order of reason, or that all of
us collectively should not aspire to carry reason as far as it will go
throughout the whole domain. In regard to the law, it is true, no doubt,
that an evolutionist will hesitate to affirm universal validity for his
social ideals, or for the principles which he thinks should be embodied
in legislation. He is content if he can prove them best for here and
now. He may be ready to admit that he knows nothing about an absolute
best in the cosmos, and even that he knows next to nothing about a
permanent best for men. Still it is true that a body of law is more
rational and more civilized when every rule it contains is referred
articulately and definitely to an end which it subserves, and when the
grounds for desiring that end are stated or are ready to be stated in
words.

At present, in very many cases, if we want to know why a rule of law has
taken its particular shape, and more or less if we want to know why it
exists at all, we go to tradition. We follow it into the Year Books, and
perhaps beyond them to the customs of the Salian Franks, and somewhere
in the past, in the German forests, in the needs of Norman kings, in the
assumptions of a dominant class, in the absence of generalized ideas, we
find out the practical motive for what now best is justified by the mere
fact of its acceptance and that men are accustomed to it. The rational
study of law is still to a large extent the study of history. History
must be a part of the study, because without it we cannot know the
precise scope of rules which it is our business to know. It is a part of
the rational study, because it is the first step toward an enlightened
scepticism, that is, towards a deliberate reconsideration of the worth
of those rules. When you get the dragon out of his cave on to the plain
and in the daylight, you can count his teeth and claws, and see just
what is his strength. But to get him out is only the first step. The
next is either to kill him, or to tame him and make him a useful animal.
For the rational study of the law the blackletter man may be the man of
the present, but the man of the future is the man of statistics and the
master of economics. It is revolting to have no better reason for a
rule of law than that so it was laid down in the time of Henry IV. It
is still more revolting if the grounds upon which it was laid down have
vanished long since, and the rule simply persists from blind imitation
of the past.