The Editor's Bag
421
To lay too much stress on these differ ences, however, is to slight the under
We will not admit, then, that there are “countless diflerences," but there
lying unity.
are of course differences, and they cannot, in so far as they are radical
Do we Americans really
live under a heterogeneous system of
laws?
Are there fifty distinct versions
of each legal doctrine, one for each of
and social, be removed merely by the use of printer's ink. But in so far as
the fifty jurisdictions? As a matter of fact, the fifty jurisdictions are in accord as to most matters of principle, and rarely break up into more than two groups in the application of the prin ciples. In these groups there is unity.
they are merely superficial and casual they may be, in time. To recur to our
Take, for example, the doctrine as to
the law of the place of performance. The rule that it is determined by the law intended by the parties, which is the rule toward which we are tending
what law governs the validity of a
contract, on which Professor Beale has written so luminously (see 23 Harvard Law Review 194, reviewed in 22 Green Bag (Feb. 1910) p. 119). He finds three forms of the doctrine,
prevailing in three groups of states.
There are, therefore, in this case, in stead of “countless differences," only three divergent principles, and con
sidering the fact that there are fifty jurisdictions, the situation is relatively one of unity rather than of diversity.
illustration, it is hard to see anything radical or social in the doctrine that
the validity of a contract is determined by the law of the place of making or by
according
to
Professor
Beale,
may
reasonably be hoped to prevail some time throughout the United States. already prevailing in a greater number
of states than the other rules, and in an expository code it would properly be given a leading place as the preferred rule. We cannot conceive of any sound
objection to such a procedure. Moreover, the differences which Pro
So in the case of the entire body of
fessor
legal doctrine; examined in its minutiae
largely from the bewilderment of judges
it is relatively homogeneous rather than
geneity by every possible device and
on account of their inability to turn immediately to an orderly system of legal doctrine for the rules applicable
make it more perfect is a legitimate
to cases before them.
undertaking. But it will perhaps be contended that these mimetic? are sus ceptible of countless combinations, and
fessor Pound :—
heterogeneous, and to foster this homo
that
while
individual
doctrines
will
not split up into more than three or four forms, the entire body of the law
is in fact to be found existing in fifty distinct systems. This is a false position, because it ignores the relative homo geneity of our corpus juris and conceives of a diversity which a little analysis will show to be wholly imaginary. The
concept of a fundamental heterogeneity baming every attempt to overcome is, in fact, unscientific and absurd.
Wigmore
has
in
mind
arise
To quote Pro
"There are suggestions here and there, and a powerful judge now and then draws a principle from the mass of rules. In general, however, the courts are too often forced to reach a conclusion on the large equities of the cause and forage in the books for cases to support it. This makes our written opinions a mere ritual. Sooner or later a system of our law must come." (See 22 Green Bag 105.)
Under present conditions there is a besetting danger for the judiciary to
regard as intricate what is actually simple. As Hon. Frederick W. Leh mann of St. Louis has said :—
