JURISPRUDENCE AND LEGISLATION 621 



but the result in both systems was practically case law. We are 

 apt to regard as the distinguishing characteristic of the common law 

 the authority of precedents. What Coke said of the civil law three 

 hundred years ago, that " there be so many glosses and interpreta- 

 tions, and again upon those so many commentaries, and all these 

 written by doctors of equal degree and authority, and therein so 

 many diversities of opinions, as they do rather increase than resolve 

 doubts,"' 1 is in a measure true to-day; but the resulting difference 

 is one of certainty and not of kind. The German jurists of the 

 nineteenth century, it is true, introduced new methods of legal 

 science by seeking to reduce legal principles and concepts to their 

 simplest elements in logic and metaphysics with a view to laying 

 the broadest possible foundation for legal reasoning; but their dia- 

 lectical efforts have, on the whole, proved barren of practical value. 

 In the main, the type of mental activity characteristic of legal science 

 is thus fairly uniform and constant. 



Within the close range of unsettled law there is little room for 

 large and striking questions of policy, and in the few cases in which 

 they do arise, the courts, in deference to the theory that they do not 

 make law, rather argue that the policy which they support is ssttled 

 by authority than that it is the right one. We can thus rarely trace 

 the mental processes that underlie the adoption by the courts of 

 some social or economic principle. The origin of many of the most 

 important phases of legal policy, by which legal systems are dis- 

 tinguished, is obscure; so in Rome the establishment of the free 

 marriage, the recognition of the right to legal portions, and the 

 pretorian system of inheritance; in England the system of primogen- 

 iture, the extreme measure of marital right, and the disappearance 

 of wills of land. We do not know to what extent legal reasoning 

 and argument were instrumental in securing the adoption of any 

 of these policies, but it is safe to conjecture that where there was 

 an innovation upon old-established institutions and principles, and 

 the change took place through the administration of justice, it was 

 brought about gradually and covertly, without an acknowledged 

 overturning of the previously established law. Fiction and equity 

 are the most familiar but not the only agencies that have accom- 

 plished silent revolutions in the law, and there is, perhaps, no period 

 of legal history which presents more striking instances of the opera- 

 tion of these subtle and elusive forces of transformation than that of 

 the English law in the two centuries following the Norman Conquest, 

 as described to us in the classical treatise of Pollock and Maitland. 

 Most of the important advances that have been made in the English 

 law without the intervention of legislation in more recent times are 

 associated with the rise and development of equitable jurisdiction, 



1 Proem to Second Part of Institutes. 



