A SCIENTIFIC SCHOOL OF LEGAL THOUGHT
the life of the present day. It should be for us who now live; to-morrow it will per chance, under change of conditions, be another thing — it will be for our successors. The law should be suited to him who needs its protection whenever he may live, in accordance with times and the pursuits of men. When this ideal is reached, the year 1800 will be no more to the people, so far as the law is concerned, than the year 1700 or 1600 or 1300. All of that, so far as it fails to shed light upon our own path, will be turned over to the historian, or used for another purpose than teaching our law. The historian of the law of yesterday will have his place, as has the historian of other things; he will have his place on the bench, for the bench will always need men of broad mind and learning; but in proportion as the ideal is reached, the judges should find less and less need of seeking authority in the Year Books or in Coke or in the worthies of much later times for their decisions. The life of another and different age will not bind our successors in the day of the full consummation. If we govern ourselves to-day by laws laid down yesterday, it is or should be because those laws are suited to us; they are our own laws, not a priori laws made for us by another set of men.
Are we then, in accordance with such a school of ideas, to overrule the past, with all its accumulations? Clearly not; we have only to leave it alone where it fails to serve us. The past served its purpose in its day; why should it have a posthumous life, to trouble men living under other conditions? After the period of the reasonable life of a decision not relating to constitutional or statutory law, let the decision, as a binding authority, die. The latent of the Year Books died long ago; the decisions temp. Talbot, temp. Hardwicke, Burrows' Reports — are these ever cited nowadays by the courts except for history? The Revised Reports of Sir Frederick Pollock, intended to cover all the living judicial law of England, begin but just before the 19th century. Statutes die — where are the judges who have had occasion, except for history, to cite a tithe of the statutes passed before the same 19th century? Who would venture to cite any of our colonial laws, even down to the revolution, as living law? The laws peculiar to our own day will go, because they ought to go, the same way; the only difference, when the new order of things comes fully into operation, being that their day in ordinary cases will be shortened. Let them live a reasonable time, that is so long as they are really useful — then let them die. It will be no cause for fear to see "authority" of the kind relaxing its hold upon the administration of justice.[1]
All this is far from suggesting that under the operation of a scientific method the law hereafter will be substantially different from what it is now. No one probably, under peaceable conditions of the State, will have occasion or desire to tear down the structure already erected; much of it is in its nature permanent — its interior walls generally are. These, it may well be expected, will remain substantially as they are now. The pinch of the past is mainly due to the building up of exterior walls; in building outer walls, limitations are often set to the adoption of reasonable pursuits. Even the interior walls may not in every particular be secure for all time. Larceny will always be a legal wrong — probably always a punishable wrong; instinct decrees it and the law must follow. Fraud and damage will always call for redress in compensation; instinct decrees and the law follows. Et sicde aliis. But instinct itself is subject to the legal limitation and control of reason. Larceny is likely to remain a crime throughout the future, but the ingredients of larceny and the conditions required for it as a crime are matters of judgment and may change with changes in men's ideas of what should be necessary for the purpose. Fraud
- ↑ Would there be serious ground of regret if at last we should come to German and French ideas of precedent?
