PRESSED IN STATUTES THE FINAL GENERALIZATION ALL LAWS INVOLVE A RULE OF CONDUCT - A DIFFERENCE IN METHOD. 351 352 353 THE DISTINCTION BETWEEN LAWS RELATING TO ETHICAL AND TO 356 THE ANALOGY BETWEEN LAW AND OTHER SCIENCES 360 QUASI-SCIENTIFIC CODES 374 THE ANALOGY BETWEEN LAW AND MEDICINE 379 THE ANALOGY BETWEEN LAW AND ELECTRICITY THE DISTINCTION BETWEEN LAWS OF MAN AND LAWS OF NATURE THE SCIENTIFIC WARRANT FOR THE EXISTENCE OF STATUTE AND THE DIFFERENCE BETWEEN THE NECESSITY OF CODIFYING RULES 413 415 416 . THE NECESSITY OF CODIFYINng Indifferent Conduct ARISES FROM PAGE 422 THE SAME NECESSITY DOES NOT APPLY TO CODIFYING GOOD OR 426 428 430 THE DIFFERENCE BETWEEN THE CONDUCT OF THE INDIVIDUAL RECAPITULATION In the foregoing chapters we have outlined the nature of the Code and Case systems. We have stated the patent fact that although all law, whether Code or Case law, is written, different rules of construction are applied to discover the meaning of its authors. We have inquired whether this historical fact is accidental or necessary. We have found that this difference in the rules of construction has arisen out of an intrinsic difference in the contents of these forms of writing. We have discovered that this difference in the contents consists in the possession by the Cases of a full statement of the detail facts, the reasons and arguments for the rule, and for its application to the facts, which is absent from the Code. Incidentally, we have noted that the rule of the Case law system is never expressed in words, except in connection with the Cases,-the combinations of special facts,—in the light of which it is evolved, and which it governs. We have noted that the science of law as embodied in Cases deals with the actual combinations of facts in the cases decided or to be decided, and that these constitute the observations or experiments on which the truths, the general principles, are built up. The abstract rule, the principle, is never considered as a thing by itself, to be authoritatively expressed and thenceforward become unchangeable except within the limits of grammatical construction. The general rule so obtained from the observations and experiments made in the field of the science the litigated cases is subject at any moment to reexamination. Its validity, so far at least as concerns its application to future cases, is no greater than the reason for its existence. Its meaning is not bound up within the four corners of the writing by which it is expressed. Although the facts of a case arising are like those of a case already decided, and within the purview of the language used in expressing the principle, or its application, the principle is not applied unless there be valid reason for its extension to the special case so presented. On the other hand, the Code system apotheosizes the abstract principle, the general rule, into a God to rule its world. The meaning of the rule must be found in the words used within the four corners of the writing. The observations, the experiments of the Science of Code law, are no longer the actual facts, the phenomena as they occur,- but the abstractions from those facts made by the Codifier; namely, the one or two supposed material facts which the wisdom of the authors of the Code have deemed worthy of separate mention, as the earmarks of classification and as the criterion of the rule. When these selected abstractions of fact exist, in the special cases presented, the decision prescribed by the rule in the Code must be made. Here the methods of Case and Code law differ. When, at the Common law, all the facts of the special case are known, the rule to apply is not expressly or impliedly implicated with them. It is to be discovered or applied by the use of reason and analogy. When, under the Code system, all the facts of the special case are known, some of them involve the selected facts mentioned in the Code in connection with a rule, and this rule must be applied without regard to reason. The data of the common law from which its general truths are worked out are the actual facts of each case. The data of the Code system on which the application of the general truth depends are the few facts mentioned in the Code in connection with the rule or its exception. THE ARGUMENT CONTINUED In all that has been said we have drawn distinctions between Code law, as understood and defined by most of the theoretical Jurists, and Case law. It only remains to meet a possible argument. Let us suppose an advocate of Codification to argue with Mr. Hawkins for a fuller Codea Code with arguments, reasons and illustrative cases. Let us suppose such an one to argue that by so drafting a Code all the merits of the Common Law could be attained, without its defects. To such an one we would answer: Your Code, however drawn, would be an abstraction of what now exists in the Reports. In the process of abstraction it would lose in definiteness of statement and of illustration. Facts thought to be immaterial would be omitted. The resulting abstractions of the facts of cases would approach the Code system above mentioned, and be different from the Common Law system, in that the data of your science would not be nature,- things as they are, -but abstractions from nature. Not only must your facts be condensed and abstracted, but arguments and reasons also must be condensed and abstracted. If all this were well done, it is possible that the resulting Code might be the best yet devised. But unless this abstraction proceeded to great condensation of the volume of matter, the gain in comparative brevity would be more than counterbalanced by the defects arising from the partial omissions and condensations. And if the condensation were considerable, the nearer such a code approached a Code of Principles, the more it would have, in common with such a Code, the defects above pointed out. If to this it be answered that the Common Law Reporter himself abstracts the facts of the special case from all the actual details that are embodied in it, hence why not proceed to greater abstraction, the answer is twofold. In the first place, the facts of every observation or experiment in any science, when recorded for future use, are abstracted to a certain degree. The investigator puts down all he thinks material, and all he considers might or could have any bearing on the solution of the problem. The Reporter of a Common Law Case does likewise. In other words, the attempt is not to abstract, but to state fully all the implicated circumstances. If any facts are omitted, it is because they cannot be conceived to have any bearing. The Code writer, on the other hand, strives to see how much he can condense, and with how few facts he can get along. The attempt is to dispense with all facts that do not appear to be material. In an experiment it often happens that the facts thought to be of no consequence are afterwards found in subsequent investigations to contain hidden meaning and to develop great importance. The full statement of all the facts enables a true interpretation to be put in subsequent observations upon earlier experiments. The case of Mitchell vs. Reynolds is an example of this. The report of that case states the sale of a good will of a bakery in a parish in London. The opinion mentions the protection, the covenant not to trade, furnished the buyer, and says that restraints of trade are good or bad according to the limits in space; that a restraint over all England is invalid, over a county good. Note here that the Report states no details of facts as to what was the extent of the trade of the bakery so sold, whether its customers were within the limits of the parish, or covered a larger or a smaller space. Yet, as indicated by the subsequent development of the law on this subject, enlightenment on these particulars was specially needed. Such facts constitute the true basis of a correct ruling on the individual contract. Thus the Report itself was defective in not expressly going into sufficient detail. It happens, however, that the defect was in this instance of no consequence. The trade involved that of a bakery implied the absence of possibility that its circle |