The Online Library of Liberty

A project of Liberty Fund, Inc.

• Foreword
• Table of Cases
• The Ideal Element In Law
• One: Is There an Ideal Element In Law?
• Two: Natural Law
• Three: Law and Morals
• Four: Rights, Interests, and Values
• Five: the End of Law: Maintaining the Social Status Quo
• Six: Promotion of Free Self-assertion 1. The Sixteenth to the Eighteenth Century
• Seven: Promotion of Free Self-assertion 2. Nineteenth Century to the Present
• Eight: Maintaining and Furthering Civilization
• Nine: Class Interest and Economic Pressure: the Marxian Interpretation
• Ten: Later Forms of Juristic Realism
• Eleven: the Humanitarian Idea
• Twelve: the Authoritarian Idea
• Epilogue
• Glossary

Epilogue

It may well be asked why in lecturing in India upon a general topic of the science of law I have gone so much into American experience, cited American decisions, state and federal, so extensively and devoted so much space to legal problems with which courts and legislators and jurists have dealt in America. This certainly calls for explanation if not, I hope, for apologizing.

You have, I take it, in India a like problem to that which obtained in the formative era of American law. We in America had to work out from our inherited English common law of the seventeenth and eighteenth centuries a general body of American common law for what was to be a politically and economically unified land of continental extent but a federal union of locally self-governing states. In India you have a like task before you of working out a common law for a land of imperial dimensions, of local diversities of race, custom, religion and history, on the basis of the English law of the nineteenth century, both codified and in the form of judicial decision, and of Anglo-Indian declaratory promulgation and judicial and doctrinal exposition of your historical customary law. It will be, I take it, a general common law, with much allowance for local, social, economic, political, and historical conditions, much as an American common law had to be in the United States. But it must be a homemade law of India, even if made, largely at least, from the received English materials, as American common law had to be. As Mr. Justice Holmes said, historical continuity is not a duty, but it is a necessity.

In the nineteenth century the historical jurists held that law was a product of the spirit of a people, not something made for a people from without. As Savigny put it: “Stated summarily. . . [the correct view] is that all law arises in the manner which the prevailing (though not wholly accurate) usage calls ‘customary law.’ That is, it is produced by custom and popular belief and then through course of judicial decision, hence, above all, through silent inner forces, and not through the arbitrary will of a lawmaker.”1

That Savigny’s proposition is not universally valid is shown by the spread of the French Civil Code to twenty-three countries, one state of the United States, and one Canadian province between 1804 and 1889, and the taking over of the German Code by Japan in 1898 and by China in 1930. But in the Central and South American states which substantially adopted the French Civil Code, it was necessary to take on quickly a body of law where there had been no such political and economic development as to require much law in distinction from particular laws. In truth, the Latin American states started from adaptations of the French Civil Code as we in the United States started from the seventeenth-century English law. Also Japan and China had their real legal development ahead of them and needed an immediate basis on which to proceed. The kernel of the historical doctrine is sound. A body of law to govern a people must be a law adapted to that people, expressing its ideals and rooted in its history.

In India you have had some two centuries of development of a body of Anglo-Indian law by legislation and judicial decision—a much fuller development than we in America had had at our independence. But you have a like task of making a law of your own in your own way on the basis of that development.

No more can be claimed for so full a presentation of American doctrine and American experience than that perchance it may be of some value in India by way of illustration of how a similar task to your own was achieved. It may at any rate show that a land newly arrived at independence may build a law of its own largely upon English materials adjusted to its economic, social, political and geographical conditions and needs.

You in India will not have the same problems in detail. You will have to meet different conditions. But you will be guided, as we were, by a quest of justice as the ideal relation among men and will have to give content to that ideal with reference to your own conditions and your own experience. How we strove to do that in America and with what results may at least suggest some warnings. At all events, the way in which the task has been achieved through ideals by one free people may justify consideration by another free people confronted with a like task.

[1. ]Savigny, Vom Beruf unsrer Zeit für Gesetzgebung und Rechtswissenschaft (3 ed. 1840) 13–14.