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THE GREEN BAG
still solemnly explained by "reasons" that neither conform to historical fact nor satisfy any real sense of justice. Undoubt edly we have made some progress. The teachings of historical and analytical jurists are percolating through the schools into the profession. The type of "reason" that sets forth how this or that was "pre sumed" or was "implied" or was "con structive," which had been used to explain gradual changes in the law by covering them up with fiction, or to reconcile existing doctrines with cx post facto generalizations, is falling out of use. First teachers and then a few text writers began to insist upon more scientific treatment. To-day even an occasional court makes bold to speak of quasi-contract. But the books are still full of the old method, even in those mat ters in which progress is making. To take but one example. In a book widely cited, used during the past year in at least ten law schools, and read by the majority of those who prepare for the Bar in the offices of practitioners, we are told of a presumption of damage in trespass to lands, in the attempt to make our common law of trespass fit into a Romanized mold of damnum and iniuria1 and we are advised that there is no quasi-contractual liability (as we should put it now) in the case of a certain act, because "we cannot suppose it would take place except as a wrongful act."2 So long as students are set to read these "reasons" and are taught that this or that is "implied" ox "presumed" con trary to common sense, or is "constructively" something other than what it obviously is, and so long as laymen listen to these explanations from the bench when they
altered by Lord Campbell's Act tells us, following Grotius, that "the life of a freeman cannot be appraised, but that of a slave who might have been sold, may." Hyatt v. Davis, 16 Mich. 180, igi. 1 Cooley, Torts, 63, 69. ' Cooley, Torts, 95.
sit upon juries, or from counsel whom they consult as clients, or from the pub lished opinions of the courts, the people are certain to be confirmed in the belief, popular in all circumstances, that law is an arbitrary mass of technicalities having no relation to reason or justice. To-day the reasons behind the law must be such as appeal to an intelligent and educated public. There must be reasons behind it, as there must be behind everything that is imposed upon the people of the present. And, if I may adapt a common-law ter minology, they must be reasons in deed rather than in law. Law is no longer anything sacred or mysterious. Judicial decisions are inves tigated and discussed freely by historians, economists, and sociologists. The doctrines announced by the courts are debated by the press, and have even been dealt with in political platforms. Laymen know full well that they may make laws, and that knowl edge of the law is no necessary prerequisite of far-reaching legislation. The legislative steam roller levels the just rule with the unjust in the public anxiety to lay out a new road. The introduction of the doc trine of comparative negligence in employer's liability statutes and recent statutes leaving questions of negligence wholly to juries or, in other words, cutting off all assurance that like cases involving negligence will receive a like decision, afford interesting examples. The common-law doctrines, at least as explained to the people, did not commend themselves to the public intelli gence. In such cases, something is to be done; and it is done too often with but little understanding of old law, mischief, or remedv. But we have no right to rail at such miscarriages. The public must move in such legal light as the luminaries of the law afford. Those who practice and those who teach the law should be in a position to command the popular ear. We must reinvestigate the theories of justice, of law, and of rights. We must seek
