IT THE PLACE OF LOGIC IN THE LAW IT is a curious fact that while critics and reformers of the law formerly used to take their stand on self-evident truths, and eternal principles of justice and reason, their appeal now is predominantly to vital needs, social welfare, the real or practical need of the times, etc. Those who believe law to be not an isolated island in vacuo but a province of the life we call civilization, occupying similar soil and subject to the same change of intellectual season as the other provinces, will see in the fact noted above nothing but an indication of the general passing out of fashion of the old rationalism or intellectualism. The seed of the protest against the over-emphasis of the logical element in the law was planted by Von Jhering and Justice Holmes over a generation ago.1 But legal science in this country was then so far behind that of Germany that the logical elaboration and systematization of the law embodied in the work of Langdell and Ames proved the more pressing need and obtained the right of way. But there are many indications that the forces of anti-intellectualism are now rising in American legal thought, and they are sure to find powerful support in the public impatience with legal technicalities. Imitators or followers seldom possess the many-sided catholicity of the pioneer or master. Thus Von Jhering and Justice Holmes, while emphasizing other factors, by no means deny all importance to legal logic. A large part of Von Jhering's "Geist" 2 is devoted to a logical analysis of the method and general ideas of the law; and Justice Holmes is careful to emphasize the function of general ideas in the development of the law (e. g., the idea of identity in succession after death and inter vivos), and his book abounds in illustrations of how difficult legal problems can be cleared up by just logical analyses. But the new, more zealous crusaders against 1 VON JHERING, GEIST D. Röm. RECHT, iii, § 69. SCHERZ U. ERNST, ch. I and pts. iii and iv. HOLMES, COMMON LAW, ch. 1. 2 §§ 44-46, 59-68, and esp. §§ 45, 64, 65. THE COMMON LAW, ch. x. Note the quotation at the end of the preface, and the important place of "reasons" in the development of the law, pp. 5, 36. • See especially pp. 214, 219, 220, 239, 289. legal idealogy are less cautious, and are inclined to deny all value to logic and general principles. Now it is a rather simple task to show the inadequacies of the proposed substitutes for the traditional principles of legal science. Sound common sense, the lessons of experience, the unspoiled sense of justice, the teachings of the as yet to be established science of sociology, or the somewhat elusive and perhaps altogether mythical will of the dominant class, cannot, without the aid of a logical legal technique, help us elaborate the laws of gifts, sales, mortgages, or determine the precise liability of a railroad company to those who use its sleeping car service. It is also easy enough to refute these new crusaders out of their own mouths and show that they themselves attach great value to a clear and logically consistent elaboration of the law. But such easy refutations, while they may be just, are seldom illuminating, unless we examine the situation with some thoroughness. This may lead us into the supposedly foreign fields of logic and metaphysics. But at the time when the foundations of our legal system are questioned both inside and outside of the legal fraternity, it would be only the wisdom of the ostrich which would counsel us to refrain from entering into these fields because, forsooth, the old tradition. says that law is law, and has nothing to do with any other field of human inquiry. It may be reassuring to orthodox legal scholarship to note that the foremost representatives of the exact and natural sciences have now outgrown the childish fear of metaphysics as the intellectual bogy-witness the writings of Russell, Poincaré, Duhem, Ostwald, and Driesch. I A suggestive parallel can be drawn between the functions of the law and of natural science. Both facilitate transactions by increasing our reliance on the future. We build our modern houses, bridges, and machinery because science makes us more certain that these structures will withstand the variations of pressure, etc. We enter into business because we expect that people will continue to 5 WÜSTENDORFer, Die DEUTSCHE RECHTSPRECHUNG, 223; FUCHS, DIE GEMEINSCHÄDLICHKEIT DER KONSTRUKTIVEN JURISPRUDENZ, chs. i and ii; BENTLEY, THE PROCESS OF GOVERNMENT, ch. i, and BROOKS Adams, CentraLIZATION AND THE LAW, lectures i and ii. 6 CENTRALIZATION AND THE LAW, 39, 41, 43; WÜSTENDORFER, 210-222. desire certain commodities, and we count on the state to continue to protect us against robbery. We sell on credit not only because we expect that most people will be moved (by habit or conscience) to pay, but also because the law provides us with a machinery for collecting what is due. If our debtors also know that this machinery exists, they will pay more readily and the expense of using this legal machinery will be accordingly reduced. That the law should be readily knowable is, thus, essential to its usefulness. So far is this true that there are many inconveniences or injustices in the law which men would rather suffer than be paralyzed in their action by uncertainty. Primitive law, i. e., all legal systems uninfluenced by Greek science, try to achieve this certainty by fixed rules or dooms enumerating specific actions and their consequences, just as they store up wisdom in isolated saws or proverbs. Clearly the multitudinous and complicated relations of modern life could not possibly be regulated by such a method. Like the classical Romans, we utilize, instead, that most wonderful discovery, or invention, of the Greeks-rational deductive system. We try to reduce the law to the smallest number of general principles from which all possible cases can be reached, just as we try to reduce our knowledge of nature to a deductive mathematical system. This rational form also gives the law the appearance of complete