Page:The Green Bag (1889–1914), Volume 22.pdf/445

 The Editor's Bag

421

To lay too much stress on these differ ences, however, is to slight the under

We will not admit, then, that there are “countless diﬂerences," but there

lying unity.

are of course differences, and they cannot, in so far as they are radical

Do we Americans really

live under a heterogeneous system of

laws?

Are there ﬁfty distinct versions

of each legal doctrine, one for each of

and social, be removed merely by the use of printer's ink. But in so far as

the ﬁfty jurisdictions? As a matter of fact, the ﬁfty jurisdictions are in accord as to most matters of principle, and rarely break up into more than two groups in the application of the prin ciples. In these groups there is unity.

they are merely superﬁcial and casual they may be, in time. To recur to our

Take, for example, the doctrine as to

the law of the place of performance. The rule that it is determined by the law intended by the parties, which is the rule toward which we are tending

what law governs the validity of a

contract, on which Professor Beale has written so luminously (see 23 Harvard Law Review 194, reviewed in 22 Green Bag (Feb. 1910) p. 119). He ﬁnds three forms of the doctrine,

prevailing in three groups of states.

There are, therefore, in this case, in stead of “countless differences," only three divergent principles, and con

sidering the fact that there are ﬁfty jurisdictions, the situation is relatively one of unity rather than of diversity.

illustration, it is hard to see anything radical or social in the doctrine that

the validity of a contract is determined by the law of the place of making or by

according

to

Professor

Beale,

may

reasonably be hoped to prevail some time throughout the United States. already prevailing in a greater number

of states than the other rules, and in an expository code it would properly be given a leading place as the preferred rule. We cannot conceive of any sound

objection to such a procedure. Moreover, the differences which Pro

So in the case of the entire body of

fessor

legal doctrine; examined in its minutiae

largely from the bewilderment of judges

it is relatively homogeneous rather than

geneity by every possible device and

on account of their inability to turn immediately to an orderly system of legal doctrine for the rules applicable

make it more perfect is a legitimate

to cases before them.

undertaking. But it will perhaps be contended that these mimetic? are sus ceptible of countless combinations, and

fessor Pound :—

heterogeneous, and to foster this homo

that

while

individual

doctrines

will

not split up into more than three or four forms, the entire body of the law

is in fact to be found existing in ﬁfty distinct systems. This is a false position, because it ignores the relative homo geneity of our corpus juris and conceives of a diversity which a little analysis will show to be wholly imaginary. The

concept of a fundamental heterogeneity baming every attempt to overcome is, in fact, unscientiﬁc and absurd.

Wigmore

has

in

mind

arise

To quote Pro

"There are suggestions here and there, and a powerful judge now and then draws a principle from the mass of rules. In general, however, the courts are too often forced to reach a conclusion on the large equities of the cause and forage in the books for cases to support it. This makes our written opinions a mere ritual. Sooner or later a system of our law must come." (See 22 Green Bag 105.)

Under present conditions there is a besetting danger for the judiciary to

regard as intricate what is actually simple. As Hon. Frederick W. Leh mann of St. Louis has said :—