A new era must begin in the teaching of private law. The legal education of future generations must differ from that of the past. Jurists, lawyers, and judges must be prepared to solve satisfactorily the problems, increasingly numerous and complex, to which society gives rise. A reform of legal education is imperative; its direction, its tendencies, its methods must be changed.
The present-day teaching has the triple defect of being empirical, disjointed, and incomplete.
5 [Cf. the critique by Alvarez, translated in Continental Legal History Series, vol. xi (supra note 2).-Transl.]
It is empirical because, once it steps outside the text of the statute, it becomes imbued with the spirit of metaphysics and logic, neglecting the realities of life.
It is disjointed because it is subdivided into numerous branches studied separately and, at times, presented as opposed to each other, as for instance public and private law. This method prevents the perception of legal institutions in their entirety and in their true aspects, and the understanding of their inward nature.
It is incomplete from several points of view. In the first place, the student is limited, in his investigation of each branch of private law, to a more or less general commentary of the text of the law; the doubts which the law leaves, and the new problems, born of affairs, are noted; these problems are solved by the traditional rules of interpretation and by reference to the established doctrines of the courts. The really living and progressive study of law, as a science founded upon observation, has been wholly neglected. The fundamental ideas that have guided it, their nature, the more or less profound transformation which they have suffered under the direct and indirect influence of social facts, the modifications of legal institutions due to the same causes, the mode of adjusting them to practical needs,-all these have been passed over in silence.
In the future, detailed study of an expositive sort should be excluded and replaced by generalizations fitted to leave clear-cut impressions of the nature of the legal institutions examined. Briefly, the study of law must be made more positive and objective.
How shall the subject of private law be distributed so as to accomplish this end? What shall be the basis and methods of the new instruction? These are the difficulties which we believe must be cleared away, if we are to remedy the present unfortunate state of affairs.
1: Distribution of Studies. Legal relationships being to-day complex and confused where in the past they were simple and well-defined, all branches of the law (each one of which in fact treats of but one of the various aspects of legal relationships) should be grouped and studied in one master branch, positive law. Here will be examined in a general way the totality of legal relationships under their various aspects, as, for instance, national or international, public (constituting administrative law) or private (constituting civil law), economic (commercial law, labor and industrial legislation), or social.
The principal institutions, already described in the course on positive law, must next be taken up separately in their general features: as the law of the family, property, companies and associations, the general law of contracts, contracts of hire of services, etc.
Yet a third category of studies should embrace all those branches of the law relating to a single order of phenomena, so as to escape the defect, so evident to date, of subdividing the study of the same class of legal facts. In this way the student would examine in one group, in a course covering several years, or in several courses directed by a number of instructors inspired by the same ideal of unity, all phenomena of the same general nature: political, economic, or social. Each would be followed through all its manifestations: in juristic writings, in statutes and in judicial decisions, in actual life, and in the usages which necessity has created. Such a study would emphasize the mutual dependence of law and political science, for they are, indeed, both of the same general order. Constitutional law would be studied as a part of political phenomena, as observed in legislation and practice, and in its relation to certain parts of administrative law. The rest of administrative law would be merged in positive law and the study of separate institutions. Economic facts would be studied as a group, the student investigating the economic aspect of legal institutions in close relation with political and social economy. So would it be possible to realize the importance of each group of phenomena, its scope, its influence upon legal institutions, and the direction towards which it is compelling social evolution. The results of such studies would be truly useful to jurisprudence in general.
Lastly, the history of law should be studied in its true aspect and in its full signification. It should embrace the history of the legal institutions of the Romans and comparative civil legislation.6
2: Fundamental Studies. Of the studies just enumerated, the most fundamental are, in our opinion, the history of law, positive law, and comparative civil legislation. They should be gone into with thoroughness, adopting the method applied in the social sciences in general, that of observation.
Why have we believed these three subjects to be the foundations of a legal education? Can the method of observation be applied to them?7
6 To secure the maximum profit the student should also do practical exercises. But these should be understood very differently from at present. Students should investigate the usefulness of certain laws or institutions, their advantages or disadvantages, their regulation and their results in other countries. They should also be given experience in drafting laws of a general character, giving special attention to defining the subject-matter, and to the different interests to be considered in its regulation, and noting the difficulties which the legislator must overcome and the ideas which are to govern the matter. This sort of work would be attractive, and little by little the student will gain breadth of mind; he will also become more conscious of the changing nature of legal relationships and of the impossibility for the legislature to regulate and anticipate everything. The last is a point which should be made very clear in the new legal education.
7 In the following discussion we shall speak only of the method of study to be applied in the principal branches of law, omitting reference, therefore, to methodology in general and to historical criticism, with and the influence which social phenomena have exercised upon them, we must know their past.