Front Page Titles (by Subject) XII: THE METHODS OF LEGAL SCIENCE - Studies in History and Jurisprudence, vol. 2
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XII: THE METHODS OF LEGAL SCIENCE - Viscount James Bryce, Studies in History and Jurisprudence, vol. 2 
Studies in History and Jurisprudence (New York: Oxford University Press, 1901). 2 vols.
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THE METHODS OF LEGAL SCIENCE
Whoever, having heard the Roman law praised as a philosophical system, enters upon the study of it, and peruses either the Corpus Iuris Civilis or the writings of modern German civilians, will presently find himself asking, Where is the legal philosophy of the Romans to be found? By which of them is the subject treated in the abstract? Where are those general views on the nature and essence of law with which a philosophical treatment of it ought to begin? And where is that theory of the historical evolution and development of law which represents another method of treating jurisprudence in a scientific spirit?
There is scarcely anything answering to the student’s expectations, either in the original Roman texts, or in those modern books wherein the scattered rules and maxims of the ancient jurists have been rearranged in systematic form. In the proem and introductory title of Justinian’s Institutes and in the first few titles of his Digest may be found some few dicta, more sonorous than exact, about Justice and Nature and the origin of law. Nothing more in the Corpus Iuris nor in any other of the few old legal writings that have survived. There is no trace that any lawyer ever composed a treatise on that which we in England call General Jurisprudence, and which the Germans call Rechtsphilosophie or Naturrecht (Philosophie de Droit, Droit Naturel). Cicero, who at one time intended to write a book on the civil law, throws out some remarks on the subject, but these are rather philosophical than legal, and it would seem either that no later philosopher, whether Greek or Roman, whether Academic or Stoic, followed in this path, or else that the treatises of those who did were not thought worthy of being preserved, or even of being quoted by the compilers of Justinian’s Digest.
This absence of what the enlightened modern layman, though certainly not the professional English lawyer, expects in a refined and comprehensive system of jurisprudence, raises the question which those who approach the study of law, especially in a university, doubtless often put to themselves—Has the Roman law suffered from the want of a foundation of legal philosophy, or is that foundation really needless, and can a practically useful and scientifically symmetrical system of law exist without it?
In order to answer this question let us consider what is meant by the Philosophy of Law, or the Science of Law in general, conceptions to which it might be convenient to restrict the terms Jurisprudence (or General Jurisprudence) hitherto somewhat laxly used1 , and what are the proper relations of such a science on the one hand to a working system of law, and on the other hand to the principles and considerations which guide the legislator.
Seeing that in each of the so-called moral or social or political sciences the essential characteristic is its method, and that it is by its possession of a method that its claims to be a science must be tried, we had better begin by inquiring what method or methods the science of law in general recognizes and applies; and whether, if there be more than one, any one of these is entitled to be deemed the right method. As law is a science directed to practice, the test of rightness will evidently be the practical utility of the method in producing a system of law which shall be symmetrical, harmonious, and suited to the needs of the people whose social relations it has to adjust and regulate.
Four methods are commonly spoken of as employed in legal science, being the following:—
The Metaphysical or a priori method.
The Analytic method.
The Historical method.
The Comparative method.
This classification is doubtless open to criticism, but being in actual use, it may serve our present needs.
