 
 range or in quality. For all these reasons, legal literature 
 obtained, and it still in a measure retains, a direct influence 
 upon the decisions of the continental European courts 
 which it did not exercise in the ancient Roman world until 
 the period of legal decadence in the fourth and following 
 
 33 
 
centuries, and which it has seldom exercised in the countries 
 of the English law. 
 
 On the other hand,;attempts to present the law or large 
 parts of the law in systematic treatises have always been 
 made under academic influences. Gains, who wrote his 
 Institutes of Roman law in the second century, and whose 
 arrangement was generally followed, even in English- 
 speaking countries, until the nineteenth century, seems to 
 have been a law professor. The most important systematic 
 works produced in France prior to the nineteenth century 
 were those of Donellus and Pothier, both professors, al- 
 though Pothier was also a judge. The modern German 
 arrangement (Pandektensystem) , which is replacing that 
 of Gains, was developed in university lectures ; and a series 
 of academic writers, from Savigny to Windscheid, have 
 given us one of the most admirable bodies of systematic 
 literature that has ever been produced in the field of private 
 law. In England, the attempt to present the whole law 
 systematically was made but once before the time of Black- 
 stone, namely, by Bracton. Bracton was a judge, but he 
 borrowed the whole framework of his treatise from Azo, 
 an Italian law professor. Blackstone was a university 
 professor, and his commentaries were prepared as lectures. 
 In this country the systematic treatise of Story and of 
 Kent grew out of academic instruction/f 
 
 I Philosophical theories of law demand our attention only 
 in so far as they have strongly influenced or are strongly 
 influencing the movement of law or of politics.^ 
 
 If The life of man, the Stoics said, is but a part of the uni- 
 versal order. For the individual and for the state there are 
 eternal and immutable natural laws with which human 
 conduct and human laws should be in harmony. As re- 
 gards himian law, it will be noticed that this theory bears 
 a singular resemblance to the orthodox judicial doctrine, 
 
 34 
 
according to which every rule of law laid down in a judicial 
 decision existed before it was discovered and enunciated.^ 
 t The natural-law theory gives to this eternal law, if not an 
 objective basis or a demonstrable source, at least a name. 
 The jurist-judges of the Roman Empire accepted the 
 Stoic theory and used the name ; and when a new rule was 
 needed for the decision of a novel case, they drew from 
 natural law the rule that seemed to them desirable. The 
 mediaeval church accepted the natural-law theory, adding 
 the explanation that the natural order was simply a part 
 of the divine order, so that when divine revelation was lack- 
 ing the divine will was discernible as natural law.2 In the 
 Roman Church as in the Roman Empire the discovery and 
 the interpretation of the natural law were wholly in the 
 hands of authorized experts. 
 
 Sporadically discernible in the ancient world is a theory 
 that natural law is something more than a reservoir from 
 which supplementary rules may be drawn when needed, 
 that it is a superior law, and that human law that is not in 
 harmony with natural law is of no authority. No Roman 
 lawyer entertained this essentially anarchic theory. It re- 
 ceived no countenance from the mediaeval church as re- 
 garded ecclesiastical law; but it was accepted by the church 
 as regarded secular law. Such law was void not only when 
 it was contrary to the revealed will of God as interpreted 
 by the church, but also when it was contrary to natural law 
 as interpreted by the same authority. When in the six- 
 teenth and following centuries it came to be generally held 
 that neither church nor state had exclusive authority to in- 
 terpret the divine will or the natural law, the theory that 
 natural law was superior to positive law developed all its 
 latent dynamic qualities. / Natural-law theories were em- 
 ployed to legitimize revolution. "Is and ought to be" was 
 the revolutionary formula for the assertion of every pre- 
 viously imrecognized right.J 
 
 35 
 
1 The reaction in favor of constituted authority produced 
 both the positivist and the historical theories of law, or at 
 least led to their more precise formulation.? The positivist 
 theory, as formulated by Hobbes, was a direct result of 
 the English revolt against the crown. Hobbes did not deny 
 the existence of natural law, but he asserted that it was not 
 "law proper." The law of nature, he neatly remarked, "is 
 become of all laws the most obscure, and has consequently 
 the greatest need of able interpretation." Only the sover- 
 eign or the judges to whom he delegates authority are com- 
 petent interpreters. This of course is the theory which was 
 implicit in the Roman jurisprudence, but Hobbes was the 
 first to make it q^xplicit. 
 
