268 HISTORY OF LAW 



and a procedure which is obsolete, so that the issues are not to be 

 understood without a laborious tracing of the historical connection 

 between the law of that time and the law of the present, while the 

 generalizations of the civilian writers have in appearance at least 

 some force and meaning. A similar comparison may be made be- 

 tween the French or German or Belgian codes and the Code of 

 Justinian. The subject-matter is so entirely different, and the legal 

 relations applicable to existing social conditions are so dissimilar, 

 that only to a very limited extent is the one illuminated by the other. 

 For example, the law of commercial paper, which is supposed to 

 have been incorporated into the English law from civil law coun- 

 tries by the recognition in England of the custom of merchants 

 which had been brought from continental countries, was entirely 

 unknown to the lawyer of the time of Justinian. Indeed, so rapid, 

 as compared with the course of general historical development, 

 have been the changes in social conditions that the Code NapoUon, 

 the latest typical civil law code, promulgated in 1807, contains but 

 a small part of the written law actually administered in France, 

 and it has necessarily been supplemented by codified legislation of 

 almost equal bulk. 



For historical purposes, therefore, it may properly be said that 

 there are in the civilized world two independent systems of law, 

 which have had marked and important relations to each other, but 

 which have grown from distinct sources; and it may not be entirely 

 foreign to the province of an historical discussion to notice in con- 

 clusion and briefly their substantial differences. 



The most striking difference is that which has been recognized ever 

 since the earliest scientific exposition of the common law system, 

 Common ^at ^ remains substantially a body of unwritten law, 

 Law not that is, a body of law not resting upon legislative author- 

 written. } tv . w hji e t^g gjvi} j aW) w herever it prevails, has been 

 reduced to authoritative written form. In other words, the common 

 law remains largely a law of precedent, while the civil law is one of 

 enactment. The former is more easily adapted to changed conditions, 

 the latter more easily reduced to scientific statement. The former 

 is cumbersome on account of the immense mass of material to which 

 resort must be had in ascertaining the rule which should be applied 

 to a particular case; the latter is uncertain and indefinite because 

 of the difficulty in making authoritative exposition or interpreting 

 statutory language as applied to new conditions. Even in the field 

 of authoritative legislation the common law is more adjustable 

 than the civil law because of the greater freedom which the courts 

 exercise in the interpretation of statutory enactments additional to 

 or superseding the unwritten law. The simplicity and brevity of 

 written codes constitute attractions for the writer on jurisprudence 



