Roscoe Pound, 1908
roscoe pound followed in Oliver Wendell Holmes's footsteps. In "Mechanical Jurisprudence" (1908), Pound coined the term mechanical jurisprudence to refer to the common but odious practice whereby judges woodenly applied previous precedents to the facts of cases without regard to the consequences. For Pound, the logic of previous precedents alone would not solve jurisprudential problems. The essay decries the ossification of legal concepts into self-evident truths.
In opposition to mechanical jurisprudence, Pound offered his theory of sociological jurisprudence. He acknowledged that the common law contains some constant principles, particularly in regard to methods. He gave these principles the name "taught legal tradition." Pound believed that the implementation of this taught legal tradition by wise common-law judges resulted in substantive change, which reflected changes in society. As the interpreters of the common law, judges had a special duty to consider the practical effects of their decisions and to strive to ensure that they facilitated rather than hindered societal growth.
Source: Reprinted from 8 Columbia Law Review 605.
"There is no way," says Sir Frederick Pollock, "by which modern law can escape from the scientific and artificial character imposed on it by the demand of modern societies for full, equal, and exact justice:" An Australian judge has stated the same proposition in these words: "The public is more interested than it knows in maintaining the highest scientific standard in the administration of justice." Every lawyer feels this, and every thoughtful student of institutions must admit it. But what do we mean by the word "scientific" in this connection? What is scientific law? What constitutes science in the administration of justice? Sir Frederick Pollock gives us the clue when he defines the reasons that compel law to take on this scientific character as three: the demand for full justice, that is for solutions that go to the root of controversies; the demand for equal justice, that is a like adjustment of like relations under like conditions; and the demand for exact justice, that is for a justice whose operations, within reasonable limits, may be predicted in advance of action. In other words, the marks of a scientific law are, conformity to reason, uniformity, and certainty. Scientific law is a reasoned body of principles for the administration of justice, and its antithesis is a system of enforcing magisterial caprice, however honest, and however much disguised under the name of justice or equity or natural law. But this scientific character of law is a means—a means toward the end of law, which is the administration of justice. Law is forced to take on this character in order to accomplish its end fully, equally, and exactly; and in so far as it fails to perform its function fully, equally, and exactly, it fails in the end for which it exists. Law is scientific in order to eliminate so far as may be the personal equation in judicial administration, to preclude corruption and to limit the dangerous possibilities of magisterial ignorance. Law is not scientific for the sake of science. Being scientific as a means toward an end, it must be judged by the results it achieves, not by the niceties of its internal structure; it must be valued by the extent to which it meets its end, not by the beauty of its logical processes or the strictness with which its rules proceed from the dogmas it takes for its foundation.
Two dangers have to be guarded against in a scientific legal system, one of them in the direction of the effect of its scientific and artificial character upon the public, the other in the direction of its effect upon the courts and the legal profession. With respect to the first danger, it is well to remember that law must not become too scientific for the people to appreciate its workings. Law has the practical function of adjusting everyday relations so as to meet current ideas of fair play. It must not become so completely artificial that the public is led to regard it as wholly arbitrary. No institution can stand upon such a basis today. Reverence for institutions of the past will not preserve, of itself, an institution that touches everyday life as profoundly as does the law. Legal theory can no more stand as a sacred tradition in the modern world than can political theory. It has been one of the great merits of English law that its votaries have always borne this in mind. When Lord Esher said, "the law of England is not a science," he meant to protest against a pseudo-science of technical rules existing for their own sake and subserving supposed ends of science, while defeating justice. And it is the importance of the role of jurors in tempering the administration of justice with common-sense and preserving a due connection of the rules governing everyday relations with everyday needs of ordinary men that has atoned for the manifold and conspicuous defects of trial by jury and is keeping it alive. In Germany today one of the problems of law reform is how to achieve a similar tempering of the justice administered by highly trained specialists.
