Gale Encyclopedia Of American Law 3Rd Edition Volume 13 P57 pptx

name. I mean the study of what is called jurisprudence. Jurisprudence, as I look at it, is simply law in its most generalized part. Every effort to reduce a case to a rule is an effort of jurisprudence, although the name as used in English is confined to the broadest rules and most fundamental conceptions. One mark of a great lawyer is that he sees the application of the broadest rules. There is a story of a Vermont justice of the peace before whom a suit was brought by one farmer against another for breaking a churn. The justice took time to consider, and then said that he had looked through the statutes and could find nothing about churns, and gave judgment for the defendant. The same state of mind is shown in all our common digests and text-books. Applications of rudimentary rules of contract or tort are tucked away under the head of Railroads or Telegraphs or go to swell treatises on historical subdivisions, such as Shipping or Equity, or are gathered under an arbitrary title which is thought likely to appeal to the practical mind, such as Mercantile Law. If a man goes into law it pays to be a master of it, and to be a master of it means to look straight through all the dramatic incidents and to discern the true basis for prophecy. Therefore, it is well to have an accurate notion of what you mean by law, by a right, by a duty, by malice, intent, and negligence, by ownership, by possession, and so forth. I have in my mind cases in which the highest courts seem to me to have floundered because they had no clear ideas on some of these themes. I have illustrated their importance already. If a further illustration is wished, it may be found by reading the Appendix to Sir James Stephen’s Criminal Law on the subject of possession, and then turning to Pollock and Wright’s enlightened book. 40 Sir James Stephen is not the only writer whose attempts to analyze legal ideas have been confused by striving for a useless quintessence of all systems, instead of an accurate anatomy of one. The trouble with Austin was that he did not know enough English law. But still it is a practical advantage to master Austin, and his predecessors, Hobbes and Bentham, and his worthy successors, Holland and Pollock. Sir Frederick Pollock’srecentlittle book is touched with the felicity which marks all his works, and is wholly free from the perverting influence of Roman models. The advice of the elders to young men is very apt to be as unreal as a list of the hundred best books. At least in my day I had my share of such counsels, and high among the unrealities I place the recommendation to study the Roman law. I assume that such advice means more than collecting a few Latin maxims with which to ornament the discourse,—the purpose for which Lord Coke recommended Bracton. If that is all that is wanted, the title “De Regulis Juris Antiqui” can be read in an hour. I assume that, if it is well to study the Roman law, it is well to study it as a working system. That means mastering a set of technicalities more difficult and less understood than our own, and studying another course of history by which even more than our own the Roman law must be explained. If any one doubts me, let him read Keller’s 41 “Der Römische Civil Process und die Actionen,” a treatise on the pr; aetor’sedict,Muirhead’s most interesting “His- torical Introduction to the Private Law of Rome,” and, to give him the best chance possible, Sohm’s 42 admirable Institutes. No. The way to gain a liberal view of your subject is not to read something else, but to get to the bottom of the subject itself. The means of doing that are, in the first place, to follow the existing body of dogma into its highest generalizations by the help of jurisprudence; next, to discover from history how it has come to be what it is; and, finally, so far as you can, to consider the ends which the several rules seek to accomplish, the reasons why those ends are desired, what is given up to gain them, and whether they are worth the price. We have too little theory in the law rather than too much, especially on this final branch of study. When I was speaking of history, I mentioned larceny as an example to show how the law suffered from not having embodied in a clear form a rule which will accomplish its manifest purpose. In that case the trouble was due to the survival of forms coming from a time when a more limited purpose was entertained. Let me now give an example to show the practical importance, for the decision of actual cases, of understanding the reasons of the law, by taking an example from rules which, so far as I know, never have been explained or theorized about in 40 [Ed. note] AN ESSAY ON POSSESSION IN THE COMMON LAW (1888). 41 [Ed. note] Friedrich Ludwig von Keller (1799–1860). 