freedom from arbitrary will and thus satisfies the modern demand for equality in the enforcement of law." The law, of course, never succeeds in becoming a completely deductive system. It does not even succeed in becoming completely consistent. But the effort to assume the form of a deductive system underlies all constructive legal scholarship. In our own day, for instance, Thayer's general views on evidence and Wigmore's classical treatise on the subject have transformed a conglomeration of disconnected rules into something like a system. Ames' doctrine of unjust enrichment has brought together a number of artificially tacked on appendages to the law of contract into the somewhat coherent body of law known as quasi-contract. Forty years ago we had so little of a general theory of torts that if anyone had thought of writing a treatise on the subject he might simply have treated of a number of torts in alphabetic order. To-day we have 7 "Arbitrary discretion is excluded by the certainty resulting from a strict scientific method." SAVIGNY, VOCATION OF OUR AGE, p. 151. not only a general theory of liability, but there is a marked tendency to make the law of torts and the law of contracts branches of the law of obligations. This effort at generalization and system has always been the task of the jurist. We use the notions of property, contract, or obligation so often now that we are apt to think that they are "as old as the law itself." But legal history shows clearly enough that the notion of property came as a result of a long process of unification of diverse laws against robbery. A great deal of material had to be eliminated before the abstract idea of property could be extracted. The idea of contract is so late that even as developed a legal system as the Roman had no general law of contract, but merely laws of stipulatio, depositum, pignus, locatio conductio, etc. The notion of possession seems to the classical jurists simply one of fact. But the possessory remedies did not originate in the principle of possession but rather in a number of diverse situations.8 In thus endeavoring to make the law systematic, jurists are not merely pursuing their own purely theoretic or scientific interest. They are performing a duty to the community by thus transforming the law. A legal system that works with general principles has powerful instruments. Just as the generalized arithmetic which we call advanced mathematics has increased manifold our power of solving physical problems, so a generalized jurisprudence enlarges the law's control over the diversity of legal situations. It is like fishing with large nets instead of with single lines. As nature has other cares besides letting us paint her deductive charm, she constantly reveals aspects that hamper or complicate our beautiful analytic equations. So, also, the affairs of practical life generate situations which mock our well-intentioned efforts to reduce the law to a rational system. In the presence of these, as of other seemingly insurmountable obstacles, human frailty is tempted to blink at the difficulties. So urgent is the need for assured first principles that most people resent the service which the skeptical-minded the stray dogs of the intellectual world — render by showing the uninhabitableness of our hastily constructed legal or philosophic kennels. In the legal field, the blinking at the practical difficulties is facilitated by the ready assurance that if our principles are just it is none of our fault if any inconvenience re8 DERNBURG, RÖM. RECHT, § 220. sults. Fiat justitia pereat mundus, is a very edifying excuse for refusing to reexamine our principles in the light of the harsh results to which they lead. According to the prevailing popular theory -a theory for which popular philosophy is largely indebted to a famous lawyer, Francis Bacon facts are "out there" in nature and absolutely rigid, while principles are somewhere "in the mind" under our scalps and changeable at will. According to this view scientific theories are made to fit preëxisting facts somewhat as clothes are made to fit people. A single inconsistent fact, and the whole theory is abandoned. Actually, however, facts are not so rigid and theories not so flexible; and when the two do not fit, the process of adaptation is a bilateral one. When new facts come up inconsistent with previous theories, we do not give up the latter, but modify both the facts and the theory by the introduction of new distinctions or of hypothetical elements. If the facts of radiation do not fit in with the theory of the conservation of energy, an ether is invented and endowed with just as many properties as are necessary to effect a reconciliation, though in the end this results in inordinate complexity. Similarly legal theories, attempting to assimilate new facts by stretching old rules and introducing distinctions and fictions, become so complex and full of arbitrary elements that the very end of legal system is thereby defeated. It is artificial complexity rather than inconsistency with facts that caused the abandonment of the Ptolemaic astronomy and is causing the abandonment of the physics of the ether to-day. The classical system of common-law pleading, based on a few self-evident principles, was just such a system. It fell precisely because, as the forms of actions expanded to include the new industrial order, the system became so choked with artificial distinctions and fictions that a conservative and long-suffering people had to sweep it all away. Similarly has the law of employers' liability, based on a simple principle — no responsibility without fault-grown to such monstrous complexity (witness Labat's voluminous book) that legislation is sweeping it away. The above parallel between natural science and legal system should, of course, be corrected by noting the important differences between the two. Legal principles are not so simple or so readily applicable to single cases as are the principles of physics; nor are the facts of the legal order so definite and so rigid as those of the |