In the other direction, the effect of a scientific legal system upon the courts and upon the legal profession is more subtle and far-reaching. The effect of all systems is apt to be petrifaction of the subject systematized. Perfection of scientific system and exposition tends to cut off individual initiative in the future, to stifle independent consideration of new problems and of new phases of old problems, and to impose the ideas of one generation upon another. This is so in all departments of learning. One of the obstacles to advance in every science is the domination of the ghosts of departed masters. Their sound methods are forgotten, while their unsound conclusions are held for gospel. Legal science is not exempt from this tendency. Legal systems have their periods in which science degenerates, in which system decays into technicality, in which a scientific jurisprudence becomes a mechanical jurisprudence.
Roman law in its decadence furnishes a striking example. The Valentinian "law of citations" made a selection of jurisconsults of the past and allowed their writings only to be cited. It declared them, with the exception of Papinian, equal in authority. It confined the judge, when questions of law were in issue, to the purely mechanical task of counting and of determining the numerical preponderance of authority. Principles were no longer resorted to in order to make rules to fit cases. The rules were at hand in a fixed and final form, and cases were to be fitted to the rules. The classical jurisprudence of principles had developed, by the very weight of its authority, a jurisprudence of rules; and it is in the nature of rules to operate mechanically.
Undoubtedly one cause of the tendency of scientific law to become mechanical is to be found in the average man's admiration for the ingenious in any direction, his love of technicality as a manifestation of cleverness, his feeling that law, as a developed institution, ought to have a certain ballast of mysterious technicality. "Philosophy's queerest arguments," says James, "tickle agreeably our sense of subtlety and ingenuity." Every practitioner has encountered the lay obsession as to invalidity of a signing with a lead pencil. Every law teacher has had to combat the student obsession that notice, however cogent, may be disregarded unless it is "official." Lay hair-splitting over rules and regulations goes far beyond anything of which lawyers are capable. Experienced advocates have insisted that in argument to a jury, along with a just, common-sense theory of the merits, one ought to have a specious technicality for good measure. But apart from this general human tendency, there is the special tendency of the lawyer to regard artificiality in law as an end, to hold science something to be pursued for its own sake, to forget in this pursuit the purpose of law and hence of scientific law, and to judge rules and doctrines by their conformity to a supposed science and not by the results to which they lead. In periods of growth and expansion, this tendency is repressed. In periods of maturity and stability, when the opportunity for constructive work is largely eliminated, it becomes very marked.
I have known judges, [said Chief Justice Erle] bred in the world of legal studies, who delighted in nothing so much as in a strong decision. Now a strong decision is a decision opposed to common-sense and to common convenience…. A great part of the law made by judges consists of strong decisions, and as one strong decision is a precedent for another a little stronger, the law at last, on some matters, becomes such a nuisance that equity intervenes, or an Act of Parliament must be passed to sweep the whole away.
The instance suggested in the conversation from which the foregoing extract is taken illustrates very well the development of a mechanical legal doctrine. Successive decisions upon the construction of wills had passed upon the meaning of particular words and phrases in particular wills. These decisions were used as guides in the construction of other wills. Presently rules grew up whereby it was settled that particular words and phrases had prescribed hard and fast meanings, and the construction of wills became so artificial, so scientific, that it defeated the very end of construction and compelled a series of sections in the Wills Act of 1836.
