Notre Dame Law Review

Volume 21 | Issue 4 Article 1

6-1-1946

Sources and Forms of Law

Roscoe Pound

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Roscoe Pound, Sources and Forms of Law, 21 Notre Dame L. Rev. 247 (1946).
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 NOTRE DAME
LAWYER
A Quarterly Law Review

VOL. XXI JUNE, 1946 No. 4

SOURCES AND FORMS OF LAW

S OURCES AND FORMS-MEANING OF TERMs.-For a

long time there was much confusion in the use of the
term "source of law." Indeed, the term is still used in a
number of senses, often without distinguishing the different
things called by the same name. No less than five senses
are to found in the books. First, it has been used to mean
what might be called from the analytical standpoint (re-
membering the phrase that the King is the fountain of
justice) the fountain of law, that is, the immediate practical
source of the authority of legal precepts. In other words,
the state. Austin so uses it. Second, it is often used to mean
the authoritative texts which are the basis of juristic and
doctrinal development of the traditional element of a legal
system. In the civil law the term fontes iuris is used in this
sense. The German jurists speak of Rechtsquellen. For the
Continental jurists, the sources in this sense are the Roman
 NOTRE DAME LAWYER

texts. For us, they would be the authoritative reports.

Third, Gray uses "source" to mean the raw material, as it
were, both statutory and traditional, from which the judges
derive the grounds of deciding the cases brought before them.
Fourth, the term is used to mean the formulating agencies
by which rules or principles or conceptions are shaped so
that legislation and judicial decision may give them au-
thority. Fifth, the term is used to mean the literary shapes,
as it were, in which legal precepts are found; the forms in
which we find them expressed.
Austin was the first to call attention to the ambiguity of
the phrase "sources of law" and to insist on clearness. But
his discussion is not very satisfactory. Salmond in 1902 dis-
tinguished "formal source" from "material source"; the
latter determining the content of a legal precept, the
former giving it the guinea stamp of the state's authority.
That is, the agency of politically organized society which
stamps the precept as authoritative is the formal source.
This differs from Austin in that he speaks of the state as
the source whereas Salmond thinks of the judicial tribunals
of the state as the agency of making the precept functionally
authoritative. The way for the distinction which, on the
whole, seems most satisfactory was pointed out by E. C.
Clark. He put three questions: (1) Whence do legal pre-
cepts derive their binding force? (2) What determined the
content of the particular precepts in question? What en-
abled the lawmaking or law declaring agency to express them
as it did? If the state gave them authority, what gave them
content? (3) Where, if one wishes to know the law must
he go to find it? In what forms is it expressed? The an-
swer to each of these questions had been expressed by the
phrase "source of law." Of those who have distinguished,
Austin preferred to apply the term "source" to the answer
to the first question. Markby applied it to the answer to
the third question, but he pointed out the distinction be-
tween the first and the third, which Austin had overlooked.
 SOURCES AND FORMS OF LAW

Clark gave the answer to the second question the name

"source" and called the answer to the third "forms of law."
This was followed by Pollock and has come into more or less
general use.
Of these three ideas we need not discuss the first, the im-
mediate practical source of -the authority of legal precepts,
to which Austin thought the term "source" best applied.
We must recognize that the state is the legal source of such
authority. If we ask as to the ultimate practical or ultimate
moral source of that authority, we merely ask once more
questions which come up sufficiently in other connections.
Salmond's point, that the tribunals ultimately fix the con-
tent and give legal precepts the authority of the state
through application of them in actual controversies, is an
adaptation of what I have called the third stage of the Eng-
lish analytical definition of law to the question of what are to
be called sources of law.
We may turn our attention, then, to the other two ques-
tions: To what, I think, we may well call the sources of law,
answering the question how and by whom the content of
legal precepts has been worked out, whence they got their
content as distinguished from their force and authority; and
to what are best called the "forms of law," the literary shapes
in which legal precepts and doctrines are authoritatively ex-
pressed, the authoritative forms of expression to which courts
are referred in the decision of controversies and to which
counselors must resort for the bases of prediction when called
on to advise.
SouRcEs oF LAw. The factors to which legal precepts
owe their content, the agencies that develop them and formu-
late them as something behind which the lawmaking and
law administering authorities may put the power of the
state may be said to be six.
1. Usage. Legislatures or courts may take up a matter
of usage and give the authority of law to a rule or principle
 NOTRE DAME LAWYER

or standard which has been worked out and formulated by

usage. For example, the usages of business were taken over
by the courts and banks were allowed to enter into legal
transactions without using the corporate seal. The usage
of merchants as to collection of checks through the clearing
house was given effect. The English courts gave effect to
the usage of business men as to crossing of checks, and to
the usage of bankers and dealers in securities as to scrip
certificates entitling the holder to certain definitive securities
when ready for delivery.
2. Religion. In earlier stages of legal development this is
a principal formulating agency. Examples may be seen in
the Hindu law of inheritance, adoption, and liability for an
ancestor's debts, and in the older Roman law as to inherit-
ance, marriage, and possibly contract. In modern law, the
influence of the canon law as to pacts upon the Continental
law as to contracts may be noted.
3. Moral and philosophicalideas, especially in equity and
natural law. The moral and philosophical tenets of the time
not only affect old precepts, they shape or help shape new
ones. But they are active direct sources chiefly in the stage
of equity and natural law, when the identification of morals
and law leads to a notion of the superior sanctity of a body
of ideal precepts putting in ideal form the morality of the
time.
4. Adjudication, giving rise to a custom or tradition of
judicial action, as usage is a custom of popular action. In
the civil law a settled course of decision of a question of law
in a certain way became a form of law. In the common-law
system judicial decision is a form of law. Even those which
are only of "persuasive authority" are among the authorita-
tive grounds of or guides to decision from which a court is
held bound to choose its starting point and so a form rather
than a source. But judicial decisions which have no au-
thority may formulate propositions of law so well reasoned
 SOURCES AND FORMS OF LAW

that the higher courts may adopt them and give them au-
thority. In that event the decisions are a source of law.
5. Scientific discussion - what the French call doctrine,
that is, discussions by text writers and commentators, which
courts or legislators may give formal authority by embody-
ing them or their results in decisions or in statutes. The
great bulk of Roman law was the work of jurists from the
second century B. C. to the fourth century A. D. - chiefly
from Augustus, 29 B. C. to about the middle of the third
century A. D. They wrote commentaries on the XII
Tables and the old law of the city, wrote commentaries on
the praetor's edict, published opinions on controverted ques-
tions of law, edited or wrote notes or commentaries on the
writings of preceding jurists, Wrote institutional books for
students, and dogmatic treatises on particular subjects. In
the civil, or modern Roman, law doctrinal writing has been
the most important formulating agency. It began as gloss
or later commentary upon the codification of Justinian. It
grew into dogmatic exposition of the system of law as a
whole or of particular departments of the law. Voet's com-
mentary on the Pandects is a book of authority for the Ro-
man-Dutch law of South Africa. Pothier's treatises made
straight the paths of the framers of the French civil code
and have been used wherever the influence of French law
extends. The German writers on the Pandects prepared the
way for the twentieth-century codes. Likewige, under the
modern codes juristic writing usually begins with commen-
taries and develops into systematic treatises on the whole
law or on particular subjects on the basis of the codes.
Doctrinal writing has been a much more active and im-
portant formulating agency in Anglo-American law than our
theory leads us to admit. Coke formulated the medieval
law aftthoritatively for the classical era, the seventeenth to
the nineteenth century. Nor did doctrinal writing stop. 'On
the contrary, it gained in importance in the nineteenth cen-
tury. While in form our law is chiefly the work of judges,
 NOTRE DAME LAWYER

in great part judges simply put the guinea stamp of the

state's authority upon propositions which they found worked
out for them in advance. Their creative work was often a
work of intelligent selection. The most creative of judges
have seldom made legal precepts out of their own heads.
Text books have had much influence. The English had
formerly some strict rules as to citation. In order to be
citable the writer must have been or have become a judge,
and the living were not to be cited. Today English judges
frequently refer to or even discuss the views of living text
writers not on the bench. One hundred years ago Byles on
Bills (1829), Sugden on Vendor and Purchaser (1805), and
Sugden on Powers (1808), could be cited in court for what
had been written before the authors went upon the bench.
Later, Lindley on Partnership (1863) and its outgrowth,
Lindley on the Law of Companies, could be cited. But one
would deceive himself much if he supposed that Jarman on
Wills (1844) or Lewin on Trusts (1837) or Preston on
Estates (1826) whose authors did not become judges did
no more than serve as collections of the authorities.
In the United States, Blackstone's Commentaries (1765-
1769), as a statement of English law on the eve of inde-
pendence long had a quasi authority and Kent's Commen-
taries (1826-1830) as a statement of the common law ap-
plicable to American conditions, as we received it, exercised
much influence on our formative law. To name but a few
outstanding books, the writings of Judge Story helped make
the law, and Greenleaf on Evidence (1842-1853), Bishop on
Marriage and Divorce (1852) and on Criminal Law (1856-
1858), Parsons on Contracts (1853-1855), and Washburn
on Real Property (1860-1862) had much to do with develop-
ing a common law for the whole country. So much were
these books used by the profession and by the judges that
an indignant practitioner is said to have demanded of one
court whether there was any statute making one of them
an authority.
 SOURCES AND FORMS OF LAW

6. Legislation; the formulation of precepts directly and

immediately by the lawmaking organ of the state.. But here
it should be noted that legislation is usually the basis of
further development by commentary or by judicial decision
and that many agencies of preparation for legislation present
ready formulated measures to the lawmaking body. Thus
legislation may be a source of law and statutes a form.
Custom as a source of law - customary law. It has been
urged that as legislation, the process, is a source of law and
legislation, the product, is a form of law, so custom is both
source and form. Controversy has raged about the subject
in England since Austin and on the Continent since the
rise of the historical school. In this controversy the term
"customary law" has been used to include (1) law formu-
lated through custom of popular action, (2) law formulated
through custom of judicial decision, (3) law formulated by
doctrinal writing and scientific discussion of legal principles.
Moreover, the second and third have been treated as if -they
were forms of the first, whereas the first is in modern, times
relatively the least important and, indeed, usually affects
the law as it is taken up by the second and third rather
than by directly determining the legislative or judicial or
administrative processes. Why are all three called cus-
tomary? It seems to be because down to the seventeenth
century the Corpus Iuris was in the universities supposed
to have legislative authority in western Europe, thought of
as "the empire." When it was shown to have only the au-
thority of long usage in the courts, all that was not legisla-
tive in origin was called customary.
This subject may be looked at historically or philosoph-
ically or analytically. But I will leave the historical side
until I come to take up the traditional element in systems
of law.
Turning to the philosophical side, the philosophical basis
of customary law, the historical jurists in the nineteenth con-
 NOTRE DAME LAWYER

tury, following Savigny, considered that customary law, i.e.

law which got its content from habits of popular action
recognized by courts, or from habits of judicial decision, or
from traditional modes of juristic thinking, was merely an
expression of the jural ideas of a people, of a people's con-
viction of right - of its ideas of right and of the rightful
social control. Hence, as Savigny saw it, customary observ-
ance of any of the three kinds, was not the cause of law
but was evidence of the existence of law. The genius or
spirit of a people, said Savigny, expresses itself in certain
ideas of right, which in turn are expressed in certain habits
of action. These habits of action, popular, judicial, or
juristic, with respect to the relations of man with man and
man with the state, are law, that is, from the historical stand-
point are forms of social control, from which the historical
jurists like contemporary sociologists do not differentiate
law. It is considered that the jurist or the judge or the
legislator simply gives these habits of action the dress of
doctrines or precedents or statutes. The metaphysical jurists
in the last century held a similar doctrine. As they usually
put it, custom is one of the modes by which the community
expresses its rational will. Where Savigny spoke of the
iPilksgeist in action, they spoke of the will in action; the
will of a people expressed not arbitrarily in arbitrary de-
cisions but rationally in principles of action by which the
customary course of popular action, judicial action, and
juristic thinking is determined. This is a theory of what
might be called the justice element; of the part of the law
which seeks to maintain the ideal relation between men. It
would explain all law in terms of that element. But there
is also the security element. Sir Frederick Pollock tried to
put the whole in terms of that element.
His theory is psychological. He tells us that two sorts
of cases present difficulty of choosing on principle, i.e. on a
moral basis, on a basis of justice, what to do. One sort is
cases where the choice is between two or more ways of do-
 SOURCES AND FORMS OF LAW

ing something in itself indifferent. The other sort is cases

where the question of substance is such that no wholly rea-
sonable solution proves attainable. Many examples of each
may be vouched. As to the first consider the formal modes
of conveyance devised to assure publicity and prevent fraud,
that is, to give effect to the social interest in the security of
acquisitions and in the security of transactions. Compare,
for example, in conveyance of land, the proceeding in the
land court and certificate under the Torrens, system, and
the American system of deeds acknowledged and recorded;
or in the older law the Roman mancipatio, the common-law
livery of seisin, and the formal ceremony of the Salic law.
As to the second, compare the rules as to specification in
Roman law, the common law, the French Civil Code, and
the German Civil Code. When once the choice is made, he
says, it becomes natural, if only to save trouble, to do the
same thing, or as near as may be when a like case comes up.
He adds, significantly, that the fact of having taken a
similar course once will, on renewal of the circumstances,
give rise to a certain expectation of its being done
again, and that experience of that course having been
done by others will give rise to the like expectation.
This is an ordinary psychological phenomenon. It means,
as he puts it, that a habit of deciding in a particular way
is formed. It is put in the way of the association psy-
chology. But it could be put as well in the behaviorist way.
One should notice, however, the significance of the reason-
able expectations, created by a decision of an ultimate tri-
bunal, for the general security. The economic order calls
for fulfilment of such expectations, as is shown by the growth
in all lands in the present century of a practice of treating
the decisions of the final court of appeal as a form of law.
This process is furthered by the conservatism and the timid-
ity of primitive man who fears to do anything otherwise
than in the appointed way lest he offend the gods. If some
course of action has been pursued without offending them
 NOTRE DAME LAWYER

