The Ideal Element in Law. Roscoe 1870-1964 Pound

of equity as part of the Anglo-American common law system. In Doctor and Student,⁶⁰ a foundation book in the history of English equity, a philosophical justification of the equity administered in the Court of Chancery was put in the principle of the canon law that the circumstances of human life vary so infinitely that general rules cannot be made to cover all of them. This was a characteristic idea of the canon law. Discretion guided by conscience was held necessary to justice and equity was to be governed by conscience. The idea of equity as correction of that wherein rules of law by reason of their generality are deficient goes back to Aristotle⁶¹ but got a theological color in the canon law.⁶² Conduct conforming to equity and good conscience and decision according to the Chancellor’s conscience guided by principles became ideals of Anglo-American equity.

      At the Reformation the two parallel lines of development of a science of law, the practical and the philosophical, converged. The authoritative basis of practical exposition of law had failed. The doctrine of continuity of the empire and consequent binding force of the Corpus Iuris was given up. The law was emancipated from the text of Justinian.⁶³ The authoritative basis of philosophical speculation had likewise given way. The method of the scholastic philosophers had been superseded. The unchallengeable authority of Aristotle and of the fathers of the church no longer afforded a basis for infallible deduction. The Protestant jurist-theologians of the north of Europe did not hesitate to declare that there was a sufficient basis for natural law apart from the Scriptures.⁶⁴ Grotius even went so far as to say that he could conceive of natural law if there were no God.⁶⁵ In the seventeenth and eighteenth centuries the science of law and the authority of legal precepts were rested solely upon reason. Lip service was long done to theology by naming revelation along with reason as the foundation of what was essentially a rationalist natural law.⁶⁶

      For two centuries, in the era of what is called the law-of-nature school,⁶⁷ jurists believed that a complete and perfect system of legal precepts could be built upon principles of natural law discoverable by reason and derived from the ideal of the abstract man. Thus the seventeenth and eighteenth centuries are in many respects comparable to the classical era of Roman law. The fields of jurisprudence and ethics were taken to be the same. Jurists sought to make law coincident with morals. It was sought to make legal precepts conform to what each particular writer thought on ethical grounds they should be. An era of creative lawmaking resulted, the influence of which is still felt in law and in the science of law. Reason provided systematic organization of the body of legal precepts in place of the order of the titles in the Digest, an arrangement which had been taken from the praetor’s edict since the most used treatises of the classical era were commentaries on the edict. Hence from the sixteenth century the great law books on the Continent are treatises on the law as a whole, not commentaries on the Digest, and in England, instead of the commentary style of Coke’s Commentary on Littleton and Coke’s Second Institute,⁶⁸ and the alphabetical arrangement of the abridgements,⁶⁹ there came to be systematic expositions of the law as a whole even if they sometimes keep the name of commentaries.⁷⁰

      Five notable juristic achievements stand to the credit of the law-of-nature school: The founding and development of international law, the eighteenth-century codifications on the Continent, Lord Mansfield’s rationalizing and modernizing of much of English law, the building of an American common law in the fore part of the nineteenth century from the English law of property and English legal procedure of the seventeenth century under the influence of natural law theories expounded by Blackstone and Kent, and the development of constitutional law in America on the basis of Coke’s Second Institute and Blackstone’s exposition of the common-law rights of Englishmen, taking the common-law rights of Englishmen to be the natural rights of man, under the influence of Continental treatises on natural law.

      By general consent international law, as it has been known and accepted since the seventeenth century, begins with the great work of Grotius.⁷¹ But no less by general consent that work marks the beginning of the law-of-nature school of jurists which held the ground in jurisprudence for two centuries and was a strong competitor for half a century more.⁷² The analogy of the moral duties of men in their relations with one another was made to point out the moral duties of states in their relations with other states, and an idealized form of the precepts of the matured Roman law governing the relations and conduct of individuals was taken to show what reason prescribed as the basis of positive law.

      Working out of elaborate detailed systems of natural law and a confident faith in the possibility of formulating natural law in a complete body of positive legal precepts, in a time when Continental states with well-developed legal systems seemed to have exhausted the possibilities of juristic development through the traditional element and to require a new basis for a new juristic development, together with need for one law in countries whose several political subdivisions had divergent local laws, led to a strong and general movement for codification in the eighteenth century. An Austrian Civil Code was projected in 1713. A draft was published in 1767 and a partial new draft in 1787. The code was put in force in 1811. Frederick the Great held that his legal advisers could draw up a perfect code which would require no judicial developing or interpretation and would need only to be applied. A draft was published in 1749 and a code was put in force in 1780–94. But the outstanding work of this era of codification was the French Civil Code of 1804, commonly known as the Code Napoléon. A French Civil Code was projected under Louis XIV in 1667–70, and the foundation was laid in a series of royal ordinances codifying particular subjects and by the writings of Pothier.⁷³ At the Revolution a code was demanded as a means of unification and after much delay on the part of the commission, the draft was promulgated in 1804 through the intervention of Napoleon.⁷⁴ This code still in force, though with many amendments, was copied extensively in Europe and Latin America and set the fashion until a new model was set by the German Civil Code published in 1896 and in effect in 1900.

      William Murray, Earl of Mansfield (1705–1793), Chief Justice of the King’s Bench, 1756–88, an outstanding figure in the judicial history of England, learned in Roman and Continental as well as in English law, looked at the common law from the standpoint of the law-of-nature jurisprudence of his time and did much to rationalize and liberalize the law of his time. He put the law merchant in its place in the common-law system, restating it by making intelligent use of the Continental treatises, and infused equitable principles into more than one part of the general law, notably quasi contract.⁷⁵

      In America natural-law thinking held the field undisputed in the three generations after independence. Blackstone was the law student’s first book in the law office and in most law schools until the end of the nineteenth century. Select chapters from Grotius and Pufendorf were in law school curricula till 1850. Grotius, Pufendorf, Rutherforth, Burlamaqui, and Vattel were read by law students at least to the time of the American Civil War. There can be no doubt that the believers in eighteenth-century natural law did great things in the formative era of American law because that theory gave them faith that great things could be done. Application of reason to the details of the received common law made the work of the legislative reform movement (1776–1875) enduring. In the formative era American lawyers formulated authoritatively much which jurists had reasoned out in the treatises on the law of nature in the seventeenth and eighteenth centuries. Even more it led to independent creative lawmaking such as had not proceeded from lawmakers after the era of the Civil War until the Workmen’s Compensation Acts.⁷⁶

      But it is significant that each of these achievements had in it the seeds of its own undoing.

      It has become increasingly manifest that a chief obstacle to an effective legal regime of international justice is lack of an international law adapted to the world it is to govern. In the seventeenth century Grotius wrote in an era of absolute personal sovereigns. The monarch of the seventeenth century, the Spanish king after Charles V, the French king of the old regime, the Stuart king in England, the Hapsburg ruler in Austria, was analogous to the masterful head of a Roman household. The relations of Philip and Louis, and James and Ferdinand with each other were enough like those of the Roman paterfamilias to his neighbor to make the precepts worked out by Roman jurists for the latter when idealized prove applicable to the former. So long as the political organization of society and political ideas remained much that they had been, the