About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

9 A.B.A. J. 515 (1923)
Common Law in a Transitional Era

handle is hein.journals/abaj9 and id is 545 raw text is: THE COMMON LAW IN A TRANSITIONAL ERA
Recognition by Legal Profession of Character of Present Era Indispensable if Meaning or
Philosophy of Transformations in the Law Is to Be Grasped and if Progress Towards Im-
provement of Human Relationships Through Law Is to Be Aided
Professor of Law, Western Reserve University

HE world today is in the midst of a renaissance
compared with which that of the fifteenth and
sixteenth centuries, however far-reaching it was,
was only the beginning. The Protestant Revolution
and the wars of religion checked the earlier movement,
and control of external environment and improvement
of human relationships through law.' In the present,
however, both these objects are being undertaken, and
so stupendous and revolutionary is the resulting new
birth that contrasted with by-gone generations, it is
at times difficult to recognize the new creature.2 We
still live too near that which is transpiring to be able
adequately to describe it; oftener we sense that which
is happening without being able coherently to formu-
late an interpretation or explanation.3 Could our an-
cestors of the immediate past appear and observe the
tremendous changes which have occurred in many
fields of human endeavor and human thought, within
the past one hundred years, they would have difficulty in
believing that the interval had been so short.4 In times
past, the realm of philosophic thought has only grad-
ually, if at all, affected the content of the law; today,
on the contrary, this conservative social force has been
compelled to recognize new and strange doctrines, and
a great flood tide is upon us.5 The problem is, what
are these new elements in our civilization and how are
they affecting the received law?
Currents in the Present Social Order
Approximately a hundred years ago the world was
still practicing the modes of transportation and com-
munication which the race had followed from the dawn
of history. Shortly prior to this time in England,
beginning about 1760, methods of manufacture creating
the factory system, were completely changed, giving
rise to great cities and to large scale production. Soon
thereafter the railway and steamboat developed, then
the-telephone, the telegraph and the wireless, completely
revolutionizing means of communication and drawing
the world closer together, annihilating space and time.
Since that time industrialism has reigned supreme, giv-
ing to the race both inestimable blessings and incalcul-
able woes.0
Hand in hand with this complete change of the
activities of men went the far-reaching discoveries and
applications in physical and biological science, occasion-
1. AMcGiffert, The Risc of Modern Religious Ideas, p. i1.
2. The religious spirit. taking its justification from biblical
prophecy, saw in the remarkable outburst of knowledge in the fifteenth
and sixteenth century the manifestation of a divine purpose. That
same religious mind today interprets present-day changes as prophetic
fulfillments. For both movestents. see Case. The Millennial Hope, ch. 4.
3. Maitland, writing a decade ago. attempted to evaluate the ef-
fects of the fifteenth and sixteenth century renaissance upon English
law. I Essays on Anglo-American Legal History, 155. But even at
this distance lie coulh make mistakes. See Zane, Renaissance Law-
yers, 10 Illinois L. Rev., 542.
4. A century ago the law was likewise in a transitional era. Cen.
tennial History of the Harvard Law School, ch. 7.
5. Cardozo, A Ministry of'Justice, 35 Harv. L. Rev., 113, 126.
6. Gladden, Ruling Ideas of the Present Age. ch. 4. The admir-
able treatise by the late Dr. Rausehenbusch, Christianity and the So
cial Crisis, should be read by e-ery woul.l,e ,Indent of social condi-
tiotnls :,]i soclal reformer.

ing in many fields an entire recasting of beliefs and
dogmas. The principle of mechanical causation and
the uniformity of natural law gradually became uni-
versally held doctrines, leading to controversy between
adherents of inherited views of the universe and man,
based upon biblical deductions, and the exponents of
the more modern views, grounded upon empiricism and
scientific investigation.7
From both industrialism and the scientific move-
ment, there developed a critical attitude or rationalism
which has undermined many of the old faiths and
shibboleths of the past.8 For with the enormous
growth in wealth, social classes arose based upon indus-
trial achievement rather than family pedigree, and the
former successfully challenged the leadership and
authority of the latter. If Kant could denominate the
Eighteenth Century the Aufklirung or Enlightenment,
because rational speculation had destroyed many of
the traditions and intellectual bondages of the past.
what could be said of the nineteenth and present cen-
turies? And if Von Hutten and Erasmus could pro-
claim the joyousness of the new birth in the sixteenth
century, in that it removed from men the shackles of
the past and gave them a new freedom in thought and
action, what was this compared with the present gen-
eration ?9
From the rationalistic movement and the intel-
lectual ferment which developed, there arose the next
great force or factor which made for change and over-
throw of many inherited creeds and practices-the
breakdown of authority. This movement is inchoate
in the eighteenth century, but because of lack of scien-
tific facts, either from scientists or archaeologists and
historians, the efforts of the rationalists did not become
consummate until the nineteenth and twentieth cen-
turies.10 Most of the cherished authorities or social
sanctions of the past have come under the withering
skepticism of this revolt against authority; and, when
this movement has united with an evolutionary hypo-
thesis, which tacitly assumed that the twentieth cen-
tury was wiser than past generations, the combination
has been of tremendous influence in our thinking and
practice. Whether the masses or common people have
much understanding of the merits of these great crit-
ical movements, is not material; the thinking itself is
sufficiently pervasive to have penetrated all classes of
society and become the intellectual heritage of large
numbers of people in all walks of life. It is the pre-
vailing Weltanschauung or world-view; it colors our
7. Perry, Present Philosophical Tendencies. ch. 2; also Shailcr
Mathews. The Church and the Changing Order, ch. 1.
8. The Function of Religion in Alan's Struggle for Existence.
chs. I and 2.
9. Hulme. The Reformation, ch. 6; also Vedder, The German
Reformation, Preface. The present era with its attempt to introduce
new ideas into the law is comparable to the time of the Jus Naturale
in Roman days. when a similar movement was taking place. Roscoe
Pound, Social Justice and Legal Justice. 75 Central Law Journal. 455.
10. Osborn, From the Greeks to Darwin. ch. 1: Bryant, A His-
tory of Astronomy. ch. 3: W. N. Rice. Christian Faith in an Age ot
Science. ch. 3: Windelbanl. A Hitnry nf Philnsophy (tran, I,%
Tutfts). 340-61.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing nearly 3,000 academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.

Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline with pricing starting as low as $29.95

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most