I have referred to mechanical jurisprudence as scientific because those who administer it believe it such. But in truth it is not science at all. We no longer hold anything scientific merely because it exhibits a rigid scheme of deductions from a priori conceptions. In the philosophy of today, theories are "instruments, not answers to enigmas, in which we can rest." The idea of science as a system of deductions has become obsolete, and the revolution which has taken place in other sciences in this regard must take place and is taking place in jurisprudence also. This revolution in science at large was achieved in the middle of the nineteenth century. In the first half of that century, scientific method in every department of learning was dominated by the classical German philosophy. Men conceived that by dialectics and deduction from controlling conceptions they could construe the whole content of knowledge. Even in the natural sciences this belief prevailed and had long dictated theories of nature and of natural phenomena. Linnaeus, for instance, lays down a proposition, omne vivum ex ovo, and from this fundamental conception deduces a theory of homologies between animal and vegetable organs. He deemed no study of the organisms and the organs themselves necessary to reach or to sustain these conclusions. Yet, today, study of the organisms themselves has overthrown his fundamental proposition. The substitution of efficient for final causes as explanations of natural phenomena has been paralleled by a revolution in political thought. We do not base institutions upon deduction from assumed principles of human nature; we require them to exhibit practical utility, and we rest them upon a foundation of policy and established adaptation to human needs. It has been asserted that to no small extent the old mode of procedure was borrowed from the law. We are told that it involved a "fundamentally juristic conception of the world in which all kinds of action and every sort of judgment was expressed in legal phraseology." We are told that "in the Middle Ages human welfare and even religion was conceived under the form of legality, and in the modern world this has given place to utility." We have, then, the same task in jurisprudence that has been achieved in philosophy, in the natural sciences and in politics. We have to rid ourselves of this sort of legality and to attain a pragmatic, a sociological legal science.
What is needed nowadays, [it has been said] is that as against an abstract and unreal theory of State omnipotence on the one hand, and an atomistic and artificial view of individual independence on the other, the facts of the world with its innumerable bonds of association and the naturalness of social authority should be generally recognized, and become the basis of our laws, as it is of our life.
Herein is the task of the sociological jurist. Professor Small defines the sociological movement as "a frank endeavor to secure for the human factor in experience the central place which belongs to it in our whole scheme of thought and action." The sociological movement in jurisprudence is a movement for pragmatism as a philosophy of law; for the adjustment of principles and doctrines to the human conditions they are to govern rather than to assumed first principles; for putting the human factor in the central place and relegating logic to its true position as an instrument.
Jurisprudence is last in the march of the sciences away from the method of deduction from predetermined conceptions. On the continent of Europe, both the historical school of jurists and the philosophical school, which were dominant until at least the last quarter of the nineteenth century, proceeded in this way. The difference between them lay in the manner in which they arrived at their fundamental conceptions. The former derived them from the history of juristic speculation and the historical development of the Roman sources. The latter, through metaphysical inquiries, arrived at certain propositions as to human nature, and deduced a system from them. This was the philosophical theory behind the eighteenth-century movement for codification. Ihering was the pioneer in the work of superseding this jurisprudence of conceptions (Begriffsjurisrudenz) by a jurisprudence of results (Wirklichkeitsjurisprudenz). He insisted that we should begin at the other end; that the first question should be, how will a rule or a decision operate in practice? For instance, if a rule of commercial law were in question, the search should be for the rule that best accords with and gives effect to sound business practice. In the Civil Law, the doctrine as to mistake in the formation of a contract affords an example of the working of the two methods. Savigny treated the subject according to the jurisprudence of conceptions. He worked out historically and analytically the conception of a contract and deduced therefrom the rules to govern cases of mistake. It followed, from his conception, that if A telegraphed B to buy shares and the telegram as delivered to B read sell, there was no contract between A and B, and hence no liability of A to B; and for a time it was so held. But this and some of the other resulting rules were so far from just in their practical operation that, following the lead of Ihering, they have been abandoned and the ordinary understanding of businessmen has been given effect. And, in this same connection, the new German code has introduced, as a criterion of error in the content of an expression of the will, the question, what would be regarded as essential in the ordinary understanding of business. Even better examples of the workings of a jurisprudence of conceptions, for our purposes, may be found in the manner in which common-law courts have dealt with points of mercantile law. For instance, the law of partnership is made difficult and often unjust by the insistence of the courts upon deducing its rules from a conception of joint ownership and joint obligation, instead of ascertaining and giving effect to the actual situation as understood and practiced by merchants. The legal theory does not affect the actual course of business an iota. But it leads to unfortunate results when that course of business, for some reason, comes before the courts. Again, the refusal of Lord Holt to recognize the negotiability of promissory notes proceeded upon a deduction from the conception of a chose in action. A jurisprudence of ends would have avoided each of these errors.