it is to be adhered to. It is furthered later by the demand

of the strict law and of the maturity of law for certainty
and uniformity.
As Pollock puts it, then, every decision is an incipient
habit and imitation leads to the following of the decisions of
others. However, this is only true in part. Conscious search
for principle, conscious endeavor to decide not arbitrarily
but on reasoned principles, and to make each decision an ex-
pression of a principle is a powerful force in legal thinking.
Hence the next decision is expected to carry the process for-
ward.
Recently the social philosophical jurists have sought to
construct new versions of the nineteenth-century meta-
physical theory. For example, Kohler speaks of customary
law as a resultant of the pressure of the civilization of the
present upon habits of action, decision, and thought which
grew out of and expressed the civilization of the past.
Stammler spoke of it as the conscious or subconscious at-
tempt to express the ideals of the epoch in action, decision,
and juristic thinking.
As analytical jurists take the precept element in law to
be the law, theories of sources of law are theories of the
formulation of legal precepts. But whatever affects or shapes
the ideal element is in a very real sense a source of law even
if indirectly rather than immediately. Thus ultimately we
get back into the domains of economics, psychology, and
sociology. In the present connection we are looking only at
legal precepts.
From the analytical side we must start from the proposi-
tion that both in source and in form a system of legal pre-
cepts in any stage of development as such, i.e. beyond what
I have called primitive law, is made up of two elements, a
traditional element and an enacted or imperative element.
That is, one is referred both to tradition and to legislatively
prescribed precepts when he wishes to know what is the law;
 SOURCES AND FORMS OF LAW

and the precepts and doctrines which he finds were some

formulated by judicial and juristic working over of tradi-
tional materials derived from experience and some by law-
givers or legislatures. Therefore, when we talk about the
nature of customary law we are really talking about the na-
ture of the traditional element of a legal system. The en-
acted or imperative element obviously came from the state.
It purports expressly to derive its authority from the sover-
eign. Hence jurists saw that this element, analytically con-
sidered, proceeded from and rested on the authority of the
state. But for a long time they conceived that the tradi-
tional element - customary law, as they called it - had an
independent validity beyond and without respect to the
state. On the Continent this resulted from the seventeenth-
century idea of Roman law as embodied reason. In the
seventeenth-century the modern Roman law (the usus
modernus) was in legal theory customary law. It was in
force because it had been received by the usage of tribunals.
In the reign of natural law, however, after the academic
theory of Roman law as binding legislation of an empire
embracing all Christendom had been given up and the basis
of the authority of Roman law was found in reason, it was
easy to think of customary law as in force because of its
intrinsic reason, quite apart from the state. Hence all sorts
of theories of the intrinsic binding force of customary law
grew up, which were really theories of what seemed to be
the intrinsic binding force of the modern Roman law in
seventeenth and eighteenth-century Continental Europe and
in the nineteenth-century in those European countries which
did not adopt in substance the French Civil Code of 1804.
It was easy for common-law lawyers, after they had read
civilian treatises to say that the English common law had
a similar intrinsic binding force as customary law in England
and the United States. There were three contributing causes
behind this mode of thought in addition to the authority of
the writers on the civil law who had much vogue as late as
 NOTRE DAME LAWYER

the second third of the nineteenth-century. In the first

place, an idea of the common custom of England was the
means by which the King's Courts made the common law,
superseded local usage and local jurisdictions, and so gave
us our strict law. Second, Fortescue, Hale, and Blackstone
had asserted a continuity of the common custom of Eng-
land from the time of the Britons. Third, the medieval
(Germanic) idea of the force of custom was reinforced by
the Roman texts as to long usage having the authority of
statute (lex). Moreover, from the reading which was pre-
scribed for law students in the formative era of American
law, American lawyers came to think of the common law of
England in an ideal form as declaratory of natural law. So,
calling the common law customary law, customary law
seemed to have an intrinsic validity.
Like ideas in England, derived from Blackstone, explain
why Austin felt bound to show that the basis of the authority
of the traditional element and of the enacted or imperative
element analytically is the same, namely, the stamp which
the lawmaking or law-declaring organs of the state has put
upon each. Much criticism of Austin fails to take account
of the theories he had to combat. He did a real service in
showing that the difference is in the formulating agency
not in the source of legal obligation.
Four types of so-called customary law may be noted: (1)
a customary course of popular action, (2) a customary
course of administrative action, (3) a customary course of
advice to litigants or to tribunals by those learned in the
law, and (4) a customary course of judicial action. The
second may be called administrative custom. It may grow
into administrative law as has tended to happen in at least
some American administrative agencies. But it has not be-
come sufficiently settled to be counted more than a source.
The third might be called professional custom. It may de-
velop into a traditional mode of dogmatic teaching and doc-
trinal writing, as at Rome. The fourth might be called
 SOURCES AND FORMS OF LAW

judicial custom. It is a form of law in the common-law sys-

tem and has been becoming one in civil-law countries.
The three last named may grow up entirely apart from
and independent of the first. In fact, they often grow up
with respect to matters as to which there is and can be no
customary course of popular action. An example may be
seen in customs of practice in courts both of first instance
and of review. In some of our larger states there are many
curious variations of minor details of practice among the
different circuits or districts. This has been particularly
true in our different appellate courts. In 1792, the Supreme
Court of the United States adopted the practice of the Court
of King's Bench in England. But in a number of states
different usages had grown up in colonial courts and in legis-
lative review of judgments of the courts, and when review-
ing jurisdiction passed from legislatures to appellate courts,
the latter sometimes followed the model of review in the
House of Lords. In our newer states these fused in all sorts
of combinations, depending largely on where the judges who
first sat in the highest court of the new jurisdiction chanced
to have come from.
Likewise, judicial or administrative usage may grow up
quite apart from popular usage. But they may, on the other
hand, recognize and apply such usage where no applicable
-legal precept is at hand. Thus there may be a progress from
custom of popular action to law. The course of action fol-
lowed by the public may be a source of law. We must note,
however, that while popular usage seized upon by the courts
as a rule of decision may get the form of law, it is no less true
that repeated and well known decisions may give rise to
popular usages based on and in recognition thereof.
An example of formulation of law by a customary course
of popular action may be seen in American mining law. An
example of the effect of a course of judicial decision upon
the course of popfilar action may be seen in the law
merchant.
 NOTRE DAME LAWYER

At the time of the discovery of gold in California in 1849,

there was no law on the public domain. The Cornish miners
brought with them some mining customs as to following a
vein and claim to so much of the strike. For the rest, cus-
toms grew up of claims to water by diversion, notice, and
record, and of claims to placer and lode locations by dis-
covery, notice, record, and annual labor. These mining cus-
toms are the basis of our American mining law and of the
law of irrigation in the part of the country west of the
hundredth meridian. Federal legislation recognized them in
1866 and 1872 and judicial decision has given them sys-
tematic development.
On the other hand, while the law merchant was built at
first on the custom of merchants, the common-law courts
came to hold that what was the custom of merchants was a
question of law, not one of fact. They took judicial notice
of the law merchant. In other words, they made a body of
case law by logical development of those principles which
had come to be well recognized. In consequence, instead
of merchants giving law to the courts as experts in mercan-
tile custom, the courts began to give law to the merchants.
Mercantile usage has often had to adjust itself to the course
of judicial decision.
We may perceive, then, both progress from custom, in
the sense of customary course of popular action, to law and
from law to custom. Custom and law react upon each other,
custom formulating rules for the courts, though usually by
way of the legislature, but on the other hand, rules of law
molding popular usages or giving rise to new ones. More-
over, as in the case of law and morals, law and custom, in
the sense of customary course of popular action, are not
identical in scope and extent. Much custom of popular ac-
tion is quite outside of the field of the law. Much is parallel
with law but not legally recognized as binding - for ex-
ample, constitutional usage such as that presidential electors
vote for the candidate of the party on whose ticket they
 SOURCES AND FORMS OF LAW

were elected or the formerly well established custom as to

eligibility of the President to a third term. Also much is
local or custom of some particular trade. Yet there have
been customs of wider scope than the state, such as the cus-
toms of knights, customs of sea traders, and customs of mer-
chants, which were or tended to be universal over medieval
Christendom. Indeed, there are international mercantile
usages today. As it has been put, a sale in international
trade is a sale whether made at Amsterdam or at New York.
It was largely because of this that New York importers de-
manded an arbitration law assuring them of a tribunal for
commercial disputes which would give expert effect to the
usages of trade.
Analytical theories of formulation of law by custom. This
has been one of the most discussed problems of analytical
jurists. As was pointed out above, much of the difficulty
has come from treating the traditional course of judicial ac-
tion and the traditional course of juristic thinking as if they
were the same as the customary course of popular action.
The first theory on this point is found in Cicero. He says
of justice: "Its beginning has proceeded from nature.
Thence some things have become custom from reasons of
utility. Afterwards fear of the laws and religion have given
sanction to things which have proceeded from nature and
been approved by custom." That is, he says, we have (1)
the principle of reason; (2) the customary course of popular
action which realizes this principle; and (3) the sanction
which law and (in archaic systems) religion put behind the
precept formulated by custom but expressing the principle.
Historical and metaphysical jurists in the nineteenth-century
did not much improve this.
Austin was chiefly concerned to show that what was called
customary law had no intrinsic legal authority as such, in-
dependent of the state. Hence he distinguished precepts of
what he called "positive morality," resting simply on the
ethical custom of the community, and legal precepts resting
 NOTRE DAME LAWYER

on the authority of the state. When, he said, the state,

through legislation or judicial decision, takes up the precept,
adopts it, and puts sanction behind it, then for the first time
it becomes law. But, he says, if it is not promulgated by
legislation but rests in judicial decision or judicial usage,
we call it customary law. The truth in Austin's doctrine
here is in his insistence that customary law (in the sense of
the traditional element in legal systems) is not a distinct
kind of law of greater sanctity or resting on a different basis
of authority. It has the state behind it, and depends on
the state just as does the imperative element. The weak
point in Austin's theory is that courts apply retroactively
these precepts which, to use his phrase, they adopt from
positive morality. They apply them as if they had existed
as binding legal precepts prior to their adoption. They do
not merely announce them as precepts which will be applied
as legally binding for the future. They "find the law" in
these customary precepts. They recognize, it is said, the
custom as binding law. Many have been led by this con-
sideration to reject Austin's proposition that customary law
(i.e. the traditional element of a legal system) rests upon
the authority of the state and to insist that custom of popular
action as such is inherently legally binding, whence it is
gratuitously inferred that a received legal tradition is equal-
ly inherently morally binding and so legally binding for that
reason. Carter insists upon this particularly. He says that
the judge is neither the molder of the legal precept nor the
agency by which the state gives it authority; that it is
"formulated by the social standard of justice" and is found
by the court in its search for the binding rule, and is bind-
ing because of its intrinsic force as an expression of a prin-
ciple discovered by human experience.
Later analytical jurists have met the difficulty in Austin's
theory in a better way. They say that it is a precept of the
law, sometimes traditional but sometimes enacted and in
either case having the authority of the state, that where
 SOURCES AND FORMS OF LAW

no express legal precept exists judges are referred for the

basis of their decision to custom. Hence when they apply
the customary precept retroactively they do it by virtue of
a precept recognized or provided by a lawmaking organ of
the state which authorizes and directs this. Express pro-
visions of this sort are in a number of modern codes. They
name custom among the subsidia to which courts are to
resort in order to decide cases not provided for. It is a
superficial answer to this to say, as has been said, that it
reasons in a circle; that it amounts to this: "Custom is
law in virtue of custom." In this epigrammatic statement
the word "custom" is used in two senses. Differentiating
the two meanings, it becomes another thing to say that there
is an authoritative legal precept, either enacted or recognized
by received tradition, refer to unrecognized custom, where
no established precept is at hand, and if it meets the legal
requirements of recognition of a custom, apply it to an ap-
propriate case. When by so applying it the custom has been
adopted and given form as a legal precept, as takes place in
our common-law system, a gap has been filled. Law has
been made. But the case has been decided by law - ac-
cording to the precept of law which referred the court to
the customary precept to fill the gap provided it met the
legal requirements of valid custom. Kelsen puts it that
though the decision is outside of law in the sense of the
body of authoritative materials of decision it is not outside
of the law in the sense of the legal order. I question its be-
ing outside of the law in the sense of a body of authoritative
guides to determination of controversies. But the sort of
thing presupposed in such discussions seldom happens in a
well developed system of law. What usually happens is
that the gap is filled not by any pre-existing definite precept
of custom or morality but by analogical development of ma-
terials found in the legal system or borrowed from some
other legal system, selected and shaped with reference to
an ideal of the end of law and hence of the legal order.
 NOTRE DAME LAWYER

