As we know, the historical school overthrew the notion that there could be a complete and final legislative statement of the law. Unhappily the historical jurists went too far in the opposite direction. They assumed that conscious human effort to shape and so to improve the law was futile. They conceived that the law developed through the development of the genius of a people and its gradual expression in legal institutions. Hence they took it to be the duty of the jurist to study the course of this development and to trace its effects in existing legal systems, but in no wise to attempt to interfere therewith, since to essay conscious lawmaking was to attempt the impossible. For many reasons this theory became very popular in America, and to a large extent it still holds its ground with us, after it has been rejected elsewhere in consequence of the rise of the social-philosophical jurists. Thus we have two conflicting theories of the relation of courts to lawmaking. On the one hand, the older, analytical theory, heir in this respect to the eighteenth century, holds that a complete legislative statement of the law upon any subject may be made in advance, and that judicial lawmaking is abnormal and due only, so far as it may be justified, to defects in the legislative prevision. On the other hand, the historical theory regards such legislative attempts as useless, as attempts to make what cannot be made, and hence looks upon development of the law by juristic speculation and judicial decision as the normal and on the whole the only practicable method. Neither of these theories expresses the whole truth. But the rise of modern legislation and resulting imperative notions of law serve to keep alive the former, while the exigencies of administering the modern codes upon the Continent and experience of applying modern statutes in England and America serve to keep alive the latter, in one form or another, as a tenet of the legal profession. For instance, it is justly thought a merit of the new German Civil Code that it makes no attempt to be a perfect code in the eighteenth century sense. But there are German expositors of the code who object to its generality and to the margin for development which it leaves and accuse it of being a mere institutional textbook.16
English every known practice and expedient through which combinations have stifled competition, and prohibits anyone from engaging in them." -Senator La Toilette in American Magazine, July, 1912.
14 Schuster, "The German Civil Code," 12 Law Quarterly Rev. 17, 22. As to this notion of authentic interpretation, the maxim "eiusest interpre-tari legem cuius est condere" and the breakdown of non-judicial interpretation by legislative bodies and royal commissions, see Geny, "Methode d'interpretation," Sec. Sec. 40-45.
15 "Jurisprudence" (4 ed.), 695.
In truth the changed attitude toward legislation involved in the breakdown of Savigny's historical school, much as it is to be welcomed in that it gives us much-needed faith in the efficacy of effort in improvement of the law, is bringing about a return to absolute theories of lawmaking which in more than one respect is unfortunate. It has been said truly that the activity of legislatures is a fundamental fact of modern law. Demos will legislate, and any theory that seeks to put a check upon this activity will dash in vain against obstinate facts. But it is no less true that much if not most of this legislative activity will prove futile, as most of it has proved in the past, so long as it proceeds upon the assumption that legislators may lay out a full and complete scheme in advance, which will suffice for all controversies, so long as it assumes that the general principles of the law and the rules and doctrines of the legal system into which the legislative enactment is to be fitted and in which it must take its place may be neglected, and so long as it proceeds upon the idea that arbitrary expressions of the sovereign will may be given the quality of law by a prefatory "be it enacted." A lesson of legal history which must be learned both by legislators and by courts is that the lawmaker must not be over-ambitious to lay down universal rules.
Since the fundamental idea of law is that of a rule or principle underlying a series of judicial decisions, it is obvious that the power of finding the law, which a tribunal must be allowed to exercise, is to be governed by some sort of system, or we shall have a personal rather than a legal administration of justice. The first conscious attempt to provide such a system is usually a complete scheme of legislation. But such schemes are soon outgrown and are never wholly sufficient. Hence three purely juristic methods of systematizing the judicial finding of law have arisen. (1) First we may put what has been called a jurisprudence of conceptions. Certain fundamental conceptions are worked out from traditional legal principles, and the rules for the cause in hand are deduced from these conceptions by a purely logical process. The merit of this method is that it leads to certainty, and whenever, as in the nineteenth century, the demands of business and of property are paramount, this method is the prevailing one. (2) A second method is to take the rules of a traditional system or the sections of a legislative system as premises and to develop these premises in accordance with some theory of the ends to be met or of the relation which they should bear, when applied, to the social conditions of the time being. Just now Continental legal literature is full of suggestions as to the manner in which such a method should be worked out. (3) A third method is the purely empirical one of our Anglo-American law; as Mr. Justice Miller put it, the process of judicial inclusion and exclusion. This method, in appearance crude and unscientific, is none the less justified by its results. It is, in truth, the method of the natural scientist, of the physician and of the engineer, the method of trial-hypothesis and confirmation. The tentative results of a priori reasoning are corrected con-tinually by experience. A cautious advance is made at some point. If just results follow, the advance goes forward and in time a rule is developed. If the results are not just, a new line is taken, and so on until the best line is discovered. With all its defects, this method has stood the test of use better than any other. Speaking of this method and of its results in English law, Kohler, who must be pronounced the leader among modern jurists, says: "Their science does not go beyond the few necessary beginnings, yet their administration of law far surpasses ours."17