In periods of legal development through juristic speculation and judicial decision, we have a jurisprudence of ends in fact, even if in form it is a jurisprudence of conceptions. The Roman jus gentium was worked out for concrete causes and the conceptions were later generalizations from its results. The jus naturale was a system of reaching reasonable ends by bringing philosophical theory into the scale against the hard and fast rules of antiquity. The development of equity in England was attained by a method of seeking results in concrete causes. The liberalizing of English law through the law merchant was brought about by substituting business practice for juridical conceptions. The development of the common law in America was a period of growth because the doctrine that the common law was received only so far as applicable led the courts, in adapting English case-law to American conditions, to study the conditions of application as well as the conceptions and their logical consequences. Whenever such a period has come to an end, when its work has been done and its legal theories have come to maturity, the jurisprudence of conceptions tends to decay. Conceptions are fixed. The premises are no longer to be examined. Everything is reduced to simple deduction from them. Principles cease to have importance. The law becomes a body of rules. This is the condition against which sociologists now protest, and protest rightly.
A period of legislative activity supervenes to supply, first new rules, then new premises, and finally a systematic body of principles as a fresh start for juristic development. But such periods hitherto have not been periods of growth. Usually legislative activity has not gone beyond the introduction of new rules or of new premises, and the chief result has been a summing up of the juristic accomplishment of the past in improved form. The further step, which is beginning to be taken in our present era of legal development through legislation, is in reality an awakening of juristic activity, as jurists perceive that they may effect results through the legislator as well as through the judge or the doctrinal writer. This step has yet to be taken outside of Germany. And in the first and second stages of a period of legislation the mechanical character of legal science is aggravated by the imperative theory, which is a concomitant of legislative activity. Austin's proposition that law is command so complete that even the unwritten law must be given this character, since whatever the sovereign permits he commands, was simply rediscovered during the legislative ferment of the reform movement in English law. In the flowering-time of Papal legislation the canon law had already asserted it. Moreover, a period of legislation and codification has brought German jurists to a like conclusion. At such times, when law is felt to be positive, to be the command of the law-maker, a tendency to enact rules as such becomes manifest. Roman law, in its period of legislation, can furnish more than one example of the sort of law-making of which we complain to-day.
Before the analytical school, which revived the imperative theory to meet the facts of an age of legislation, had become established, historical jurists led a revolt. But their jurisprudence is a jurisprudence of conceptions. Moreover, they have had little effect upon the actual course of Anglo-American law. The philosophical jurists have protested also and have appealed from purely legal considerations to considerations of reason and of natural law. But theirs, too, is a jurisprudence of conceptions, and their method, of itself, offers no relief. Their service has been in connection with the general sociological movement, in giving natural law a new and a modern aspect, and in promoting a general agreement among jurists on a sociological basis. In Europe, it is obvious that the different schools are coming together in a new sociological school that is to dominate juristic thought. Instead of seeking for an ideal universal law by metaphysical methods, the idea of all schools is to turn "the community of fact of mankind into a community of law in accord with the reasonable ordering of active life." Hence they hold that "the less arbitrary the character of a rule and the more clearly it conforms to the nature of things, the more nearly does it approach to the norm of a perfect law." The utilitarian theory of Bentham was a theory of legislation. The sociological theory of the present is a theory of legal science. Probably the chief merit of the new German code lies in its conformity in so large a degree to this theory. It lays down principles from which to deduce, not rules, but decisions; and decisions will indicate a rule only so long as the conditions to which they are applied cause them to express the principle. This, and not lax methods of equitable application, into which American courts are falling so generally, is the true way to make rules fit cases instead of making cases fit rules.