The Metaphysical method, which, without stopping to search for a definition, we may describe as being the method which most German, French, and Italian writers on the Philosophy of Law or the ‘Law of Nature’ have adopted, begins by investigating the abstract ideas of Right and Law in their relation to Morality, Freedom, and the human Will generally. It may thus be regarded as that branch of metaphysics, of psychology, of ethics, perhaps also of natural theology (according to the delimitation of these departments of inquiry which any one may adopt), which concerns itself with the civil relations of men to one another in the most general and abstract form of those relations. It proceeds to deal with the fundamental legal conceptions or categories of the subject, such as Sovereignty, Obedience, Right, Claim, Duty, Injury, Liability, and with the notions involved in certain fundamental and universal legal institutions such as the Family, Property, Inheritance, Marriage, Contract, in each case endeavouring to discover the ethical or psychological basis of the conception or institution, and to build up the institution in its simplicity, purity, and perfection on that basis, determining the form which it ought to take—that is to say, which God or Nature designed it to take—in conformity to its essence and indwelling creative principle. In the language of Plato, it seeks to discover and describe the Idea (εἰ̑δος) of the conception or institution. In particular, this method treats the notion of Right from all possible sides, connecting it with the Deity, with nature in general, with man’s nature, with the family, with the primordial social and political relations of men, and endeavours in like manner to determine the conception of Duty and the essence of Moral Obligation, and the reasons why Obligation attaches to certain human relations, whether it springs out of these relations, e.g. out of those of the Family, or whether, coming from some other source, it gives to them a new moral quality. With certain philosophers the method extends itself to politics, and discusses questions some of which hardly belong to the legal sphere, e.g. the rights of majorities as against minorities; the grounds on which a ruler may demand submission, or those on which subjects may properly resist or depose a ruler; the relations of civil authority to ecclesiastical authority, and the limits within which, in case of conflict, obedience is due to one or to the other, perhaps even the limits within which the legislator may fitly enforce duties primarily moral.
The writers who have followed this method may be divided into two classes. Some remain in the field of abstractions. Positing a few extremely general ideas or principles, they develop out of these by way of deduction or explication the rest of their doctrine down to such legal details, usually scanty, as they condescend to give. The whole system is, or seems to be, spun out of the author’s fundamental conceptions. Others, while using abstract terms with equal boldness, turn out when closely scrutinized to have really drawn their notions from the concrete, and to be merely generalizing from phenomena, more or less numerous, which they have seen or heard or read of. Obviously, even the more professedly abstract writers of the former class do in fact found themselves largely, often more largely than they fancy, upon observation, for this no man can help doing, however much he may prefer the ‘high priori road.’ There is, however, a marked difference between the way in which this method is handled by different types of thinkers. Some soar so high through the empyrean of metaphysics that it is hard to connect their speculations with any concrete system at all. Others flutter along so near the solid earth of positive law that we can (so to speak) see them perching on the stones, and discover the view they take of the questions with which the practical lawyer or legislator has to deal.
The worth of the books, abundant on the Continent of Europe but scarce in England and the United States (though a little less scarce in Scotland), which have been composed by writers of this school, will be estimated differently by those who enjoy speculation for its own sake, and by those who think it a waste of time unless it bears fruit in truths of definite practical utility. If the latter criterion of value be accepted, the importance of these treatises cannot be placed very high. The foliage is luxuriant, but the fruit scanty. A vigorous and ingenious mind will doubtless, in whatever way he may treat the subject, stimulate thought in the student, and will probably throw out just and suggestive remarks which may be treasured up as practically helpful. As some brilliant thinkers, at the head of whom stand Immanuel Kant and G. W. F. Hegel, have adopted this method in handling the Philosophy of Law, and have given a powerful impulse to many able disciples, it would be foolish and presumptuous to disparage their treatises. Nevertheless, the general conclusion of English lawyers has been that not much can be gathered from lucubrations of this type. They are decidedly hard reading; and the harvest reaped is small in proportion to the time spent. Threading its way through, or, as some would say, playing at hide-and-seek in, a forest of shadowy abstractions, this method keeps too far away from the field of concrete law to throw much light on the difficulties and controversies which the student of any given system encounters. Nevertheless, while this is the general character of the school, there are some books referable to it wherein one finds legal conceptions analysed with an acuteness which cannot but sharpen the reader’s wits, and others which pile up much ingenious and subtle thinking round the points where law and ethics come into contact, some legal problems being really ethical problems also. Even a student who has experienced many disappointments will not lightly abandon the hope that some lawyer with a gift for speculation will one day employ this method—in itself a method with legitimate claims to respect—to produce a book nearer to the realities of the subject than any which the last two centuries have seen. There is more to be expected from such a man than from a metaphysician who thinks he understands law. Higher and rarer gifts are no doubt needed for metaphysics than for law; indeed even high poetic genius is not so rare as a really original genius for speculation. But the lawyer who rises into metaphysics has at any rate his body of practical knowledge to keep him in the path of sense: the metaphysician dealing with law may easily lose himself in mere words.