Custom in the common (Anglo-American) law. Four dif-

ferent things got the name of custom in our law:
(i) One is the general body of our case law; the whole
traditional element of our legal system. This goes back to
the time when the King's courts purported to administer the
common custom of England. It goes back to the archaic
condition in which law was thought of as authoritative
declaration of custom; as custom declared by decisions, the
same as declared by legislation in the Twelve Tables or the
Leges Barbarorum,or in the early English theory of legisla-
tion when it was supposed law could not be made. So Eng-
land had leges, authoritative declarations of custom, and con-
suetudines, customs not so declared but ascertained by the
tribunals. We may leave this until we come to take up the
traditional element in our law more in detail.
(ii) The canon law and civil law administered in the
ecclesiastical courts and now to some extent in courts of pro-
bate and matrimonial jurisdiction and the universal sea law
administered in admiralty have been called customary.
These were customary in England only in the sense that they
were in force because prior to the Reformation the ecclesias-
tical courts administered the universal law of the universal
church and the Roman law thought of as universal, and ad-
miralty administered the universal sea law, not the local law
of England. After the Reformation they were law by the
settled practice of the tribunals. Hale followed by Blackstone
called this part of the law administered in England custom
because it derived its authority from observance and did
not depend on its "own intrinsic authority" such as that of
acts of Parliament or the custom of the English people. But
the same might be said of the common law administered by
the King's courts. Before the rise of nationalism in the six-
teenth-century, courts of the church in probate and matri-
monial causes and a court of admiralty would not have
thought of following any other body of law than what was
recognized through all Christendom. Moreover, there was
 SOURCES AND FORMS OF LAW

nothing else at hand than the well developed, well system-

atized, and well taught Roman law and canon law.
(iii) There were certain local or special customs recog-
nized legally and enforced in England because observed
time out of mind in particular localities. They were cus-
tomary rules of inheritance or customary tenures such as
gavelkind (inheritance of land by sons equally instead of
by the eldest son only) and borough English (inheritance
by the youngest son only). They are now extinct in Eng-
lish law and no such things have ever existed in the United
States.
(iv) There are particular usages, general and well under-
stood practices in a particular place or in a particular trade
or business, which may be established as other facts are
pleaded and proved in interpreting legal transactions or de-
termining the relations of persons who are presumed to do
business with reference to the usage. The requisites of a
custom of the type last above considered have been adapted
to these usages. The usage must have existed long enough
to have become generally known; must be certain and uni-
form as to the persons claiming under it and as to what is
claimed; must be regarded as compulsory and not something
left to one's option to obey; consistent; so general that
knowledge of it may be presumed; must be peaceable and
acquiesced in by those acting within its scope; must be rea-
sonable; and must not be contrary to law or good morals.
For the most part usages are invoked in connection with
contracts and are resorted to in order to ascertain the inten-
tion of the parties. If a contrary intention appears in some
other way the custom is not part of the contract nor can its
express terms be contradicted or varied by proof of the usage.
Thus we have here in reality a canon of interpretation
rather than a source or form of law. But there are customs
of a trade or industry, legally recognized and enforced, of
which this cannot be said.
 NOTRE DAME LAWYER

Custom in internationallaw. In international law, as it

has been at least in the immediate past, we may see law in
the sense of a legal order in process of development and re-
peating something of the history of civil or municipal law
as it emerged from undifferentiated social control into a
regime operating through a system of law such as we under-
stand it today. We may see habitual courses of action in the
relations of states come to be regarded as authoritative and
binding and we can see those customs developed by com-
mentaries and doctrinal formulations of what it is considered
ought to be custom just as in Hindu law or the Roman law
as a taught tradition of the jurisconsults, or the law mer-
chant in the hands of common-law courts and common-law
text writers. A habitual course of action which has not
come to be regarded as obligatory is called usage and is
taken to be a source of law in that it may become recognized
as binding and so give content to what is regarded as a legal
precept. When it has become so recognized it is called a
custom, and is regarded as a form of law. Hence Hall
speaks of international law as "authoritative international
usage." But here again the habitual practice of nations in
their relations with each other is not always a spontaneous
product of experience such as the historical jurists postu-
lated. Much that we think of as established custom of
diplomatic relations and of national conduct in international
relations is a tradition from the Spanish foreign office which
set the pace in the sixteenth-century when international law
was formative. Spain was then the leading country in
Europe. The customs of the Spanish foreign office did not
arise spontaneously as something analogous to custom of
popular action. On the contrary, when new questions of in-
ternational morality or ethics arose, the Spanish officials
took the opinions of the doctors, teachers of theological
morals, at Salamanca, and acted accordingly and thus es-
tablished a tradition which came to be followed and was
developed by writers on natural law.
 SOURCES AND FORMS OF LAW

Sources in general. (a) In archaic law. To quote a lec-

turer on Hindu law: "The 'roots' or sources of law, accord-
ing to Manu, are four in number: Revelation or the uttered
words of inspired seers; the Institutes of revered sages,
handed down by word of mouth from generation to genera-
tion; the approved and immemorial 'usage' of the people;
and that which satisfies our sense of equity, and is acceptable
to reason." The distinction between "inspired" seers and
"revered" sages should be noted and it should be noted also
that the "institutes" handed down orally refer to commen-
taries upon the revealed words, both the revelation and the
commentaries long ago reduced to writing. So the sources
are (1) religion giving forms in the shape of revealed pre-
cepts, (2) juristic development on the basis of religion; (3)
custom of popular action approved by the commentators and
so becoming a form; and (4) general moral and philosophical
ideas. If the first and third are the older and original
sources, as we know the texts, the second and fourth, work-
ing upon the older materials, have become the more signif-
icant.
In the introduction to the Senchus Mor (the great book
of the Brehon or old Irish law) Dubhthach, the royal bard,
recited to St. Patrick "the judgments of true nature which
the Holy Ghost had spoken through the mouths of the
Brehons and just poets of the men of Erin from the first
occupation of this island down to the reception of the faith."
What did not clash with the word of God "in the written
law and in the New Testament and with the consciences
of the believers" was confirmed by St. Patrick and the
ecclesiastics and the chieftains of Erin, since "the law of
nature had been quite right except the faith and its obliga-
tions and the harmony of the church and the people." As
Maine pointed out, "the law of nature" here refers to the
well known text of St. Paul: "For when the gentiles which
have not the law do by nature the things contained in the
law, these, having not the law, are a law unto themselves."
 NOTRE DAME LAWYER

Here the law was a tradition in the memory of the bards

founded on judgments of the Brehons and this tradition is
confirmed so far as consistent with Scriptures and Christian
faith. So religion and customary course of decision stand as
the sources. There is little of what might be called juristic
commentary; not much beyond some glossing of the texts.
(b) In Roman law. Here religion and custom had long
ago done their work and were substantially negligible as ac-
tive formulating agencies by the time we have authentic
materials to tell us much about the system. Simply rem-
nants remind us of the part they had once played. The
sources which are important in Roman law are: (1) magis-
terial formulation of procedure partly to ethical ideas and
partly to experience; (2) general moral and philosophical
ideas, particularly the ius naturale; (3) scientific develop-
ment, juristic writing; and (4) legislation, here as else-
where both a source, as the basis of juristic development, and
a form. Juristic writing is the great formulating agency.
It gave character to the whole system and put its stamp on
the Roman legal tradition so thoroughly that Roman-law
countries regard text writers in a way the common-law
lawyer finds it hard to understand. Until recently civilians
compared and weighed and discussed opinions of commenta-
tors and text writers as we compare and weigh and discuss
the opinions of courts in adjudicated cases.
(c) In the law of Continental Europe. At bottom, the
modern codes represent legislative adoption of juristic
development of the Corpus Iuris and of materials of Ger-
manic law which were in force as local customary law. The
formulating agencies have been (1) general moral and
philosophical ideas. In the seventeenth and eighteenth-
centuries, in the reign of the law-of-nature school, these
were significant influences. (2) Scientific discussion; juris-
tic writing has been a formulating agency from the twelfth
century to the present day. Till recently juristic writing on
the basis of the Roman texts and the modern codes was the
 SOURCES AND FORMS OF LAW

chief source. As a formulating agency it almost held the

field alone. Today it has been encroached on by (3) ad-
judication, which is now a very active formulating agency
and not merely the settled course of decision but single de-
cisions of the highest courts are at least strongly tending to
be forms of law. (4) Legislation is also an active source
as well as the dominant form.
(d) Sources in the common law. As to usage, in the
United States we have had a conspicuous instance in our
western mining and water law already spoken of. Com-
mercial usage also has been spoken of in another connection.
General moral and philosophical ideas were an important
source in England in seventeenth and eighteenth-century
equity and as classical economics in nineteenth-century de-
cisions as to policy and contracts. Morever, the economics
of the last century as economic and political philosophy took
an important if not decisive part in application of the con-
stitutional standard of due process of law. As to Bentham's
utilitarianism and law, reference to Dicey's full exposition
suffices. While scientific discussion and juristic writings,
have played a subordinate part in comparison with their
role in the civil law, we may easily underestimate their in-
fluence in shaping Anglo-American law. Littleton and Coke
on Littleton are books of authority. They are forms of law.
But Coke's writings have been a quarry for common-law
courts. Even the occasional errors of Blackstone passed into
American law. Many books not of authority are responsible
for rules and even some chapters of our law. In our com-
mercial law, the seventeenth-century English and earlier
nineteenth-century American courts had a tendency to use
the treatises of civilians freely, and extensive use of civilian
treatises by our text writers for a time reinforced that tend-
ency. Adjudication has been the most conspicuous formu-
lating agency, but legislation and administrative rules and
orders have been taking the lead in the present century.
These three are both sources and forms and will be con-
sidered more fully later.
 NOTRE DAME LAWYER

FORMS OF LAW. By forms of law, as explained hereto-

fore, we mean the forms in which legal precepts are to be
found authoritatively expressed. In general, they may be
classified as (1) legislation; (2) case law, i.e. law expressed
in the form of judicial decisions of past controversies; and
(3) text book law, i.e. law expressed authoritatively in
juristic writings.
Forms in archaic law. In the beginnings of law, source
and forms are undifferentiated. As law develops, there comes
to be a body of declared custom which may become text
book law or may become legislation. Hindu law is wholly
in the form of text book law except as under British rule it
has been overlaid by a body of case law. Except for the case
law which has grown up about it in the modern courts and
recent legislation in British India, it is made up, in form,
of (a) smriti, the writings attributed to "revered sages" hav-
ing independent authority, and now regarded as declaratory
of religious precepts, custom of popular action, custom of
decision, and precepts of morals; (b) commentaries on the
smriti under the auspices of rulers or attributed to rulers,
not in the form of legislation, however, but interpretations
or supplementary declarations of custom; (c) treatises us-
ing the foregoing materials, but not by public authority.
The older commentaries and treatises have authority and
are forms of law, while the later treatises, written in English,
are at most no more than source. Under British rule all the
old authoritative texts are tending to become sources of a
body of case law and there has come to be much recent
legislation.
Reduction of customary law to writing authoritatively by
the agencies of a politically organized society, as in the Ro-
man Twelve Tables or the Leges Barbarorum and dooms of
the Anglo-Saxon Kings will be considered in another place.
In Mohammedan law there are two chief schools, the
Sunni and the Shiah, both basing the law ultimately on the
 SOURCES AND FORMS OF LAW

Koran but differing as to the authority of tradition as to

the oral precepts of the Prophet. The Sunni school, which
has had the fuller development and has the larger following
recognizes as sources: "(1) The Koran, (2) The Hadis or
Sunnat (traditions handed down from the Prophet), (3)
the ljmaa-ul Ummat (concordance among the followers),
and (4) the Kiyas (analogical reasoning)." But "though
the Mohammedan law purports to be founded essentially on
the Koran, most of the rules and principles which now regu-
late the lives of Moslems are not to be found there." Juristic
writing has built the law by analogical reasoning from the
sources above enumerated. Hence as to form there is a
body of text book law, a considerable number of treatises
being recognized as books of authority. In British India,
however, these treatises tend to become sources on which
the courts have been building a body of case law and there
has been some important legislation. For this reason, as
it obtains there, it has been called Anglo-Mohammedan law.
Forms in Roman law. According to the Roman institu-
tional books, the forms of law were: Leges (statutes),
plebiscita (enactments of the plebeians), senatus consulta
(resolves of the senate), constitutiones principum or princi-
pum placita (enactments of the emperors), edicts of the
magistrates, and responsa prudentium (answers of those
learned in the law).
Of these, the edicts of the magistrates are in origin largely
a sort of case law. In form (magisterial declaration of the
way in which the magistrate will exercise his office) they are
nearer to legislation. Analytically they are a sort of magis-
terial lawmaking, since through molding procedure they had
the practical effect of making the substantive law even if
indirectly. The responsa of the jurisconsults in a way are
also inorigin case law. I truth, historically there is a case
law element and a text book law element. But in form in
the classical law they come to be text book law. Beginning
with advice to litigants and opinions to tribunals, they de-
 NOTRE DAME LAWYER