An efficient cause of the failure of much American legislation is that it is founded on an assumption that it is enough for the State to command. Legislation has not been the product of preliminary study of the conditions to which it was to apply. It has not expressed social standards accurately. It has not responded accurately to social needs. Hence a large proportion has been nugatory in practice. But the difficulty is not, as some have assumed, that matters of private law are not within the legitimate scope of legislation. It is rather that legislation has approached them upon a false theory. Judicial law-making also has acted upon an erroneous theory; and its results are often quite as much disregarded in practice as are statutes. Judicial law-making, however, cannot escape, except within very narrow limits, until it is given a new starting point from without. Legislative lawmaking, on the contrary, may do so and is beginning to do so.
That our case law at its maturity has acquired the sterility of a fully developed system, may be shown by abundant examples of its failure to respond to vital needs of present-day life. Its inadequacy to deal with employers' liability; the failure of the theory of "general jurisprudence" of the Supreme Court of the United States to give us a uniform commercial law; the failure of American courts, with centuries of discussion before them, to work out a reasonable or certain law of future interests in land; the breakdown of the common law in the matter of discrimination by public service companies because of inability to make procedure enforce its doctrines and rules; its breakdown in the attempt to adjust water rights in our newer states, where there was opportunity for free development; its inability to hold promoters to their duty and to protect the interests of those who invest in corporate enterprises against mismanagement and breach of trust; its failure to work out a scheme of responsibility that will hold legal entities, or those who hide behind their skirts, to their duty to the public—all these failures, and many more might be adduced, speak for themselves. But compare these failures with the great achievements of the youth of our case-law, with Lord Mansfield's development of a law of quasi-contracts from the fictions of the common counts, with Lord Mansfield's development of mercantile law by judicial decision, with Kent's working out of equity for America from a handful of English decisions, with Marshall's work in giving us a living constitution by judicial interpretation. Now and then, at present, we see vigorous life in remote corners of our case law, as, for instance, in the newer decisions as to surface and underground waters. But judicial revolt from mechanical methods to-day is more likely to take the form of "officious kindness" and flabby equitable application of law. Our judge-made law is losing its vitality, and it is a normal phenomenon that it should do so.
I have suggested some examples of the failure of our case law to rise to social and legal emergencies. Let me point to some phases of its active operation which lead to the same conclusion.
The manner in which the Fourteenth Amendment is applied affords a striking instance of the workings today of a jurisprudence of conceptions. Starting with the conception that it was intended to incorporate Spencer's Social Statics in the fundamental law of the United States, rules have been deduced that obstruct the way of social progress. The conception of liberty of contract, in particular, has given rise to rules and decisions which, tested by their practical operation, defeat liberty. As Mr. Olney says of the Adair Case, "it is archaic, it is a long step into the past, to conceive of and deal with the relations between the employer in such industries and the employee, as if the parties were individuals." The conception of freedom of contract is made the basis of a logical deduction. The court does not inquire what the effect of such a deduction will be, when applied to the actual situation. It does not observe that the result will be to produce a condition precisely the reverse of that which the conception originally contemplated. Again, the Commerce Clause of the Federal Constitution has been taken by one judge, at least, to be a constitutional enactment of a conception of free trade among the states. Deductions from this and like conceptions, assumed to express the meaning and the sole meaning of the clause, have given us rules which, when applied to the existing commercial and industrial situation, are wholly inadequate.
Procedure, with respect to which every thoughtful lawyer must feel that we are inexcusably behind the rest of the English-speaking world, suffers especially from mechanical jurisprudence. The conception of a theory of the case, developed by the common-law forms of action, has, in nearly half of our code jurisdictions, nullified the legislative intent and made the practice more rigid than at common law. But this conception is regarded by many as fundamental. In deductions from this conception they lose sight of the end of procedure, they make scientific procedure an end of itself, and thus, in the result, make adjective law an agency for defeating or delaying substantive law and justice instead of one for enforcing and speeding them. Aristotle discusses a project of a Greek reformer for enabling tribunals to render what he called a divided judgment. At that time, the judgment had to be absolute one way or the other. If a plaintiff claimed twenty minœ: when but eighteen were proved to be due him, there was no course but to find for the defendant. The proposal to correct this and to allow a finding for the eighteen minœ: due did not meet with Aristotle's approval. He said:
A juror who votes acquittal decides, not that the defendant owes nothing, but that he does not owe the twenty minœ: claimed.
