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Home > Journals > Michigan Law Review > MLR > Volume 8 > Issue 2 (1909)

 

Abstract

Anglo-American, lawyers are not, as a rule, believers in codification. Hence, as legislation is the only agency through which in practice a uniform commercial law for the American continent may be looked for, you might, with some degree of reason, anticipate that I should be opposed to such a project. I may say, however, that I do not, at all share the orthodox common-law antipathy toward legislation and codification. I have no doubt that a legislative restatement of the law and a juridical new start upon the basis of such a restatement are inevitable in English-speaking countries for the same reasons that have brought them about elsewhere To an audience of jurists trained from another standpoint, to whom the Anglo-American conception has not been taught as part of the fundamental of law, one need not argue this. Divested, then, of all prejudice which, in the eyes of most common-law lawyers might attach to such a proposition by reason of the necessary means of its accomplishment, let us ask whether and how far a uniform commercial law throughout the American continent is desirable; what the conditions are, if any, that would operate in favor of such a project; what difficulties would have to be encountered and overcome, and, finally, in view of all the conditions, how far, if at all, such a project is feasible at present or in the near future. This is an era of universality and internationality. The thinking world is tending strongly to insist upon breaking over narrow local boundaries and upon looking at things from a world-wide point of view. This is not manifest alone in the rapid strides making in international law and the great increase of interest in that subject. Art, science, economics, labor and fraternal organizations, and even sport are tending to become international. The growing frequency of international congresses and conferences upon all manner of subjects emphasizes this breaking of local political bonds. The sociological movement, the world over, is causing men to take a broader and more humane view, is causing them to think more of society and hence more of the world-society, is causing them to focus their vision less upon the individual, and hence less upon the individual locality. In such a time, it is to be expected that interest should revive in the conception of a universal law, and that the seventeenth century conception of a law of nature applicable to all men at all times under all circumstance should take on a modern form and in that form should excite the attention of jurists. In the Hellenistic world, in the world of the full-fledged Roman Empire, in the world of the universal church and in the world of the new-born international law, this conception was a potent one. In the world of universal art and universal science and universal business we must expect it to re-appear. But we may as well dismiss at the outset the chimera of a universal civil law. Under the reign of the eighteenth-century theory of natural law, elaborate systems of Cloudcuckootown law, applicable to the whole race, were much in vogue. Today, under the reign of the new pragmatic philosophy, utilitarian politics and sociological jurisprudence, universal civil law is no more to be thought of than world-empire. In civil law, the juristic problem of the present is to divorce law from "an abstract and unreal theory of state-omnipotence on the one hand, and an atomistic and artificial view of individual independence upon the other," to recognize the facts of the world and of society and the relation to them of social authority, and to make them the basis of law as they are the basis of life. Until, then, the facts with which civil law has to deal become world-wide, until the life of the local community becomes cosmopolitan and universal, universal civil law will remain a dream.

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