第7章

The Methods of History, Tradition and Sociology THE method of philosophy comes in competition, however, with other tendencies which find their outlet in other methods.One of these is the historical method, or the method of evolution.The tendency of a principle to expand itself to the limit of its logic may be counteracted by the tendency to confine itself within the limits of its history.I do not mean that even then the two methods are always in opposition.A classification which treats them as distinct is, doubtless, subject to the reproach that it involves a certain overlapping of the lines and principles of division.Very often, the effect of history is to make the path of logic clear.1 Growth may be logical whether it is shaped by the principle of consistency with the past or by that of consistency with some pre-established norm, some general conception, some "indwelling, and creative principle.2 The directive force of the precedent may be found either in the events that made it what it is, or in some principle which enables us to say of it that it is what it ought to be.Development may involve either an investigation of origins or an effort of pure reason.Both methods have their logic.

For the moment, however, it will be convenient to identify the method of history with the one, and to confine the method of logic or philosophy to the other.Some conceptions of the law owe their existing form almost exclusively to history.They are not to be understood except as historical growths.In the development of such principles, history is likely to predominate over logic or pure reason.Other conceptions, though they have, of course, a history, have taken form and shape to a larger extent under the influence of reason or of comparative jurisprudence.They are part of the jus gentium.In the development of such principles logic is likely to predominate over history.An illustration is the conception of juristic or corporate personality with the long train of consequences which that conception has engendered.Sometimes the subject matter will lend itself as naturally to one method as to another.In such circumstances, considerations of custom or utility will often be present to regulate the choice.A residuum will be left where the personality of the judge, his taste, his training or his bent of mind, may prove the controlling factor.I do not mean that the directive force of history, even where its claims are most assertive, confines the law of the future to uninspired repetition of the law of the present and the past.I mean simply that history, in illuminating the past, illuminates the present, and in illuminating the present, illuminates the future."If at one time it seemed likely,"says Maitland, 3 "that the historical spirit (the spirit which strove to understand the classical jurisprudence Of Rome and the Twelve Tables, and the Lex Salica, and law of all ages and climes) was fatalistic and inimical to reform, that time already lies in the past....Nowadays we may see the office of historical research as that of explaining, and therefore lightening, the pressure that the past must exercise upon the present, and the present upon the future.Today we study the day before yesterday, in order that yesterday may not paralyze today, and today may not paralyze tomorrow."Let me speak first of those fields where there can be no progress without history.I think the law of real property supplies the readiest example.4 No lawgiver meditating a code of laws conceived the system of feudal tenures.

History built up the system and the law that went with it.Never by a process of logical deduction from the idea of abstract ownership could we distinguish the incidents of an estate in fee simple from those of an estate for life, or those of an estate for life from those of an estate for years.Upon these points, "a page of history is worth a volume of logic." 5 So it is wherever we turn in the forest of the law of land.Restraints upon alienation, the suspension of absolute ownership, contingent remainders, executory devises, private trusts and trusts for charities, all these heads of the law are intelligible only in the light of history, and get from history the impetus which must shape their subsequent development.I do not mean that even in this field the method of philosophy plays no part at all.Some of the conceptions of the land law, once fixed, are pushed to their logical conclusions with inexorable severity.The point is rather that the conceptions themselves have come to us from without and not from within, that they embody the thought, not so much of the present as of the past, that separated from the past their form and meaning are unintelligible and arbitrary, and hence that their development, in order to be truly logical, must be mindful of their origins.In a measure that is true of most of the conceptions of our law.Metaphysical principles have seldom been their life.If I emphasize the law of real estate, it is merely as a conspicuous example.Other illustrations, even though less conspicuous, abound."The forms of action we have buried," says Maitland, 6 "but they still rule us from their graves." Holmes has the same thought: 7 "If we consider the law of contract," he says, "we find it full of history.

The distinctions between debt, covenant and assumpsit are merely historical.

The classification of certain obligations to pay money, imposed by the law irrespective of any bargain as quasi-contracts, is merely historical.