42 [Ed. note] Rudolph Sohm (1841–1917). GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 546 REFLECTIONS ON LAW AND SOCIETY PRIMARY DOCUMENTS LEGAL SCHOLARSHIP THE PATH OF THE LAW any adequate way. I refer to statutes of limitation and the law of prescription. The end of such rules is obvious, but what is the justification for depriving a man of his rights, a pure evil as far as it goes, in consequence of the lapse of time? Sometimes the loss of evidence is referred to, but that is a secondary matter. Sometimes the desirability of peace, but why is peace more desirable after twenty years than before? It is increasingly likely to come without the aid of legislation. Sometimes it is said that, if a man neglects to enforce his rights, he cannot complain if, after a while, the law follows his example. Now if this is all that can be said about it, you probably will decide a case I am going to put, for the plaintiff; if you take the view which I shall suggest, you possibly will decide it for the defendant. A man is sued for trespass upon land, and justifies under a right of way. He proves that he has used the way openly and adversely for twenty years, but it turns out that the plaintiff had granted a license to a person whom he reasonably supposed to be the defendant’s agent, although not so in fact, and therefore had assumed that the use of the way was permissive, in which case no right would be gained. Has the defendant gained a right or not? If his gaining it stands on the fault and neglect of the landowner in the ordinary sense, as seems commonly to be supposed, there has been no such neglect, and the right of way has not been acquired. But if I were the defendant’s counsel, I should suggest that the foundation of the acquisition of rights by lapse of time is to be looked for in the position of the person who gains them, not in that of the loser. Sir Henry Maine has made it fashionable to connect the archaic notion of property with prescription. But the connection is further back than the first recorded history. It is in the nature of man’smind.Athing which you have enjoyed and used as your own for a long time, whether property or an opinion, takes root in your being and cannot be torn away without your resenting the act and trying to defend yourself, however you came by it. The law can ask no better justification than the deepest instinctsofman.Itisonlybywayofreplytothe suggestion that you are disappointing the former owner, that you refer to his neglect having allowed the gradual dissociation between himself and what he claims, and the gradual association of it with another. If he knows that another is doing acts which on their face show that he is on the way toward establishing such an association, I should argue that in justice to that other he was bound at his peril to find out whether the other was acting under his permission, to see that he was warned, and, if necessary, stopped. I have been speaking about the study of the law, and I have said next to nothing of what commonly is talked about in that connection,— text-books and the case system, and all the machinery with which a student comes most immediately in contact. Nor shall I say anything about them. Theory is my subject, not practical details. The modes of teaching have been improved since my time, no doubt, but ability and industry will master the raw material with any mode. Theory is the most important part of the dogma of the law, as the architect is the most important man who takes part in the building of a house. The most important improvements of the last twenty-five years are improvements in theory. It is not to be feared as unpractical, for, to the competent, it simply means going to the bottom of the subject. For the incompetent, it sometimes is true, as has been said, that an interest in general ideas means an absence of particular knowledge. I remember in army days reading of a youth who, being examined for the lowest grade and being asked a question about squadron drill, answered that he never had considered the evolutions of less than ten thousand men. But the weak and foolish must be left to their folly. The danger is that the able and practical minded should look with indifference or distrust upon ideas the connection of which with their business is remote. I heard a story, the other day, of a man who had a valet to whom he paid high wages, subject to deduction for faults. One of his deductions was, “For lack of imagination, five dollars.” The lack is not confined to valets. The object of ambition, power, generall y presents itself nowadays in the form of money alone. Money is the most immediate form, and is a proper object of desire. “The fortune,” said Rachel, “is the measure of the intelligence.” That is a good text to waken people out of a fool’s paradise. But, as Hegel says, 43 “It is in the end not the appetite, but the opinion, which has to be satisfied.” To an imagination of any scope the most far-reaching form of power is not money, it is the command of ideas. If you want 43 Phil. des Rechts, § 190. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PRIMARY DOCUMENTS REFLECTIONS ON LAW AND SOCIETY 547 LEGAL SCHOLARSHIP THE PATH OF THE LAW great examples read Mr. Leslie Stephen’s “History of English Thought in the Eighteenth Century,” and see how a hundred years after his death the abstract speculations of Descartes had become a practical force controlling the con- duct of men. Read the works of the great German jurists, and see how much more the world is governed to-day by Kant than by Bonaparte. We cannot all be Descartes or Kant, but we all want happiness. And happiness, I am sure from having known many successful men, cannot be won simply by being counsel for great corporations and having an income of fifty thousand dollars. An intellect great enough to win the prize needs other food beside success. The remoter and more general aspects of the law are those which give it universal interest. It is through them that you not only become a great master in your calling, but connect your subject with the universe and catch an echo of the infinite, a glimpse of its unfathomable process, a hint of the universal law. Source: Reprinted in its entirety from O. W. Holmes, Jr., The Path of the Law, 10 HARVARD LAW REVIEW 457 (1897). The footnotes have been renumbered. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 548 REFLECTIONS ON LAW AND SOCIETY PRIMARY DOCUMENTS LEGAL SCHOLARSHIP THE PATH OF THE LAW Legal Scholarship Brief for the Defendant in Error, Muller v. Oregon Louis D. Brandeis, October Term, 1907 The World’s Experience upon Which the Legislation Limiting the Hours of Labor for Women Is Based I n MULLER V. OREGON in 1908, the U.S. Supreme Court upheld an Oregon law that prohibited the employment of women for more than ten hours a day. The decision was based in large part on a brief submitted by LOUIS D. BRANDEIS in support of the law. The br ief emphasized the differences between women and men and presented information showing that long work hours could have injurious effects on the health and welfare of women and their children, including their unborn children. The Court unanimously agreed, noting that “woman’sphysicalstruc- ture and the performance of maternal func- tions place her at a disadvantage in the s truggle for subsistence.” The Brandeis brief signaled a change in the type of evidence a court would consider in determining a case . With the growth of the social sciences, quantitative and qualitative studies conducted by researchers would increas- ingly find their way into U.S. courtrooms. k Brief for the Defendant in Error, Muller v. Oregon I. The Dangers of Long Hours A. Causes (1) Physical Differences Between Men and Women The dangers of long hours for women arise from their special physical organization taken in connection with the strain incident to factory and similar work. Long hours of labor are dangerous for women primarily because of their special physical organization. In structure and function women are differentiated from men. Besides these anatomical and physiological differences, physicians are agreed that women are funda- mentally weaker than men in all that makes for endurance: in muscular strength, in nervous energy, in the powers of persistent attention and application. Overwork, therefore, which strains endurance to the utmost, is more disastrous to the health of women than of men, and entails upon them more lasting injury. Report of Select Committee on Shops Early Closing Bill, British House of Commons, 1895. Dr. Percy Kidd, physician in Brompton and London Hospitals: The most common effect I have noticed of the long hours is general deterioration of health; very general symptoms which we medically attribute to over-action, and debil- ity of the nervous system; that includes a great deal more than what is called nervous disease, such as indigestion, constipation, a general slackness, and a great many other indefinite symptoms. Are those symptoms more marked in women than in men? I think they are much more marked in women. I should say one sees a great many more women of this class than men; but I have seen precisely the same symptoms in men, I should not say in the same propor- tion, because one has not been able to make anything like a statistical inquiry. There are other symptoms, but I mention those as being the most common. Another symptom especially among women is anemia, 549 REFLECTIONS ON LAW AND SOCIETY bloodlessness or pallor, that I have no doubt is connected with long hours indoors. Report of the Maine Bureau of Industrial and Labor Statistics, 1888. Let me quote from Dr. Ely Van der Warker (1875): Woman is badly constructed for the purposes of standing eight or ten hours upon her feet. I do not intend to bring into evidence the peculiar position and nature of the organs contained in the pelvis, but to call attention to the peculiar construction of the knee and the shallowness of the pelvis, and the delicate nature of the foot as part of a sustaining column. The knee joint of woman is a sexual characteristic. Viewed in front and extended, the joint in but a slight degree interrupts the gradual taper of the thigh into the leg. Viewed in a semi-flexed position, the joint forms a smooth ovate spheroid. The reason of this lies in the smallness of the patella in front, and the narrowness