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In the view of the common law,first,history is an autonomous existence,and history has a constructive influence on reality:people's understanding of reality is based on nothing but several understandings of history.Second,reality and history are opposed by the antithetic relation of the present and the past in time,but they should be identical in soul.As savini said,"the legal system of a people,like art and music,is the natural embodiment of their culture and cannot be imposed on them from the outside."It is based on this spiritual consistency that common law means common across not only space but also time.Of course,as well as common law,common law also reject some transcendental nature rationally,but opposed by common law is not natural rationality itself,but its relying too much on the gift of faith,have taken their communication ability of history and reality,or common explanatory power of history and reality,the so-called"historic".Third,the common law is against the theory of success or failure based on reality.For this reason,people should abandon the various concepts under the present,because these concepts have not been subjected to the judgment of history,and then put themselves back to the past,to observe the autonomy of history,find the spirit of history,and form a judgment standard of reality based on this.Fourth,the common law appeals to history for the purpose of criticizing reality on the one hand and the utopian long-term consideration on the other hand.Thus,in the view of the common law,the past,the present and the future are of equal importance in the face of"history".
In general,just like the enlightenment jurists,the jurists under this historical view of law are charged with the mission of"criticizing the reality"and"planning the future".They are in the present,but stand on the opposite side of the powerful,targeting the"evil of the present";they explore"real"history while respecting the autonomy of the past.In this process,they search for a historical spirit that can eliminate the contingency of events,that is,"historical",until the formation of a universal value with strong explanatory power.
Philosophically the apportionment of the field between rule and discretion which is suggested by the use of rules and of standards respectively in modern law has its basis in the respective fields of intelligence and intuition. Bergson tells us that the former is more adapted to the inorganic, the latter more to life. Likewise rules, where we proceed mechanically, are more adapted to property and to business transactions, and standards; where we proceed upon intuitions, are more adapted to human conduct and to the conduct of enterprises. According to him, intelligence is characterized by "its power of grasping the general element in a situation and relating it to past situations," and this power involves loss of "that perfect mastery of a special situation in which instinct rules." In the law of property and in the law of commercial transactions it is precisely this general element and its relation to past situations that is decisive. The rule, mechanically applied, works by repetition and precludes individuality in results, which would threaten the security of acquisitions and the security of transactions. On the other hand, in the handmade, as distinguished from the machine-made product, the specialized skill of the workman gives us something infinitely more subtle than can be expressed in rules. In law some situations call for the product of hands, not of / machines, for they involve not repetition, where the general elements are significant, but unique events, in which the special circumstances are significant. Every promissory note is like every other. Every fee simple is like every other. Every distribution of assets repeats the conditions that have recurred since the Statute of Distributions. But no two cases of negligence have been alike or ever will be alike. Where the call is for individuality in the product of the legal mill, we resort to standards. And the sacrifice of certainty in so doing is more apparent than actual. For the certainty attained by mechanical application of fixed rules to human conduct has always been illusory.