The Analytic Method, standing in a marked and sometimes a scornful opposition to the method we have been considering, leaves metaphysics and ethics on one side, and starts from the concrete, that is to say, from the actual facts of law as it sees them to-day. It takes the terms, whether popular or technical, which are in current use. It endeavours to define these terms, to classify them, to explain their connotation, to show their relation to one another. It is of course frequently obliged, when it attempts, as it must attempt, to be logical, to modify the existing terminology, and attach a new specific and technical sense of its own to some words, or even to invent terms altogether new.
This method, though it is essentially, in its more obvious and rudimentary form, so much a matter of common sense as to have been more or less employed by all who have thought or written about law, and may possibly have been used in Egypt under the Fourth Dynasty, is most familiar to us as that employed with boldness and spirit by Jeremy Bentham, and subsequently proclaimed by the school he founded to be the only helpful mode of handling the subject. That school rendered a service to legal study in England by the keen east wind of criticism which they unloosed to play upon our law, and which ended by uprooting a good many old and probably rotten trees. They roused an interest in the discussion of general legal doctrines which had been wanting during the first three quarters of last century. But they fell into two grave errors.
They laid the foundations of legal science in the so-called Theory of Utility, which, be it sound or unsound, has nothing to do with the Analytic Method, nor with Positive Law. In the first place, it is a theory of human action which properly belongs to ethics or psychology; and secondly, in so far as it can be deemed to affect law, it affects neither the classification and exposition, nor the application of law (except in so far as it may subserve interpretation), but the making of law. That is to say, it belongs not to the jurist but to the legislator. Its place is that of a practical guide to the science we call the Principles of Legislation. But in this application it is no new discovery, for all legislators have at all times professed, and many have honestly sought, to be guided by it. Expediency, to use the older and less formal term, is a principle obvious in legislation and dangerous in law, for though the commentator may properly use it, the judge may readily abuse it. That Bentham, who was first and foremost a reformer, should incessantly insist on the doctrine of utility, till he almost crushed his legal analysis under the weight of his ethical theory, was perhaps natural. He was really trying to create a Theory of Legislation. But John Austin, the most prominent of his professional disciples, was a writer on law rather than a reformer, so in him the fault is less excusable. Indeed, Austin pushed the habit further, for he must needs, after basing Law on Utility, identify Utility with the Law of God, in doing which he wanders off into the field of Natural Theology, and virtually repeats the error, which he had censured in the Roman lawyers, of assuming a Law of Nature as the basis of legal doctrines. So that Bentham and he are not unjustly described by the Germans as the authors of ‘theories of Natural Law.’
The second error of this school was that of relying too much upon current English notions and terms. They did not extend their view far enough either into the past, or over the legal systems of other times and countries. Bentham was, to be sure, chiefly occupied with schemes of reform, and did not profess to be a jurist. Austin deserves credit for having gone to Roman law, and sought in it those general ideas in which he found, or thought he found, English law lacking. Unfortunately he did not fully master the Roman system; and his overweening self-confidence betrayed him into a dogmatic censoriousness which was unbecoming even when he was exposing the errors of Blackstone, and was still less pardonable when he poured scorn on the legal luminaries of Rome. He did not perceive how deep some of the difficulties of legal theory lie, nor that there are some conceptions which it is safer to describe than to attempt to define. Hence his solutions are sometimes crude, and his efforts, in themselves most laudable, after exactitude, are apt to fail for want of subtlety. On several fundamental questions, such as the origin and essence of law and the nature of sovereignty, Austin is palpably wrong, and the most eminent of those later writers who started as his disciples have been largely occupied in disclaiming and correcting his mistakes.