velop into a great body of juristic literature parts of which

in the maturity of the law are given legislative authority as
the opinions of jurists licensed by the emperor had been
made binding on tribunals in the early empire. Thus in
Roman law the chief forms are legislation and text book
law, as in the common law they are legislation and case law.
Forms in the modern Roman law and under modern codes.
In the modern Roman law down to the codes the text of the
Corpus luris alone was regarded as authoritative. All else
was explanatory. It was interpretation or logical deduction
from the text. But in practice the gloss of Accursius (middle
of the thirteenth century) got equal authority with the text
and largely superseded it. Later the writings of the com-
mentators became in practice the form of the law, especial-
ly as it was taken over at the "reception." Also usus Jori,
the course of decision in the courts, had subordinate au-
thority as customary law, theoretically on the basis of cer-
tain texts of the Institutes and Digest.
After the codes the theory was that the text of the code
alone had authority and only the legislature could give an
authoritative interpretation. But the codes often expressly
provide that where there is no text of the code to control
a case, decision of the particular case shall be referred to
doctrine (i.e. treatises and commentaries) and jurisprudence
(i.e. the uniform course of decision in the courts). These
provisions go back to statements in the discussions on the
project of the code and in lectures on the French Civil Code
by some of the commission which drew it up and con-
temporary jurists, delivered at the time of its adoption, in
which these are included in a list of subsidia to be resorted
to where the code was silent. Hence Continental writers
have insisted that doctrine and jurisprudence are not forms
of law because, it was said, they did not furnish general
binding rules, to be followed by any court in any case to
which they were applicable, but each court was to be guided
by them as and to the extent it saw fit in passing on a case
 SOURCES AND FORMS OF LAW

not covered by the code. In truth, however, the courts do

follow judicial decisions today very much as we adhere to
precedents. It is said that single decisions have only per-
suasive authority, while a uniform course of decision is held
theoretically to be equivalent to custom and have force as
such and so to be a form of law. But single decisions of the
highest courts are now cited and followed by the courts and
by text writers and the latter now cite and discuss not only
decisions of the Court of Cassation and Courts of Appeal
but even those of courts of first instance. A like story may
be told as to the course of judicial decision and even single
decisions in Germany.
Application of the code provisions and development of
them by analogical reasoning has commonly been called in-
terpretation. It is not genuine interpretation, but is given
the name in order to satisfy an idea that the code covers
every possible case either expressly or by a principle which
by logical development will afford a pre-existent rule.
Thinking of -interpretation in this sense, the theory of the
Continental codes has been "that the legislator alone may
explain laws in a manner generally binding." Except where
there is "authentic interpretation" by the same authority
that enacts a law, the Continental codes contemplate that
the judge shall have full liberty of interpretation; but only
for the case in hand. No one else is bound by his inter-
pretation and he himself need not follow it another time.
Until there is authentic interpretation, the point remains
open for other cases.
In the old French law, following the Roman law, only
the King could interpret his ordinances. If the sense was
doubtful the judges were forbidden by an ordinance of 1667
to interpret. The case was continued and the parties were
directed to apply to the King to fix the sense of the text.
This practice no longer exists. Down to 1837 there was a
practice of reference to the legislature to settle conflicts be-
tween the Court of Cassation and the other courts. But a
 NOTRE DAME LAWYER

law of that year provided that in such cases all the chambers
of the Court of Cassation should sit together and the de-
cision rendered should bind the lower court for the case in
hand. References to the legislature are no longer made, but
declaratory laws are enacted from time to time. The Prus-
sian Civil Code of 1794 provided that if the judge found the
sense of a code provision doubtful he must certify his doubt
to the Code Commission and request its decision. The ap-
pendix to the code provided instead that the judge should
decide the case according to the rules for the interpretation
of statutes, but should then notify the head of the depart-
ment of justice of the supposed ambiguity so that there
might be further legislation. The code provided a like rule
for cases to which no code provision was applicable. But
these provisions soon ceased to be followed and became
obsolete. The German Civil Code of 1900 contains no pro-
visions as to interpretation, thus leaving the matter in the
hands of the courts.
For practical purposes the communis opinio doctorum,
consensus of text writers, and usus fori, course of decision of
the courts, have been forms of law. The former was domi-
nant until recently. The latter is now superseding it.
Forms in the common law. In the common-law system
there are three forms of law: (1) Legislation, under which,
using the term in its wider sense, we have in the United
States three varieties, (a) constitutions, (b) federal treaties,
(c) statutes, which may be federal or state; (2) judicial
decisions, the decisions of the superior courts in England and
the corresponding tribunals in other common-law jurisdic-
tions; and (3) books of authority. Just what effect the
development of administrative rule-making and adjudica-
tion will have upon this traditional scheme of forms of law
is something for the future. By the federal constitution,
the constitution and the laws of the United States made in
pursuance thereof and all treaties of the United States are
made "the supreme law of the land" and the judges in every
 SOURCES AND FORMS OF LAW

state are to be bound thereby, and the several state con-

stitutions likewise declare themselves the supreme law of
the land for the state, subject of course to the powers dele-
gated to the general government. At least from the four-
teenth- century, judicial decisions have been the most signif-
icant form of the common law. As to books of authority,
very few text books, commentaries or juristic discussions
have the authority of law in and of themselves. Theoretical-
ly they are regarded only to the extent that they expound
accurately the judicial decisions which they cite and deduce
correctly the principles of law to be derived from those de-
cisions. Of those which are truly books of authority, a
treatise on tenures by Sir Thomas Littleton (Justice of the
Court of Common Pleas in the reign of Edward IV) is an
absolute common-law authority on questions of the law of
real property. But very little remains applicable because of
changes by legislation. A commentary on Littleton by Sir
Edward Coke (Solicitor General, afterward Attorney Gen-
eral to Elizabeth; Chief Justice of the Common Pleas, after-
ward Chief Justice of the King's Bench under James I)
is regarded as an authoritative statement of the common law
as it stood in his time. As the fourth year of the reign of
James I (1607) is taken legally to mark the era of coloniz-
ing of America, Coke's writings have special authority for
us in defining the law which came to us in the seventeenth-
century. Besides the Commentary on Littleton (First In-
stitute), Coke's Second Institute, a commentary on Magna
Carta and the old statutes of Edward I, his Third Institute,
treating of pleas of the crown (i.e. criminal law), and his
Fourth Institute, treating of the jurisdiction of courts, have
much, though perhaps in case of the last two less, authority.
Littleton's Tenures and Coke's Institutes are books of au-
thority wherever the common law obtains.
In addition, two other books stand very near to them in
authority in the United States because they state the com-
mon law, in one case as it stood just before and in the other
 NOTRE DAME LAWYER

as it stood just after it had been received definitely in this

country. Sir William Blackstone's Commentaries on the
Laws of England (1765-1769) was much used in America
in the contests between the colonies and the crown which
culminated in the Revolution, and was accepted by the
courts after the Revolution as a statement of the law which
we received. Kent's Commentaries on American Law (1826-
1830), the great American institutional book, while not
strictly a book of authority, is so clear and accurate an ex-
position of our common law as received after the Revolu-
tion that it has generally stood for a decisive statement of it.
Seven elements go to make up the common law in the
United States: (1) The decisions of the old English courts;
(2) American decisions, almost entirely since the Revolu-
tion; (3) judicial decisions in England and the other com-
mon-law jurisdictions since the Revolution; (4) the Law
Merchant; (5) the Canon Law (law of the church in the
Middle Ages) so far as it was received at the time of the
Revolution in the ecclesiastical courts, which had jurisdic-
tion over probate and divorce and entered into our law in
the form of traditions of the practice and decisions of those
courts in probate and divorce causes; (6) International Law,
to the extent that it is a common element in the law of all
civilized states; (7) English statutes before the Revolution
applicable to or received in this country.
(1) More than half of the states provide by statute (and
elsewhere except in Louisiana the same doctrine exists by
custom, coming down in older states from colonial charters,
recognized by judicial decision) that the common law of
England shall be the rule of decision in their courts, so far
as applicable, except in so far as cases are governed by con-
stitutions or by statutes. The most significant part of this
received common law is made up of decisions of the Eng-
lish courts. But two questions arise: first, when are Eng-
lish decisions of binding authority and when persuasive only,
and, second, what is meant by applicable in this connection?
 SOURCES AND FORMS OF LAW

Statutes sometimes provide expressly that decisions before

the fourth year of James I (1607) shall be authoritative
so that subsequent English decisions are only persuasive as
to what is the received common law. In some statutes the
decisive point is fixed at the Revolution, and hence English
decisions before the Revolution have binding force. In
others, mostly western states, particularly those carved
from the Louisiana purchase, where the potentially appli-
cable civil law was superseded by statutory adoption of the
common law, it is held that the statute does not require ad-
herence to the decisions of the English common-law courts
before colonization or before the Revolution if the courts
consider subsequent decisions, either in England or America,
better expositions of the general principles of the common-
law system. In such jurisdictions the authority of all Eng-
lish decisions is the same. They are persuasive only.
In order to be part of our American common law, these
English decisions, or rather the rules and principles they lay
down, must be applicable to the social, political, economic,
and physical conditions in this country. But this does not
mean that the question of applicability is open for all time,
as often as and whenever a court is called upon to apply a
received precept established by the old cases. It means that
the precepts must have been applicable at the time the
courts were called upon to determine whether they had been
received into our common law. If they were applicable and
were received and adopted as such, subsequent changes in
conditions, which may make some change expedient, call
for legislative rather than judicial alteration of the estab-
lished law. As to how applicability (or rather inapplica-
bility) was determined, sometimes the inapplicability to our
geographical conditions was obvious. In other cases the
courts determined what was applicable and what was not by
reference to an idealized picture of pioneer, rural America
of our formative era and this picture became a received ideal.
 NOTRE DAME LAWYER

(2) Judicial decisions in the several states of the Union

and in the federal courts are of binding authority in the
jurisdictions which they are rendered in and of persuasive
authority in other American jurisdictions.
(3) Judicial decisions in England and in other common-
law jurisdictions since the Revolution have only persuasive
authority. But the influence of the nineteenth-century
English decisions has been very great. The exceptionally
high order of ability of the English judges and of the bar
which argued before them made the persuasive authority
of those decisions decisive on many questions which arose in
England before they had to be passed upon in America.
(4) The law merchant, so far as it was not already in-
corporated in the common law at the time of the Revolu-
tion, is part of our received law. But codification of the
principal subjects of commercial law, which has gone on
since 1895 under the auspices of the Conference of Com-
missioners on Uniform State Laws, seems to have done away
with the creative force of business custom on those subjects.
(5) It would be perhaps more accurate to say that the
canon law is a source, and that the decisions and the prac-
tice of the English ecclesiastical courts on marriage, separa-
tion, annulment and divorce and on probate of wills, are a
form of our common law. Probate jurisdiction has general-
ly been given to separate courts in this country, while divorce
jurisdiction has usually been given to courts of equity and
courts with equity powers. For such courts, in such cases,
the canon law, as received and administered by the custom
of English courts was part of our legal inheritance.
(6) International law is in a sense a universal law in the
modern world as the canon law and the sea law were in
medieval England, and as the Roman law was in Conti-
nental Europe. The part of it applicable to determination
of private controversies in the courts is a common ele-
ment in the law of all civilized states. In the absence
 SOURCES AND FORMS OF LAW

of treaty or controlling rule of the national law governing

a point, the courts look to the received usages of civilized
states as they are set forth in treatises and commentaries
recognized as authoritative throughout the world.
(7) English statutes before the Revolution which were in
furtherance, development, or amendment of the common
law, are, so far as applicable to America, a part of our com-
mon law. All such statutes enacted before colonization
were received by us with the general body of seventeenth-
century law. But the colonies had their own legislatures,
which were active in the eighteenth-century, and English
statutes after colonization were not always enacted to apply
also to America. Hence whether English statutes enacted
after colonization and before the Revolution are part of our
common law depends upon whether the particular statute
was received as such. Most of the important statutes of
that period, e.g. the Statute of Limitations (1623) and the
Statute of Frauds (1677) have been re-enacted in the sev-
eral states. There are, however, a few which without re-
enactment are recognized as having been received. It should
be added that the old English statutes were received as con-
strued and applied in the decisions of the courts and, in the
case of those before the seventeenth century, as expounded
in the writings of Sir Edward Coke.
Forms in internationallaw. "International law" is made
up of precepts which courts can and do recognize and apply,
which are a common element in the municipal law of modern
states; of precepts recognized and applied in international
tribunals and arbitrations; and of precepts with which
courts and tribunals have nothing to do, which are recognized
in conduct, not in decision, and are matters for foreign of-
fices and departments of state. One may distinguish forms
of law from sources more confidently as to the first and
second than as to the third. Perhaps international law has
not reached a stage of development in which such a distinc-
tion can be made with assurance. Hence what from an ana-
 NOTRE DAME LAWYER