of the articular surfaces of the tibia and femur, and which in man form the lateral promi- nences, and thus is much more perfect as a sustaining column than that of a woman. The muscles which keep the body fixed upon the thighs in the erect position labor under the disadvantage of shortness of purchase, owing to the short distance, compared to that of man, between the crest of the ilium and the great trochanter of the femur, thus giving to man a much larger purchase in the leverage existing between the trunk and the extremities. Comparatively the foot is less able to sustain weight than that of man, owing to its shortness and the more delicate formation of the tarsus and metatarsus. Report of the Massachusetts Bureau of Labor Statistics, 1875. A “lady operator,” many years in the business, informed us: “I have had hundreds of lady compositors in my employ, and they all exhibited, in a marked manner, both in the way they performed their work and in its results, the difference in physical ability between themselves and men. They cannot endure the prolonged close attention and confinement which is a great part of type- setting. I have few girls with me more than two or three years at a time; they must have vacations, and they break down in health rapidly. I know no reason why a girl could not set as much type as a man, if she were as strong to endure the demand on mind and body.” Report of the Nebraska Bureau of Labor and Industrial Statistics, 1901–1902. They (women) are unable, by reason of their physical limitations, to endure the same hours of exhaustive labor as may be endured by men without injury to their health would wreck the constitution and destroy the health of women, and render them incapable of bearing their share of the burdens of the family and the home. The State must be accorded the right to guard and protect women as a class against such a condition, and the law in question to that extent conserves the public health and welfare. In strength as well as in rapidity and precision of movement women are inferior to men. This is not a conclusion that has ever been contested. It is in harmony with all the practical experience of life. It is perhaps also in harmony with the results of those investigators who have found that, as in the blood of women, so also in their muscles, there is more water than in those of men. To a very great extent it is a certainty, a matter of difference in exercise and environ- ment. It is probably, also, partly a matter of organic constitution. The motor superiority of men, and to some extent of males generally, is, it can scarcely be doubted, a deep-lying fact. It is related to what is most fundamental in men and in women, and to their whole psychic organization. There appears to be a general agreement that women are more docile and amenable to discipline; that they can do light work equally well; that they are steadier in some respec ts; but that, on the other hand, they are often absent on account of slight indisposition, and they break down sooner under strain. *** It has been estimated that out of every one hundred days women are in a semipathological state of health for from fourteen to sixteen days. The natural congestion of the pelvic organs during menstruation is augmented and favored by work on sewing machines and other industrial occupations necessitating the constant use of the lower part of the body. Work during these periods tends to induce chronic congestion of the uterus and appendages, and dysmenorrhea and flexion of the uterus are well known affections of working girls. VII. Laundries The specific prohibition in the Oregon Act of more than ten hours’ work in laundries is not an arbitrary discrimination against that trade. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 550 REFLECTIONS ON LAW AND SOCIETY PRIMARY DOCUMENTS LEGAL SCHOLARSHIP BRIEF FOR THE DEFENDANT IN ERROR, MULLER V. OREGON Laundries would probably not be included under the general terms of “manufacturing” or “me- chanical establishments”; and yet the special dangers of long hours in laundries, as the business is now conducted, present strong reasons for providing a legal limitation of the hours of work in that business. Dangerous Trades. Thomas Oliver, Medical Expert on Dangerous Trades Committees of the Home Office. 1902. Chapter XLVII. Laundry Workers. It is perhaps difficult to realize that the radical change which has everywhere transformed indus- trial conditions has already affected this occupa- tion (laundry work) also, and that for good or for evil the washerwoman is passing under the influences which have so profoundly modified the circumstances of her sister of the spinning- wheel and the sewing needle. When the first washing machine and ironing roller were applied to this occupation, alteration in the conditions became as much a foregone conclusion as it did in the case of the textile or the clothingmanufactures, when the spinning frame, the power loom, or the sewing machine appeared. Meanwhile, few industries afford at the present time a more interesting