Law and Fact in Legal Development

Abstract

L AWYERS inquire into the history of their rules and institutions to find out how things came to be as they are, and they generally assume that the facts behind each development are in themselves well known to historians. Historians search the legal sources for some trace of those same elusive facts, and their assumption is that the relevant law is well known to lawyers--or at any rate to legal historians, who are thus condemned to unanswerable questions from both sides. The mutual misunderstanding is like that which, in England at any rate, exists between academic lawyers and practitioners. Academic lawyers are supposed to think of purely legal problems arising out of clear facts, practitioners of clear law as the background to disputes about what happened. But neither in the single case nor in the mass and over the centuries are the law and the facts so separate that either can be seen as the fixed background to an examination of the other. This essay is about the beginnings of the common law as an intellectual system, and its premiss is that legal development consists in the increasingly detailed consideration of facts. so, the limit at any time is the extent to which the legal process presents the facts for legal handling. Academic or juristic speculation may go beyond the problems of daily life, but it cannot imagine the unimaginable or excogitate questions of a different order from those which actually arise. Legal development in Rome arose from the jurists on the one hand and the praetor's control of the formulary system on the other. But this combination of systematic thought and actual authority perhaps depended upon the nature of the formula itself. A dispute remitted to the deciding body with instructions in some such form as: If you find this, then, unless you find that, condemn the defendant to pay so much, has been reduced to the same terms as those used by the speculative lawyer; and they are almost the terms of substantive statement. The form of litigation at common law has never attained such clarity, and approached it only sporadically and late. A previous stage was represented in Roman law by formulae appropriate to the more ancient type of claim in which the main assertion, instead of being essentially one of fact, such as that the plaintiff had sold the defendant a slave, was one with a very high legal content: If you find A to be owner ex jure Quiritium or If you find B dare oportere. This question was sent undigested to the judex, and answered by a bare decision for the