lytical standpoint one would be inclined to call forms of law

are called "evidence" of law. This presupposes that inter-
national law is recognized custom and that its forms are
evidence of such custom. It is comparable to the mode of
thought in the first stage of legal development in which
legislation is taken to be wholly declaratory and judicial
decisions are taken to be determinations of a pre-existent
custom.
In the absence of any organ of international society com-
petent to legislate, such legislation as there is must proceced
by treaties. Treaties may be declaratory of law already
established or may be intended to make new law. In the
former case the declaration must be accepted or acquiesced
in by states not parties to it. In the latter case until it has
been received as obligatory by states generally it can at
most be regarded only as a source of law. Text-book law
has been the chief form. International law developed when
the theory of natural law was dominant and under the
auspices of that theory. It was a time when the modern
Roman law was in the form of commentaries and treatises.
A certain number of books have been universally recognized
as books of authority, some of very high authority, others
of lesser rank. As to that part of international law which
is addressed to foreign offices and to diplomats, there are
compilations of pronouncements of statesmen and of diplo-
matic correspondence which are constantly referred to.
Finally, in international arbitrations and in litigation before
international tribunals there is a growing tendency to rely
upon decided cases, comparable to the weight given in the
civil law today to the course of decision in the courts. Re-
cent text books in international law increasingly cite and dis-
cuss decisions of international tribunals. In that part of in-
ternational law which is a common element in the municipal
law of modern states, books of authority and reported de-
cisions of the courts are regarded as forms exactly as in
municipal law.
 II
THE TRADITIONAL ELEMENT
LAW AS TRADITIoN. Systems of legal precepts, as soon
as they attain any great degree of development, are, as has
been said heretofore, made up of two elements: A tradi-
tional element and an enacted or imperative element. The
traditional element has generally been known in juris-
prudence by the name of ius non scriptum, and the impera-
tive element by the name of ius scriptum. These terms,
written law and unwritten law, have long and generally been
criticised, and deservedly so since taken literally they are
wholly misleading and there has been little agreement as
to their exact meaning. They are taken from the Roman
law, in which they had reference to the mode in which legal
precepts came into being as such, the ius scriptum through
authorities having legislative power, the ius non scriptum
through usage developed by private editing. Accordingly,
for the purposes of today ius scriptum is used for enacted
law and ius non scriptum for what is generally called cus-
tomary aaw, that is, the part of a body of law which is not
enacted. But, as pointed out heretofore, the term cus-
tomary law, used in this sense, also is misleading because it
suggests law as a mode of popular action, as a product of
the customary modes of conduct of individuals in their re-
lations with each other, whereas it is used to mean not modes
of popular action but a ntode of judicial action, professional
thinking, and juristic writing and teaching. It is not a
product of customary modes of conduct but of customary
modes of professional or juristic handling of controversies,
developed by writing and teaching. I prefer, therefore,
to style this part of a legal system "the traditional element."
This traditional element may appear (1) as a tradition
of priests or a religious tradition, as in Hindu law, in the be-
ginnings of Roman law, and in the Mohammedan law until
learned commentators became truly jurists; or (2) as a
 NOTRE DAME LAWYER

popular tradition, as in the Germanic law; or (3) as a

juristic tradition, as in all systems which reach any high
degree of development.
1. Law as a priestly or religious tradition. In tracing the
rise of juristic tradition, we have to remember that the judge
precedes the law; justice without law (using the term in the
analytical sense - sense 2) precedes justice according to
law; judgments precede customary law. This proposition,
urged by Maine, is disputed by Ehrlich, who is followed by
Vinogradoff and by Malinowski, who find the origin of law
in non-litigious custom. Social control by ethical custom
may well go on before the appearance of the judge. But
the judge goes before law in the lawyer's sense. Law as a
differentiated social control grows out of litigious custom.
Ehrlich and Vinogradoff think of social control as a whole
as law, and non-litigious custom as a great part of undif-
ferentiated social control. Maine's proposition is disputed
by Malinowski, who sees a differentiation in ethical custom
from the beginning. Part is felt as obligatory and part is
not. But that is far from the specialization and differentia-
tion involved in a definitely set-off legal order and body of
authoritative grounds of or guides to decision. Maine is
confirmed by the introduction to the Senchus Mor, the
great book of the Brehon or old Irish law. It tells that
Dubhthach, the royal bard, recited to St. Patrick the "judg-
ments of the Brehons and just poets" from the first occupa-
tion of Ireland till conversion to Christianity. The tradi-
tional course of decision, based on judgments, was a tradi-
tion of the bards. It is confirmed by the study of social
control among the Cheyenne Indians and, indeed, demon-
strated by Llewellyn's analysis and exposition of the origin
of law through adjudication of disputes which would, if con-
flicting demands could not be adjusted, disrupt a society.
2. Law as a popular tradition. It has been usual to
speak of the Germanic law as a popular tradition. But the
freemen of the locality, in whom the tradition rested, were
 SOURCES AND FORMS OF LAW

a class. It might well be called a secular class tradition.

One phase of a desire for general knowledge of the cus-
tomary law is to be seen in the reduction of that law to
writing in books attributed to divine or inspired origin, as in
Hindu law. Another phase is to be seen in ancient codes,
such as those of Greek city-states. The monopoly of knowl-
edge of the customary law which the patricians possessed at
Rome led to the Twelve Tables as part of a political revolu-
tion. The possibility of juristic development comes when
the traditionally formulated customary law is reduced to
writing. If, as at Rome, it is enacted, growth comes by
unconscious changes through interpretation and through
conscious changes through fictions and equity. But if, as
in India, it is expounded by sages in sacred or quasi sacred
writings, growth is still possible. We are told that the
Hindu writers fashioned usage or the texts to their ideas of
right, much as common-law judges in the formative era made
the custom of decisions, which was taken to be declaratory
of the custom of the realm, conform to their ideas of right.
3. Law as juristic tradition. At this point we come upon
a new phase of customary law. As soon as the traditional
law escapes from the exclusive possession of a sacerdotal or
political oligarchy it begins to come more and more under
the influence of professional jurists. It comes to be a juristic
tradition. At first certain of those who have a monopoly of
legal knowledge specialize in this part of the class monopoly.
They give advice as to the solemnities to be observed in legal
transactions or in case of dispute. Next we find them draw-
ing up manuals to guide others in such cases. Next they
begin to teach and to write treatises, and in so doing to deal
with the juristic tradition, as it has become, speculatively
and theoretically. Under their influence a technique is de-
veloped, ideals are formulated and received, decisions come
to be reasoned out, and the law acquires a scientific charac-
ter. Thus we pass from customary law in a strict sense to
a traditional element in a system of law; into case law
 NOTRE DAME LAWYER

(judicial tradition) and text-book law (juristic tradition).

But these are forms of a general professional tradition, since
both judge and doctrinal writer are recruited from a pro-
fession with a common training and common modes of
thought.
MODES OF GROWTH THROUGH THE TRADITIONAL ELE-
MENT. Not the least of Sir Henry Maine's contributions to
jurisprudence is his proposition as to the "agencies by which
law is brought into harmony with society." These, he says,
are three: Legal fictions, equity, and legislation. Legisla-
tion is an instrumentality of altering and supplementing
through the imperative element. It operates by amending
rules and adding new rules. But it also furnishes a start-
ing point for further development by the traditional element,
and juristic tradition and legislation often go on parallel.
Moreover, the traditional element is decisive as to technique
and received ideals and gives and shapes doctrines and
principles, conceptions, and standards. The modes of growth
through the traditional element are eight; (1) Fictions, (2)
interpretation, (3) equity, (4) natural law, (5) juristic
science, (6) judicial empiricism, (7) comparative law, and
(8) sociological study.
1. Fictions. After the law has been put in writing,
whether authoritatively or not, legal fictions are the first
agency through which the traditional element of a legal
system is enabled to grow. Indeed, in the earlier stages of
development of law in the second sense, fictions are the
characteristic mode of growth. Legal fictions are three
classes: (a) Particular fictions, that is, fictions employed to
meet a particular type of case or to change or avoid a par-
ticular rule or effect a particular isolated result. They are
at first, and chiefly, procedural. (b) General fictions, fic-
tions, having a more sweeping operation to alter or create
whole departments of the law, introducing principles and
methods rather than isolated rules. Examples are what
Austin calls spurious interpretation, equity, natural law.
 SOURCES AND FORMS OF LAW

(c) Dogmatic fictions, that is, fictions worked out after the
event by juristic thinking in order to give or appear to give
a rational explanation of existing precepts. Examples are
representation as an explanation of liability for the tort of
a servant, and constructive trust.
It need hardly be said that particular fictions come first
in legal history and are long the chief instrument of growth.
The competing instrument is unconscious legislation by inter-
polation of glosses in or alteration of the text. In its be-
ginnings legislation is almost wholly an authoritative pub-
lication of the traditional law, and it soon exhausts itself.
For a long period in all systems legislation is resorted to only
rarely and on great occasions, leaving to lawyers and to
tribunals the brunt of the work of developing the law. But
lawyers and tribunals have no authority to change or add
to the law directly. They change and develop it uncon-
sciously at first by so-called interpretation, and then, as
traditional modes of legal thinking grow up, they make the
legal system over more or less completely by general fictions,
such as analogical reasoning under the guise of interpreta-
tion, equity, and natural law. They appear first and for the
most part in adjective law.
This terminology of fiction in substantive law has served
its purpose and is beginning to be given up. Wherever it
has not been laid aside it ought to be, for today it causes
nothing but confusion. As Sir Frederick Pollock has said,
we ought not to "shrink from stating in affirmative terms
what are the duties which we consider to attach to an office
or undertaking once voluntarily assumed." He continues
that we ought not to arrive at the conception of a trustee's
or an executor's duties by the circuitous method of saying
that such and such must be the duty because the act or omis-
sion complained of is more or less analogous to other acts of
people in other situations which have been held to be fraud.
Constructive possession is a procedural fiction to make pos-
sessory actions available to secure ownership. Constructive
 NOTRE DAME LAWYER

fraud is a dogmatic fiction to explain the results of growth

of the doctrines of equity as to the duties of a fiduciary.
Others of the fictions above noted were instruments of
analogical reasoning which enabled achievement of more
liberal results. They made possible expansion of the
sphere of effectively secured interests. But therein lies
the difference between older and newer methods of legal
thinking. In all our writing and thinking of the first half
of the nineteenth century the endeavor is to explain every-
thing by finding implied terms in legal transactions. It is
only in the last generation that common-law lawyers began
to think straight upon these matters instead of circuitously
through dogmatic fictions. In the profession at large this
improvement has been going on very slowly.
It has been said heretofore that the formalism of the
beginnings of law and of the strict law is to be traced in part
to two causes: (1) a feeling that forms were a safeguard
against arbitrary action of magistrates and tribunals and
consequent fear of changes which would alter or do away
with them, and (2) lack of general ideas. The first, due
in its origin partly to the supposed sanctity of customary
rules, as having divine approval, and to the form of law as
a body of fixed and unchangeable rules replacing private
war by a legal order, results in an extreme reluctance to alter
a rule even for good cause when once fixed. When, there-
fore, the pressure of newly asserted interests compels change,
those who administer the law seek to make the change as
slight as possible. This characteristic of the earlier stages
of law is not only a cause in part of the extreme formalism
of the strict law, but it also operated as one of the agents
in producing the first solvent of formalism, namely, fictions.
It may be that some rule of law is still held in part or
more or less sacred. The law may not have passed out of
a religious or semi-religious stage. Or it may be that the
rule has a specially solemn form, such as a law of the XII
Tables, having been incorporated in a permanent memorial
 SOURCES AND FORMS OF LAW

of the settled customs of the community. Or, without com-

ing under either of these heads, a rule or a body of rules
may be protected against change by a widespread fear of
return to a condition of justice without law still remembered
with dread. Probably the hostility of American states to-
ward equity was chiefly due to memory of the high-handed
administrative tribunals of the Tudors and Stuarts. In any
of these cases a tribunal will feel that a rule cannot be
changed avowedly and consciously. It will persuade itself
that it is making no change. Where the circumstances of
administering justice require a change the change will come
indirectly and almost unconsciously in the form of a fiction.
The other causes operating to produce fictions, namely,
poverty of general ideas in the times and places in which
fictions arise, is connected with the development of juristic
thinking. For a long time men do not so much reason as
they associate. They are moved by association of this or
that which is new with this or that with which they are
familiar. Thus when a new political community was set up
in antiquity it was formed on the model of a group of
kindred. When a political organization of a society is set
up today it is made to the model of the Middle Ages. Its
legislative organ is made up of representatives of localities.
In a city council there are representatives of wards. In the
state legislature there is a territorial basis. There are repre-
sentatives of soil more than of persons. So when changed
circumstances and pressure of unrecognized or inadequately
secured interests compel changed rules of law or new rules,
men are not equal to the working out of a new legal doctrine,
or of any legal doctrine, but endeavor to assimilate the new
phenomenon in the administration of justice to something
with which they are familiar. Thus, in a sense, it might be
said that dogmatic fictions represent first attempts of a legal
system at classification and generalization. When the
exigencies of a developing economic order make it necessary'
to recognize contract, it is associated with real transactions
 NOTRE DAME LAWYER

(transactions creating rights against every one generally)

and is conducted under the fiction of a real transaction.
When more advanced ideas of justice lead to recognition of
a primary obligation independent of contract, it is asso-
ciated with contract, therefore the sole basis of a primary
right in personam in private law, and we get a right of res-
titution as based upon a fictitious contract, as the name
quasi contract long bore witness.
Perhaps another contributing factor should be noted,
namely, the so-called vis inertiae, the disinclination to do
away with anything established, so long as it does no visible
harm or no harm to speak of, although the reasons for its
existence may have ceased long ago. Historical remnants
or rudiments tend in time to become mere fictions, retained
because it is worth no one's while to disturb them. In this
category belong tenure, seisin, and the legal title where there
is a substantial equitable ownership in some one else.
Tenure lost its significance in the seventeenth contury.
There is no longer any incident or consequence of it that
may not be explained in a better way. Seisin has long been
moribund, although it led to some curious results in the
last century. It still makes some difference in connection
with acquisition of title to land by adverse possession
whether a court thinks in terms of seisin or of adverse pos-
session. But the difference is between thinking in terms of
history and thinking in terms of realities of the law of today.
The legal title of a trustee has ceased to be ownership. It
has become merely power. Yet so strong is the vis inertiae
that when in New York after the Revolution tenure was
abolished and all lands were declared to be allodial, seisin
and the legal title of the trustee were left undisturbed. The
toughness of a taught tradition has kept the terminology
and theory of tenure alive along with them.
An example of how this vis inertiae may give rise to a
fiction by keeping up a form after the reason has ceased to
exist, may be seen at any time in our legislative assemblies.
 SOURCES AND FORMS OF LAW

