First Page
557
Abstract
Pound has indicated that comprehensively law connotes legal precepts, received legal ideals or ideological aims, and professional legal method or process.' Historically the interpretation of law in the main has been professional, such power being exercised by means of juristic ideas pertaining to legal method.
Hence Coke referred to the "artificial reason" of the English common law; and Windscheid said that the legal method of the Roman law was not a science, but an "art" (Kunst), which had to be learned through experience as well as through theory.
Past attempts to defeat such esoteric control of law have not been permanently successful. Hobbes' criticism of Coke's concept of the role of professional method in English law is now forgotten, though he maintained that English law is not "(as Sr. Ed. Coke makes it,) an Artificiall perfection of Reason, gotten by long study, observation, and experience, (as his was.)"
Indeed, even texts, such as the French Civil Code, which may have been formulated to avoid esoteric control, have nevertheless yielded to professional domination realized by means of professional legal method. The justification and necessity for the French Civil Code had been developed by the Encyclopaedists during the period before the French Revolution. These enlightened thinkers held that the lawmaker was the supreme educator of a rational society. They justified codification mechanistically because rational laws would educate the persons living in civil society and thereby would establish rational civil society, which in turn would govern through its rational public opinion.
Recommended Citation
Mitchell Franklin,
A Study of Interpretation in the Civil Law,
3 Vanderbilt Law Review
557
(1950)
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol3/iss3/32