This section is from the book "Science Of Legal Method", by Ernest Bruncken. Also available from Amazon: Science of Legal Method.
During the long hours which I have devoted to the analysis and criticism of the strange tissue of fictions which we owe to the Greek and Latin rhetors and to the compilers of the Corpus Juris, the canonists, the glossators, and post-glossators, the leaders of the historical school, and the late German school of commentators of the Pandects, I have had constantly before me in memory one of the most impressive passages in Anatole France's "The Well of St. Clare." He is describing the dream of the holy man Giovanni, on the eve of his martyrdom for having confessed the immaculate and candid truth. He sees a great living wheel, made of a multitude of men of all ages and conditions. From their lips issue scrolls bearing devices no two of which are of the same color or sense, but all of which end with these words: "Such is Truth." The wheel contained truths of every shade of color; but one was lacking,-the pure, white truth. And as the holy man laments and seeks in vain upon this palette of color for the truth for which he is about to die, the wheel begins to revolve. As its speed increases the colors run into one another; then they blend. When its movement is so rapid that the eye no longer perceives its motion, but gains the impression that it is still, the wheel appears quite white. And so Giovanni learns that the white truth is made up of all the variant truths, just as white is made of all the colors.
33 The doctrine of Blackstone and of Stephen, cf. supra, pp. 265 seq.; Hammond, in "Lieber's Hermeneutics," p. 312.
34 Holland, "The Elements of Jurisprudence" (Oxford University-Press, 9th ed. 1900), pp. 61-62; John F. Dillon, "The Laws and Jurisprudence of England and America" (Boston, 1894), pp. 173 seq., 229 seq.; Holmes, "The Common Law," Lecture I, p. 35; Pollock, "First Book of Jurisprudence," pp. 229 seq.; Markby, "Elements of Law" (Oxford, 1896), pp. 57-65; Greer, "Custom in the Common Law" in Law Quarterly Review, vol. ix, pp. 153 seq.; Gray, "Judicial Precedents" in Harvard Law Review, vol. ix, pp. 27 seq.; Austin, "Lectures," II, p. 655; Bentham, "Works," vol. iv, p. 460; ibid., vol. v, p. 13; cf. also the more guarded observations of Courtenay Ilbert, "Common Law and Statutory Law," in Journal of the Society of Comparative Legislation (1899), n. s. vol. iii, pp. 407-416.
There is a striking resemblance between customary law and this wheel described by Anatole France. The truth is that jurists and sociologists must give up hoping to observe customary law in a state of repose. It is never at rest. But its movement, at first timid and halting, is accelerated only through the decisive impulsion of judicial decisions. During its state of preparation, before it has been judicially established, it moves slowly enough for its elements, of infinite variety, to remain distinguishable. It presents then the spectacle of struggle and of a brutal conflict of individual interest. . . . But, as judicial precedent, communicating its own energy to the rudimentary customary law, abruptly accelerates its motion, the multi-colored threads in which the fabric of custom is woven cease to be visible. The whole array of devices in which the participants in the struggle formulate their opposing pretensions, are gradually effaced. Soon are perceived only the words of the final phrase: "Such is Law." It seems as though all that multitude, who in one brief vision filed before us, had the same words upon their lips.
Let us not be captivated by the magic of words. Let us beware of that antithesis, so seductive at first, yet really devoid of sense, which has passed from text to text and has even slipped into the otherwise admirable critique by M. Geny.35 It contrasts legislation, the work of volition and of reflection, the manifestation of the freedom of social will, with custom, which it holds to spring from the action of "the hidden and silent forces pressing about us and from all the surrounding conditions in which we move, directing us unconsciously, . . . operating independently of our wills and bending them."36 Legislation no more than custom escapes from the tyrannical force of sociological laws. The legislator does not labor freely in some Utopia, independent of natural forces; and when he attempts to ignore the circumstances of the period and the place, and to shake off the many ties attaching him to earth, experience quickly undeceives him. Yet on the other hand, the play of the obscure forces of nature is powerless of itself to create true juridical customs; the incessant collaboration of man is needed. Officials having special knowledge, be they the diviners, priests, or pontiffs of antiquity, or the judges of to-day, do not passively preside at the birth of custom. Without their help, custom would never be separated from its husk of mere manners. They select, cultivate, prune, and straighten the spontaneous growth of juridical life. Daily they are called upon to discover and initiate, and to exercise, in the name of the people, the freedom of the social will.
35Giny, "Methode d'interpretation et sources en droit prive positif," p. 359.
