EDITORIAL DEPARTMENT the difficulties due to the increased volume of precedents, he shows that a code which is usually held out as the only remedy has not in other countries eliminated the necessity of interpretation or the multiplication of pre cedents or the growth of the doctrine of stare decisis. "It is thus very doubtful whether the French law is any more certain than our own. If ours be more uncertain we are in clined to believe that it is because economic changes here have come faster than in other countries, and greater pressure has been put •upon the courts to decide cases arising out of novel business situations." Comparing the European codes with our sad attempts he says: "The foreign codes have the advantage of a fixed and settled terminology derived from the Roman law. They were made by experts and are little subject to legislative change. In addition it must be remembered that the making of the Code Napoleon, as well as that of the recent German Code, was due to a desire for uniformity rather than for cer tainty." . . . "Another objection, and perhaps the main •one, to a code, is that even a well-constructed code would help us little in making the law more certain. The general principles or rules on many subjects are pretty well settled and «asily stated. The common law of tort or partnership and negotiable instruments is ad mirably summed up in various text-books and could without great difficulty be codified, but that would do little to help us out of our diffi culties, for the question arising in these branches of the law is not generally what is the rule of law, but which of several rules apply to the facts of the case. The divisions that have taken place in our Supreme Court have not been due to common law questions, but to questions arising under various statutes and under the Constitution of the United States, one of the clearest and most admirable of written instruments. As the most familiar instance of this, it is only necessary to cite the insular cases, the legal tender cases, the in come tax cases and the anti-trust law cases. In each one of these, the difficulty has been to ascertain whether the law applied to a particular state of facts and if it did apply,
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which portion of it was applicable. Did the Sherman Act intend to codify the common law? Was it merely declaratory or was it revolutionary? The answer must be sought in many opinions extending over a period of some ten years. Such cases cannot be avoided and constantly arise under statutes. And again, should we codify our law, the old de cisions would be cited as an attempt to show what the law was intended to do and we would not get rid of the masses of case law, which now so sorely burden and perplex the practitioner." . . . "For the present, reforms in the adminis tration of the law, the selection of able men as judges, the leaving of procedural questions, as has been done in Massachusetts, largely to the regulation of the courts themselves by rules, are all desirable and immediate objects of attainment; but to make the law certain on subjects as to which the community itself is most uncertain, is a task that never has yet and never will be accomplished. If the Hin doo laws are unchanged and unchangeable, it is because the Hindoo himself has not changed, and does not wish to change his opinions and ideas nor the actions which flow from them. When we reach that stage of development the question may become aca demic." JURISPRUDENCE (Legal Development. Education) IN the May Cohimbia Law Review (V. v, p. 339) Roscoe Pound considers the question, "Do We Need a Philosophy of Law. ' He calls attention at the start to the tenacity with which our common law has held its ground against the influences in succession of the canon law, the Roman law, the powers of the crown, the law merchant, the legislative reform move ment of the nineteenth century, and the agita tion in America for the spread of the Code Napoleon. Strictly in line with this history is the intrenchment of this doctrine in our constitutional law. In spite of its apparent triumph, however, many jurists discern dan gers. The author does not, however, fear real danger from the abundance of new legislation, for legislatures imitate one another, and for the present he does not fear codification. But he does believe that our common law, which was formerly the bulwark of the people against
