It is strange that no book of this kind has ever issued from the English press. Austin has established for us upon a firm basis the philosophy of law. There is one living English writer pre-eminent for the learning and ability with which he has penetrated the history of Ancient Law. But of Law as one of the working institutions of Societynot the abstract conception of it, or the successive stages of its development-but the meaning of it, its raison d'être, the reconciliation of its apparent contradictions, the explanation of its alleged absurdities, the similarity of its growth in different ages of the world and amongst different races, the changes it is at present undergoing, those which are foreshadowed in the future-upon these and other kindred topics Englishmen have scarcely written a single word. It certainly cannot be said that these are not topics of interest, but they are more than this-they are of the highest practical importance, I might even say, of the most pressing urgency. On every side we hear people crying out that law is a tissue of follies and absurdities; that, in truth, follies and absurdities are in the case of law only what are naturally to be expected. Despairing of any improvement, we hear people speak of the "glorious uncertainty" of the law as rather a good joke. Reflecting men may sometimes doubt whether these statements are not exaggerated; but there are many reflecting men to whom the institutions of Law are mostly incomprehensible, and who suspect that these institutions have been forced upon Society by a powerful and interested combination of individuals from whose yoke they would gladly set themselves free. It is certainly time that we should come to some understanding upon this point. Do legislators really speak the truth when they say that they are foiled in all their attempts to improve the law by the lawyers? When people rail at lawyers for turning wrong into right, are they bringing a serious and well-founded accusation? Es erben sich Gesetz' und Rechte Wie eine ew'ge Krankheit fort; Sie Schleppen von Geschlecht sich zum Geschlechte, Vernunft wird Unsinn, Wohlthat Plage; Weh dir, dass du ein Enkel bist! Vom Rechte, das mit uns geboren ist, Von dem ist leider! nie die Frage. Are these charges true or false? Of the thousands who repeat them very few care seriously to consider this. But this is the real evil. Wrong once thoroughly exposed must soon perish. Distrust and uncertainty are just what it admirably serves the devil's purpose to perpetuate. If, indeed, this were a mere question of defending a particular class of men against the accusations so recklessly heaped upon them, the question might be easily disposed. of. In spite of the numerous and virulent attacks made upon lawyers, the administration of justice which is committed to their hands has generally won the confidence of mankind. It certainly has done so in England, where such charges are as freely made as anywhere. We find here that the abuse lavished upon the system and upon those who are responsible for it, stands in direct contrast with the respect, I might almost say the reverence, paid to its actual results. But what a strange confusion of thought it must be which produces these contradictions. And the first evil with which it is necessary to grapple is this confusion itself. It is useless to discuss questions of law-reform whilst law itself is contemplated in these two contradictory moods. For, as we might expect, where we ought to find calm and patient discussion, we are met either by blind and virulent attack, or by obstinate, unreasoning, uncompromising defence, just according to what happens to be the prevailing influence to which the disputant is at the moment subject. I need not dwell further on the disastrous consequences of this prevalent confusion of thought. Nor can it be supposed that this confusion which has lasted so long and is so widely spread can be easily dispelled. But I may do some service by drawing attention to the method to be pursued for attaining this object, and which is exactly the method which Professor Ihering has adopted in many of his inquiries. Let us consider for a moment the usual occurrence of a man falling out with his neighbour about a claim for a debt, the right to a field, or to a watercourse, or upon any other ordinary topic of litigation. He "goes to law" as it is called, and what account in nine cases out of ten will he give of the result? Probably something of this kind. That the matter, as soon as it got into the lawyer's hands, instead of becoming clearer, became infinitely more complicated. That a variety of matters were imported into the discussion which were either absolutely immaterial, or altogether beside the real question at issue, this question itself being in a great measure lost sight of, and that, ultimately, a decision was given which did not touch at all the merits of the case. No one can deny that this would be a fairly true description of a great many law suits; how can the law which renders possible such results as these be defended? Professor Ihering has rightly observed that we can only defend our legal institutions by comparing them with the actual wants of society, and showing that these wants have in reality been satisfied in the best way in which, with our limited capacities, we are capable of satisfying them. Any defence of Law as a human institution on other grounds than that of expediency is futile. Law is made for society, and not society for law; and a lawyer, when called upon, is as much bound to defend his practice as a doctor, and to defend it upon precisely the same principles: that he has been employed to do a certain thing, and that he has done it as well as it is capable of being done. Let us reduce our consideration to as simple a case as it is possible to conceive-the case of a man suing to recover the price of goods sold and delivered. He must ask for his money in a precise form of words, and he must present his demand within a particular time and in a particular manner. If his demand be contested he must obey strict rules as to the mode in which he replies to the defence. If he has two sorts of answers to give to the defence, he must ask the leave of the Court before making use of both, and so forth. At every step he must conform to rules. Even in the matter of proof he is not allowed to establish his case in his own way, and he very often finds that evidence which anywhere else but in a court of law would be accepted as conclusive, the judge will not even allow to be considered by the jury. These are rules of what is commonly called civil procedure, to which every suitor in a court of law is bound to conform. But why is it (asks Professor Ihering, Part iii, p. 15*), that civil procedure is thought to require any special machinery of its own? Why does the Legislature prescribe any rules at all for the conduct of lawsuits? We only want to find out the truth, and we prescribe the procedure best adapted for that purpose. But why then force the parties to adopt any special form of procedure at all? If that prescribed be really the best, their own interest will lead them to adopt it. These are the first questions which every lawyer must be prepared to answer when challenged to defend the practice of the law. Professor Ihering rightly appeals at this point to the experience of mankind, which (he maintains) teaches us * I have for reasons of convenience, which I need not state fully, in some instances paraphrased and not translated the extracts from Professor Ihering's work, and in these cases I have not been able to mark them by inverted commas or a change in type. But the reader will find no difficulty in distinguishing what comes from that source. that there can be no justice where suits are not conducted in accordance with some forms legally established. Abolish these and you remove every restriction upon the caprice and partiality of the judge; and give at the same time free scope to the trickery and evasion of the parties. If indeed the parties were as disinterested in their desire to ascertain the truth as a judge generally is, it might be just possible to allow them to seek for it in their own way; but unfortunately the interests of the plaintiff and of the defendant are directly opposed to each other. It is the interest of each to discover so much only of the truth as answers his own ends; and this conflict of interests is itself a sufficient ground for some kind of regulated procedure, let alone all the other influences which tend in the same direction. Professor Ihering is at no pains to conceal the weak points of the system he is defending. For, as he points out, not only have we, as usual, to set off some disadvantages against the advantages, but, in this particular case, in consequence of faulty arrangements, the disadvantages have been very great; so great as to be sometimes almost intolerable. It would be easy enough (he continues at p. 16) to draw a sketch of civil procedure in no way exaggerated, and which would yet cause an inexperienced person to regard it with horror. For example, would there be anything extravagant in the following description? Procedure is an ingenious contrivance for placing difficulties in the way of a man getting his rights. By this means the substantial matter at issue is obscured by a variety of questions of mere form; and the judge, instead of being aided by it, is fettered and impeded in the search after truth. Not unfrequently he is even obliged to give a decision against his own convictions. Thus Wrong is strengthened to withstand Right, and the justest cause is often lost in the snares and pitfalls of procedure. All this is true, and it is |