It is usual in constitutions to require bills to be read in

extenso three times before each house of the legislature.
This practice grew up before the days of cheap printing,
when repeated reading was the only means by which it
could be made sure that the legislators knew what they
were voting on. Today, when every bill is before every
member in printed form, the reason for viva voce reading
in extenso is obsolete and in consequence in many places, at
least, it has degenerated into a mere form of reading as
rapidly as possible in an unintelligible sing-song, often turn-
ing two pages over at a time. Indeed, I have been told of
one legislature before which six readings clerks used to read
six different bills on first reading at the same time. Suppose
a further step of entering on the journal that the bill was
duly read without more, and we should have an actual fic-
tion where there has been an incipient fiction. The same
thing may be seen in learned societies in which provisions
in constitutions or by-laws as to publishing only papers read
before them are evaded by "reading by title," and formerly
in Congress where at one time delivery of a speech might
take the form of obtaining "leave to print." Many fictions
in law arose in the same way. Formal compliance with a
formal requirement soon degenerates into fictitious com-
pliance.
One result of this process is that form and substance are
thereby gradually differentiated. As soon as a form is felt
to be a form only, and is treated as such by a fictitious use
of it, a great advance has been made. Discovery of sub-
stance, that is, of the substance of interests, as something
to be protected, and of the substance of the system of legal
precepts as something to be adhered to rather than the form,
is one of the landmarks in legal history. In every system
the recognition of the substance, as distinguished from the
form, is a criterion of its stage of development.
From consideration of the causes which have brought
about legal fictions we may see they are not to be scoffed at.
 NOTRE DAME LAWYER

They have played an important part in legal history. But

while this is true, we must not forget that they are a clumsy
device appropriate only to periods of growth in a partially
developed political organization of society in which legisla-
tion on any large scale is not possible. They are not suited
to later times and developed systems. In a period of growth,
-when ideas are few and crude, they enable a body of law to
be molded gradually, without legislative action, to meet im-
mediate wants as they arise and to conform to the require-
ments of cases as they arise. They enable legal precepts
to be applied so as to give results in accord with ideals of
the end of law. Legislative overhauling of the legal system
is neither possible nor desirable in such a period. It demands
a thorough understanding of the old law, the mischief and
the remedy and a stock of systematic legal ideas beyond the
archaic legal order. Moreover, the energies of a politically
organized society are for a long period absorbed in the work
of establishing the political system and the law must largely
shift for itself. We may see this condition in England from
Edward I to Henry VIII, and even later until the time of
the Commonwealth, and also at Rome from the Twelve
Tables to the Empire. In the one case, the judges, and in
the other, the pontifices, and later the praetor and the juris-
consults built up the law during these long periods with little
legislative assistance of consequence.
After a certain stage of legal development, on the other
hand, fictions retard growth and clog development. In a
rational age, an age of substance rather than form, when
legal doctrines are logically worked out and a body of learned
jurists is at hand to apply and develop them, fictions may
confuse and conceal the substance of legal precepts. In a
sense they were devised to conceal the substance when the
substance was not regarded as of legal consequence. They
may operate still to conceal the substance after later ideas
have made the substance almost the only thing of legal
consequence.
 SOURCES AND FORMS OF LAW

For example: Restitution, or, as it used to be called quasi

contract, was a confused and often arbitrary subject in our
law until recent writers pulled away the fiction of "promise
implied in law" and disentangled it from contract. Even
worse than this, fictions easily become starting points for
legal reasoning. As they are not always readily distinguish-
able from legal doctrines generally, they are taken as
premises from which to reason and are used as the basis for
constructing and developing anomalous and unfortunate
propositions. Thus the courts had trouble in the last cen-
tury about the "implied contract" of a lunatic to whom
necessaries had been furnished. A judgment was argued to
be a "contract" within the purview of the provision of the
federal constitution as to impairing the obligation of con-
tracts. Unjust enrichment of a corporation which retained
what it had obtained under a ultra vires transaction seemed
to the highest English court in the present century, if relief
by way of restitution was granted, to involve implying a
contract which, if made expressly, was not permissible. It
is because of such collateral consequences that fictions are
most objectionable today.
2. Interpretation. As an agency of growth, interpreta-
tion has to do with the imperative element of a system of
law. But it builds a juristic or a judicial tradition upon the
imperative element and in time assimilates it to and in-
corporates it in the traditional element. For example, Eng-
lish statutes before the reign of James I, and some at least
down to the Revolution, are common law in America, and
others, such as the Statute of Frauds, have been re-enacted
in our state legislation so universally as to have been largely
incorporated in the traditional element of our legal system.
The same might be said of homestead and of mining laws
in the states where mining is carried on upon the public
domain of the United States. Interpretation is also an
agency of growth of the traditional element of law in that
it is one of the points of contact between law and morals.
 NOTRE DAME LAWYER

In an analysis of the judicial process we may set off, first,

ascertainment of the facts upon which the determination
must proceed. Next, the facts having been found, judicial
decision according to law involves (1) finding the legal pre-
cept to be applied, (2) interpreting the precept, (3) apply-
ing the precept to the cause. In the common-law system
there may be the further duty, resting on the reviewing
courts, of providing a well considered precedent to furnish a
legal precept for like cases in the future. We are not con-
cerned here with ascertainment of the facts nor with the
shaping of a precept through the precedent, although these
may affect somewhat the process of decision according to
law upon the facts.
(1) Finding the law, ascertaining what legal precept is
to be applied, may consist merely in laying hold of a pre-
scribed text of a code or statute, or a settled precept of the
traditional law - e.g. the rule that the words "bearer" or
"order" are required in order to make a negotiable instru-
ment - in which case it remains only to determine the mean-
ing of the precept and to apply it. There may be at hand
a fixed precept of determined content, as where a court
looks at a conveyance to see whether it contains the formal
covenant of warranty without which at common law one
may not hold his grantor. In such case there is no need
of interpretation and application may be a mechanical pro-
cess of ascertaining whether the facts fit the rule. But fre-
quently the process of finding the law involves choice from
among competing texts or selection from competing analo-
gies urged by the respective parties as the grounds of de-
cision. Here, as one might put it, there is to be an induc-
tive selection. Or the process may involve selection by
logical development of authoritative principles or concep-
tions. Then there is, one might say, a deductive selection.
Not infrequently no existing established precept is wholly
adequate to the case and one has to be supplied by judicial
selection from outside of the legal system in whole or in part
 SOURCES AND FORMS OF LAW

- from custom, from comparative law, from morals, or from

economics. Providing of a rule by which to determine the
cause is a necessary element in a considerable proportion of
the cases which come before appellate courts. Hence the
term "finding the law" (Recktsfindung) is very appropriate.
Not uncommonly the three steps in decision according to
law have been confused or undifferentiated under the name
of interpretation. The whole process, called interpretation,
has been thought of as involving the three steps. Perhaps
the reason is that in the beginnings, when the law was taken
to be unchangeable, the most that might be permitted to
magistrates or to tribunals was to interpret the sacred or
authoritative text. Later, in the formative era of the modern
Roman law, the Corpus Juris as legislation of "the empire"
was beyond anything but logical drawing out of the content
of the text. The analytical jurists first pointed out that
finding a new rule and interpreting an existing rule were
distinct processes, and Austin distinguished them as spurious
interpretation and genuine interpretation respectively, since
his belief in a complete body of enacted rules led him to
regard the former as out of place in modern law. Indeed,
he was quite right in insisting that spurious interpretation
as a fiction was out of place in legal systems of today. But
experience has shown, what reason ought to tell us, that this
fiction was devised to cover a real need in the judicial ad-
ministration of justice and that providing of a rule by which
to decide the case is a necessary element in the determina-
tion of all but the simplest controversies. More recently
discussions as to juridical treatment of the materials afforded
by the modern codes have led Continental jurists to dis-
tinguish application of rules to particular causes from the
more general problem of interpretation. It is important
to distinguish the three steps in decision according to law.
But the first and second run into each other, if only because
in case of competing precepts they must be interpreted in
order that intelligent selection may be made, and both in
 NOTRE DAME LAWYER

that selection and in interpretation a determining element

is reference to received ideals and measuring of the result
thereby.
Austin's analysis of interpretation, which is in part an
analysis of the judicial process, is to be found in the frag-
ment of his essay on interpretation and excursus on analogy.
In substance it is this. The difficulty calling for interpreta-
tion may be: (a) which of two or more coordinate rules
to apply; (b) to determine what the lawmaker intended to
prescribe by a given rule; (c) to meet deficiencies or excesses
in rules imperfectly conceived or enacted. The first two are
cases for genuine interpretation. Austin holds that the third
case, when treated as a matter of interpretation, calls for
spurious interpretation. Really it is a judicial finding or
making of law where legislation or the judicial or juristic
tradition is deficient, and ought to be recognized as such.
It should be noted that Austin here unconsciously as-
sumes natural law. He assumes an ideal or perfect principle
which the lawmaker imperfectly conceives, and so imper-
fectly declares, or imperfectly declares for some other rea-
son. Note also that Austin adopts civilian theories of inter-
pretation of the Digest. Where one uses the Digest as a
law book for the modem world, his difficulties will be: (a)
to determine which of two or more texts of coordinate au-
thority to apply (compare the problem of a common-law
court, which of two cases or lines of cases to apply); (b)
to determine what was intended to be prescribed by a given
text of the Digest; (c) to meet what, from the standpoint
of the end of the law, are deficiencies or excesses in texts of
the Digest when used as a law book for the modern world.
As Austin puts it, the object of genuine interpretation is
to discover the rule which the lawmaker intended to estab-
lish; to discover the intention with which the lawmaker made
the rule, or the sense which he attached to the words in
which the rule is expressed. It belongs to situations for
 SOURCES AND FORMS OF LAW

which rules are fully provided in advance. Its object is to

enable others to derive from the language used "the same
idea which the author intended to convey." But it happens
frequently that the lawmaker's idea was imperfectly con-
ceived. He did not work it out with sufficient completeness
or with sufficient exactness, so that supplementary lawmak-
ing becomes necessary. This also is commonly called inter-
pretation. But it is quite another thing than the type of
interpretation first spoken of. It is not in a strict sense
interpretation at all. Austin named it spurious interpreta-
tion. But, as said above, Austin's genuine interpretation
and his spurious interpretation do run into one another to
a certain extent.
As Austin sees it the object of spurious interpretation is
to make, unmake, or remake, and not merely to discover.
It puts a meaning into the text as a juggler puts coins, or
what not, into a dummy's hair, to be pulled forth presently
with an air of discovery. Analytically it is a legislative
rather than a judicial process, made necessary in formative
periods by the poverty of principles, feebleness of legislation,
and rigidity of rules characteristic of the earlier stages of
development of a legal system. So long as law is regarded
as sacred, or for any reason as incapable of alteration, such
a process is necessary to growth. But surviving into periods
of legislation it may become a source of confusion. Such
survival, however, like the survival of fictions, of implications
in law, and of such terms as "constructive fraud," is inevi-
table in any system. While it is a chief mode of growth in
the formative period, in the period of growth by juristic
speculation, which is the classical period in a legal system,
it becomes a settled doctrine, and passes into succeeding
periods of legislation as an undoubted judicial attribute. As
legislation becomes stronger and more frequent, examples
of this type of so-called interpretation become less common.
But where there are century-old codes which have to be
applied to wholly, new situations, there has to be much of
 NOTRE DAME LAWYER

it. The case is not unlike that which arose when the Digest
had to serve as the common law for Continental Europe
from the twelfth to the seventeenth century. With us, on
the other hand, no theory of interpretation is needed in order
to overhaul our traditional case law from time to time. The
most conspicuous example of spurious interpretation in re-
cent American case law is the attempt in some jurisdictions
to read into the statutes governing descent an exception ex-
cluding the heir who murders his ancestor. But this result
is better and now generally reached by imposing a construc-
tive trust, without resorting to so-called interpretation.
None the less, the genuine character of this so-called inter-
pretation remains to a great extent unquestioned. Law
books continue to discuss it as a form of interpretation
ex ratione legis, and courts have often confused the two.
It is often said that our constitutional law is a field of
spurious interpretation. But the instances vouched for this
are cases of application rather than of interpretation. The
interpretation of the provisions as to due process of law in
the Fifth and Fourteenth Amendments, construing them as
prohibiting arbitrary and unreasonable executive and legisla-
tive action, is an example of historical interpretation. The
decisions complained of involve application of the standard
of reasonableness and raise questions of the measure and
limits of application of legal standards.
Spurious interpretation as interpretation is an anachro-
nism in an age of legislation in the maturity of a system of
law. When new subjects which are not covered by century-
old codes arise we might as well recognize that judicial de-
cision has to find and make law outside of the codes, even
if by analogical use of materials in the codes. But this is
not a logical process of drawing out the content of the text
or finding the actual intention of those who formulated it.
That is the significant point of Geny's book. As interpreta-
tion it is a fiction. Jhering called the process, when applied
in a period of growth by juristic speculation "juristic
 SOURCES AND FORMS OF LAW . 297

