of the four. It is concerned with space as the Historical method is with
time. It collects, examines, collates, the notions, doctrines, rules,
and institutions which are found in every developed legal system, or at
least in most systems, notes the points in which they agree or differ,
and seeks thereby to construct a system which shall be Natural because
it embodies what men otherwise unlike have agreed in feeling to be
essential, Philosophical because it gets below words and names and
discovers identity of substance under diversity of description, and
Serviceable, because it shows by what particular means the ends which
all (or most) systems pursue have been best attained. The process is
something like that which a Roman Praetor might have followed in
constructing the general or theoretical part of his _ius gentium_[88].
If indeed we are to suppose the Praetor ever really did study the laws
of the various neighbours of Rome, he was one of the founders of this
method, though to be sure the Roman commissioners, who are said to have
been sent out to examine the laws of other countries before the
Decemviral legislation, preceded him in this attempt.
-----
Footnote 88:
See Essay XI, p. 130 sqq.
-----
The comparative science of jurisprudence appears, however, in two forms.
One of these must, like the science of comparative grammar, crave the
aid of history, for the study of the differences between two systems
becomes much more profitable when it is seen how the differences arose,
and this can be explained only by social and political history. This
form may be deemed an extension of the historical method, which it
resembles in helping us to disengage what is local or accidental or
transient in legal doctrine from what is general, essential, and
permanent, and in thereby affording some security against a narrow or
superficial view. It is really an historical study of law in general;
and, like history, it is not directed to practical ends.
The other form, though it cannot dispense with the aid of history,
because the differences between the laws of different countries are not
explicable without a knowledge of their sources in the past, has a
narrower range in time, being directed to contemporary phenomena. It has
moreover a palpably practical aim. It sets out by ascertaining and
examining the rules actually in force in modern civilized countries, and
proceeds to show by what means these rules deal with problems
substantially the same in those countries. For example, it takes such a
topic as the liability of an employer for the acts of his servant, or
the structure and management of incorporated companies, compares the
enactments it finds in France, in Germany, in the British Colonies and
in the States of the American Union, points out their differences, and
seeks to determine which mode of handling the difficulties of the
subject is the simplest and most likely to work well in practice. The
next step would be to test each legislative experiment by the results it
has secured in each country. Here, however, the task becomes more
difficult, and requires qualities in the investigator which are not
altogether those needed by the jurist.
What the Comparative method does for legal training and legal theory it
does in its first mentioned and historical form. Ample as the materials
may appear, they are really somewhat scanty, because there have been in
the world not many distinct types of legal system or doctrine, and few
of these have reached a high development. Of the ancient and long since
departed systems little is left, and that little not very helpful for
this particular purpose. There are some fragments of old Celtic law from
Ireland, with larger fragments of old Teutonic law chiefly from Iceland,
Norway, Friesland, and the Carolingian Empire, some old Slavonic land
and family customs, besides what may be gleaned from the ancient books
of India, and what has recently been discovered in Egypt, in the clay
tablets of Babylon, and in inscriptions among the ruins of Greek cities.
Of the modern systems, on the other hand, there are besides those of
Teutonic origin, practically only three worth mentioning: Hindu law,
which has been fully developed only in two or three directions;
Muhamadan law, which is deficient on some of the sides we should deem
the most important; and the Roman law, which now covers all those parts
of the civilized world that are not covered by English law, including
the continent of Europe and the colonies of European nations (some
British colonies as well as French, Dutch, German, and Portuguese)
except those which lie in the temperate parts of North America and in
Australasia. So far, therefore, as the doctrines of law in its civilized
and developed forms, suited to a progressive modern nation, are
concerned, the comparative method is virtually restricted to a
comparison of English and Roman conceptions and rules. And the
fundamental ideas and principles of English law itself have been in some
departments so much affected by Roman law that they can hardly be
treated as independent material for comparative study.
It is when we leave the field of legal philosophy and jurisprudence in
general for the field of particulars and details that the practical
value of the Comparative method begins. An examination of the various
ways in which economic and social problems have been dealt with in
recent times, and in which commerce has been regulated and crime
checked, is in the highest degree interesting and useful. But that is
not quite the kind of legal study which we are here primarily engaged in
considering. No doubt the way in which questions of liability and
responsibility and negligence, to take a familiar example, are dealt
with in the laws of different countries, does throw light upon general
juristic conceptions and upon the lines which Courts ought to follow in
developing these difficult branches of any concrete system. But on the
whole, it is rather to the province of legislation than to that of law
that this part of comparative jurisprudence belongs; and, as has been
already observed, the utility for practical guidance of the results
which an examination of the legislation of various civilized states
supplies is somewhat reduced by the difficulty of determining how much
of those results, be they good or evil, is in each case attributable to
legal enactments, how much to the social and economic environment in
which the enactments work.
