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The Path of the Law

When we study law we are not studying a mystery but a well-known
profession. We are studying what we shall want in order to appear before
judges, or to advise people in such a way as to keep them out of court.
The reason why it is a profession, why people will pay lawyers to argue
for them or to advise them, is that in societies like ours the command
of the public force is intrusted to the judges in certain cases, and the
whole power of the state will be put forth, if necessary, to carry
out their judgments and decrees. People want to know under what
circumstances and how far they will run the risk of coming against what
is so much stronger than themselves, and hence it becomes a business
to find out when this danger is to be feared. The object of our study,
then, is prediction, the prediction of the incidence of the public force
through the instrumentality of the courts.

The means of the study are a body of reports, of treatises, and of
statutes, in this country and in England, extending back for six hundred
years, and now increasing annually by hundreds. In these sibylline
leaves are gathered the scattered prophecies of the past upon the cases
in which the axe will fall. These are what properly have been called the
oracles of the law. Far the most important and pretty nearly the whole
meaning of every new effort of legal thought is to make these prophecies
more precise, and to generalize them into a thoroughly connected system.
The process is one, from a lawyer's statement of a case, eliminating
as it does all the dramatic elements with which his client's story has
clothed it, and retaining only the facts of legal import, up to the
final analyses and abstract universals of theoretic jurisprudence. The
reason why a lawyer does not mention that his client wore a white hat
when he made a contract, while Mrs. Quickly would be sure to dwell upon
it along with the parcel gilt goblet and the sea-coal fire, is that he
foresees that the public force will act in the same way whatever his
client had upon his head. It is to make the prophecies easier to be
remembered and to be understood that the teachings of the decisions of
the past are put into general propositions and gathered into textbooks,
or that statutes are passed in a general form. The primary rights and
duties with which jurisprudence busies itself again are nothing but
prophecies. One of the many evil effects of the confusion between legal
and moral ideas, about which I shall have something to say in a moment,
is that theory is apt to get the cart before the horse, and consider the
right or the duty as something existing apart from and independent of
the consequences of its breach, to which certain sanctions are added
afterward. But, as I shall try to show, a legal duty so called is
nothing but a prediction that if a man does or omits certain things he
will be made to suffer in this or that way by judgment of the court; and
so of a legal right.

The number of our predictions when generalized and reduced to a system
is not unmanageably large. They present themselves as a finite body
of dogma which may be mastered within a reasonable time. It is a great
mistake to be frightened by the ever-increasing number of reports. The
reports of a given jurisdiction in the course of a generation take up
pretty much the whole body of the law, and restate it from the present
point of view. We could reconstruct the corpus from them if all that
went before were burned. The use of the earlier reports is mainly
historical, a use about which I shall have something to say before I
have finished.

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 No. 315
 Posted on 8 June, 2006
 
 
 
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