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LAW REFORM

PAPERS AND ADDRESSES

BY A

PRACTICING LAWYER

I

SOME ASPECTS OF LAW REFORM IN ENGLAND AND THE UNITED STATES

HERE are signs that we are entering upon an era

TH

of reform in the administration of justice in the United States. In a great nation such a reform is slow to develop. It needs the disinterested coöperation of lawyers, judges, students and teachers; but it must also have popular support. The will of the people, without organized leadership, will not be effective. However general may be the complaint of the administration of justice, legislators, who must pass necessary measures of reform, will not take an interest unless definite concrete remedies are formulated and their adoption insisted upon by public opinion.

History shows that great law reforms are accomplished only after long periods of agitation. Notably has this been the case with the two great systems of law under which Western civilization has developed, that is, the common law which prevails in the English-speaking countries, and the Roman law, which is at the foundation of the legal systems of the French, Spanish, Italian and German nations, and, recently, of Japan. In Oriental and near-East countries, including Russia, in which there has been some form of governmental absolutism, law reform in the sense in which that term has been used in England and America has little significance. Law in those countries is rigid and exists by the edict or ukase of a despot or an oligarchy. The people must make

their lives conform to its inexorable requirements. In such systems there can be no systematic reform, for law is not treated as a science designed to secure justice for the individual.

Roman or civil law, and the common law, are the result of a scientific effort to make formal rules which will produce results conformable, as near as may be, to abstract justice. In its historical origin, the Roman law was not a system of formal conventions frozen into an unchangeable code. For nearly a thousand years it was developed through the decisions of judges, particularly the Praetors, and the edicts of Emperors, until, in the reign of Justinian it became necessary to eliminate uncertainties, anachronisms and confusion and to formulate in a code what in the course of centuries had come to be largely the common or judge-made law of the Roman Empire. Restatements of the law had been made from time to time during several centuries by great Roman lawyers, but it was not until Justinian appointed a commission of the ablest jurists of the day that the work was taken up upon a purely scientific basis. A Code was first produced, based on the Twelve Tables and on the decrees of the Emperors. This work had the advantage of much preparatory work during the preceding century or two. Following this a commission of fourteen of the most distinguished lawyers, professors and jurists revised and restated the common law of the Empire. The work was completed in three years and was greatly aided by imperial decrees issued from time to time to harmonize conflicting decrees and decisions. To this work was added a digest of decisions. And thus there were produced the Roman Code Digest and Institutes which have ever since been the basis of the so-called civil

law, though it has been from time to time restated and revised in civil law countries to make it conform to the requirements of varying local conditions and civilizations. Thus, in France wars and other conditions led to confusion and uncertainty which, after two or three hundred years of effort, were removed during the absolutism of Napoleon by the codes which bear his name. The work of formulating those codes was accomplished by most competent jurists, lawyers and professors, and they have themselves become the basis of many systems since adopted.

The historical development of the civil law has a value for those who would deal with similar attempts to bring systems based on the common law of England into harmony with the needs of modern life. A system of law whose purpose is to assure to the individual justice according to the prevailing conception of right, and with due regard to national habits and customs, may be so devised as to perform, for a time, its purpose satisfactorily. But the moral standards of a people are to some extent conventional and are not always stable; and their habits and customs change. Rules of law originally adequate become obsolete,-out of harmony with existing conditions. As Lord Justice Bowen, in his illuminating essay on law reforms in England during the Victorian period, said: "There is and can be no such thing as finality about the administration of the law. It changes, it must change, it ought to change, with the broadening wants and requirements of a growing country, and with the gradual illumination of the public conscience." Moreover, in law, as in all science, its votaries cling to technique. A conservatism results which abhors change. Only piecemeal reforms can be obtained: and they

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