JURISPRUDENCE AND LEGISLATION 623 



ments of Justinian that as an incidental and preliminary part of 

 his codification he removed nearly all of this cumbersome and need- 

 less complexity; and it is safe to conjecture that the Roman law, 

 with all the technicalities of its classical form, would not have been a 

 fit subject for reception by the nations of Continental Europe. The 

 common law has not yet undergone this process of simplification, and 

 if it has likewise spread over a large portion of the civilized world, 

 this has not been due to a peaceful conquest of foreign nations, but 

 to the expansion of the English people, who carried with them the 

 learning and the traditions of their legal profession. 



The legal profession is not seriously inconvenienced by the tech- 

 nicalities of a legal system, and rather cherishes them as an intel- 

 lectual possession in proportion to the labor and effort which it has 

 cost to master their difficulties. It is also right in preferring tech- 

 nicality to a simplicity which would in reality mean vagueness and 

 uncertainty. The tenacious adherence to established though 

 cumbrous forms is to some extent justified by the great difficulty 

 of piecemeal amendment of an intricate system and the risk of harm 

 from bungling legislation. 



Both in Rome and in England the appreciation of these difficul- 

 ties led to almost absolute legislative inaction in the domain of 

 private law for centuries. The history of the two systems shows 

 that for long periods the sense of abstract justice in civil relations 

 may lack sufficient force to induce any action on the part of the 

 sovereign power of the state in the direction of improving the general 

 law. The impulse to legislation effecting a decided progress in juris- 

 prudence has almost invariably come from the pressure of special 

 interests and has often been confined to their satisfaction. 



There are, however, exceptions to this rule. There have been 

 periods of legal history when improvement of the law was felt to 

 be among the chief functions of sovereignty, and when legislators 

 were as much impressed with their wisdom and their power of 

 promoting justice as with the inadequacies of the unwritten law and 

 its lack of capacity for unaided development. Such was the period 

 of the later Roman Empire, especially that of Emperor Justinian; 

 the latter part of the thirteenth century both in Spain and England ; 

 the sixteenth century in Germany; the period of the close of the 

 eighteenth and the beginning of the nineteenth century in Ger- 

 many and in France; again the latter half of the nineteenth century 

 in Germany, and perhaps, although in a less pronounced manner, in 

 England the period beginning with the reign of William IV. The 

 causes that bring about such legislative activity - - if any definite 

 causes can be assigned - - probably vary greatly in each case, and if 

 the demand of a famous jurist had been heeded that before yielding 

 to the impulse a state should establish its " vocation " by adequate 