chemistry." Savigny, considering it with reference to the

adaptation of authoritative texts to new circumstances, calls
it "the correction of an incorrectly expressed law." This
assumes the eighteenth-century idea. The law incorrectly
expresses the idea of natural law which it seeks to declare,
so that the process of judicial treatment of it is very like
reformation of an instrument in equity for errors of ex-
pression. But Savigny would probably have said, if pressed,
that it incorrectly expressed the people's conviction of right.
Lieber points out that it is essentially legislation. Bryce
calls it "evasion," which is from Bentham's standpoint and
is too strong. It is what I have called a general fiction. It
belongs in a class of fictions under which a general course
of procedure or general doctrines have grown up, as con-
trasted with particular or special fictions; fictions which have
enabled new rules to grow up for particular cases. More-
over, it is in large part a fiction which has done its legitimate
work. It has long been seen that special fictions are un-
necessary in and unsuited to a developed system of law.
But general fictions tend to become so deep-rooted that
eradication is very difficult. What Austin calls spurious in-
terpretation and. genuine interpretation are so commonly
confused by institutional writers that it is seldom brought
home to the student of law that there is a difference. So
long as the bulk of a legal system is in the form of case law,
this is no great matter. When the growing point shifts to
legislation and judicial lawmaking, being interstitial, is con-
fined within relatively narrower limits, the confusion be-
comes a serious matter because it obscures the real and
legitimate lawmaking power of courts and brings about
neglect to study the principles of judicial law finding and
lawmaking.
What shall we say of Austin's doctrine? Three postulates
underlie our technique of interpretation: (1) That the
statutory formula provides one or more rules, that is, pro-
vides for definite legal consequences which are to attach to
 NOTRE DAME LAWYER

definite detailed states of fact, (2) that the formula was

prescribed by a determinate lawmaker, that the lawmaking
collectivity of modern states is analogous to the individual
sovereign lawmaker of the later Roman Empire, and hence
had a will or intention the content of which is discoverable
and to be discovered; (3) that the formula prescribed was
meant to cover a certain definite area of fact discoverable
and to be discovered, and hence that when that area is
fined the formula is meant to cover all detailed situations
of fact within it and the intended rule for any such situa-
tion of fact within it is discoverable and to be discovered.
What Austin calls spurious interpretation results from the
third postulate.
It is easy to attack these postulates as not in accord with
reality. Yet for practical purposes they come as close to the
phenomena of finding the law as the phenomena come to
the postulates of any practical activity, as to which there
is organized knowledge. For example, Einstein may have
proved that we live in a curved universe in which there are
no planes or straight lines or right angles. But we do not
on that account give up surveying since the results on the
basis of the postulates are near enough to reality for our
practical purposes.
As to the first postulate, it is seldom that a legislative
body in a common-law jurisdiction attempts more than rules
for definite detailed states of fact. When it purports to do
more it usually simply declares the pre-existing law. Of
late, legislation has more and more set up standards. But
here, again, the standards are not of general application
throughout the field of law, as, for example, in case of the
common-law standard of due care, but are imposed with ref-
erence to particular defined subjects or situations. In ef-
fect, the first postulate expresses the attitude of the common-
law lawyer toward legislation.
As to the second postluate, the formula was drawn up
by some one to some end, and agreed upon by at least a
 SOURCES AND FORMS OF LAW

majority of the members of a legislative assembly. To

think of a collective lawmaking body in terms of an indi-
vidual lawmaker, for such cases, is something very different
from postulating such a lawmaker with reference to a body
of traditional law or with reference to general provisions of
a bill of rights formulating a long course of legal and politi-
cal experience of English-speaking peoples. It is for the
latter sort of provision that Kohler's theory of sociological
interpretation is useful. The second postulate comes close
to the facts for ordinary statutes. They are usually drafted
by some one person to meet some one grievance in some one
way and then given the guinea stamp of the legislative body.
The third postulate has chiefly to do with statutes cover-
ing a whole field, not a particular situation of fact, and so
designed to cover that field completely, such as the Negoti-
able Instruments Law. It puts everyday situations in gen-
eralized form. Where legislation in common-law jurisdic-
tions is not of the usual type, dealing with one question or
situation only, it commonly formulates or restates authorita-
tively the results of judicial and doctrinal development of
some subject with occasional substitution or interpolation of
new rules. It is chiefly the latter which call for interpreta-
tion in such cases.
Gray pointed out the chief difficulty in connection with
the third postulate. Frequently those who framed a formula
to cover some field to the exclusion of the traditional law
did not have in mind some particular state of fact which
none the less is included in the field covered and so is within
the purview of the formula. Often they could not have had
it in mind. Thus there was no intent as to the legal result
to be attached to that state of facts. Yet the postulate re-
quires courts to assume that the lawmaker had it in mind,
and had in mind a legal result appropriate thereto. It re-
quires them to work out the application of the formula to
the facts. in question on that basis.
 NOTRE DAME LAWYER

In such cases what Austin calls spurious interpretation

is legitimate and necessary. Like all postulates of applica-
tion of organized knowledge to practical action, the third
postulate is a generalized expression of a practical means
of meeting the problem presented. In the application of
statutes we have to take account of the needs of those who
must advise and of those who must decide. Those who must
advise require predictability. They require certain fixed
assumptions from which they may proceed with reasonable
assurance whenever a legislative formula is not to be adhered
to strictly. On the other hand, those who decide demand
a margin for doing justice in the particular case. They seek
a freedom to mold application of the formula to exigencies
of unique as contrasted with generalized states of fact. On
the whole, we have sought to maintain the general security
and uphold the economic order by postulating a legislative
intent to be derived from the given text by a known tech-
nique, and to secure the individual life by the scope of ad-
justment to particular situations afforded by the technique.
There is, however, another type of spurious interpreta-
tion resulting from the confusion of ascertainment of an ac-
tual intent and determining a postulated intent under the
one name of "interpretation." As a result of this confusion
an idea grows up that interpretation means affixing to a
legal formula any meaning which is required to bring about
a result dictated by convenience or expediency or individual-
ly conceived policy. This idea was urged vigorously dur-
ing the agitation for recall of judges and recall of judicial
decisions at the beginning of the present century. Such "in-
terpretation" suggests the story of the waiter who, on an
order for beefsteak, brought in mutton and explained that
it was a mutton beefsteak.
(2) Interpreting the legal precept - genuine interpreta-
tion. The means of genuine interpretation are direct and
indirect. The direct means are (a) the literal meaning of
the language used, and (b) the context. As to this it has
 SOURCES AND FORMS OF LAW

been said: "We do not inquire what the legislature meant;

we ask only what the statute means." But what the statute
means is arrived at on -the basis of the first and second of
the postulates set forth above. The first of the direct means
of interpretation, the literal meaning, assumes that the
statute means and hence the legislature meant what the
statute says. However, cases are met with continually
where the literal meaning could not have been meant. The
simplest cases are those of rank absurdities where the real
meaning is none the less palpable, such as the statute for-
bidding discharge of loaded firearms in a public road or
highway "except for the purpose of killing some noxious or
dangerous animal or an officer in the pursuit of his duty."
Such things used to result from addition of clauses at the
hurried end of a session or after conference between the
houses. Also ambiguity is not unlikely to be involved in al-
most all use of words. Bentham's ideal of legislative use of
language such that one word shall always mean one thing
is not likely ever to be realized. Changes in the meaning
of technical terms have to be reckoned with, as, for example,
in the word "contract" as used in the clause of the federal
constitution as to the obligation of contracts and the mean-
ing which that word has come to have in the present century.
In the case of constitutional provisions historical interpre-
tation is often necessary. Hence courts have had to caution
against too much dependence on the plain meaning of plain
words. On the other hand, a counter caution against
spurious interpretation is no less necessary. Thus a number
of canons of interpretation have arisen as a result of ex-
perience of difficulties as to literal meaning.
When, as often happens, the primary indices to the in-
tention of the lawmaker fail to lead to a satisfactory result
recourse must be had to the indirect means, which are: (a)
The reason and spirit of the rule and (b) the intrinsic merit
of the possible competing interpretation. Here the line be-
tween a genuine ascertaining of the meaning of a law and
 NOTRE DAME LAWYER

a making over or restriction of or adding to it, under the

guise of interpretation, becomes difficult to draw. Strictly
used, both of these indirect means are means of genuine in-
terpretation. They are not covers for the making of a new
precept. They are means of arriving at the intent of the
maker of an existing precept. The first of these indirect
means, by considering the reason and spirit of the precept,
seeks to find out what the lawmaker meant by assuming his
position, in the surroundings in which he acted, and en-
deavoring to gather from the mischiefs he had to meet and
the remedy by which he sought to meet them his intention
as to the particular point in controversy.
Austin, following the civilians, distinguishes interpreta-
tion ex ratione legis as extensive or restrictive. The law-
maker, in formulating the precept in a statute, may conceive
the intended end imperfectly and so may not follow out its
reason with logical completeness or may not follow it with
logical exactness. Hence, as formulated, the statute may
fail to cover some case or class of cases which are within
the reason, or it may include some case or class of cases
which would be excluded by logical adherence to the rea-
son. Here there is a creative so-called interpretation which
is a judicial lawmaking. But it may be that looking at the
statute as a whole with reference to its reason and spirit
the language is broader or narrower than what the lawmaker
may reasonably be taken to have meant when we come to
apply it to some particular state of facts. In such case we
have a genuine interpretation, restrictive or extensive of the
literal meaning of the text, reached from the text when ap-
plied to cases without or within its reason as disclosed by
the text, looked at in its relation to the pre-existing law and
the situations of fact it failed to meet adequately. As Aus-
tin sees it, the difference is between extension or restriction
of the meaning of the words in which the statute is expressed
and extension or restriction of the statute itself. Such a
line is not easily drawn. Indeed, it cannot be drawn with
 SOURCES AND FORMS OF LAW

precision. In the Roman and modern Roman law, where

the received technique is one of reasoning from the analogy
of legislation, there is no need of it. The common-law
technique, which develops judicial decisions by analogy but
does not reason from the analogy of statutes, logically re-
quires the distinction. But the medieval judges and Coke
in his commentary on the great statutes of Edward I used
extensive interpretation freely, and to some extent judicial
finding of law by restriction or extension of the legislative
text is established in our law. At common law we may say
that when interpretation with reference to the intention of
the lawmaker, as drawn from the reason of a statute,
stretches the words to cover what is regarded as their clear
meaning, it is extensive. When it does not give the words
their full meaning so as not to go beyond what is held to
be the lawmaker's intention, it is restrictive.
According to the classical statement, interpretation should
take into account the old law, that is, what the law was be-
fore the statute, the mischief against which the law did not
provide or provide adequately, the remedy intended, and the
reason of the remedy. In the leading case the word "re-
versions" was held to include remainders. But this canon
of interpretation seems to have been more used for restric-
tive than for extensive interpretation. The one received
canon which might be vouched for extensive interpretation
beyond the fair purview of the text is Blackstone's fourth
rule, that "statutes against frauds are to be liberally and
beneficially expounded." It should be noted, however, that
the American case commonly cited for this canon involved
the Statute of Elizabeth against fraudulent conveyances
which had been re-enacted in Virginia, so that the settled
English interpretation was taken to have been adopted. The
courts have often refused to apply the canon to extend the
text, using it rather to negative narrowly literal interpreta-
tions. What it comes to is that the strict interpretation ap-
propriate to penal statutes does not apply to those providing
remedies for fraud.
 NOTRE DAME LAWYER

As to restrictive interpretation, the leading American

case uses the doctrine of the reason and spirit of the law
and the canon as to the old law the mischief and the remedy,
to restrict a broad general word. There is also the rule that
penal statutes are to be strictly construed, a rule referred to
the common-law policy favorable to liberty, which has been
generally received in America, but has been abrogated by
statute in some states. The doctrine that statutes in deroga-
tion of the common law are to be strictly construed must
be considered fully in another connection. Behind much of
this is the traditional attitude of the common-law lawyer
toward statutes.
Certain indicia to the reason and spirit of a law remain
to be considered. At common law the preamble was con-
sidered not a part of the act, but was "a good mean for col-
lecting the intent and showing the mischiefs which the mak-
ers of the act intended to remedy." It has been used both
to restrict the text and to extend it. But courts have re-
fused to allow a restricted preamble to limit a clear text,
although it may be used to explain an equivocal expression.
The preamble may be useful, however, to show the legisla-
tive policy behind a statute. Indeed, it is sometimes needed
today when legislation on a newer ideal must meet con-
stitutional objections based on an older professionally and
judicially received ideal. On the other hand, the preamble
may be, as Coke puts it, "a specious frontispiece" to give
color of constitutionality or of public good to measures
which are ultra vires or in real intention harmful. What is
said in the debates on a bill is not considered, nor state-
ments of members at hearings before committees; much less
testimony of members before a court seeking to interpret an
ambiguous statute. But the remarks of the chairman of a
committee in charge of a bill which he has reported, explain-
ing its scope and purpose, may be referred to in order to
resolve an ambiguity. Even more may reports of legislative
committees be resorted to where the meaning is not clear;
 SOURCES AND FORMS OF LAW

yet only to "solve not to create ambiguities." In a strik-

ing case a badly expressed and contradictory statute was
interpreted by reference to the legislative journals, where it
appeared that the language giving rise to the difficulty was
due to an amendment at a conference between the houses
which was drawn without reference to the bill as originally
drawn. Such "legislative history" may be referred to in
order to reinforce the plain meaning, but not by way of
interpretation where the meaning of the text is clear. All
this is genuine interpretation. But there is of late a tend-
ency, especially in administrative agencies, to extend the
idea of "legislative history" to the debates and the remarks
of individual legislators and use some speech of some one
member as the basis of spurious interpretation in order to
get away from the plain meaning of unambiguous language.
Some explanation is to be found in the strictness of courts
in the last century. But departure from the established
rules as to legislative debate and as to the use of "legislative
history" leads to what Lieber called "extravagant" inter-
pretation.
If the means of genuine interpretation already considered
are not available or fail to yield sufficient light, interpreta-
tion with reference to the intrinsic merit of the possible in-
terpretations seeks to reach the intent of lawmaker still more
indirectly. It assumes that the lawmaker thought as we
do on general questions of morals, policy, and fair dealing.
Hence it assumes that of a number of possible interpreta-
tions the one that appeals most to our sense of right and
justice for the time being is most likely to give the mean-
ing of the framer of the rule. In truth, this is a phenomenon
we meet on every hand in the judicial process. The decisive
element is received ideals of the end of law and of what legal
precepts should be in consequence; and it is this measuring
by authoritative received ideals which gives a reasonable
stability and certainty to interpretation. It may come very
close to the line of making rather than interpreting. Dif-
 NOTRE DAME LAWYER