 iThe historical theory was formulated in the reaction 
 against the French revolution. The historical school 
 found its antidote to the natm-al-law theory, not in the will 
 of the sovereign, but in the authority of the past. Accord- 
 ing to this theory, presented in the field of public law by 
 Burke, formulated as applicable to all law by Savigny, 
 law is not made, it grows. The judge who declares it, the 
 legislator who seems to make it, are simply interpreters of 
 the national sense of right; and this in its turn is a product 
 of the nation's entire historical existence, m; 
 
 To a certain extent the historical school also represents, 
 at least in English-speaking countries, a reaction against 
 the positivist school; less indeed against the theories set 
 forth by Hobbes than against those formulated by the so- 
 called "analytical" jurists. Confusing, as did Hobbes 
 himself, the state with the government and finding sover- 
 eignty not in the croAvn, as did Hobbes, but in Parliament, 
 the analytical jurists have always been inclined to regard 
 legislation as the normal source of "law proper." 1 Maine 
 and other English adherents of the historical school have 
 not only rehabilitated judge-made law, but they have re- 
 stored custom to its ancient (and perhaps unduly exalted) 
 dignity and importance. ^ 
 
 36 
 
^Whether it is admissible to speak of a comparative school 
 of jurisprudence, in the sense in which we speak of the 
 natural-law school or of the historical school, may perhaps 
 be disputed.^ It may be urged that comparative juris- 
 prudence has produced no distinct theory of law. I In the 
 writings of Jhering, however, we find an interesting and, 
 I think, typical reaction against the historical theory as 
 formulated by Savigny. Without for an instant denying 
 that law is a historical phenomenon, Jhering insists that 
 it is not wholly nor even mainly a national product. Even 
 national law is in the main a world product. The history 
 of law, like the history of civilization, is a history of bor- 
 rowings and of assimilations. Further, Jhering vehe- 
 mently denies that law grows and asserts that it is and 
 always has been made. It is a product of conscious and in- 
 creasingly determinate human will. In this last assertion 
 Jhering approaches the position of the positivists, but he 
 lays less stress than they on the authority by which the rule 
 is established, emphasizing as essential to the concept of 
 law the possibility of enforcement, t Noting the assertion of 
 a contemporary writer that a certain custom was really 
 law, only it was not enforced, Jhering replies: "We might 
 as well say: This is fire, only it does not bum." 3 
 
 I Each of these theories represents a partial truth. Many 
 of the contradictions disappear when we realize that the 
 natural-law theorists and the historical jurists are pri- 
 marily interested in the substance of legal rules, the ana- 
 lytical jurists and the other positivists in the legal quality 
 of the rules. 4 
 
 I The historical study of law did not originate in the his- 
 torical school of jurisprudence, nor were the laws of differ- 
 ent peoples first compared when the comparative school 
 formulated its theories. The extent to which law has 
 always rested on precedents has always made it necessary 
 for the lawyer to look back; and he has always been ready, 
 
 37 
 
if he could not find a satisfactory precedent in the near 
 past, to look back as far as any existing record or tradition 
 has made retrospect possible. The use of the historical 
 method in legal literature is also very old j and even that 
 type of history which was recently described, in the non- 
 technical lecture on history, as "morphogenetic" is dis- 
 tinctly visible in the Institutes of Gaius, written for the 
 use of first-year law-students more than seventeen hundred 
 years ago. Resuscitated by Cujacius in the sixteenth cen- 
 tury, imbued with a due sense of its own importance by 
 Savigny in the nineteenth century, morphogenetic history 
 has been as assiduously cultivated by lawyers as by any 
 other body of scientific men. I The comparative method is, 
 if anything, older than the historical. The story that, in 
 the fifth century before Christ, when the Romans were 
 thinking of putting their own laws into written form, they 
 sent to Greece for a transcript of the laws of Solon, may 
 not be true; but the fact that the story was believed in 
 Rome in the early Empire is significant. In fact the 
 Roman lawyers were actively engaged, in the last two cen- 
 turies of the Republic, in studying and comparing the laws 
 and customs of all the Mediterranean peoples, in order to 
 establish a uniform commercial law— a problem which they 
 solved with such success that the commerce of the world 
 has ever since been governed, in the main, by the rules 
 which they then formulated. Historical and comparative 
 study of the law is prosecuted to-day on a more extensive 
 scale and by more scientific methods than in any previous 
 period, but these studies are new things only in the spirit 
 in which they are being carried on and in the way in which 
 they are now combined.^ 
 
