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Published Quarterly, November to June, by the University of Pennsylvania Law School,

at 34th and Chestnut Streets, Philadelphia, Pa.

VOL. 72.


No. I.


The Law: “A few strong instincts and a few plain


The formation, under the laws of the United States applicable to the District of Columbia, on February 23, 1923, of a corporation under the name of

THE AMERICAN LAW INSTITUTE, for educational purposes and specifically

"to promote the clarification and simplification of the law and its better adaptation to social needs, to secure the better administration of justice, and to encourage and carry on scholarly and scientific legal work,”

marks a definite and important step in a movement which has been under discussion and in progress in England and America for a number of years past. The significance of this particular incorporation is indicated by the fact that it was authorized and directed at a meeting attended by the Chief Justice of the United States and two of the Associate Justices of the United States Supreme Court, by five Judges of United States Circuit Courts of Appeals, by Judges of twenty-seven of the highest courts of States of the American Union, besides the President and members of the Council of the American Bar Association, and rep

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law schools, of. Commissioners on Uniform State Laws from

resentatives of seventeen State Bar Associations, of thirty-three

twenty-two States, as well as by two hundred other lawyers from various parts of the Union. The Chief Justice of the United States, the Secretary of State, the Chief Justices of the Supreme Court and of the Court of Appeals of the District of Columbia, the United States Attorney for the District, and the acknowledged leader of the American bar—the Honorable Elihu Root-were incorporators, and, immediately upon compliance with the requirements of corporate existence, all of the persons assembled in the meeting above referred to became menibers of the corporation.

Throughout its history, the bar constantly has busied itself with various methods for improving the administration of justice. Institutions for the encouragement and pursuit of scholarly and scientific legal work never have been lacking, from the early days of the Inns of Court, so picturesquely described by Fortescue,' until the present time. The especial need of the work undertaken by the American Law Institute and the particular direction in which it intends to pursue that work, require some detailed consideration, in order to mark out the boundaries within which it proposes to operate, as well as to indicate the fields into which it does not intend to enter.

The initial purpose of the organization, as set forth in the charter, is to promote the clarification and simplification of the law.

1 “The law," wrote Dr. Samuel Johnson, "is the last result of human wisdom acting upon human experience for the benefit of the public.” Sir John Salmond, in language of professional precision, defines law as "the body of principles recognized and applied by the state in the administration of justice, or, more shortly: the law consists of the rules recognized and acted upon by courts of justice.” 2

* The Laws of England. Trans. by A. Amos, Cambridge, pp. 178-9 (1825).

'Salmond. The Science of Jurisprudence.

These rules, in America, are to be ascertained, first, from the Constitution of the United States and those of the several States; second, from statutes enacted by the Federal Congress and by the legislatures of the several States; and, third, from decisions of courts. The second and third sources of law mentioned, Mr. Justice Holmes says, consist of: "a body of reports, of treatises and of statutes, in this country and in England, extending back for six hundred years and now increasing annually by hundreds. In these sibylline leaves are gathered the scattered prophecies of the past upon the cases in which the axe will fall. These are what properly have been called the oracles of the law. Far the most important and pretty nearly the whole meaning of every new effort of legal thought is to make these prophecies more precise, and to generalize them into a thoroughly connected system.” 3 Hence, Judge Holmes says, the object of the study of the law is prediction—"the prediction of the incidence of the public force through the instrumentality of courts.”

Judge Cardozo, in the introduction to his lectures on “The Nature of the Judicial Process,” describes the field which a judge must explore in deciding a given case which is not specifically covered by a written constitution or a statute, as "the land of mystery,” in which “the judge must look to the common law for the rule that fits the case." The common law "which consists of customs and principles handed down from remote times and accepted from age to age as furnishing rules of legal right,” has been embodied in and to a great extent created by judicial decisions and dicta. “These, indeed, so far as they have relation to the common law and statute law, are not so much a source of law as authoritative expositions of it;

" Nevertheless, they are for all practical purposes "the law," which all citizens are presumed to know and which every lawyer and every judge seeks to ascertain, with the aid of countless digests, myriads of reports and many textbooks.

The civil codes of North and South Dakota, respectively,

• The Path of the Law, in “Collected Legal Papers,” p. 167. Report of Digest of Law Commission, 1867.

define law as "a rule of property and of conduct prescribed by the sovereign power.” The rule of the sovereign power, they declare, is expressed:

"(1) By the constitution of the State;
(2) By the statutes of the State;
(3) By the ordinances of other and subordinate legis-

lative bodies;
(4) By the decisions of the tribunals enforcing those

rules which, though not connected, forn what is known as customary or common law."

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The evidence of the common law, they further declare, is to be found in the decisions of the tribunals.

The courts of forty-eight American States, besides those of the Federal jurisdiction, are daily adding to this volume of the "evidence of the common law.” Naturally, the more complex and varied the sources of authority from which the rules of law are derived, the greater the uncertainty and the more difficult the effort to predict what rule will be applied in any given case.

How the common law is found by a judge in actual practice, is described by Judge Cardozo as follows:

“The first thing he does is to compare the case before him with the precedents, whether stored in his mind or hidden in the books.

Back of precedents are the basic juridical conceptions which are the postulates of judicial reasoning, and farther back are the habits of life, the institutions of society, in which those conceptions had their origin, and which, by a process of interaction, they have modified in turn. None the less, in a system so highly developed as our own, precedents have so covered the ground that they fix the point of departure from which the labor of the judge begins. Almost invariably, his first step is to examine and compare them. If they are plain and to the point, there may be need of nothing more. Stare decisis is at least the everyday working rule of our law."


The volume of decisions by judges, declaring the common law, a century ago had begun to accumulate with sufficient rapid

Civil Code N. D., Sects. 4326-4328, 4330; Civil Code S. D., Title, Substantive Law, Secs. I, 3.

• Nature of the Judicial Process, pp. 19-20.

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