Sidor som bilder





Copyright 1921




To derive the best from any book, one must read it with knowledge of the ideas which underlie it and of the purpose with which it was produced. Every sincere book relating to law is inevitably and distinctly colored by its author's idea of what law is. Therefore it seems proper for me to present my own views.

I conceive law to be the aggregation of rules which courts of justice feel themselves more or less obligated to follow in deciding controversies. To some extent these rules are formulated and declared by legislative authority. Most of them, however, have been evolved by judges themselves.

These latter rules are not always easy to formulate; if they were, there would be no need for real text-books. Even the precise utterances of various judges can not always be accepted as rules. I believe that no judge has power, either practically or theoretically, to bind other judges by any declaration of rule or command, but that the only obligation felt by courts is the obligation to conform to prior judicial action. It is therefore prior judicial conduct under given circumstances which determines the action of later judges, rather than prior declarations as to what such conduct ought to be.

In the great majority of cases, actual decision does accord with the mere verbal declarations of what ought to be done. But not infrequently a judge in deciding the case before him will state what he would have done had the facts been otherwise. He states what he believes to be a rule, without being called to act upon it. In many other cases judges have rendered decisions that actually conform to prior related decisions, but have given as reason for the decision some assumed rule which is really inconsistent with the earlier ones. These dicta, therefore, can not blindly be accepted as rules of law.

Rules of law, like the laws of any other science, must be deduced from a critical analysis and study of legal phenomena. And these phenomena, to my mind, are the decisions actually rendered by courts of justice. I do not mean that the comments and stated reasons of the judges may be disregarded. On the contrary, they are an intrinsic part of the phenomena of decision. They must be considered and given the fullest effect of guidance. But if one admits that, while judges may act on each case as it comes before them, they may not command other judges how to act, one must of necessity deduce the rule of action primarily from the acts themselves. Hence I have sought always for some judicial custom of decision, as indicating the rule of law more truly than does judicial speech alone.

In another respect, also, I have looked beyond the mere words of decisions. Judicial opinions often merely state the facts of a case as though they were in themselves a self-evident reason for the decision. No rule at all is stated. A text writer can follow this example and merely state the rule to be that when facts are thus and so the decision will be thus and so. But if law is truly the perfection of reason, there should be a rational basis for all decisions-some reason founded on utility, or on consistency with other and correlated rules of law. Only through knowledge of these reasons—whether they rest in the utility of consistency only, or of something else—can a lawyer possibly predict what will be the decision-or advise the court what should be the decision in cases of somewhat novel facts. It is only through deduction of the reason, the rule for decision, from study of many decisions that the essential facts can possibly be separated from the immaterial.

It is just this analysis, it seems to me, which distinguishes a text-book from a digest. The latter presents the phenomena. That is, it gives the facts and decisions of cases. The former takes enough of these phenomena for reasonable certainty and attempts, through inductive analysis, to present the underlying causes of the decisions for use in future cases. If it does not do this, it is only a compilation itself. A text-book and a digest are, therefore, not substitutes for each other, but one supplements the other.

The law of Sales has already been so well analyzed and presented by men like Williston and Meechem that a new book is hardly justified so far as substance of the rules alone is concerned. But, inasmuch as students of any science disagree more or less as to the causes of its phenomena, it is always possible that a new writer may bring something of value by way of explanation and of reason for the rules.

There is also possible value in a new manner of presenting an old subject matter. Some books, for instance, group rules of law according to their relation to certain

« FöregåendeFortsätt »