 !. Legal history is being studied not only for the elucida- 
 tion of existing law but for its own sake. It has become a 
 part of general history, and one of the most essential parts JSt 
 In political history its importance has long been recognized ; 
 
 38 
 
in social history its significance is still imperfectly appre- 
 ciated. tFor many obscure periods of history, the legal 
 material is the fullest that we possess and by far the most 
 trustworthy. The interpretation of the legal material re- 
 quires special training, but the results to be gained are well 
 worth the labor. In course of time the synthetic historian 
 will become aware that the legal material is that which he 
 can least afford to neglect; that without the law of prop- 
 erty and of contract, of family and of inheritance, of crimes 
 and of torts, social history is as invertebrate and flabby as 
 is political history without constitutional law.;t 
 
 ^ Comparative legal study also is carried on to-day, not 
 only for the practical suggestions which the legislator may 
 derive from the accimiulated and digested experience of 
 other nations, but for its own sake. It has become a branch 
 of the new science of society, and one of the sturdiest and 
 most fruitful branchesjt 
 
 New also — an invention of our time — is the combination 
 of the historical with the comparative method ; and the re- 
 sults in every field of social science have been surprisingly 
 rich. !^he comparative study of early institutions has been 
 actively prosecuted during the last two generations, phi- 
 lologists and jurists, anthropologists and ethnologists, 
 working side by side ; and it is not too much to say that our 
 conceptions of the beginnings of civilization have been rev- 
 olutionized. Comparative work in the later stages of legal 
 development promises a rich harvest^ 
 
 These lines of study have carried the jurist far away 
 from the practical tasks of interpreting and developing the 
 law of his own time and his own people; and yet we are 
 beginning to see that some of the results attained are of 
 practical value. A vantage ground is being gained from 
 which the existing law of each nation may be objectively 
 examined and criticized. S,It is becoming more and more 
 possible to see how much of any existing legal system is 
 
 39 
 
dead or moribund, how much is vital.Jl It is also becoming 
 possible to see in what respects the law of each nation is in 
 advance of other systems, and in what respects it is suffer- 
 ing from retarded development. 
 
 These studies, moreover, are preparing us to meet the 
 great problem of the future— that of establishing world 
 order and assuring the conditions of world progress. Even 
 in the most progressive nations there are many xmsolved 
 social problems; but the world problem is forcing itself 
 more and more insistently upon our attention; it will not 
 be evaded or postponed. 
 
 The problems of world order and world progress can 
 not be solved by international morals alone. In the inter- 
 national community, the law of the diminishing pressure 
 of widening opinion is conspicuously verified ; the influence 
 of world opinion upon the rulers and peoples of the single 
 states is very much weaker than the influence of national 
 opinion; and the triumph of world morals over national 
 morals can be secured only through international law. 
 Rudimentary as this law is, it has already secured impor- 
 tant gains. It has suppressed the slave-trade ; it has forced 
 the opening of all doors to world commerce; it has estab- 
 lished the freedom of the open and the narrow seas ; it has 
 secured to all men the free use of the great navigable 
 rivers of the world. Civilization is being carried into the 
 backward portions of the world through the agency of the 
 single national states, but international law is beginning 
 to define the powers and duties of the states which under- 
 take this mission. 
 
 I In spite of the highly refined character of many of its 
 rules, international law has as yet hardly reached the stage 
 of development which Em-opean tribal law had reached in 
 a prehistoric period ; but the development is in rapid prog- 
 ress. In international arbitration the world has taken the 
 
 40 
 
first steps towards international adjudication, but arbitra- 
 tors have as yet no greater authority than is given them by 
 the voluntary submission of the parties. World legis- 
 lation is still in the contractual stage of development; 
 it comes into existence only by unanimous agreement i^ an 
 international congress is a Polish diet with the liberum 
 veto. International conventions between great groups of 
 states are, however, becoming increasingly numerous and 
 important, and these conventions are reaching more and 
 more into the field of commercial relations ; besides the pub- 
 lic law of nations a conventional private law of the world 
 is in process of construction. tThe social force which is nec- 
 essary to transform international law from a body of 
 usages and agreements, supported only by moral senti- 
 ment, into "law proper" exists in the concert of the powers. 
 This force has been exercised, thus far, only against back- 
 ward or feeble states ; but every case in which it is exercised 
 establishes a precedent. All the essential agencies of legal 
 development exist ; they are becoming increasingly active ; 
 and it can hardly be doubted that the development will be 
 more rapid in the next three generations than in the last 
 three centuries.3 
 
