« ForrigeFortsett »
As is well known, Blackstone's Commentaries found readier acceptance in unformed America than in England, and their wide reading here, followed by the publication of Kent's great work made possible in America a study of law in some respects more systematic, less rigidly professional than was then possible in England with its long settled scheme of legal study, which resisted change with characteristic British tenacity. Perhaps this gain was more than offset by the low standards and haphazard methods of admission to the Bar in the United States, the unfortunate results of the material necessities of a frontier country intensified by pseudo-democratic notions, which have survived to this day with characteristic American obstinacy. But that is another story, and a very sad one, in the history of the American Bar.
But despite the learning and the understanding which went into them, Blackstone's and Kent's Commentaries and other scholarly treatises were, for the most part, studied dogmatically. Lawyers boasted of the elasticity of the common law, but they dealt with that law as if finally it had become stratified in the ultimate perfect and immutable system. This was the view impressed upon students in law offices, and the law office was the most travelled route to the Bar until late in the nineteenth century. But even the law schools, during the earlier period, had very much the viewpoint and the instructional method of the law office. Hence generation passed on to generation a body of law which had received very little pruning or conscious alteration at their hands. Changes came, of course, but they came for the most part through the irresistible forces of social life. Not until the development of the so-called case system of instruction, which is at once historical and analytical, was the student given such a view of law, its origin and growth, as would enable him to understand its limitations, its tendencies, and its true functions. Within less than twenty years, a prominent legal scholar in a public address upon an occasion of great educational importance said:
"Law is a science. It assumes to direct all social affairs to the coordination and control of social phenomena. It proceeds by logical
deductions from immutable and fixed principles and it excludes whatever is speculative, arbitrary or experimental. It is sufficient for itself, manifestly containing every rule of action which under any possible combination of circumstances it may ever become necessary to formulate or to apply. It contemplates no legal problem as incapable of solution by intellects which are familiar with its principles and schooled in dialectics or whose solution will not be impregnable and unequivocal as are its principles themselves."
It is possible that these words may have been intended, through some sort of rhetorical process, to convey a meaning consistent with our present view of what law is and does, but their pomposity, their glittering generality, the pseudo-mysticism which lurks about them, produce a jumble of extravagance which to unrhetorical modern ears sounds much like burlesque. They are in strange contrast to Gray's simple but penetrating words:
"In the older days when the rules composing the law were thought of, or at any rate talked about, as deducible with unerring certainty from unquestioned principles it was customary to speak of jurisprudence as dealing only with rules already established, for those rules were feigned to hold within themselves all possible doctrines of the law; but now that we know more of the mode of the growth of the law, it is not the immutability of legal principles which attracts the mind, it is the prospect of their future development."
These two quotations fairly present the contrast between the aims and the results of the old and the new theories of legal education. But the great majority of the men now upon the Bench or at the Bar were either office trained or are the graduates of schools which had not accepted the newer methods and ideals. Consequently the more scientific legal education has not yet had time to weave enough of its product into the fabric of our law to achieve its complete victory. Far from it. It has restated much of our law, it has placed many lawyers of "light and leading" in places of leadership, but the older dogmatists, if they are not still holding the fort, are but beating a slow retreat. With so much yet to be accomplished by a scientifically trained Bar, is it premature to now consider whether we may wisely and
profitably essay even newer and farther advances, to be accomplished possibly by alterations in or additions to our present plans and methods? Is there an even more distant and a desirable goal, to attain which our mode of march and our equipment must be slightly changed?