The really great merit of the English Analytic School—a merit which was no doubt the main source of its influence, but which we are now in some danger of forgetting—was its destructive energy. When Bentham began his career, case law, which reigned supreme, was by the legal profession generally, though of course not by such a man as Lord Mansfield, regarded as a mere string of precedents. No idea of philosophical arrangement, much less of literary finish, had begun to work upon the mass—
Blackstone had indeed rendered the immense service of presenting within moderate compass and in graceful diction a complete view of the law. But he brought an insufficient grasp of history and philosophical principle, and still less an exact analysis, to his exposition, finding little to criticize and nothing to require amendment in rules and a procedure which half a century later few ventured to justify. This genial optimism, which was satisfied with any explanation, because it took the law as it stood to be the best possible, provoked Bentham. He writes with the air of one who does well to be angry; and the tradition descended to Austin, by whose time the grosser scandals of the law were beginning to be removed.
Between Bentham and Austin there is one conspicuous difference1 . Bentham had not only a vigorous but a fertile and inventive mind, acute and ingenious, if sometimes warped or liable to become what is now called ‘cranky.’ He drops plenty of good things as he goes along. Austin is barren. Few or no suggestive thoughts are to be gathered where he has passed. His dry, persistent iteration, with its honest struggle after precision of terms, has a certain value as a mental discipline, just as it tests one’s powers of endurance to traverse a stony and waterless desert. An old Scottish lady consoled her friend, who had been dragged two miles in a broken carriage by runaway horses, with the remark that it must have been a precious experience. But it is generally better to get one’s discipline from books which also yield profitable knowledge. Of this there is in Austin nothing which may not nowadays be found better stated elsewhere. Most recent authorities are now agreed that his contributions to juristic science are really so scanty, and so much entangled with error, that his book ought no longer to find a place among those prescribed for students.
How then, it may be asked, did it happen that Bentham and even Austin made a great impression upon some powerful minds in the last generation? Bentham did, because he was the first man who had the courage to denounce the artificialities, absurdities, and injustices of the unreformed law and procedure of England. No small part of the credit for the reforms which Romilly, Brougham, and their fellow workers carried out belongs to the man who had begun to call for them full thirty years before. Austin did, because in his time systematic legal study, and in particular legal education, were almost extinct in England. There was no legal teaching either in the old Universities, or in London. Though the grosser abuses of procedure had been removed, yet the subtleties of special pleading, as well as the long-winded and highly artificial intricacies of conveyancing, still flourished, and the law was regarded as a forest of details through which it was useless, even if possible, to drive paths for the student to follow. A disciple of the old reformer who brought to the novel enterprise of teaching and systematizing law a faith in the reformer’s doctrines and a zeal for general principles, not unnaturally received the sympathy and the deference of the eager youth who believed, and rightly believed, that the practice of the law, as well as its substance, would gain from the application of an independent and fearless criticism to it. By this service Austin has earned our gratitude, and deserves to be remembered with respect. So, though the legal writings of Bentham and his disciples have now only a historical interest, we must not forget that they stimulated men to handle law in a new spirit, and that those whom they influenced had much to do with the establishment of the modern schools of law and the introduction of new methods of preparation for professional work.
The third method is the Historical. Instead of taking law as a datum, like the two other previous methods, it seeks to find how law sprang up and grew to be what it is. It sees in law a product of time, the germ of which, like the germ of the State, exists in the nature of man as a being made for society, and which develops from this germ in various forms according to the environing influences which play upon it. Although law may not have been created by the State, it tends as it grows to become more and more closely associated with the State as a function of the latter’s energy. Though its leading doctrines and its fundamental institutions are in some respects essentially the same in all civilized communities, still every given system is, in the historian’s view, for ever changing, growing, and decaying, both in its theory and in its substance, i.e. both in the ideas which create and underlie the legal conceptions and rules, and in the particular forms which those rules have assumed no less than in the institutions by which such rules are put in force.
The utilities of the Historical Method as applied to any given system of law are two.
It explains many conceptions, doctrines, and rules which no abstract theory or logical analysis can explain, because they issue, not from general human reason and the nature of things, but from special conditions in the country or people where the law in question arose. All law is a compromise between the past and the present, between tradition and convenience. Hence pure analysis, since it deals with the present only, can never fully explain any legal system.