 At a similar stage in the development of tribal law the 
 task of interpreting and guiding the social will was every- 
 where in the hands of priests ; it was at a later period that 
 the task was transferred to secular lawfinders. The world 
 of to-day has many religions; it will listen to the secular 
 jurist alone. It has been listening to him, largely accept- 
 ing his rulings and his instructions, since the time of Gro- 
 tius, the first of the world-lawspeakers. In the court of the 
 Hague it is now replacing the natm-ally selected unofficial 
 expert by the artificially selected official expert, the learned 
 judge. In this new laboratory of world-law the bench will 
 require the constant assistance of a learned international 
 bar, and bench and bar will need all the help they can se- 
 
 41 
 
cure from international legal literature. For centuries to 
 come, perhaps during the whole future existence of the 
 human race, there will be ample fields for juristic activity 
 within the single nations; but the great task of the juris- 
 prudence of the future will be to interpret the social will 
 of federated humanity and to express in increasingly accu- 
 rate and logical form the universal sentiment of justice. 
 
 42 
 
A SERIES of twenty-one lectures descriptive in non-technicdl,|langug;ge of. 
 the achievements in Science, Philosophy ^lid Art, and indicating the present ' 
 status of tjiesesutjects as concepts of human knowledge, were delivejfedat Colum- 
 bia Unilversi^iy, during the academic year igq/r'igoS; by various jprqfe5sprsch6?en 
 to represerit the several departments of instru'ctio^. ' ,' > ' '' 
 
 MATHEMATICS, by Cassius {jiacfcsbn Keyser, Adrain Professor of Mathe-. 
 
 PHYSICS, by Ernest Fox Nichols, Professor of Eiepefitniinfal Physics. " 
 ASTROT!iOMy,hy Harold Ja.cohy,Rutherfiird Professor of Astronomy. ' 
 'GEOLOGY, by James Furman Kemp, Professor of Geology. 
 BIQLOGY, by Edmund B. Wilson, Professor, 6f Zoology., , , 
 PHYSIOLOGY, by Frederic S. Lee, Professor. qfiPhysioloiy. ).'" 
 BOTANy,-by Herbert Maule Richards, Professor of Botany. 
 ZOOLOGY, by Henry E. Crampton, Professor of Zoology. 
 ANTHROPOLOGY, by Franz BoasjPro/eMor of ^Mttro^oZogy. - 
 ARCHAEOLOGY, by James Rignall Wheeler, Professor ofQreek Archaeolagyi -, 
 
 and Art. ^ ..,'. ,_:■'■ ■" '';. ; ', ./ 
 
 HISTpRY, by James Harvey Robinson, P»-o/esio»-o/fliitory. ,i 
 ECONOMICS, by Henry Rogers Seager* Professor of PoUUcal Economy.' ^} 
 70lAi:icS,hyCh3,xle^ A. 'Bea.Td, Adjunct Professor of PoUtics. \ :' 
 JURISPRUDENCE, by Munroe Smith, Professor of Roman Law and Com- 
 parative Jurisprudence. ' 
 SOCIOLOGY, by Franklin Henry Giddiijgs, Professor of Sociology. sr 
 PHILOSOPHY, by Nicholas Murray Butfer, President of the Uiiiver^ity.i 
 PSYCHOLOGY, by Robert S. Woodwprth, A djunct Professor of Psychology. 
 metaphysics; by Frederick J. E. Woodbridge, Johnsonian Prdfesfor of 
 
 Philosophy. j^ ,-,•; ^ < , / , / ' , , 
 
 ETHICS,by]obnDey^e^, Professor of PhUosophy..', 
 PHILOLOGY, By A. V. W. Jackson, Professor of ItldoTlranian LatigUageSi 
 literature, by.Harry Thurston Peck, Anthon Professor of the Latin Lan- 
 guage and Literature. - 
 
 The^e, lectures are published by the GolHmbia University Press separately in 
 pamphlet form, at the uniform price of twenty-^five cents, b^ jnaiil t?retlty:eight' 
 cents. " Orders will be taken for the separate pamphlets, or for the whole series.' 
 Also to be, had in one volume, blue-cloth, at $5.00 net; by mail, $S-27- ' " / 
 
 Addreu 
 
 THE COLUMBIA UNIVERSITY PRESS 
 
 Colombia Uuhrersitr, New York 
 
DATE DUE 
 
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