We smile now at Aristotle's hard and fast deduction, in the face of a manifestly absurd result, from his conception of the trial of an issue. But at least half our jurisdictions do the same thing essentially in this matter of the theory of a plaintiff's case. That his pleadings and proofs disclose a case and a good case is not enough. The courts say they are not foreclosing that case; they are merely deciding upon the theory he has chosen to advance.
Again, in the practice as to parties, the common-law conception that there must be a joint interest or a joint liability, because there must be one controversy and joint parties are as one party, has seriously interfered with the liberal plan of the framers of the original Code of Civil Procedure. I can only cite some of the cases. But let me compare with our American cases a recent English decision. In that case two plaintiffs sued for an injunction against infringement of copyright and for an accounting of profits. Only one was owner of the copyright; the other was a mere licensee. But which one was owner was not clear. The court did not deem it necessary to take up this question and determine whether one only was owner and if so which, although a money recovery was to be had. So long as the plaintiffs were agreed among themselves and the defendant had wronged and owed money to one or the other of them, it affirmed a decree for an injunction and accounting. Although in strictness it might be that only one was entitled to judgment and so it would be necessary to determine which one, the court wasted no time on that question so long as nothing turned on it. Here the court was conscious that procedure was a mere means. It strove to vindicate the substantive law. It was not set upon adhering with scrupulous exactness to logical deductions from a conception of adjective law at the expense of the merits the latter exists to give effect to.
Trial procedure is full of mechanical jurisprudence born of deduction from conceptions. The decisions as to the effect of a view of the locus by a jury, in which judgments are reversed unless jurors are told, in the face of common-sense, not to use what they see as evidence, in order to vindicate a conception of the duty of a court of review; the wilderness of decisions as to the province of court and jury, in which, carrying a conception of distinction between law and fact to extreme logical results, the courts at one moment assume that jurors are perfect and will absolutely follow an abstract instruction to its logical consequences, in the face of common-sense and the evidence, and at the next assume that they are fools and will be misled by anything not relevant that drops from the court; and the practice of instructions, one way or the other, when doubtful points of law arise, a general verdict, and a new trial, if the court of review takes another view of the point, when the verdict could have been taken quite as well subject to the point of law reserved, and a new trial obviated, illustrate forcibly the extent to which procedural conceptions, pursued for their own sake, may defeat the end of procedure and defeat the substance of the law. For delay of justice is denial of justice. Every time a party goes out of court on a mere point of practice, substantive law suffers an injury. The life of the law is in its enforcement.
Evidence also has been a prolific field for the unchecked jurisprudence of conceptions. But one example must suffice. The decisions by which in a majority of jurisdictions jurors are not permitted to learn directly the views of standard texts upon scientific and technical subjects, but must pass upon the conflicting opinions of experts without the aid of the impartial sources of information to which any common-sense man would resort in practice, carry out a conception of the competency of evidence at the expense of the end of evidence. In one case, the question was whether death had taken place from strangulation. The trial was held in a rural community, and the medical experts accessible had had no actual experience of cases of strangulation of the sort involved. But standard medical works did relate cases precisely in point, and, after proof that they were standard authorities, a physician was allowed to testify with respect to the symptoms disclosed in the light of the recorded experience of mankind. For this, the judgment was reversed. To vindicate a juridical conception, the court shut out the best possible means of information, in the circumstances of the case in hand, and allowed an accused person to escape because of the inevitable limits of experience of a rural physician.
