Page:The Green Bag (1889–1914), Volume 17.pdf/12

 The Green Bag VOL. XVII.

No. 1

BOSTON

JANUARY, 1905

A SCIENTIFIC SCHOOL OF LEGAL THOUGHT

I

distinct schools have in succession held the field, more or less, of legal education in English and American law, the analytical of Bentham and Austin and the historical school founded by Sir Henry S. Maine; though the first-named, conspicuous in England in its day, hardly played any part at all in America. Discussed here with interest some thirty years ago, as expounded by its more recent masterspirit Austin — Bentham had long been only a name — it was discussed on the whole adversely, and soon passed by altogether, to give place to the historical school, so far as any distinct school of legal ideas followed. In England too, the school of Bentham and Austin failed to take root and has been entirely superseded by the historical school. The latter holds its place, wherever it has been received, in undiminished favor.

I will not attempt to set forth in detail the characteristics of these two famous schools; someone else perhaps will do that. It will be enough for my purpose to remind the informed, and to intimate to the uninformed, that the analytical school threw aside the teachings of history, except such as were permanent in nature — and these could hardly be called historical — and planted itself on its own conception of the nature of rights and law. On that footing Bentham could serve up codes and constitutions according to taste. These were the palmy days of a priori law — for Bentham.

The name "historical school" suggests what that school stands for. The law is to be found altogether in books; search the precedents, apply legal reasoning, and the result will be the law of a case not specifically covered by authority — so far indeed the historical school agrees with most current teaching of whatever school or of no school. But beyond this the historical school directs the student's attention to the study of legal history, as found in historical collections of precedent or other authority, as the true and main source of our present law. The whole of the past, as far back as the Norman era, is to be placed before the student, not because all of this, or the greater part of it, may be necessary to explain the judicial law of our day, but because there is one continuous stream of law from the earliest times to our own. The student is directed to the study of law as declared in former times because it is an earlier part of the stream — in that sense the source of law. An interested witness, and to a considerable extent a follower myself of this school, I must leave the special discussion of it to others, while I try to point out my preference for another. Suffice it for my part to say that it seems to me that the historical school, in professing to teach exist ing law through history primarily, confuses history with (what certainly should be taught) the sources of law in the proper sense of the word. Having regard merely to the existing law, legal history as such is for the historian, though history which throws light on the law as actually administered by our courts is a necessary part of a sound education for the bar. I shall come to that subject again.

I am persuaded that there is something