36 Deslandres, "La crise de la science politique," in Revue du droit public et de la science politique (1901), vol. xvi, pp. 69 seq. The author speaks in these terms of the international phases of judicial legislation, that is to say, of one of the forms of modern custom.
And these two essential methods of the production of law, legislation and custom, were disassociated only at a very late date in legal history. The truth is that, while the same elements enter into the composition of both legislative and customary law, they do not do so in the same measure, and that the relative proportions of these elements in each grow more and more unequal as we approach periods of higher civilization. It is also true to-day (it has been very far from true in the past) that the legislature and courts accomplish a function in common though by recourse to very different processes. The work of the courts is more fragmentary and disconnected, less systematic. It conceals its creation behind a fallacious appearance of establishing or applying preexisting laws. It acts consequently with much less promptitude and resolution than the legislature. Each moment it comes against immovable obstacles, and to avoid them it is forced out of its course.
The majority of those jurists who expect our legislative laws to solve the fundamental problems of juridical sociology, and who imagine that our parliaments are competent to revise and codify the laws of social evolution, maintain that the task of adjusting the law to the continuous transformations that go on in the economic substructure of institutions falls wholly and solely upon the legislator. If this were true, the function of legal policy would be exceedingly modest. . . . It is a far journey from the ideal to the reality. The ideal is that the tendency of our period towards legislation, combated long ago in vain by Savigny, should make itself felt more rapidly than it has done37; that the legislator should aim to check so far as possible the creative action of judge-made law by himself undertaking regularly the revisions necessary to adjust the existing system of laws to the continual change taking place in social and economic environment. When the legislator does deign to perform personally this task, his work is more effectual than courts. Officially these are established only to interpret and apply preexisting law. They interfere to create a rule of law only under the irresistible pressure of sociological laws which contradict and paralyze the accepted formulae; they do this timidly and regretfully. Judicial law is naturally conservative, and trails but slowly after the changes in usage and the mutations in our economic life. By the mere fact that it must, wherever possible, hide its innovations under the cover of interpretation, it arrives generally only by tortuous and indirect ways at a goal which the legislature may gain directly and consequently much more surely. For my part I cannot agree with Josef Kohler in commending the benefit to be derived from the discipline to which judicial practice is put in rendering the institutions of a past age tolerable to-day, and in maintaining that neither Roman nor English law would enjoy its world extension were it not that in their development they had to have recourse very largely to fiction.38 The forces which propelled the Roman law came from quite other causes. As to English general custom, or common law and equity, its spread is due to the colonizing traits of the English and not to any merits of its own. Indeed, on the contrary, it may be noted that the advance of legal knowledge has been infinitely less rapid in England than the general advance of civilizations, and that this is due, if not.wholly, at least in part, to the sluggishness and inadequacy of legislation in that country. It is very much to be desired, therefore, that in the future the legislator interfere far oftener than hitherto, in order to direct and spur on the too slow evolution of judge-made law.
37 Durkheim, "Division du travail social," p. 427; Duguit, "L'Etat, le droit objectif et la loi positive," p. 89.
38 "Ueber die Methode der Rechtsvergleiehung" in Zeitschrift fur das Privat- und offentliche Recht der Gegenwart (1901), vol. xxviii, p. 278.
The policies of legal rules, then, are not the monopoly of the legislator. He alone, in effecting those policies, employs certain expeditious and perfected methods. But he is not alone in his right to consider legal policy. He has two collaborators, -the pronouncements of the courts and the practice of the profession. These other workers, using different methods, to be sure, pursue alongside of him a common task, -the adaptation of the law to social forms which are in a constant state of renewal. All who live in the atmosphere of the courts, - not only the judges, clerks, attorneys, and barristers, but also the notaries, business men, and drafters of documents, - all these, whether consciously or not, are active sharers in legal policy, The value of legal institutions, in any country, is not dependent solely on the wisdom and activity of the legislator. And in the schools of law, also, legal policy, therefore, should enter logically as a part of the studies. There it becomes that "juridical art," creative and civilizing, in its function, such as it has been conceived in all times by jurists worthy of the name - those who in the heroic periods of legal history were the true artificers of the law. And the phrases "legal policy" and "policy of the law," which have come into use in the last few years, do not denote a new science, but merely a new way of dealing with an old discipline.
And so what we have sought to show is that the extra-legislative movements in law which occupy so important a place in to-day's activities are more than the product of the blind forces of nature; that they operate under the direction or supervision and with the constant cooperation of the whole body of men of the law; that the task of framing the policies of a nation in its civil law is not performed solely by the legislator, but also by other organs of the law, upon which is exercised an even more effective and constant influence through the writings of jurists, the opinions of the courts, and the practitioners of the profession.