This is not to say that the Historical method is a mere record of accidents. On the contrary it endeavours to eliminate, or at least to reduce to due proportions, that element of accident which results from the personal fancies and arbitrary volition of individual lawgivers. It conceives of national character and the circumstances of national growth as creative forces, whereof law is the efflux and expression, being itself a living organism, which in its turn helps to shape the mind of the people. Accordingly it shows that each nation, rather than individual men, however potent, is, through what the Germans call its Legal Consciousness (Rechtsbewusstsein) the maker and moulder of its law.
A second merit of this method is that of indicating that the conceptions and rules which prevail at any given time, however obviously reasonable and useful they may appear to the generation now living, will not always appear so, but must undergo the same change and decay which previous rules have experienced. It teaches us never to condemn the past because it is not the present, nor ever to forget when we praise the present that it too will some day be the past. This is one of those truisms which men are always forgetting to apply, and of which legislators in particular need to be often reminded.
The risk principally incidental to the Historical method is, that it is apt to lapse, either into mere anti-quarianism on the one side, or into general political and social history on the other. Some charge it with retarding improvement by justifying the past. Those who oppose reforms have often so abused it: just as those abuse it who when they palliate crimes by dwelling on the ‘so-called conditions of the age’ attenuate all moral distinctions. ‘In judging Phalaris,’ a modern lecturer is reported to have said, ‘we must not forget that the moral standard of Phalaris’ time is not that of our own.’ Nevertheless History, when she explains and is supposed to justify the past, justifies it as the past, and must not be deemed to defend it for the purposes of the present.
It is, however, a weak point in the Historical method as applied to the science or philosophy of law that it is more applicable to the law of any particular country than to the theory of law in general, for the details of legal history vary so much in different countries that immense knowledge and unusual architectonic power are needed to combine their general results for the purposes of a comprehensive theory. Indeed, I doubt if any man of the requisite capacity (unless perhaps Rudolf von Ihering) has yet produced a treatise on jurisprudence or the philosophy of law by means of this method. The thing, however, may be done, and so will doubtless be done some day. Everything happens at last.
Lastly, there is the so-called Comparative Method, which is the youngest 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 gentium1 . 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.
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 Rome1 , and of some glimmers from the East and from the laws of ancient European peoples.
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 century1 . 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 textbooks 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.
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?
First, by the study of philosophy. Though our data scarcely justify a general statement, it seems probable that many of the jurists, especially of such as grew up at Rome, received instruction in Greek philosophy. It has been suggested that not a few professed the doctrines of the Porch. Anyhow the conception of Nature as a force or body of tendencies prompting and guiding the progress of law was familiar to them, and appears to have influenced their ideas. Then by a searching and sifting of legal terms and maxims, what may be called an exetastic method, they sharpened the edge of their minds and gave clearness to their notions. Both the philosophical and the rhetorical training given to young men fostered the habit of analysis; and the disputations which went on among the lawyers, stimulated by the controversies of the two great schools, Sabinians and Proculians, doubtless trained men in dialectic, wherein the framing and the dissecting of definitions play no small part. The history of law does not seem to have been taught, and regarding some parts of their earlier legal history the Romans of the later Empire may have known less than we know to-day. The sketch taken from Pomponius which we have in the beginning of Justinian’s Digest is uncritical, and in many points defective. But these jurists, from their study of the development of equitable principles through the action of the Praetor, had a training in historical method which must have been eminently profitable. During the last two centuries of the Republic and the first century of the Empire, the law of Rome was being constantly amended and developed far less by the comparatively rough method of legislation than by the delicate methods of interpretation, discussion, and the issuing of praetorian Edicts, and developed in such wise that the new had always arrived before the old departed, so that the process of evolution was always before their eyes, and its lessons familiar to them.
