Page:The Green Bag (1889–1914), Volume 20.pdf/42

 THE UNWRITTEN LAW when he perceived, felt, knew, that it was a real factor of juridical thought and knowl edge. All at once the pages of the reports were enlightened with it. He no longer felt surprised and confused by the opinions of the judges. He began to see the true significance of the maxim, "The law is what the judges judge it to be." He approved their reasonings with satisfaction, or_ con troverted them with confidence. He knew the Common Law. He might not be able to define its limits, but found he had what he thought an instinctive knowledge of •what it is and what it is not. Under these circumstances it will not be expected that an absolutely exact definition of the Common Law will be attempted, though I by no means concur with those eminent jurists who believe such a definition impossible. I shall seek only to indicate some of the ordinary reasons for uncertainty, and consider some phases which I trust may enable the young practitioner more clearly and readily to apprehend the scope and character of our Common Law and under stand how, without differing materially in the principles it enunciates, its effect upon the character of the peoples subjected to its influence are so remarkable as to justify the declaration that it is the keystone of Anglo-Saxon civilization. And first I note as one of the reasons for this indistinctness of apprehension, the fact that the terms used in explanation or as synonymous equivalents, have been affected with a like indefiniteness. Leaving out of consideration that use of the term which makes the Common Law the equivalent of all English or American law, which is in fact only a synecdoche by which the dis tinguishing feature of Anglo-Saxon law is used to signify the whole, and that other use which applies the term to the general jurisprudence of any country, as well as that specific significance which is used to express the technical distinction between legal and equitable jurisdiction by desig nating the former as Common Law Courts,

II

we find one term used almost universally in explanation of this most important factor of our jurisprudence, which is, if anything, a little more confusing than the term it is employed to explain. This term which I doubt not is on the lips of every professional hearer even before I utter it, is the lex non scripta. The Common Law we say first of all to the student, is the unwritten law of England. One cannot but sympathize with the wondering incredulity with which the student listens to the astounding state ment that the Common Law is that body of laws, principles, customs and traditions which have never been, and can never be reduced to writing, which yet may be found in the volumes of reports and which he is expected to glean from the works of elemen tary writers upon law. The idea of sending a man to search for unwritten law between the lids of a printed book is absurd enough to justify any sort of objurgation on the part of the student or the intelligent lay man who would like to obtain, without a lifetime of application, some knowledge at least of the character, if not the extent, of the Common Law. Such a bit of self-contra dictory explanation is small help to the learner, and it seems to be quite time that a profession boasting of its scientific char acter began to use definitions that really define. Yet, properly understood, the ex planation throws not a little light upon the question under consideration. The un written portion of Anglo-Saxon judicature is indeed to be learned from books, yet those books do not declare the law. This un written law embraces, as every tyro knows, an immense proportion of our law. It is usually said to embrace all that has not been expressly formulated by some author ized law-making, or rather statute-pre scribing, power. But even this broad definition is too re stricted. A very considerable portion of this lex non scripta is composed of the opinions of the courts construing specific statutes.