How far the mechanical jurisprudence, of which the example just given is an extreme case, forgets the end in the means, is made manifest by the stock objection to attempts at introducing a common-sense and business-like procedure. We are told that formal and technical procedure "makes better lawyers." One might ask whether the making of good lawyers is the end of law. But what is a good lawyer? Let Ulpian answer:
lus est ars boni et œqui. Cuius merito quis nos sacerdotes appellet; iustitiam namque colimus et boni et œqui, notitiam profitemur, œquum ab iniquo separantes, licitum ab illicto discernentes, bonos non solum metu pœnarum, verum etiam prœmiorum quoque exhortatione efficere cupientes veram, nisi fallor, philosophiam, non simulatam affectantes.
The nadir of mechanical jurisprudence is reached when conceptions are used, not as premises from which to reason, but as ultimate solutions. So used, they cease to be conceptions and become empty words. James has called attention to a like vice in philosophical thought:
Metaphysics has usually followed a very primitive kind of quest. You know how men have always hankered after unlawful magic, and you know what a great part in magic words have always played. If you have his name, or the formula of incantation that binds him, you can control the spirit, genie, afrite, or whatever the power may be…. So the universe has always appeared to the natural mind as a kind of enigma of which the key must be sought in the shape of some illuminating or power-bringing word or name. That word names the universe's principle, and to possess it is after a fashion to possess the universe itself."God,""Matter,""Reason,""the Absolute," "Energy," are so many solving names. You can rest when you have them. You are at the end of your metaphysical quest.
Current decisions and discussions are full of such solving words: estoppel, malice, privity, implied, intention of the testator, vested and contingent—when we arrive at these we are assumed to be at the end of our juristic search. Like Habib in the Arabian Nights, we wave aloft our scimitar and pronounce the talismanic word.
With legislative law-making in the grip of the imperative theory and its arbitrary results, and judicial decision in the grip of a jurisprudence of conceptions and its equally arbitrary results, whither are we to turn? Judicial lawmaking cannot serve us. As things are, the cure would be worse than the disease. No court could hold such hearings as those had by legislative committees upon measures for the protection of operatives, described by Mrs. Kelley, or that recently had before the Interstate Commerce Commission as to uniform bills of lading. We must soon have a new starting-point that only legislation can afford. That we may put the sociological, the pragmatic theory behind legislation, is demonstrated every day. Legislative reference bureaus, the Comparative Law Bureau, the Conferences of Commissioners on Uniform State Laws, such hearings as the one before the Interstate Commerce Commission already referred to, hearings before legislative commit-tees, such conferences as the one held recently with respect to the Sherman Anti-trust Law, barassociation discussions of reforms in procedure—all these are furnishing abundant material for legislation of the best type. No such resources are open to the courts. Hence common-law lawyers will some day abandon their traditional attitude toward legislation; will welcome legislation and will make it what it should be. The part played by jurists in the best days of Roman legislation, and the part they have taken in modern Continental legislation, should convince us, if need be, that juristic principles may be recognized and juristic speculation may be put into effect quite as well by legislation as by judicial decision.
Herein is a noble task for the legal scholars of America. To test the conceptions worked out in the common law by the requirements of the new juristic theory, to lay sure foundations for the ultimate legislative restatement of the law, from which judicial decision shall start afresh—this is as great an opportunity as has fallen to the jurists of any age. The end of a period of development by judicial decision is marked by the prevalence of two types of judges; those who think it a great display of learning and of judicial independence to render what Chief Justice Erle called "strong decisions," and those who fix their gaze upon the raw equities of a cause and forage in the books for cases to sustain the desired result. But the task of a judge is to make a principle living, not by deducing from it rules, to be, like the Freshman's hero, "immortal for a great many years," but by achieving thoroughly the less ambitious but more useful labor of giving a fresh illustration of the intelligent application of the principle to a concrete cause, producing a workable and a just result. The real genius of our common law is in this, not in an eternal case-law. Let the principles be formulated by whom or derived from whence you will. The Common Law will look to courts to develop and expound them, the Civil Law to doctrinal treatises. It is only a lip service to our common law that would condemn it to a perpetuity of mechanical jurisprudence through distrust of legislation.
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