Finally, the administration of justice by the Praetorperegrinus, who doubtless based himself mainly upon the commercial usages of the merchants who from various quarters resorted to Rome, and still more the issuing of provincial edicts by the magistrates who were sent to rule the provinces according to systems which combined some Roman rules and principles with other rules which belonged to the particular province, supplied abundant materials for observing in what points the special and peculiar law of Rome agreed with or differed from the laws of other peoples and states1 . The jurists were thus led, not by theory, but by the practical needs of the case, to apply and to profit by the Comparative method, no less than by the three other methods above enumerated. And accordingly they did in fact obtain, without any paraphernalia of a Philosophy or Science embodied in separate treatises or ostentatiously taught as a separate subject, those very gifts and aptitudes which a systematic and enlightened scheme of legal education ought to confer. They did not set out with abstractions, like our German and Scottish friends. They did not, like Bentham and Austin, crack a set of logical nuts, in the effort to divide and define the matter and the leading conceptions of law. But they applied to the handling of their own concrete rules and problems a mastery of general principles and a love for harmony and consistency which are essentially philosophical. They were pervaded by the sense of historic growth and change, for had they not before them the relations of the old and the new in many institutions—the development of Formula beside Legis Actio, of Ius Gentium beside Ius Civile, of Bonorum possessio beside Haereditas, of Longi temporis praescriptio beside Usucapio? The one thing in which it may be said that a systematic science of law might have helped them was the arrangement and distribution of topics. For this they certainly cared little and did little. But the taste for systematic arrangement was never strong in the ancient world. Perhaps the modern appreciation of it dates back to the scholastic philosophy of the Middle Ages, which spent much thought on what the logicians called Division. Perhaps it has been reinforced by the more recent progress of Natural History, which furnishes in the classification of the animal and vegetable kingdoms the grandest example of orderly schemes of distribution based on scientific lines.
This excellence of the Romans in the sphere of concrete law confirms the view we were led to take that the contents of a Philosophy or Science of Law in general are not large, being indeed confined to the defining of the relation of Law to Ethics and other cognate branches of philosophy, and to the examination of some fundamental legal conceptions, important no doubt, but not very numerous. The solid and essential value of legal science begins in the manipulation of the material presented by an actual system of law, in the moulding of the old customs so as to reconcile them with the always changing needs of the people. And this has been the doctrine and practice of the greatest foreign masters of the Roman law in modern times. It was the doctrine of Savigny, who opposed his historical method to the abstractions of the contemporary Hegelians, and it prevailed in the struggle. I remember the way in which it was conveyed to me by one of the greatest of Savigny’s school, Dr. Karl Adolf von Vangerow, to whose brilliant and stimulating lectures I listened at Heidelberg, now many years ago. Inspired by my Scottish and Oxford training with the notion that in order to study a subject rightly one must begin with its metaphysics, I asked the professor, on one of the days when his students were permitted to call on him, what book on the Philosophy of Law (Rechtsphilosophie) I ought to read. He raised his eyebrows till they seemed to reach the top of his head, and said with a deprecating wave of his hand, ‘I doubt whether that kind of reading will help you with your legal studies. I see little use in it. But if you really do want to study such a topic—well, there is the Naturrecht of my colleague Herr Dr. Röder: you can look at it.’ Nearly all the jurists to whom the development of modern Roman law in the nineteenth century in Germany has been due have taken a similar view, and have spent their powers either on the same questions as those which occupied the Roman sages or on the application of Roman principles and doctrines to the phenomena and conditions of modern times, and especially of modern commerce. They have been philosophical in their use of the analytic and historical methods, philosophical, that is to say, as compared with Lord Coke or Lord St. Leonards, and they have greatly improved on the division and classification of topics which we find in the Roman books. But they have troubled themselves about the abstract philosophy of law just as little as those two famous judges, or as those august Romans who divided their time between the composition of legal treatises and advising the Emperor on the ordinances which he issued for the whole civilized world.
