Page:The Green Bag (1889–1914), Volume 22.pdf/430

 406

‘

The Green Bag

the one branch is a system by itself and every topic complete in itself. In this manner the empiricist reaches the pinnacle of his aspira tions when he achieves the proud designation of ‘specialist.’

The

institutionists, on the

other hand, maintain that jurisprudence ex ists; that it is a science, and that its practical application will reduce any body of muni cipal law to a plain, simple system, unem

barrassed by the breadth of domain, elaborate ness and minuteness of legislation or the number of rules and precedents. The talis man, the touchstone, the guiding principle in

American jurisprudence, says Mr. Andrews, is because of his "lack of attention to the essential principles which must be observed in planning a code or any elaborate system by means of which to express the law." What is wanted is a statement of the common law, not a summary which leaves the common law unexpressed and inaccessible though wrongly presumed to inhere in the language used. Mr. Andrews quotes Sheldon Amos, himself an advocate of codiﬁcation, as saying the New York Civil Code failed because— “The conception of the code entertained by

this science, as in every other, is analysis and

the commissioners was not a scientiﬁc system,

classiﬁcation."

compelling all the heterogeneous elements of existing law to enter into compartments judicially mapped out, but a republication of the statute and common law on such prin ciples of classification as might do as little violence as possible to the methods and lan guage adopted in the common text-books." The fact that Field, as well as Austin and

Moreover, as Mr. Waite said (see supra),

there is a uniform, settled system of American law, or, as Dr. Andrews asserts, “American law is an integral system." The belief of those who think that because there are ﬁfty diﬁerent jurisdictions there are ﬁfty systems of American law is clearly wrong. As Dr. Andrews well says :—

Bentham,

“The body of our law is not so vast as many are led to suppose by reason of the seeming vastness of the written records in which it is enveloped. The vast and widely scattered material embraces a comparatively small body of rules and principles capable of being brought into clear light and stated in a rea sonable compass. Many persons suppose that

we have a variety of law, corresponding with the number of jurisdictions applying it. That is, that we have ﬁfty systems of law. But all those are equivalent systems, in outline identical and in the main substantively alike. Truly, we have some divergence of construc tion, interpretation and application, but, on a given point, proposition or rule, there is, in most cases, uniformity, and it is very seldom that there exist more than two conﬂicting rules upon an identical proposition." We have, therefore, a proper starting point for a systematic statement of American law in the integrity of the system as it exists, and once we state the law in the form of a rational and uniform system, "the uniformity of the statute law will follow as a conse sequence."

There

should

be

no

mistake,

however, with regard to the course of procedure contemplated. “The main object of codiﬁ cation, or of any exposition desirable at the present day, is not the invention of new law, but better expression of that which exists." The main reason why Mr. David Dudley Field failed in his efforts to impose codiﬁmtion upon

failed, does not prove

that an

orderly system of law cannot be formulated. We may learn much from Austin. “The one essential principle of codiﬁcation and of Austin’s philosophy is classiﬁcation." And Dr. Andrews lays great emphasis on the im portance of logical classiﬁcation. “The practical working out of this great enterprise requires that system shall govern every process involved. "There are conceived to be the following different processes, every one of which must be governed by a logical system, carefully worked out : “Fi1st—The system of classiﬁcation above spoken of, giving order, showing the relative

connection of subjects, avoiding repetitions, assuring completeness, clearness and concise ness. “Second-A system of research, aiding in collecting the materials, ensuring the posses sion of the actual law, avoiding the insertion of obsolete rules. "Third—A system of examining cases, ensuring the citation of cases in point and materially reducing the bulk of ordinary citation. "Fourth-—A system of citation, facilitating historical research, ensuring exhaustive cita tion of cases which now rule the courts, and

enabling the persons using the books to refer to all the cases, from the earliest times.

“Fifth-A system of constructing the text,