Then came a remarkable reaction, and the books that were among the best sellers were those which not only dealt with serious and difficult subjects, but attempted to cover the whole field of human development. How else can one explain the extraordinary success of Durant’s “Story of Philosophy,” which restates the mystical, and at times incomprehensible, speculations of great philosophers of all times?
If a book on philosophy can thus prove a best seller, how much more should a book on the history of the law, for the law is the concrete realization of philosophy. It is the synthesis of all the speculations of the ages as to the rules of human conduct, imposed in order to protect, not merely society as an organism, but the individual, from evil.
Moreover, the law is the microcosmic history of humanity. This book discloses the long wearisome climb of man through the ages to the heights which he now occupies, and from which he is ceaselessly pressing forward to even loftier summits of human achievement. The law concerns every human being. It is always with us, and directs the path of our destiny from the cradle to the grave. Even after we have joined the great majority, it is the law that determines what disposition shall be made of the property of one who no longer lives to protect his rights, and who, being dead, can have no rights.
Moreover, the law is identified with the whole history of human progress, and especially the progress of political society, as successive generations of man have walked with bleeding feet their via dolorosa from slavery to freedom. The dramatic episodes of history are generally connected with the law, and to every citizen who loves his country the events which have the greatest appeal are within the scope of this book. Our American epic struggle for independence was to vindicate an unwritten law as to the right of taxation, and no episode in our history is of greater dramatic interest and more creditable to the American people than the ability of the Fathers in a time of anarchy to meet in high convention, and, after discussing the fundamentals of human society for over four months, to draft a comprehensive charter of Government.
If this book is fortunate in its subject matter, it is doubly fortunate in its author, and here the writer of this introduction may justifiably indulge in a feeling of satisfaction. The publisher did me the compliment to ask me to suggest some American lawyer to write this book. I had some familiarity with the outstanding men of the American Bar. As Solicitor General of the United States for four years, I had occasion to meet distinguished living members of the American Bar from all sections of the country. To be asked to suggest the name of one of them was a task at once delicate and difficult. The difficulty lay in the curious fact that few lawyers are philosophers, and still fewer philosophers are lawyers. The reason is obvious. Philosophy deals with the abstract and law with the concrete, and while every lawyer ought to understand the philosophical basis of the law, he generally finds both his time and energies fully employed in determining what the law is, and he thus has little time for its philosophical justification. “Sic ita Lex” is the spirit in which he pursues his daily tasks, for he has little time or disposition to ask whether the law is a good one or a bad one. It is enough that it is the law, which the Courts will presumably enforce, and he must reckon with reality and not the abstract.
On the other hand, the philosopher, living in the rarefied atmosphere of abstract speculation, has little opportunity to study the practical problems of human laws in concrete application. It is for this reason, I suppose, that the most learned theorizers on the subject of the law, the learned professors in our law schools, neither have, nor have had, much practical experience in the administration of the law, and, on the other hand, the successful practitioner, who is confined to realities, has too often scant knowledge of the history of the law and its purely philosophical justification, and his attitude to it is a narrowly pragmatic one.
My task, therefore, was to suggest someone who was both a practical lawyer and a true philosopher, and if there be many such at the American Bar, the writer has yet to know them.
Even more was required, if this important book was to be worthy of its exalted subject. It required a lawyer who not only had a great gift of lucid expression, but that fine imagination which enables the deep thinker to convey his ideas to minds of a different caliber. Doubtless there were some philosophers at the Bar who could have written very learnedly on the subject, but whose treatment would have been obscure to the ordinary mind and of the dry-as-dust school of history. Others might have had the requisite clarity in expression, and yet they would lack that fine gift of imagination which makes the true teacher and enables him by charm of direction and telling analogy to hold the attention of readers to a subject which would not ordinarily attract their interest or enlist their sympathies.
The writer of this introduction happily recalled the reading of some legal essays of such unusual learning and clarity of diction that they had lingered in his memory. They were contributed to the Law Journals by a distinguished member of the Chicago Bar, who is the author of this book. I know of no one who so finely united the qualities to which I have referred, and I am sure that the readers of this book will confirm my estimate of its distinguished author’s rare qualifications for a very difficult task. I believe I have done the thoughtful readers of this generation a real service in suggesting to the publisher that John M. Zane be invited to expound the history of law to the average man, and I am heartily glad that he consented to do so. Some great jurist once said that every lawyer owes a duty to his profession to write a book, and if so, Mr. Zane has now richly paid his debt, not only to his profession but to the reading public.
He has done so with surprising skill, and I know of no lawyer who could have done it better. Sympathy, imagination, varied knowledge, diction as crystalline clear as a mountain stream, and philosophical insight—all these great qualities are disclosed in these pages. The book is a real contribution to the literature of the day, and it will make its readers, whether lawyers or laymen, better citizens.
THE STORY OF LAW
ALMOST EVERYONE of ordinary information understands very well what is meant by the word “law,” but even the most learned jurists, when called upon to give an accurate definition of the term, find themselves at a loss. No jurist has yet achieved a definition of law that does not require the use of the idea of law, either implied or expressed, as a part of the definition. All will agree that the word in its meaning implies a set both of general principles and of particular rules. Upon law what we call rights are founded, and by it wrongs are forbidden; but if we ask the meaning of the terms “rights” and “wrongs” we simply move around a circle by saying that rights are what are legally recognized as rights and wrongs are what the law defines as wrongs. Thus we get back to the place whence we started.
A celebrated judge in this country has defined law as “a statement of the circumstances in which the public force will be brought to bear through the courts,” but this definition makes an immaterial matter the substance of the definition and ignores altogether the idea that a law is a rule.1 Law would exist without public force applied, for long before there were courts there was a great body of law that a man was bound not to violate and that was generally obeyed. The fact is that no one can go any further than to say that law is a part, and only a part, of the now large body of rules that govern men in