There are principles of legislation too varying in their operation to be standardized by codification; that is true of the correlation of provisions, of the conservation of interests, of the protection of vested rights, of adequate differentiation, of the drafting principles that serve to make substantive clauses available with the least friction and ambiguity. These principles can be formulated as rules only to a limited extent if at all; in the main their application depends upon training and experience, and their statement can be undertaken only in the form of scientific exposition.
What is the outlook for scientific work of this kind? When we consider the amount of trained and systematized thought devoted to legal problems, the proportion of it that goes to constructive principles of legislation is small. I refer to legal, and not to social, economic, or political principles of legislation; for the latter do not belong to jurisprudence, but to the social sciences which devote a perfectly adequate proportion of their labors to questions of legislation. Why this difference between the law and the social sciences? Because the former has to satisfy a professional demand while the latter do not, or only to a very slight degree. Practically all legal writing is adapted to the needs of practitioners, and the elaborate apparatus of making legal sources accessible is entirely subservient to that purpose. It is a matter of a market and of supply and demand. The influence extends to the law schools. Being organized for the training of practitioners they do not concern themselves with problems analogous to those which are dealt with in social science classrooms. That which is not actually or potentially an appropriate subject for judicial or forensic discussion, has no place in legal instruction. The problem of the most effective and frictionless distribution of legislative powers between nation, state, and locality is thus treated as not belonging to constitutional law but to political science. The problem being at least as much political as legal this practical division may be justified. The most equitable method of dealing with vested rights, the practical bases of classification, the subjects most appropriate for delegation of legislative power, however, are not political, but strictly legislative problems and can be adequately handled only by a legally trained mind; yet since they extend beyond the province of judicial cognizance, they are not considered as part of constitutional law, with the result that they are treated nowhere.
This condition is not altogether peculiar to this country. The professional point of view has dominated law teaching since the days when the Roman jurists established their schools, except perhaps during the period when the law of nature had an honored place in the universities; it dominates the teaching of law in Germany to-day. The situation in Germany is, however, different in two respects: in the first place, in America, law is taught now almost exclusively on the basis of cases, a method superior to the German system as a training for the future practitioner, but as unfavorable as possible from the legislative point of view; for the ideals of case-law will tend to be those of the system in which judge-made law had its highest development, and can hardly be expected to rise above them; and the case method will foster the common-law attitude toward legislation, looking upon it as an inferior product of the non-legal mind to be tolerated and minimized in its effects. On the other hand, the entire law of Germany, civil, criminal, and procedural, has been codified within the last generation or two; in view of this it is impossible in teaching it to ignore the dynamic or genetic side of the law, and, in comparing code provisions with the common law doctrines which they superseded, the legislative point of view necessarily asserts itself. As far as public legislation is concerned, the German law curricula include a course (called Administrative Law) reviewing the entire body of statutory law, - a field which we ignore.
In the second place, in Germany neglect in the law school does not mean total neglect, for there is a demand for constant thought on principles of legislation in the government departments which are charged with the working out of legislative projects. The officials to whom this work is delegated are jurists as thoroughly trained and of as high standing as the teachers in the universities; they constituted the majority of the civil code commissioners, and the "Motives" of the first draft are a lasting monument to the high scientific quality of their work. The preparation of the code afforded the opportunity for a systematic statement of the entire body of principles of private law legislation. Systematic exposition is the fruit of university teaching, as Blackstone's Commentaries demonstrate. But while without such exposition we can perhaps hardly speak of an established science, it is quite possible that a strong and long sustained official tradition may firmly and quite adequately support certain principles, and this is fully borne out by a study of English, French, and German legislation.
We find such traditions in our judiciary, but not in connection with the preparation of statutes, and this substitute for a science of legislation therefore fails in America. Nor is it likely that the drafting bureaus now being organized will very soon gain sufficient strength to supply the defect, whatever we may expect of them if they are allowed to work under favorable conditions.
In view of these conditions we must necessarily look to American law schools for contributions to the development of the legislative or constructive side of jurisprudence. Effective work in this direction can hardly be expected without the organization of special courses dealing with that aspect of the law; for in teaching, the judicial and the legislative point of view cannot be combined to advantage, and the treatment from the latter point of view will inevitably be subordinated with the result that no systematic work will be produced; the present condition of constitutional law, where the constructive point of view would naturally tend to assert itself with the greatest relative force, proves this incompatibility.
The technical difficulties of courses in legislation from the point of view of instruction must not be underestimated, and this is not the place to discuss them fully; but unless they can be overcome, the scientific treatment of jurisprudence must remain one-sided and defective, and some of the most important and interesting problems of legislation will continue to be dealt with in slipshod and haphazard ways, because it is no one's business to give them systematic consideration.