If the defects in our law are traceable in some measure to a defective and comparatively unthinking scheme of legal education, now that law teachers are, or think they are, alive to their opportunities, and have developed a plan which not only instructs in the law but of far greater importance produces power in legal thinking and analysis, are they not under the compulsion of noblesse oblige, to strive by direct means as teachers for such changes as will increase and make more enduring the usefulness of the common law to which they owe allegiance? Or is it the part of wisdom to rely upon this more scientific training, indirectly to accomplish its perfect work through the increasingly better educated lawyers who go out from our schools, and through the contributions of legal scholars in their private capacity? That the prime function of all education is to educate, of the law schools to give sound legal instruction, are truisms which I would be the last to gainsay. This is and always must be the principal means by which law schools may contribute to the perpetuation and the amelioration of a legal system. But there may well be some question as to what is the complete potential scope of a sound legal education. It is possible that efficient as is the best of our present law school work, nevertheless slight changes in emphasis here and there, alterations in and additions to our curricula, a spirit, if not less retrospective, at least a little more prophetic, may contribute to the growth of a legal fiber, which, though preserving the strength of toughness, will better adapt itself to, will aid and not hinder or repress a constantly advancing civilization. Whether this be true, and if true the matters in which and the methods by which the American law school may most hopefully tender its aid in removing such evils as our law is justly charged with, these are questions which, as before indicated, can be intelligently answered only after some analysis of the real defects in our jurisprudence.
I shall not attempt here an original or complete analysis of the grounds of popular discontent with our legal system.* In a general way it may be said that popular criticism of the administration of justice in this country charges, first, a faulty procedure which causes unnecessary delays, expense and technical error with justice-frustrating results, and second, a substantive law, erroneously declared to have been created in the interest of classes rather than of society as a whole. These complaints of laymen, the legal scholar might analyze more closely and distribute under five heads. First, he freely admits inexcusable defects in procedure. Second, much that appears to be defective procedure he attributes to inadequate, unbusinesslike organization of our courts. Third, the defects in substantive law which many laymen charge are devised to protect the so-called "interests," scholars realize are traceable to the persistence of an individualistic legal philosophy, in an age which, whether for good or for ill, grows increasingly more social, more collective in its work, its thinking, its emotions, and that these defects in this law, if such they be, are nearly all of them honest, not corrupt. Fourth, lawyers all realize that our law has so increased in mere bulk that it has become unmanageable, if not in some respects unintelligible, and that juristic science can do little more for it, unless and until its mass, which "slowly broadens down from precedent to precedent," may be converted into a genuinely scientific system. Fifth, it must be admitted, as leaders of the Bar freely do admit, that our failure in America to insist upon adequate general education, legal learning and sound character as necessary qualifications for admission to the Bar, have produced their inevitable consequences, narrowness of vision, professional inefficiency and neglect of ethical considerations, which despite a majority of able and upright lawyers, have seriously impaired the usefulness, the influence and the prestige of the Bar as a whole.
* Roscoe Pound has discussed this matter admirably in "The Causes of Popular Dissatisfaction with the Administration of Justice," Vol. 29, Proceedings of the A. B. A., and in an address before the Law Association of Philadelphia, January 31, 1913.
Can the American law school contribute more directly and more effectively than it has in the past to the removal, or at least to the amelioration of these conditions? Almost certainly it can, and even though the increment of its service be small, it is worth the effort to achieve. Take for example the defects in our procedure. Whether because it has been considered unworthy of serious study, or an art, devoid of scientific basis, and therefore to be learned only in the forum, or because it has presented a less inviting field to legal scholars, procedure has received but a small part of the attention which has been bestowed with such inestimable benefits upon substantive law and upon pleading and evidence. This seems strange in view of the oft-insisted-upon relation between rights and remedies, and the undeniable influence of procedure upon both. If some of our law schools were to do for procedure what Thayer and Wigmore have done for evidence, can there be any doubt we would soon be closing the gap between England and ourselves in this respect? There are certain general principles upon which procedure rests. These may be ascertained and taught, and their statement and the teaching of them would lead to intelligent reformation. Herein lies one of the chief benefits of a properly conducted practice court, one conducted not for training in forensic speaking, nor for a mere advance rehearsal of trial in court, but as the crowning, vivifying step in a careful study of the basic principles of trial. There can be no question of the eye-opening, stimulating effect, when students preparing and trying a case in accordance with the cumbersome, over-technical, archaic practice of Illinois, observe the far easier task of others in the same class who are proceeding according to the simple, direct, speedy and court controlled practice of Michigan. No law school has yet made the most of its opportunities in this respect. But let us hope that beginnings which have been made in some of our schools are stimulating and developing teachers and scholars in procedural law, who will be able to guide in a scientific reform in that important part of our juristic scheme.
The practice department, at least in those schools which have national constituencies, affords ample opportunity for the com