Not a few of the great Roman jurists (including Julian, Papinian, and Ulpian) sat in the imperial consistory, and were practically not only judges of the highest Court of Appeal but also legislators. An estimate of their scientific merits must include this branch of their activity, whether as settling the form of decrees to be passed by the Senate, or as drafting enactments to be issued in the name of the Emperor. For legal science is not merely either expository on the one hand, or on the other dispensatory and corrective, securing to each what is his, but is also Constructive and Ameliorative, framing rules under which society may advance steadily and smoothly, may get rid of obsolete doctrines, may find new facts adequately dealt with under new rules. It was a great advantage for the Empire, and one which furnished some compensation for the absence of representative legislatures that the business of law-making lay in the hands of competent legal experts. Legislation presents itself to us as being above all things an expression of the will of the people, who know where the shoe pinches them, and have the general interest, not that of a monarch or a privileged class, in their minds. Yet a wise despot, with pure purposes and a command of the best legal advice, may be expected to legislate in the general interest, and most of the legislation of the emperors during the first three centuries, though it was often misguided in the sphere of financial administration, was conceived in the interest of the population at large. What was specially due to the lawyers who advised the Emperor was the policy followed in amending the general private law, and in bringing it into a more orderly and consistent condition. In this respect they vindicated their claim to be truly scientific. The work of law reform went on upon broad principles, unhasting and unresting, till the anomalies and injustice of the old system had been almost entirely removed. Yet there was left for a long time in the provinces a local variety of law which corresponded to and respected the local needs and sentiments of the populations. No passion for a rigid uniformity seems to have blinded the advisers of the Emperor to the truth that the first business of law is to subserve the well-being of the people and to win their confidence as well as command their obedience. In this respect also they were not merely ‘priests of justice,’ as they liked to call themselves, but also worthy servants of science. The Roman Empire maintained itself in the East for more than eleven centuries after the last of the classical jurists. In the West its influence survived its political existence, and its law in particular became the foundation of that which came to prevail over Continental Europe. As it was largely owing to the strength derived from its legal and administrative structure that the Eastern Empire lived so long, so the permanence of the Roman law in the West is some proof of the attachment of the people to it, and so of its intrinsic merits. Both facts are alike a tribute to the scientific character of the system and to the scientific genius of the men who moulded it. For no system could have passed through the changes which the East underwent, or survived the storms which broke upon the West, save one which by the dominance of clear and broad principles and the symmetrical development of rules from those principles had become at once intelligible, flexible, and consistent.
Let us see what are the conclusions to which we have, by this somewhat devious course, been led.
I. There are four chief methods of studying law—the Metaphysical, the Analytical, the Historical, and the Comparative.
II. Each of these has its proper sphere and its distinctive value, even if the two latter are of most general practical service.
III. All four ought to find a place in a complete scheme of legal training.
IV. The two former are applicable only to the rudiments and to some particular parts of the subject, the two latter are profitable all through it, and especially so when they can be combined.
V. The Roman jurists pass so lightly over the theoretical side of law that the first method supplies them with little more than a few general phrases. Although their definitions are the result of analysis, they do not formally or of set purpose employ the second. They use the Historical method freely, though almost unconsciously. At one stage in the growth of their law they applied to some extent the Comparative method, being led to it by the facts they had to deal with. But they seldom mention any law but their own.
VI. The Romans, though saying little about the broad aspects or so-called Philosophy of Law, do in fact pursue it in a philosophic spirit; and to this spirit the excellence of their system is largely due.
VII. Their example shows us that it is not the effort to discuss law in a metaphysical or abstract way that makes a body of law truly philosophical, but rather the power of so framing general rules as to make them the expression of legal principles, and of working out these rules into their details so as to keep the details in harmony with the principles.
In other words, it is Reasonableness, Simplicity, Self-consistency that make the excellence of a legal system, and the best methods of study are those which attune the lawyer’s mind to seek after these qualities, and which enable him to hold a middle course between viewiness and the pursuit of an impossible perfection on the one hand and bondage to the letter on the other.
[1 ]As has been proposed by Dr. Holland in his admirable Elements of Jurisprudence.
[1 ]Some excellent remarks on the intellectual characteristics of Bentham may be found in Mr. Leslie Stephen’s English Utilitarians, vol. i (1901).
[1 ]See Essay XI, p. 571 sqq.
[1 ]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).
[1 ]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.
[1 ]There was practically only one set of laws or customs belonging to highly civilized communities which the Romans could compare with their own law, those, namely, which they found in the various Greek cities. These laws and customs, though varying a good deal in detail, from city to city, seem to have borne a family likeness to one another. The laws of the Italic cities were probably on the whole similar to those of Rome herself. But the customs of the Carthaginians, of the Syrians, and of the Egyptians, had many peculiar features.