Page:The Green Bag (1889–1914), Volume 17.pdf/18

 A SCIENTIFIC SCHOOL OF LEGAL THOUGHT There is another difficulty laymen often feel, of a more general nature, which they would perhaps call an excessive fondness of the judges for reasoning, without due regard to what, if taken into account, might modify or even nullify the result. There is, I think, good ground for this complaint. The effect may be a true case of a priori law; that will be so when some just custom or practice, which might decide or materially affect the decision of the case, has not been considered. It is one of the boasts of our judicial law that it is a law of reason; of the significance and value of that fact Sir Frederick Pollock has written eloquently in the last of his lectures on The Expansion of the Common Law. Sir Frederick has there told us that this law of reason is the sub stantial and intended equivalent of the famous and salutary law of nature in Roman jurisprudence. There may have been no ground to complain, among the Romans, that this law was sometimes expounded without sufficient regard to actual life; I do not know, but one may believe that the Roman jurists generally were very prac tical men and would not be misled into reason ing not founded on the pursuits of men. Be that as it may, it certainly cannot be said that our law of reason is always ex pounded with sufficient regard to relevant facts. Reasoning of the judges may not be "in the air "; it seldom is — it is generally legitimate reasoning on the facts upon which it professes, to proceed. It is correct in purpose; but the objection is that the judges should have directed inquiry in many cases into the habits, custom, or practice of j men in the particular situation, and that the inquiry properly pursued would have brought to light facts which would have i more or less vitiated the reasoning. This is particularly apt to be true of branches of law which have sprung from the custom of merchants, such as the law of negotiable instruments, the law of insurance, and the law of partnership. Judges reason, in these cases from common law doctrines of con

tract, a subject with which negotiable in struments and insurance particularly are much at variance; so much so, it should seem, that judges should at once be put upon their guard. Much a priori law has been engrafted upon the subjects named because of this tendency of the judges to reason from the common law. The dan gerous feudal and anti-mercantile doctrine of joint contract, already referred to, has been fastened upon commercial instruments and partnership, as if of course, with all the evil train of common law consequences. In the law of insurance judges will, to refer to a single case, reason of warranty from warranty in the common law subject of sales, to the confusion of the whole doctrine as custom has it. We must not boast too much of our law of reason. The lesson of danger should be plainly taught. The layman's complaint has a good foundation; the only answer to it is, that the judges, notwithstanding their excessive faith in reasoning, are faithful in intention to the theory of rights as laymen themselves would define the term. My friend brings forward still another subject of grievance which he, being a lay man, can only define, for want of requisite technical learning, by saying that the pro ceedings of the courts are to him unintel ligible, and often, he is certain, work to the defeat of justice Practice and technicality, he says, constantly prevail over right. Put ting the subject of complaint into one gen eral term, his grievance is procedure. How much ground there is for the idea that procedure is out of touch with the fundamental idea of right so frequently stated in this paper, at least how much procedure has been out of touch with it, every well-informed lawyer knows full well. Time was when lawyers and judges would not admit the fact, or would admit it only with the answer that the evil, such as it was, was necessary; it was far better to ignore or endure it than that the sacrosanct laws of procedure should suffer violence. Was it not enough to sat