3. RHYTHM OF LEGAL DEVELOPMENT
With regard to the relationship between law and morals, only those absolutely convinced of legal positivism could deny the inseparable connection between both. Wang Pe-Chi, a learned and deep-thinking contemporary Chinese scholar, wrote with perceptive wisdom that “their relationship is in fact like the relationship between a body and its shadow, which can never be separated.” The less the distance between law and morals in society, the more stable the society may be, and the more contented its members may feel.
However, law is by nature a conservative force under normal conditions, and morals always the leading force of human behaviour. Law must not lag behind morals. It is the duty of the jurists to try to keep the law as close to morals as possible, although the problem is one of the most fundamental and difficult in jurisprudence; Jhering once compared it to Cape Horn, where few jurists could avoid shipwreck in the journey of jurisprudence.On the other hand, we can find two spirits of the age, spirits of jus strictum and jus aequum, always contending against each other in the last 2,000 years of European history. The spirit of jus strictum is the inclination of the legal profession to adhere strictly to the letter of the law, holding the contents of the law so sacred and perfect as to be applicable to all the problems of society. There is no need to consider other factors beyond the domain of law. We can find evidences of such a spirit in the society where the development of law and legal science reached full maturity, as in France after the Napoleonic Code, in Germany in the form of Begriffsjurisprudenz, and in England in the complacency of common law before the emergence of equity. When the legal system is fortified by the spirit of jus strictum, it lacks the flexibility required for just and proper solution of conflicts.
On the contrary, the jurists who are sensitive to the defects in the legal system are inclined to introduce para-legal concepts into the legal system in order to make it responsive to the demand of justice and further to reform the system itself. Such inclination of the jurists has been known as the spirit of jus aequum. It appears to us that the birth of jus gentium and Praetor legem in the time of Romans or equity in England in the seventeenth century was the expression of this spirit.
The era dominated by the spirit of jus strictum was always followed and supplanted by an era dominated by the spirit of jus aequum; but the hands of the clock tended to swing back to the era of jus strictum. The eras of jus strictum and jus aequum tend to alternate again and again over the long history of legal development. In the history of law and jurisprudence in Europe, the study of Roman law revived in Italy in the eleventh century, and the following Glossator and Post-Glossator Schools represented an era of jus strictum. But the later period of around 300 years through the period of modern natural law would be taken as an era of jus aequum. After the Napoleonic Code, however, modern times entered again into the era of jus strictum, dominated by the spirit of legal positivism.