danger to administration of justice according to law is in timid resistance to rational improvement and obstinate persistence in legal paths which have become impossible in the heterogeneous, urban, industrial America of today. . . . When the lawyer refuses to act intelligently, unintelligent application of the legislative steam-roller by the layman is the alternative."
In The Mind in the Making, James Harvey Robinson has shown that our reasoning machinery is not, and cannot be, the product of the twentieth century, but has been built up stage by stage, through periods of time very different from ours, each of which has left indelible traces. Dean Pound tells how a similar process has created our law. This fact presents a fatal obstacle to the wish of H. G. Wells in his Outline of History, who is persuaded "that a time will come when the whole theory and practice of law will be recast in the light of a well-developed science of social psychology in accordance with a scientific conception of human society as one developing organization and in definite relationship to a system of moral and intellectual education." We may succeed in getting rid of many of the "conventions, arbitrary assumptions and working fictions" which cause Wells to "contemplate the law and lawyers of today with a temperamental lack of appreciation," but for a long time to come, future development must follow the general direction of past development, and must feel the effect of several powerful influences which have successively moulded the common law.
This book distinguishes seven such factors, each of which with one exception receives a separate chapter. At the bottom is an original substratum of Germanic legal institutions and ideas, impregnated with barbarian individualism and insistent after the manner of primitive law upon full and exact performance of carefully defined duties. Every man must stand upon his own feet and play the game as a man, without squealing. Something of this spirit may be recognized to-day in the doctrine of contributory negligence and in the severe penalties imposed upon mistakes in the conduct of litigation. The minute Anglo-Saxon codes, which assess a payment of so many pence or shillings for the loss of a finger or hand or eye in a mediaeval brawl, find their counterpart in modern Workmen's Compensation Acts with their elaborate schedules of the amount which the employer must pay for every conceivable type of injury in an industrial accident.
