Law, College of
Title
The Spirit of the Common Law
Document Type
Article
Date of this Version
August 1921
Abstract
These lectures speak in large part from the
second decade of the present [20th] century; and they show the
faith in the efficacy of effort and belief that the administration of justice may be improved by conscious
intelligent action which characterized that time. The
recrudescence of juristic pessimism in the past three
years has not led me to abandon that point of view.
At the end of the nineteenth century lawyers thought
attempt at conscious improvement was futile. Now
many of them think it is dangerous. In the same
way the complacent nothing-needs-to-be-done attitude
of Blackstone, who in the spirit of the end of
a period of growth thought the law little short of a
state of perfection, was followed by the timorous
juristic pessimism of Lord Eldon who feared that
law reform would subvert the constitution. Not a
little in the legislative reform movement which followed
might have proceeded on more conservative
lines if he had been willing to further needed changes
instead of obstructing all change. The real danger
to administration of justice according to law is in
timid resistance to rational improvement and obstinate
persistence in legal paths which have become
impossible in the heterogeneous, urban, industrial
America of today. Such things have been driving us
fast to an administrative justice through boards and
commissions, with loosely defined powers, unlimited
discretion and inadequate judicial restraints, which
is at variance with the genius of our legal and political
institutions.
When the lawyer refuses to act intelligently, unintelligent application of the legislative steam-roller by the layman is the alternative.
Contents
I. The Feudal Element
II. Puritanism and the Law
III. The Courts and the Crown
IV. The Rights of Englishmen and the Rights of Man
V. The Pioneers and the Law
VI. The Philosophy of Law in the Nineteenth Century
VII. Judicial Empiricism
VIII. Legal Reason
Contains the complete work (xviii + 224 pages), with index.
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Comments
Delivered as the Dartmouth Alumni Lectures, summer 1921, and revised for publication that year. Published by Marshall Jones Company, Francestown, New Hampshire.