history. The ideal of a general common law, held by Kent and Story, and governing in American law schools under the leadership of those which have taught from a national standpoint, made possible the rapid development of a law for the new world by enabling the courts in the newly peopled and newly organized states to use the whole judicial experience, not merely of the older states but of the English-speaking world. What the ideal of a universal law could do for a great department of the law throughout the world is illustrated in the conflict of laws. The commentators in the Middle Ages drew a universal theory from the Roman texts so well, on simple lines so generally acceptable,63 that this great subject has kept to those lines ever since. This is perhaps the one subject in the law governing private relations where common-law lawyer and civilian understand each other and where Story64 and Savigny65 are cited equally throughout the world.
Elsewhere I have spoken at length of the idea of relation as the basis of much of our thinking in Anglo-American law.66 Where the Pandectist thought in terms of will, the common-law lawyer has characteristically spoken in terms of relation. In that idea he has found a starting point for judicial and juristic reasoning which has come down from the Middle Ages and grown out of a medieval ideal. It may suggest Spencer’s proposition that law is a government of the living by the dead. But Mr. Justice Holmes has given us the answer: “Continuity with the past is only a necessity and not a duty.”67 It is not, for any great part, that rules prescribing definite, detailed legal consequences for definite, detailed states of fact, made by or for the dead are governing the living. It is rather that the past has given us analogies, starting points for reasoning and methods of developing legal materials that have proved themselves in experience and are still serviceable.
A third medieval shaping juristic idea was the idea of authority. Philosophically this idea had in itself the seeds of its own undoing. But it has maintained itself in law and, as the medieval lawyer worked it out as a received ideal, has endured as part of the legal equipment of the modern world.
For example, compare the seventeenth-century commentary of Coke on Littleton’s Tenures, the oracle of the law of real property in the English-speaking world for three centuries, with the gloss of the Italian law teachers on Justinian’s Digest in the twelfth century. Coke assumed that Littleton’s treatise was “the most perfect and absolute work that was ever written in any human science,” that it was a work of “absolute perfection in its kind,” and “free from error.”68 Postulating this, he analyzed it section by section and developed the content of each section and sentence and phrase so as to make it the basis of English land law down to 192669 and of American land law in most of our states today. He did for Littleton what the glossators had done for the Digest.70 To those who are familiar with the doctrinal development of the Continental codes in the nineteenth century one need say no more. To the Anglo-American lawyer I would say compare Story’s Commentaries on the Constitution of the United States71 or compare a commentary on the Uniform Negotiable Instruments Law or the Uniform Sales Act today. In each case some text is postulated as of final authority and we develop its content analytically and by logical unfolding. The philosophical science of law of the seventeenth and eighteenth centuries and the historical method of the nineteenth century each added something to our technique. But the medieval method of postulating authority, or postulating a text which can only be interpreted, which is self-sufficient, which contains in itself expressly or by implication a complete body of precepts covering the whole matter with which it deals, is one that must be employed when applying such an instrument as a written constitution or such statutes as the American Uniform State Laws, or in applying the traditional materials governing such subjects as property in land.
It must not be forgotten that this self-sufficiency of the authoritative text is but an ideal. It is a postulate for certain practical purposes. It is not an assertion of absolute fact. It may be shown that the ideals, or, if you will the postulates of straight lines and planes and perpendiculars do not conform to the facts of Einstein’s curved universe. Yet these ideal lines and planes and perpendiculars are exceedingly useful for many practical purposes. Likewise it is no matter that the postulates of our technique of interpreting and applying authoritative legal texts may be shown not to accord precisely with reality. It is easy to point out that a chief difficulty in interpreting and applying a text assumed to be complete and self-sufficient is that it presupposes an intention as to every detail on the part of the framers of the text, whereas what calls for interpretation is very likely the circumstance that as to the point in controversy they had none. The particular situation of fact did not occur to them.72 It has been easy to show that the glossators and commentators and the nineteenth-century Pandectists made the texts of the Digest announce propositions which were not the Roman law of antiquity.73 It has often been shown that Coke’s versions of the medieval English law were sometimes adaptations to the exigencies of the judicial process in the seventeenth century.74 But the answer is that in postulating intention of the lawmaker we are doing so as a means toward certain practical results. Law in each of its three juristic meanings is a practical matter. For practical purposes the postulates involved in the ideal of authority come as close to the phenomena of finding and applying the law, the phenomena of the judicial process, as the postulates come to the phenomena in any body of organized knowledge. The medieval idea of authority has given an instrument of enduring usefulness in the doctrinal development of the law and in the judicial process.
At the Reformation authority broke down on every side. In religion the north of Europe substituted unauthoritative private interpretation of the Scriptures for authoritative interpretation by the church. In philosophy the scholastic dialectical development of authoritative starting points gave way to new methods. Aristotle ceased to be ‘the philosopher.’ Philosophy was used to challenge authority, not merely to uphold it. The canon law lost its sanction and came to have little more than historical interest except as it continued to govern the internal organization of the Roman Church. Presently also the Roman law lost its theoretical binding force in western Europe with the disappearance of the academic dogma of the continuity of the empire. The universal idea and the idea of authority gave way to two ideas which proved adequate to achieve stability and to direct growth for the next two and one-half centuries. These were (1) the political idea, the idea of a national or local law, with a sufficient basis in the power of the local political authority,75 and (2) the idea of reason, the idea of law as a formulation of the reasonable, deriving its authority from its inherent reasonableness, and putting in legal form the ideal precepts which are identifiable and to be identified by a sheer effort of reason.76
Thus the medieval idea of authority went on in juristic nationalism or even localism, the political idea. The universal idea of the Middle Ages went on in what I have called positive natural law, an ideal of a universal superlaw, discoverable by reason, to which local law ought to conform and of which the local law at its best is a reflection.
Nationalism, in the form of faith in a self-sufficient local law, took a strong hold upon the imagination of Americans in the nineteenth century. For a long time the several states took a certain pride in anomalies of local decision and local legislation as things to be cherished for their own sake. As late as the beginning of the present century there was in many quarters a sort of cult of local law.77 Even now, when this worship of local legal anomalies has become a thing of the past through the teaching of a general common law in university law schools which have taken the lead in training for the legal profession, effects of the cult of local law embarrass business and enterprise in more than one connection. For example, the Uniform Negotiable Instruments Law has been on our state statute books for more than half a century. It lays down detailed rules which have been adopted usually in identical language by the legislatures of the several states with the avowed purpose of making the law on this subject uniform throughout the United States. Yet this statute, very much needed and urged by bankers and business men, has not completely achieved the desired uniformity. Courts have been so tenacious of the anomalies of the local law that in one way or another they have adhered to them in the teeth of the statute.78 When a subject so vital to business as the law of bills and notes can remain in that condition although a uniform statute