If we are to attempt to estimate the respective worth of these four
methods for the creation of a theory or philosophy or science of law, we
must begin by settling for whom such a science is designed and to whom
it will be useful.
Three kinds of persons will primarily and directly profit by having such
a science built up on the best lines, viz. the teachers and students of
law, the practitioners of law, including both advocates and judges, and
the makers of law, _i.e._ legislators and draftsmen. Legislators,
however, whether monarchs or members of legislative assemblies, have in
modern countries seldom sought to acquire any specifically legal
knowledge, though some persons who sit in the legislatures of modern
countries usually happen to possess it. Thus it is rather of the two
other classes we must think, that is to say, of the value of a
scientific theory for facilitating the acquisition of legal knowledge by
the learner, and of its value in helping the practitioner (whether
advocate or judge) to apply it with accuracy, perspicacity, ingenuity,
and promptitude. In proposing this test I do not mean to ignore the
importance which belongs to the philosophy of every great branch of
learning, as an end in itself, apart from all practical benefits to be
derived from it. That importance is, however, as the Romans say of
freedom, _res inaestimabilis_, a thing too precious to receive a
valuation in any recognized currency. Practical utility, on the other
hand, can be tested and valued, so it is to the practical utility of
this science in making men thorough masters of law that we had better
confine our view.
All the four methods are legitimate and capable of being applied in a
truly scientific spirit. None therefore is to be either neglected or
disparaged. If, however, we judge them by their fruits, we shall find
that the Historical has given the best crop. The Metaphysical tends to
be not merely abstract but vague and viewy. Of the treatises in which it
has been employed the best are indeed not to be deemed empty. Scattered
through not a few of them one finds acute and suggestive remarks. They
subserve a sound analysis by their treatment of ethical problems: and
sometimes they present what are really considerations of practical
expediency disguised in the robes of sacerdotal transcendentalism. The
difficulty which forbids many among us to give more study to these books
is the shortness of life. Much talent, sometimes of a high order, has
gone to the making of them. But they are, and not solely the German
ones, terribly hard reading.
The Analytic method keeps much nearer to the realities of law, and is
serviceable for the clarifying of our ideas. Its English votaries have,
however, generally wanted breadth of view, and have tried to force
definitions on facts, instead of letting the facts prescribe the
definition. They have been unequal to the subtlety of nature (for law
also is a product of nature), and this largely because they have
neglected the materials for induction which history supplies.
The Comparative method (as already observed) suffers from a lack of
material for the purposes of a philosophy of law in general, and becomes
in practice an examination of Roman conceptions with the help of light
from England in those departments of English law which have been least
influenced by Rome[89], and of some glimmers from the East and from the
laws of ancient European peoples.
-----
Footnote 89:
An example of how stimulating this may be made is furnished by the
treatment of Possession in the acute and learned lectures on the
Common Law of Mr. O. W. Holmes (now Chief Justice of Massachusetts).
-----
The Historical method, on the other hand, may at least be relied upon to
give us facts. Facts are always helpful, when men have been trained to
use them. It is the business of historical criticism to impart this
training, just as it is the business of logic to teach men how to
analyse a current conception and to distinguish the various senses in
which a term may be used.
If the question is propounded—How should these four methods, or some or
one of them, be used for the purpose of legal instruction and the
formation of a legal mind and power of handling legal problems, may we
not answer it in some such way as the following?
The philosophy or theory of Law should begin by determining the place of
law among the human or moral as opposed to the physical sciences, and
should examine its relations to Psychology, Ethics, Politics, and
Economics. As this inquiry will start from a general survey of the
nature of man and the general ideas he forms, it will fall within the
scope of what we have called the Metaphysical method.
The notions and conceptions which are essential to law and lie at the
bottom of all systems will then be investigated, and particularly the
following fundamental conceptions—Right, Obligation, Duty, Liability,
Law, Custom. Some will prefer to deduce these conceptions by the
metaphysical method from the phenomena of human nature and the
principles that connect these phenomena. Some will prefer to start from
current notions as embodied in current language, and to reach correct
definitions by analysing the meaning conveyed by each term and setting
out the facts it is intended to cover. Whichever method be adopted—and
there is less real difference between the two than the description here
given of them might seem to convey—the Historical method ought to
accompany and aid the application of either. For although the object of
the inquiry is to obtain a statement which shall be adequate and exact
for the science of law as a fully developed product of civilized
societies, we always need to be warned by History against assuming that
our present notions are sufficiently wide, and sufficiently possessed of
the elements of necessity and permanence to secure that our propositions
shall be generally true and enable our definitions to hit what is really
essential. The once popular definition of law as a Command of the State
is an instance of the danger of forgetting the past, for the fact that
it would have been palpably untrue in certain stages of political
development shows that it does not rest upon a sufficiently broad
foundation.