ficulties of expression and want of care in drafting require

continual resort to this means of interpretation for the
legitimate purpose of ascertaining what the lawmaker in fact
meant or must be taken to have meant. But it departs so
far from the primary indicia of legislative intent that cau-
tion in resorting to it has been insisted on.
(3) Applying the precept. Application of the abstract
grounds of decision to the facts of the particular case may
be purely mechanical. The court may have to do no more
than ask, did title pass on a particular sale, was possession
given in a particular gift of a chattel, did a particular pos-
session comply with the requisites of acquiring title by ad-
verse possession? Or application may be theoretically and
in appearance mechanical but with a greater or less latent
margin of something else. For example, take the cases with
respect to acquisition of an easement by adverse user. As
one reads these cases he cannot help seeing how much be-
neath the surface depends on the feeling of the tribunal as to
what is right in the particular case and how this is covered
up by a margin of choice between competing starting points
for reasoning. Where it seems the better solution to hold
that an easement was acquired a court will speak only of
adverse user. Where it seems a preferable solution to hold
that an easement was not acquired, the court speaks of per-
missive user. As like as not in each case there was a known
user not objected to or not prevented, which may be con-
strued either way to meet the exigencies of justice between
the parties.
But there is a more important form of application which
is of a wholly distinct type. Frequently application of the
legal precept, as found and interpreted is intuitive. This is
conspicuous when a court of equity judges of the conduct
of a fiduciary, or exercises its discretion in enforcing specific
performance, or passes upon a hard bargain, or where a
court sitting without a jury determines a question of negli-
gence. However repugnant to the nineteenth-century ideas
 SOURCES AND FORMS OF LAW

it may have been to think of anything anywhere in the

judicial administration of justice as proceeding otherwise
than on rule and logic, we cannot conceal from ourselves
that the trained intuition of the judge does play an important
role in the judicial process. It is an everyday experience of
those who study judicial decisions that the results are us-
ually sound, whether the reasoning from which the results
purport to flow is sound or not. The trained intuition of a
judge continually leads him to right results for which he is
puzzled to give unimpeachable legal reasons. This is not
interpretation. But the law may grow through the process
of application.
On the whole, the common-law canons of interpretation
are grounded in experience developed by reason and tend
to a better administration of justice than leaving interpre-
tation in each case to feelings of policy on the part of the
tribunal, which may or may not be those of the legislators.
If the canons were sometimes applied too rigidly in the last
century, it was rather because of a tendency to mechanical
handling of all law at that time than because of any in-
trinsic unsuitableness of the canons themselves. Interpre-
tation in all of its senses is no mean agency of growth in all
stages of legal development.
3. Equity, in the sense of a body of precepts of obliga-
tion superior to that of the positive law, governing the ex-
ercise of legal powers and assertion of legal rights, is a sec-
ond agency of growth which I have characterized above as
a general fiction. But equity is such a fiction only in its
origin and in its earlier stages. It is an infusion of morality
and morals into the legal system.
4. NaturalLaw. Here, also, as an agency of growth, we
have had a general fiction under which the traditional ele-
ment of a legal system has been made over from time to
time to conform to reason. In periods of growth in the past
it has been a chief agency of development. The reality be-
 NOTRE DAME LAWYER

hind natural law is that there is an ideal element in the law

- not a superior law but a part of the law. I spoke of it
fully in a former series of lectures.
5. Juristic science. In the maturity of law, juristic
science becomes strong enough to be recognized as a legiti-
mate mode of legal development and general fictions are no
longer required to bolster it up. It becomes a chief agency
of growth. By historical study the principles of the tradi-
tional element of the legal system are discovered and by
analytical study its logical content is fully developed. In
the maturity of a legal system the traditional element be-
comes a scientific element.
Two dangers have to be guarded against in a scientific
legal system, one of them in the direction of the effect of its
scientific and artificial character upon the public, the other
in the direction of its effect upon the courts and the legal
profession. As to the first danger, the law should not be
suffered to become too scientific for the public to appreciate
its workings. The legal order has a practical task of adjust-
ing everyday relations so as to meet current ideas of fair
play. It must not become so wholly artificial-that the pub-
lic look on it as arbitrary. English judges have generally
borne this in mind and there has been a real advantage to
English law in that its development has been chiefly judicial
rather than juristic. When Lord Esher said, "The law of
England is not a science," he meant to protest against a
pseudo-science of rules and doctrines existing for their own
sake, subserving supposed ends of science, while defeating
the ends of law. It is the importance of the role of jurors
in tempering the administration of justice with common
sense and preserving a due connection of the rules governing
everyday relations with everyday needs of ordinary men
that has made up for the many defects of trial by jury and
does much to keep that system alive. On the Continent a
generation ago it was thought to be one of the problems of
 SOURCES AND FORMS OF LAW

law reform how to achieve a like tempering of the justice

administered by highly trained specialists.
In the other direction, the effect of a scientific legal sys-
tem upon the courts and upon the legal profession is more
subtle and far-reaching. One effect of system is not un-
likely to be petrification of the subject systematized. Per-
fection of scientific system and exposition tends to cut off
individual spontaneous initiative, to stifle independent con-
sideration of new problems and of new phases of old prob-
lems, and to impose the ideas of one generation upon an-
other. This is so in all departments of learning. One of
the obstacles to advance in every science is the domination
of the ghosts of departed masters. Their sound methods are
forgotten while their unsound conclusions are taken for
gospel. Legal science has not escaped this tendency, Legal
systems have their periods in which system decays into
technicality, in which a scientific jurisprudence becomes a
mechanical jurisprudence.
I have referred to mechanical jurisprudence as scientific
because those who developed and adhered to it believed it
such and so called it. But in truth it was not science. We
no longer hold anything scientific merely because it exhibits
a rigid scheme of deductions from a priori conceptions. In
the philosophy of today, theories are "instruments, not
answers to enigmas in which we can rest." The idea of
science as a system of deductions has given way and the
revolution which has taken place in other sciences in this
respect has been taking place in jurisprudence also.
A purely juristic development of law (in the second
sense) is not desirable. But juristic science does an indis-
pensable work of organizing and systematizing the results
of experience of administration of justice, subjecting them
to the scrutiny of reason, thus eliminating or refining crudi-
ties, working out analogies and formulating principles and
conceptions. If law is experience developed by reason and
 NOTRE DAME LAWYER

reason tested by experience, while the experience comes

through the courts the reason is applied to it by jurists, and
the development of experience in juristic writing gives the
reason element which is then tested in the courts by further
experience.
6. Judicialempiricism. Judicial finding out by experience
of decision the practicable legal precepts which will attain
the ends of law when applied to particular cases has been
the active agency in making and shaping the traditional ele-
ment of the common-law system and has played a much
greater part in the civil-law system than jurists in the last
century were willing to admit. Logic does not give start-
ing points. They are given by reason applied to experience.
It systematizes, develops, and directs experience of decision.
The call for elimination of the reason element, which has
been heard so much of late, was in reaction from the nine-
teenth-century doctrine of a fixed body of historically given
conceptions or a complete codification from which decisions
were to be deducted by a purely logical process. There is
not the irreducible contradiction between Coke's saying that
reason is the life of the law and the saying of Mr. Justice
Holmes that "the life of the law has not been logic; it has
been experience" which has been assumed. Coke wrote in
the transition from the strict law to equity and natural law.
The rigidity, technicality and disregard of the moral aspects
of controversies characteristic of the strict law were giving
way to reason and this was the life of law in a stage of
liberalization. Holmes wrote in the maturity of law, when
there was a certain going back to the strict law and ex-
perience seemed to show the path to the liberalization which
was to come in what I have called the socialization of law.
In this connection "reason" and "logic" are not synonymous.
The reasoned critique of legal precepts and adjustment of
them to morals and a philosophical ideal which characterized
the seventeenth and eighteenth centuries and the logical ap-
plication of established precepts and deduction from re-
 SOURCES AND FORMS OF LAW

ceived conceptions which were believed in in the nineteenth

century are not identical. Finding of principles behind ad-
justments of relations and orderings of conduct by ex-
perience, and developing those principles by reason, has been
quite as much the agency of growth as the experience itself.
Experience of how to make workable particular adjustments
is organized and made available for new cases by reason,
which formulates starting points for working out new ad-
justments for new situations of fact.
Creative judicial empiricism has been notably evident in
Anglo-American equity. One example may be seen in the
way in which Lord Eldon, who, if ultra-conservative in
politics, was often very bold as a judge, opened the path
for equitable securing of interests of personality. Sir George
Jessel put the matter well: "Take such things as these:
the separate use of a married woman, the restraint on aliena-
tion, the rule against perpetuities, and the rules of equitable
waste. We can name the chancellors who first invented
them, and state the date when they were first introduced into
equity jurisprudence." The case in which he said this is
a landmark in the law of trusts. In the law of torts one may
vouch Pasley v. Freeman, Davies v. Mann, Lumley v. Gye,
and Rylands v. Fletcher for like judicial establishing of new
starting points. Indeed, in Rylands v. Fletcker judicial
empiricism has on the whole succeeded in establishing a
category of liability in spite of vigorous juristic opposition.
It should be noted also how judicial empiricism could work
out escape from dogmas developed from the the common-
law forms of action, from procedure, and from reasoning
from badly chosen premises.
But there are limitations on judicial empiricism growing
out of what Mr. Justice Holmes called the interstitial charac-
ter of judicial lawmaking. This has two effects. Sometimes
it narrows the application of experience and instead of
"broadening down from precedent to precedent" narrows a
principle down through a series of decisions till a large part
 NOTRE DAME LAWYER

of it may be lost. The blame for this must rest partly upon
a type of text writers who announce a narrow rule upon the
basis of some particular case and partly upon the idea in
the stage of strict law and in the maturity of law that law is
a body of laws thought of as rules in the strict sense. Second,
there is an effect of the need of stability and certainty and
uniformity, sometimes leading to obstinate adherence to an
ill-conceived precept when its results in application are un-
fortunate although often a way round by resort to estab-
lished principles is not difficult. This requires considera-
tion of the doctrine of stare decisis, now under severe attack.
But that subject would require at least a lecture, if not a
course of lectures, by itself. There are real difficulties in
the judicial process which I do not pretend -to deny nor
seek to ignore. But those which give rise today to attacks
upon stare decisis have to do more with interpretation of
statutory and constitutional precepts and with application
of standards than with the following in private law of au-
thoritative precepts established by judicial decision.
7. Compa'ative law. Commericial law has been the field
in which comparative law has chiefly served as an agency
of developing the traditional element of legal systems. In
the development of the Roman law of legal transactions
Greek commercial custom played an important part. In the
development of commercial law in England in the seven-
teenth and eighteenth centuries, Lord Holt in particular
often referred to the Roman law and to civil-law treatises.
In one case he went so far as to justify his citation of such
authorities by saying that "the principles of our law are
borrowed from the civil law, and therefore grounded upon
the same reason in many things." Lord Mansfield, who,
after Lord Holt, is regarded as the founder of English com-
mercial law, also made free use of the civil law. As a re-
sult, English law books of the latter part of the eighteenth
century and the fore part of the nineteenth century make
copious reference to civilian texts and effective use of them.
 SOURCES AND FORMS OF LAW

At the same time in America the exigencies of commercial

law, on which there was no useful material in Coke and
Blackstone, led to an increasing resort by the courts to the
civil-law treatises. Kent's Commentaries on American Law
did not appear till 1826-1830. The first of Story's treatises
appeared in 1832. For over a generation the civilians had
this field to themselves. The decisions of the Supreme
Court and of the Court of Errors and Appeals in New York
in the first two decades of the nineteenth century constantly
cite the Continental treatises, particularly Pothier. From
commercial law this tendency to rely upon the civilians
spread for a time to private law generally and civilians were
cited on purely common-law questions as late as 1854, al-
though the state constitution made the common law the rule
of decision in the courts. Examples might be drawn, though
to a less, extent, from the whole country.
In effect, the result was a conception of comparative law
as declaratory of natural law, a conception which is especial-
ly marked in the writings and judgments of Kent and Story.
It was not merely creative, it made for stability and gave
direction both to judicial decision and to doctrinal writing.
It was the most efficient of the instruments by which the
great text writers of the formative era were able to bring
it about that the English common law should be the basis
of the law in all but one of the United States.
8. Sociological study. This is something which might
well be a leading agency of growth of the traditional ele-
ment in the law of today. But as things are it is available
for legislation rather than for the judicial finding of law.
Courts are not organized to carry it on nor is it something
that ought to be carried on by them or immediately under
their auspices. The need of it as an aid to the courts has
been well put by Mr. Justice Cardozo. Until we get a
ministry of justice to do this work as it ought to be done,
it can only be the task of private foundations and research
institutes and of societies interested in social work, and must
314 NOTRE DAME LAWYER

lack the continuity, comprehensiveness and authority which

it ought to have. Study by individual administrative
agencies for their own purposes cannot supply what is needed
for the everyday tasks of the private law in the society of
today.
Roscoe Pound.