This section is from the book "Science Of Legal Method", by Ernest Bruncken. Also available from Amazon: Science of Legal Method.
This method, which isolates law from the social environment in which it was cradled, which treats it as something inert and dead, appeared in most European countries as a consequence of codification. It was the fruit of a mistaken hope in the absolute stability of juridical relations, - a hope that arose with the New Regime. It is not, however, a consequence peculiar to codification. The very same phenomenon has appeared yet more markedly, and over a much longer period than in France, in countries living principally under a system of customary law, particularly under English law (and also under the systems related to, or derived from, the English law).
In England, this was due to the belief that laws -statutes - were capable of controlling the future for an indefinite time; and above all to the superstitious respect for the decided case. The role which on the Continent is assigned to judge-made law-that is, to judicial usage arising out of the repetition of precedent and the uniformity of decisions, - has from time immemorial been assigned by English jurists to the single isolated judicial decision, the case. They have attached to the decision of the judge, on the question of law submitted to him by the parties, an authority higher than that which we recognize in a settled line of decisions, - comparable, indeed, to that won by the "responsa prudentum" at Rome. The English have conferred upon the judgment of a court (under certain conditions which we need not examine now) the effect not only of proving the custom, but of establishing it forever. The decision of the English judge preserves its value indefinitely. It survives the circumstances which justified it, and the needs which called it into existence.6 Consequently the most recent English writers continue to expound statutes and cite as authorities cases dating several centuries back, at times to the obscure Middle Ages. The belief that the law is stationary has led English jurists to continue to proclaim the survival of the authority of a body of doctrine, the common law, which grew up during feudal society, and was adapted therefore to the peculiar needs of a society profoundly different from our present civilization.
The consequence was that, with changes in social and economic environment, a marked contrast grew up rapidly between official law and actual usage. This conflict made it necessary for the member of the Government presiding over the administration of justice, the Chancellor, to interfere to temper the hardships of the strict common law, just as the Roman praetor used to do. Later the necessity of officially controlling his interference caused the development, parallel to the ancient courts which decided cases according to the common law, of courts of equity under the inspiration of more liberal ideas. From the 1500s to the 1700s these courts built up a system of case-law much broader and more modern than the common law upon all the matters brought to them for adjudication. It was known as equity. But its rejuvenescence has in turn been obstructed by the same superstitious reverence for the decided case. For this reason many of its characteristic principles are already singularly antiquated. Thus occurred that division of English law into two branches, so profoundly different in spirit and in origin, common law and equity. The schism represents a fictitious continuance of antiquated and of modern institutions, a confusion between the true field of the legal historian and that of the expounder of living law. We may scarcely find its duplicate unless we go back to the Roman law, which by its blind infatuation for tradition presents a close parity with English custom; or to those juridical systems, such as the Mohammedan or the Judaic law, which developed through the expounding of sacred texts whose religious origin prevented anything but an indirect and concealed evolution.
6 The scope of the authority attributed to the judge's decision has been defined with remarkable clearness by Blackstone, in his "Commentaries on the Laws of England." The idea which he there so clearly formulated remains to-day the most faithful expression of current opinion. Stephen, in his "New Commentaries on the Laws of England" (to whose 10th ed. 1886, I shall have constant occasion to refer) reproduces (vol. i, pp. 53 seq.) almost literally Blackstone's arguments, (Introduction, sec. iii, 1), being content, generally, to repeat the text, rewriting simply the antiquated passages. The function of precedent in American common law was described in almost the same terms by James Kent, "Commentaries on American Law" (14th ed. by John Gould, Boston, 1896), vol. i, part iii, Lecture XXI, pp. 473 seq.
The reverence for a judicial decision, the coexistence of the common law and equity, the insufficiency of the rules of equity themselves to satisfy all the needs of life, are among the principal causes making English case-law an inpenetrable enigma to the layman, which even the initiated solves with difficulty. These causes have largely contributed to making an actual knowledge of the operation and spirit of English civil institutions very difficult to Continental jurists. Contemporary textbooks on English law are an unsatisfactory guide. With rare exceptions they contain merely analyses of statutes and cases, differing little from the French digests, unless it be in their lack of concern for the reasons behind the decisions cited or for the relation of these to one another. . . .