Page images
[graphic][merged small]

Legitimate Functions of Judge-made




Mr. President, Gentlemen of the Virginia State Bar Association,

Ladies and Gentlemen: I certainly would be insensible to kindness if I were not touched, deeply touched, by the handsome words of welcome in which I have been presented to you today by your genial and distinguished President. I am always proud of an invitation to speak in Virginia, and whenever I come among you, as I have on several occasions, to discuss grave questions of government' and law, I feel it due to myself and to the occasion to make before hand the most careful preparation, because when I stand on this historic soil I feel that I am upon the prytaneum, the hearthstone of this nation, where the highest American conceptions of government and law were born. I come to you today with a grave and far-reaching problem that touches the very foundation stones of the science of jurisprudence, a problem which has peryaded its entire history. As your President has stated to you, my subject is


The comparative method of investigating the origin and growth of government and law, which begins with their germs in primitive society, attempts to explain their nature and meaning through the record of their development. Perhaps the most important single revelation which this new method of investigation has made to students of jurisprudence is embodied in the explanation of the subtle and silent process through which the primitive and unelastic codes of infant states are expanded

( 161 )

and adapted, mainly through the agency of judge-made law, to the ever changing conditions of progressive societies. If a state may be compared to a watch, its case or outer shell represents the state's political constitution, while its inner mechanism represents the code of municipal law by which the state's internal affairs are regulated. The primary purpose of the new science known as comparative politics is to classify and label the outer shells of states as represented by their political constitutions; the primary purpose of the new science known as comparative jurisprudence is to classify and label the municipal codes by which the internal affairs of states are governed. So far the world has given birth to only two great systems of jurisprudence; there are really but two great codes of municipal law whose principles have seriously influenced modern civilization. As the Greek genius lacked the capacity to produce a philosophy of law, legal science must be regarded as a Roman creation, jurisprudence as a Roman invention. As the jurisprudence of the western world Roman law has but one rival, and that is the system, with a Teutonic base, which prevails in parts of the British Empire and in the United States under the name of the common law of England. My primary purpose today will be to demonstrate that no matter where the developments of these rival systems may be studied, the facts appear, in the history of each, first, that the primitive customary law inevitably crystalizes into an unelastic, written code; second, that after a society has outgrown the straight-jacket in which it thus incases itself at the outset, it is only possible through the agency of judge-made law to expand and adapt such a jacket to the larger conditions arising out of the after-growth. In other words, that the subtle process of thus expanding and adapting primitive written codes, even when organic, to the ever increasing wants of progressive societies, is too refined for formal legislation which must ever remain as it has ever been, the mere handmaid of judicial interpretation.


As Roman jurisprudence has the longest known history of any set of institutions, and as the character of the changes through which it has passed are very well understood, it is possible to outline its development as a whole. Such an outline should begin with the fact that, at the outset, Roman law was simply the code of a single city-state, a code that grew out of a body of unwritten municipal customs, a special knowledge of which was for a long time confined to an aristocracy or oligarchy who claimed to be the sole repository of the principles by which controversies should be determined. The departure which took place at Rome from that condition of things was simply a part of a wider transition from unwritten customary law to the ancient codes which appeared in Greece, on the Hellenized seaboard of western Asia, and in Italy, and of which the Twelve Tables of Rome are the most famous illustration. Such codes of laws engraved on tablets and published to the people were substituted for traditional usages reposing in the recollection of privileged oligarchies, not through the refined motives now urged in favor of codification, but rather as a matter of convenience suggested by the discovery of the art of printing, and also by the abuses arising out of the aristocratic monopoly of legal knowledge. The Roman code of the Twelve Tables was merely an enunciation in written words of the existing customs of the Roman people put forth at a time when Roman society had barely emerged from that intellectual condition in which civil obligation and religious duty are inevitably confounded. The vitally important result brought about by the transition which thus took place from unwritten customary law to a written code is embodied in the fact that when archaic lap is once condensed into a code there is an end to its spontaneous development; all after changes in it must be effected, if at all, deliberately and from without. As law is stable, and societies of the higher type progressive; as social necessities and opinions are ever more or less in advance of law, how is the latter to be kept in harmony with the former? The problem of problems for students of the historical school is involved in the process through which the strait-jacket put on by an infant state, in the form of a written code, is to be made sufficiently elastic to adapt itself to all the changing conditions of the aftergrowth. Leaving out of view legal fictions which, at certain

« PreviousContinue »