case, is not in the least a ‘pure fact.’ It is an ideal. It is a picture of a body of law as it is conceived it ought to be. It is no more a fact than the body of ideal precepts discoverable in detail by reason believed in by jurists in the eighteenth century. The analytical jurist did not discover a universal plan of which each particular legal precept as it actually obtains is a part, as, for example, one of the fragments is a part of a picture puzzle. He sets up a logical plan which will explain as much as possible of the actual norms or models of decision employed in the administration of justice, and criticizes the unexplained remainder for logical inconsistency therewith.
For example, such books as Gray’s Restraints Upon Alienation of Property or Gray on The Rule Against Perpetuities, did not state legal precepts which actually obtain just as they obtain in any one jurisdiction in any one exact time. They set forth the author’s conception of what legal precepts ought to obtain in an ideal common-law jurisdiction in which there was an ideal logically interdependent body of legal precepts upon those subjects, logically deducible from the classical common-law authorities. No such system exists anywhere, nor did it ever exist. To postulate such a system serves excellently to organize and make available the authoritative materials of judicial decision. But the postulated ideal system is no more ‘pure fact of law’ than a historically derived ideal system, such as the historical jurists pressed upon us, or a philosophically constructed ideal system such, for example, as is urged upon us today by the advocates of revived natural law. Moreover, such books postulate traditional ideas of the end of law which give content to the abstract precepts which the analytical jurist conceives to be the ‘pure fact of law.’ Thus in the preface to the second edition of his Restraints Upon Alienation58 Professor Gray tells us that his critique of the decisions as to spendthrift trusts proceeds on a philosophical theory of the end of law which is assumed to be a cardinal principle of the common law. Such ‘principles’ may or may not be authoritatively received ideals, established as part of the taught legal tradition. At any rate the one Professor Gray invokes is generically the same as the ethical ideals and political ideals above considered. It is a philosophical-economic conception to which it is conceived the administration of justice ought to conform.
This analytical ideal, as would be expected where the English legal tradition prevails, proves at bottom, when compared with the ethical and political ideals of law, to be political.59 It is an ideal of a legal order in an ideal politically organized society in which relations are governed, conduct is regulated, and differences are adjusted by fixed rules, attaching definite detailed consequences to definite detailed states of fact, and of uniform application, so that every personal element in the administration of justice is eliminated. It pictures a legal order as part of the political order portrayed by the political natural law which has given content to the phrase ‘due process of law.’ For that type of juristic and judicial thinking has behind it an ideal of a politically organized society in which governmental power of every sort is wielded upon careful weighing of all the interests involved and a reasoned striving to give effect to all of them; in which, therefore, arbitrary or capricious selection of the interests to be secured, and securing of some without regard to the effect upon others, does not take place.
Although the ideal of a body of law held by the analytical jurists in the nineteenth century had behind it a picture of politically organized society, it was a picture drawn from the nationalist polities of the sixteenth century. But three governing ideas as to the nature of law, that is, as to the nature of the body of authoritative materials for the guidance of judicial and administrative action, which obtained in the later Middle Ages, have been more widely accepted and have been persistent in legal and juristic thought.
First, there is the universal idea, the ideal of law as a body of precepts of universal authority, universal content, and universal applicability. Second, there is the idea of relationship, the ideal of law as a body of precepts dealing with relations and flowing from or attaching to relations; as a body of precepts governing men because of the relations in which they find themselves. Medieval society was relationally organized. Evidently this ideal of law proceeded from an idealizing of existing society as did the ideal of the end of law held at the same time. It should be contrasted with the nineteenth-century idea of law as deduced not from relation but from freedom; as expressing not the duties of men in relations but the rights of independent, self-sufficient, free-willing entities. Third, there is the idea of authority, the ideal of a body of precepts authoritatively imposed upon men from without by an unchallengeable authority, to be interpreted and applied but not subject to local change nor to be added to or subtracted from in this or that place.
Thus in the latter Middle Ages there was, in the first place, an ideal of a universal body of precepts resting on an external universal authority governing all Christendom. Jurists postulated a universal church, with exclusive jurisdiction over matters of spiritual cognizance, and in consequence its own body of universal law. Also they postulated a universal empire, an academic conception of Christendom as an empire continuous with that of Augustus, of Constantine and of Justinian, and hence governed by Justinian’s law books as authoritative legislation for that empire. Also along with these ideas, in part flowing from the same ideal and in part competing with them, there was the Germanic idea of law as an expression of the justice and truth of the Creator, having an authority above kings and lawmakers and of universal force because of the universal authority of God’s justice and God’s truth.60
In the politics and law of the Middle Ages the distinction between the spiritual and the temporal, between the jurisdiction of religiously organized Christendom and the jurisdiction of the temporal sovereign, that is, of a politically organized society, was fundamental. It seemed as natural and inevitable to have church courts and state courts, each with their own field of action and each, perhaps, tending to encroach upon the other’s domain, but each having their own province in which they were paramount, as it seems to Americans to have two sets of courts, federal courts and state courts, operating side by side in the same territory, each supreme in their own province. When the medieval English courts held acts of Parliament ‘impertinent to be observed’ where they sought to effect results in matters spiritual61 they did what a court, state or federal, would do in the United States if a state legislature were to seek to prohibit interstate commerce by putting an embargo on imports from a neighboring state.
How the ideal of a universal church gave a stamp to doctrines and institutions which has endured ever since may be seen in the law of marriage. The academic teachers of law, the doctors of the civil and canon law in the universities, had before them the ideal of a universal law, and the doctrine of the twelfth-century canonists has maintained itself everywhere as the basis of the law on this important subject. It is significant that in the face of the ultra-individualism of nineteenth-century law, in the face of the general emancipation of women and straining of the last century to treat all things in terms of the individual will, the idea of marriage as a condition which cannot be terminated by the act of the parties but only by nature or the law was able to persist.62 If we contrast the theory of marriage and the conception of marriage as creating a condition of the parties, not merely an obligation, which came into the law of all Christendom from the Middle Ages, with the utter diversity of divorce laws, from country to country and in the United States from state to state, speaking from the era of nationalism after the Reformation, the difference will tell us something of the power of an ideal of a universal law.
Again the medieval academic teaching of law postulated the continuity of the empire. This was a juristic ideal of a universal law for the temporal concerns of all Christendom; an ideal of Christendom ruled by one law to be found in the law books of Justinian. The development of the texts of the Corpus Iuris to this ideal gave a body of received, authoritative grounds of judicial decision which has endured as the basis of the legal system in half of the modern world. More than this it gave a basis for utilizing the juristic thought of any part of Christendom in any other. The reason of any law teacher anywhere, exerted upon the texts of the Roman law with reference to any legal problem of medieval Europe, was available to any jurist or any tribunal anywhere else when confronted with the same problem or one analogous. Thus the ideal of universality, an ideal of the universities, which taught one law wherever situated, enabled the law in each locality to develop by availing itself of the sum of juristic activity everywhere.
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