Page:The Green Bag (1889–1914), Volume 17.pdf/25

 THE GREEN BAG and damage call for compensation, but men may differ in the future as they have differed in the past and now differ in regard to the ingredients of fraud. Instinct may be counted upon; but reason, and especially reasoning, will depend upon times and men. And so it should be; the past, as mere author ity, should not lay a heavy hand upon the needs of the future. But after all, the in terior structure of the law is likely to remain substantially as it is to-day, in the absence of destructive upheaval. No working of the scientific spirit is likely to tear out the inner walls of the law. Legal history in any event will have a necessary place in the study and teaching of present law, so long as history is needed to inform men of the meaning of any part of the law under which they live. Illus trations appear in the first part of this paper. The teaching of legal history, to that end, cannot be a negligible factor in the work of legal instruction in our day — in the day of the youngest of us; but the teaching of legal history to that end — as part of a course in the law as actually administered in the courts of justice to-day — should stop where it ceases to throw light on what of the law would otherwise be unmeaning or obscure. To teach legal history as such, to such an end, to teach the stream simply because it has flowed down to us, would, it seems to me, be not merely waste — it would be positively misleading — it would be put ting the chase on the wrong scent. A clear discrimination should be made between what influences the declaration of law and what may be useful for other purposes. As a field related to present law, as an outlook, the study of legal history as such — the whole continuous stream of it — will always be informing; to him who has the historic sense, it will be full of interest, and for broadening of the mind it will be of real value. On that last footing it should always have a place in our Law Schools; but this is anticipating the subject of the third part of this paper.

If then the law is to be, and to be kept, in touch with life as it is, if it is to be the obedient follower of the pursuits of men, it is plain that those who are responsible for its behavior should themselves be well in formed touching life as it is and the affairs of the people. This is essential if the law is to be placed on a perfect, scientific basis. And so of the teaching of law; that should proceed not upon a blind adherence to and statement of the effect of authority, at any rate not until authority plants itself broadly and with full purpose upon sound theory — teaching should proceed from a competent knowledge of life, with a view to training men to take the right position in regard to the true function of law. In a word a scien tific school of law should make it one of its paramount objects to see that sufficient study is made of the sources whence the law is to be declared — the sources of what ever kind, not merely the precedents, not merely the history of doctrine founded upon peculiar conditions of the past, which, not withstanding all changes, still more or less prevails, but the direct and immediate sublegal sources, — business and pursuits gen erally and the other less tangible influences which go to make up the sum total — the political, economic, psychological, and per sonal influences. Influences such as these have always played their several parts, im portant or minor, and are likely always here after to do so, in the declaration of law. Ill That the law should be brought into close touch with life — that it should "follow business "and the pursuits generally of the people — and that those who are to be chiefly responsible for sound doctrine should, in our schools of law, be trained accordingly — that is not all of what is meant by the title to this paper. In a former essay ' I endeavored to show that all special educa1 Not published.