The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface to the Tenth Edition.
• Preface to the Fifth Edition.
• Preface to the Third Edition.
• Preface to the First Edition.
• Introduction.
• Ancient Law.
• Chapter I.: Ancient Codes.
• Chapter II.: Legal Fictions.
• Chapter III.: Law of Nature and Equity.
• Chapter IV.: The Modern History of the Law of Nature.
• Chapter V.: Primitive Society and Ancient Law.
• Chapter VI.: The Early History of Testamentary Succession.
• Chapter VII.: Ancient and Modern Ideas Respecting Wills and Successions.
• Chapter VIII.: The Early History of Property.
• Chapter IX.: The Early History of Contract.
• Chapter X.: The Early History of Delict and Crime.
• Appendix Notes
• Chapter I. Page 1.
• Note A.: Antiquity of Roman Law.
• Note B.: Customary Law In Homer.
• Note C.: Early Forms of Law: “written” and “unwritten” Law: Early Codes.
• Chapter II. Page 20.
• Note D.: English Case-law and Fiction.
• Chapter III. Page 42.
• Note E.: the Law of Nature and “ius Gentium.”
• Note F.: Equity.
• Chapter IV. Page 70.
• Note G.: Medieval and Modern Treatment of the Law of Nature: Bracton: French Publicists.
• Note H.: the Origins of the Modern Law of Nations.
• Chapter V. Page 109.
• Note I.: Montesquieu, Bentham, and Historical Method.
• Note K.: the Patriarchal Theory.
• Note L.: Status and Contract.
• Chapter VI. Page 166.
• Note M.: Testamentary Succession.
• Chapter VII. Page 209.
• Note N.: Primogeniture.
• Chapter VIII. Page 237.
• Note O.: Capture, Occupation, Possession.
• Note P.: the Indian Village Community.
• Note Q.: Res Mancipi; Alienation In Early Law.
• Chapter IX. Page 295.
• Note R.: Contract In Early Law.
• Chapter X. Page 355.
• Note S.: Archaic Procedure.

Chapter II. Page 20.

NOTE D.

ENGLISH CASE-LAW AND FICTION.

About the middle of the nineteenth century, and somewhat later, the language currently used by text-writers was such as to warrant Maine’s selection of the authority of decided cases in England as an example of legal fiction. But the twentieth-century reader, if he has taken to heart Maine’s brilliant generalisation in the earlier part of the chapter, will hardly expect the ideas and formulas even of English lawyers to have remained stationary in the midst of a progressive society; and in fact, though probably no society has ever made progress at a uniform rate all along the line, and there may quite conceivably be stagnation or even falling back in some departments while there is advance in others, criticism of legal ideas has advanced a good deal in the English-speaking world. No intelligent lawyer would at this day pretend that the decisions of the Courts do not add to and alter the law. The Courts themselves, in the course of the reasons given for those decisions, constantly and freely use language admitting that they do. Certainly they do not claim legislative power; nor, with all respect for Maine, do they exercise it. For a legislator is not bound to conform to the known existing rules or principles of law; statutes may not only amend but reverse the rule, or they may introduce absolutely novel principles and remedies, like the Workmen’s Compensation Act. Still less, if possible, is he bound to respect previous legislation. But English judges are bound to give their decisions in conformity with the settled general principles of English law, with any express legislation applicable to the matter in hand, and with the authority of their predecessors and their own former decisions. At the same time they are bound to find a decision for every case, however novel it may be; and that decision will be authority for other like cases in future; therefore it is part of their duty to lay down new rules if required. Perhaps this is really the first and greatest rule of our customary law: that, failing a specific rule already ascertained and fitting the case in hand, the King’s judges must find and apply the most reasonable rule they can, so that it be not inconsistent with any established principle. They not only may but must develop the law in every direction except that of contradicting rules which authority has once fixed. Whoever denies this must deny that novel combinations of facts are brought before the Courts from time to time, which is a truth vouched by common experience and recognised in the forensic phrase describing such cases as “of the first impression”; or else he must refuse to accept the principle that the Court is bound to find a decision for every case, however novel. It is true that at many times the Courts have been over-anxious to avoid the appearance of novelty; and the shifts to which they resorted to avoid it have encumbered the Common Law with several of the fictions which Maine denounces (p. 27) as almost hopeless obstacles to an orderly distribution of its contents.

Perhaps Maine’s exposition hardly brings out the prevailing motive for introducing fictions, the desire of obtaining a speedier or more complete remedy than the strictly appropriate form of procedure affords. Among the regular though not invariable marks of fictions in modern English law is the use of the word “constructive” or the word “implied,” as any careful student may note for himself. It would be rash to suppose that the age of legal fictions is wholly past. When “Ancient Law” was written, one example was quite recent in our Courts, the rule that a man who professes to contract as an agent is deemed to warrant that he has authority from his alleged principal. This is a fiction, but beneficent and elegant, and it is now fully accepted.