16 Endemann, "Lehrbuch des burgerlichen Rechts," i, Sec. 5. See Crome, "System des deutschen burgerlichen Rechts," i, Sec. Sec. 9, 11; Kohler, "Lehrbuch des burgerlichen Rechts," i, Sec. 1.
If judicial finding of law cannot be obviated by any complete scheme of legislation and may be systematized sufficiently by known juristic methods, it would seem that legislation ought to seek chiefly to provide new and better premises from which courts may proceed rather than to tie the courts down rigidly by a mass of rules. This providing of new and better premises is a possible task and a needed one in all periods of transition. The slow growth of the law by judicial inclusion and exclusion and discovery of the sound rule at the expense of many litigants becomes intolerable in such periods. At many points a more rapid adjustment of the legal system to the needs of the community becomes imperative. Moreover, it happens too often in our Anglo-American case law that through over-ambition of our courts to lay down universal rules our empirical method is replaced in many portions of the legal system by a jurisprudence of conceptions. In such cases, new premises may be required because society cannot await the gradual shifting process which would otherwise bring about a readjustment of the law. But two points are to be observed in this connection.
In the first place, the legislator must bear in mind that his enactment will not stand alone. It must take its place in and become a part of an entire legal system. Hence he must not neglect the relation which his statute will bear to the general body of the law. Rules cannot stand alone in a legal system. So long as human foresight is finite and the variety of human actions infinite, legal reason must be the measure of decision of a great part of the causes that come before courts. This legal reason, exercised in one of the three ways we have considered, postulates a system of rules or principles. Disturbance of this system produces corresponding disturbance of the course of legal reasoning, and sooner or later the disturbing element yields to the general system or else the system gives way thereto. In any event, nothing has so profound an effect upon the practical workings of an enactment as its relation to the legal system into which it is to be set and the mode in which its adjustment thereto has been studied and provided for. This is a matter of much more moment than provision for every detail of application that may be foreseen.
17 Geleitwort to Rogge, "Methodologische Vorstudien zu einer Kritik des Rechts," iii.
The second point to observe is that this legitimate function of judicial adjustment of legislation to its surroundings in the legal system is liable to abuse and has been abused in American law in the immediate past. The old law and the new element ought to be and in the end must be made to accord in a legal system. But this does not mean that the new element is to be judged with suspicion, to be held down rigidly to the mere letter of its provisions, and to be distorted by the reading into it of all the dogmas of the old law not inconsistent with its express terms. Unhappily a tendency of this sort was manifest at one time and has not wholly disappeared. Many things combined to produce such a tendency in nineteenth century American law; the poor quality of much of our state legislation, the analytical theory that law is made and its American form that law is what the courts decide it to be, the relations of judge and legislator in a system in which the judiciary in finding the law may test the validity of statutes by constitutional provisions, the traditions of a legal system which preserved many memories of the Germanic conception of a body of rules beyond reach of human change, and above all a notion of the finality of common-law doctrines derived in part from the Germanic tradition and in part from the later conception of natural law, and fortified by the doctrine of the historical school as to the futility of conscious lawmaking. Most of the friction between courts and people has been due to this notion of the finality of the law on the one hand and the notion of the finality of legislative power on the other hand.
Let us look at this feature of the relation of courts to legislation more closely.
Settled habits of juristic thought are characteristic of American legal science. Our legal scholarship is chiefly historical. Our professional thinking upon juristic subjects is almost wholly from the point of view of eighteenth century natural law. In either event, it begins and ends substantially in Anglo-American case-law. Understand me, I do not for a moment underrate this inheritance of judicial experience in the adjustment of individual relations and disposition of concrete disputes. But I deny that it contains anything beyond such experience in any other sense than all experience may be made to disclose principles of action. Yet our jurists of both schools have claimed much more for it. It has been shown more than once that our historical school has given us a natural law upon historical premises. It has made the fundamental conceptions of our traditional case-law into fundamental conceptions of all legal science. Thus it has set up a fixed, arbitrary, external standard by which all new situations and new doctrines are to be tested. This school has had an almost uncontested supremacy in our legal scholarship. In the profession at large and in the law schools dominated by the practitioner, substantially the same result in juristic thinking is reached in another way. Except as they have come from the halls of a few of our great law schools, lawyers and judges have been trained to accept the eighteenth century theory of natural law. Until a date comparatively recent, all legal education, whether in school or office began with the study of Blackstone. Probably all serious office study begins with Blackstone, or some American imitator to-day. Our latest and most pretentious institutional book lays down the natural law conception without a hint that any other might be tenable. Some law schools still make Blackstone the first subject of instruction. In others, Blackstone is a subject of examination for admission or of prescribed reading after admission, or there are courses in so-called elementary law, in which texts reproducing the juristic theories of the eighteenth century are the basis of instruction. Thus scholar and lawyer have concurred in what became for a time a thoroughgoing conviction of the American lawyer, that the doctrines of the common law are part of the universal jural order. When he spoke of law, he thought of these doctrines. He held that constitutions and bills of rights are declaratory of them. He construed statutes into accord with them. Through the power of the courts over unconstitutional lawmaking, he forced them upon modern social legislation. When, to use the words of Bracton and of Coke, he reminded the sovereign people that it ruled under God and the law,18 he meant that these doctrines which were conceived of as going back of all constitutions and beyond the reach of legisr lation, were to be the measure of State activity. But the fundamental conceptions of Anglo-American case-law are by no means those of popular thought to-day. Being alien in many particulars to current notions of justice and often out of touch with the economic and social thinking of the time, it is not likely that these principles would be acquiesced in wholly even if there were no positive force to counteract them. Such a force there is. For the popular theory of sovereignty, what one may call the classical American political theory, is quite as firmly rooted in the mind of the people as the eighteenth century theory of law is rooted in the mind of the lawyer. The layman is taught this political theory in school, he reads it in the newspapers, he listens to it on the Fourth of July and from the stump and from Chautauqua platforms, and he seldom or never hears it questioned. In consequence, he is as thoroughly sure of it as is the lawyer of his juristic theory. If the lawyer is moved to stigmatize all that does not comport with his doctrine as lawlessness, the people at large are moved to stigmatize all that does not comport with their theory as usurpation.