EDITORIAL DEPARTMENT decided, and they must be decided in the long run so as to accord with the moral sense of the community. This is the good side of spurious interpretation. It is this situation that provokes the general popular demand for judicial amendment of constitutions, state and
- federal, under the guise of interpretation.
"Looking at the matter purely from the standpoint of expediency, and leaving legal theory out of account, the bad features of spurious interpretation, as applied in the modern state, may be said to be three: (i) That it tends to bring law into disrepute, (2) that it subjects the courts to political pressure, (3) that it reintroduces the personal element into judicial administration "Are the temporary advantages to be de rived from speedy judicial amendments of constitutions in any wise compensation for the serious and permanent injury to the legal system which is involved? Courts rmist decide cases; they must decide them in accord with the moral sense of the community so far as they are free to do so. If the proper agencies of government do not supply the necessary rules, they must administer justice without rules or must make rules. Granting this, the fact remains that there should be no such necessity, or at least it should be reduced to a minimum, in the modern state. Over-rigid constitutions, carelessly drawn statutes, and legislative indifference toward purely legal questions are not permanently remedied by wrenching the judicial system to obviate their mischievous effects. As the sins of the judicial department are compelling an era of executive justice, the sins of popular and legislative law-making are threatening to com pel a return to an era of judicial law-making. Both are out of place in a modern state." JURISPRUDENCE (The Place of Roman Law). " What if anything did the Roman realiy initiate in the matter of law? " In the June Harvard Law Review (V. xx, p. 606), A. H. F) Lefroy interestingly answers that question, maintaining " the following propo sition, — that the true interest of the study of the history of Roman law lies in this, that the Romans, through their national practical intelligence, stimulated by external circum stances, and also ultimately by the philosoph ical theory of a ' law of nature,' as they
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conceived it, developed a system of private law which did in fact answer to the true nature of private law, and that they were the first people who did develop such a system. . . . "' The true nature of private law ' is an expression which certainly demands expla nation. By private law is here meant that portion of the law of a state which deals, directly or indirectly, with the mutual rela tions and transactions of private individuals inter se. By the true nature of private law is meant neither more nor less than the nature which such private law would have if the legislator were perfectly wise. If any justi fication is demanded for calling this the ' true nature ' of private law, it is perhaps sufficient to appeal to the view which the common use of language supports, that the most |>erfect development of anything is a development in accordance with its true nature, and that any thing which derogates from the perfection of such development is an infringement upon and interference with its true nature. We need not go deeper and cite in support meta physical theories of the stoic, or other phil osophies, or appeal to religious beliefs as to the divine ordering of the universe. Not, of course, that it is meant that any one can dogmatically assert what the different rules of private law would be if the legislator were perfectly wise, but only that it is possible to discern very clearly what the general nature of private law would be in such a case. "It is surely clear that, in the first place, its rules and principles would be co-extensive with all the transactions and relations into which men in society enter, permitting, and, so far as necessary, regulating or restraining them, but ignoring none, except such as public policy requires to be deliberately left outside the range of legal cognizance. That is to say, all relations and transactions of mankind which can be wisely dealt with at all by the legislator should be within the purview of the law. In the second place, the law should be as simple and natural as it may be with out permitting such a degree of looseness as unduly to facilitate fraud or mistake — that is to say, law should, so far as is in this sense possible, recognize the natural ways of doing business, and the natural ways of entering into relations, whether business relations or other —