From these general conceptions the inquiry will advance to a second
order of ideas and categories, more specifically and purely legal, such
as Ownership, Possession, Contract, Tort, Marriage, Guardianship,
Slavery, Conveyance, Pledge, Lien, Prescription, Inheritance, Sale,
Partnership, Bailment, Crime, Fraud, Negligence. Here we come still
closer to the rules of concrete systems. A German metaphysician may no
doubt deduce the abstract idea of Ownership or Contract from the general
principles he has previously laid down in his speculative treatment of
the subject. A Socratic analyst may by testing current terms and
phrases, and unfolding the meanings involved in these terms, arrive at
definitions of them. But the examination of the conceptions and the
definition of the terms must be mainly based on a study of the facts
which in one or more actual legal systems these conceptions cover. In
this study the Historical method can render effective help, because the
rules actually regulating in any given system all the relations denoted
by these terms are sure to have something irregular or apparently
arbitrary about them, something which pure reason would not have
suggested. The forms, for instance, which Possession, Inheritance, and
Pledge have taken both in Roman and in English law have many
peculiarities explicable only by tracing the causes that produced them.
The definition which the jurist will propound for the purposes of his
science of law in general will avoid such peculiarities, but he cannot
afford to be ignorant of them or of their origin, else he may miss some
side of their significance.
Although in theoretical Jurisprudence the part of History is on the
whole secondary, it is nevertheless indispensable. For History shows us
cases where things that are really different go by the same name, and
other cases where things that are really the same go by different names,
cases where a rule has been extended beyond, and others where it has not
been extended to, its proper or natural range, and thus it guides the
jurist, explaining the facts on which he has to found his theory. The
Comparative method renders a similar service in preventing him from
laying too much stress on the special shape in which a doctrine or
institution appears in the particular system whose history he is
studying, and generally in pointing out identity of substance or effect
coupled with diversity of form or expression.
All the above-named categories or conceptions or institutions, together
with some few others of minor importance, belong to the science of law
in general, because they appear in every fully developed system. When,
however, we get more into particulars, it becomes increasingly difficult
to lay down general doctrines or suggest general rules applicable to all
communities, because details must be settled with reference to the needs
and usages of a given community, and that which suits one would hardly
suit another. Here therefore the Philosophy or Science of Jurisprudence
will bid farewell to the student, handing him over to those who teach
the law of England or Scotland or France or Russia, as the case may be,
and bidding him remember to apply the general principles he has mastered
to the criticism of the details which he will thenceforth be occupied in
learning.
The principles which constitute the Science or Theory of Law in general
can be adequately stated within moderate compass. The subject is not a
large one, unless a writer spreads himself out in ethics on the one hand
or accumulates historical details on the other. Nor is it in the
knowledge to be given that the value of the study will chiefly lie; it
is rather in the training to use the right methods in the right way.
Before he is plunged into details, the student ought to acquire the
habit of looking for principles, of analysing terms, of perceiving that
legal doctrines have all had their growth from rude beginnings and will
change further. These aptitudes will serve him when he enters the domain
of technical law, which is a domain less of Reason than of Authority.
And authority, though it may be called the reason of the past, rules not
because it is reason but because it has the sanction of a past
pronouncement.
Arguments founded on the reason of things or on the tendency of
historical development will avail nothing in practice against a positive
rule, whether contained in a statute or deducible from a decided case.
Seldom indeed will a judicious advocate invoke either Reason or History,
unless perhaps in arguing before the House of Lords a point whereon
little authority exists. But in reasoning from decided cases, and even
in interpreting statutes, his mastery of the methods already described
will stand him in good stead. Nor is it to be forgotten that the judge
and the writer of text-books have, each of them, important functions in
guiding the development of the law. When a question is to be dealt with
regarding which authority is scanty or the decisions are conflicting, a
jurist belonging to either of these classes may apply the philosophic
habit of mind formed by his theoretic studies to the task of finding a
solution which shall be sound and durable, because conformable to
principle, and standing in the true line of historical development.
