Vanderbilt Law Review


W. Friedmann

First Page



Mr. Justice Frankfurter recently said that the number of cases coming before the Supreme Court of the United States which were not based on statutes was "reduced almost to zero." This growth of statutory as against pure case law is, of course, not confined to the United States. It inevitably accompanies the social welfare state and the increase in government which every modern industrial society has experienced and which two world wars, with their need for the total mobilization of resources, have further stimulated. Apart from these sociological factors which affect states with the most different legal systems, it is still customary to contrast the "code-minded" continental systems with the "case-minded" tradition of Anglo-American jurisprudence. Insofar as it is meant to indicate a parallel contrast in the judicial approach to statutes, this is in many ways a false antithesis. It is quite true that the history of the common law systems has encouraged an empirical and inductive approach to legal problems, a disinclination to think in terms of abstract rights and duties rather than of concrete remedies, a judicial distrust of parliamentary encroachments upon the sphere of the "lawyer's law." As will be shown, this attitude still powerfully influences the judicial approach to statutes in contemporary England. Insofar as American'law has taken over the basic principles and approach of the common law, this may well be true of the United States too; but the fundamental difference is that the United States, like other countries inside and outside the common law system, likes a written constitution.