Let us return, now that we have sketched a scheme for a Theory or
Science of Law in general, to the question whence we started, whether
the Romans, who never produced any such theory or science, suffered from
the want of it. If they did suffer, why do we praise their treatment of
law, and why in particular do we call it a philosophical treatment? If
they did not suffer, what becomes of the importance of a Science or
Theory to the modern lawyer? Why should he trouble himself about it at
all?
What is it which we admire in the Roman jurists, and in the Roman law
generally?
The characteristic merits of the Roman law—and I speak of course only of
the Private Law, for Public or Constitutional Law must be considered
apart—are its Reasonableness and its Consistency. It is pervaded by a
spirit of good sense. Except in two departments, those of the Paternal
Power and of Slavery, its rules almost always conform to considerations
of justice and expediency. Very little needs to be excused as the result
of historical causes. Even Slavery and the _Patria Potestas_, the former
universal in the ancient world, the latter so deep-rooted among the
Romans that it could never be altogether expunged, are in the later
centuries so steadily and carefully mitigated that most of their old
harshness disappears. The moral tone of the law is, take it all in all,
as high as that of any modern system; and in some few points higher than
our own. By its Consistency I mean the harmony and symmetry of its
parts, the maintenance through a multiplicity of details of the leading
principles, the flexibility with which these principles are adapted to
the varying needs of time, place, and circumstance. So the excellence of
the jurists resides in their clear practical sense, in the air of
enlightenment and of what may be called intellectual urbanity which
pervades them. Most of them express themselves with a concise neatness
and finish which gives us the pith of their view in the fewest and
simplest words. They dislike what is arbitrary or artificial, taking for
their aim what they call elegance (_elegantia iuris_), the plastic skill
(so to speak) in developing a principle which gives to law the character
of Art, preserving harmony, avoiding exceptions and irregularities. Yet
they never sacrifice practical convenience to their theories, nor does
their deference to authority prevent them from constantly striving to
correct the defects of the law as it came down from their predecessors.
In these respects the Roman law and the Roman lawyers of the classical
age (the first two and a half centuries of the Empire) may be deemed
more philosophical than our own law or its luminaries. Our law, equal to
the Roman in its sense of justice and in its subtlety, and in some
respects distinctly superior to the Roman, is also a far larger and more
complex structure, as it has to regulate a far more complex society. But
it has less symmetry and consistency, more intricacy and artificiality,
than the Roman: and few of our legal writers can be placed on a level
with the greatest of the classical jurists. Compare Lord Coke for
instance, or Lord St. Leonards, with Papinian or Gaius. Lord St.
Leonards was a man greatly admired by the profession, and his books
secured an authority unsurpassed, if indeed equalled, by any other legal
writings of the century[90]. His knowledge was immense, and it was
minute. His treatises show the same acuteness and ingenuity in arguing
from cases which his forensic career displayed. But these treatises are
a mere accumulation of details, unillumined and unrelieved by any
statement of general principles. In literary style, and no less in the
cast and quality of his intellect, he is harsh and crabbed, but his
frequent obscurity must be due less to a want of clear thinking than to
the fact that our legal text-books have so rarely aimed at excellence of
literary form that this famous case-lawyer had no ideal of lucidity or
finish before him. Lord St. Leonards is not an exceptional instance.
That sound and very learned legal author whom the early Victorian era so
much valued, Mr. John William Smith (Smith’s _Leading Cases_ and
_Contracts_ ), illustrates the same tendencies.
-----
Footnote 90:
Lord Mansfield in the eighteenth century or Lord Cairns in the
nineteenth, perhaps the two most philosophical minds that have adorned
the English bench, would doubtless, if they had written on law, have
shone as legal writers far more than Lord St. Leonards; and it is of
course true that in order to have a fair comparison our great judges
ought to be thrown into the English scale. But the form in which their
wisdom appears makes it less available than the form in which we have
that of the Romans. So too Lord Justice Mellish, the most solid and
cogent reasoner of his time, and Lord Bowen, the most subtle and
ingenious, would doubtless have produced admirable work had not their
time been absorbed by their forensic and judicial duties.
-----
Now the merits we have noted in the Roman law and the Roman jurists are
largely merits of method. To set forth the causes to which the
excellence of the Roman law is ascribable would involve a long
digression, and I have dealt with those causes elsewhere. So let us
confine ourselves to the jurists. They reason and they write as men who
have been thoroughly trained, who have been imbued with a large and
liberal view of law, who have philosophy and analysis and the sense of
historical development equally at their command. They are endowed in
fact with the qualities which, as we have been led to think, a course of
the Theory or Science of Law ought to impart. How then did they acquire
these qualities?