study. From a simple home occupation it is steadily being transformed by the application of power-driven machinery and by the division of labor into a highly organized factory industry, in which complicated labor-saving contrivances of all kinds play a prominent part. The tremendous impetus in the adoption of machinery, and the consequent modification of the system of employment so striking in the large laundries, is not greater than the less obvious but even more important development in the same direction among small laundries. Indeed the difference is rapidly becoming one of degree only. In the large laundries may be found perhaps more machinery and a greater number of the newest devices, but the fundamental change has affected all alike. *** D. Bad Effect upon Morals Report of British Chief Inspector of Factories and Workshops, 1900. One of the most unsatisfactory results of the present system of lack of working hours in laundries is the unfortunate moral effect on the women and girls. Women who are employed at arduous work till far into the night are not likely to be early risers nor given to punctual attendance in the morn- ings, and workers who on one or two days in the week are dismissed to idleness or to other occupations, while on the remaining days they are expected to work for abnormally long hours, are not rendered methodical, industrious, or dependable workers by such an unsatisfactory training. The self-control and good habits engendered by a regular and definite period of moderate daily employ- ment, which affords an excellent training for the young worker in all organized industries, is sadly lacking, and, instead, one finds periods of violent over-work alternating with hours of exhaustion. The result is the establishment of a kind of “vicious circle”; bad habits among workers make compliance by their employers with any regulation as to hours very difficult while a lack of loyal adherence to reasonable hours of employ- ment by many laundry occupiers increases the difficulty for those who make the attempt in real earnestness. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PRIMARY DOCUMENTS REFLECTIONS ON LAW AND SOCIETY 551 LEGAL SCHOLARSHIP BRIEF FOR THE DEFENDANT IN ERROR, MULLER V. OREGON Legal Scholarship Mechanical Jurisprudence Roscoe Pound, 1908 R OSCOE POUND followed in OLIVER WENDELL HOLMES ’s footsteps. In “Mechanical Juris- prudence” (1908), Pound coined the term mecha- nical jurisprudence to refer to the common but odious practice whereby judges woodenly applied previous precedents to the facts of cases without regard to the consequences. For Pound, the logic of previous precedents alone would not solve juris- prudential problems. The e ssay decries the ossifi- cation of legal concepts into self-evident truths. In opposition to mechanical jurisprudence, Pound offered his theory of sociological jurispru- dence. He acknowledged that the common law contains some constant principles, particularly in regard to methods. He gave these principles the name “taught legal tradition.” Pound believed that the implementation of this taught legal tradition by wise common-law judges resulted in substan- tive change, which reflected changes in society. As the interpreters of the common law, judges had a special duty to consider the practical effects of their decisions and to strive to ensure that they facilitated rather than hindered societal growth. k Mechanical Jurisprudence “There is no way,” says Sir Frederick Pollock, “by which modern law can escape from the scientific and artificial character imposed on it by the demand of modern societies for full, equal, and exact justice:” An Australian judge has stated the same proposition in these words: “The public is more interested than it knows in maintaining the highest scientific standard in the administration of justice.” Every lawyer feels this, and every thoughtful student of institutions must admit it. But what do we mean by the word “scientific” in this connection? What is scientific law? What constitutes science in the administration of justice? Sir Frederick Pollock gives us the clue when he defines the reasons that compel law to take on this scientific character as three: the demand for full justice, that is for solutions that go to the root of controversies; the demand for equal justice, that is a like adjustment of like relations under like conditions; and the demand for exact justice, that is for a justice whose operations, within reasonable limits, may be predicted in advance of action. In other words, the marks of a scientific law are, conformity to reason, unifor- mity, and certainty. Scientific law is a reasoned body of principles for the administration of justice, and its antithesis is a system of enforcing magisterial caprice, however honest, and how- ever much disguised under the nam e of justice or equity or natural law. But this scientific character of law is a means—a means toward the end of law, which is the administration of justice. Law is forced to take on this character in order to accomplish its end fully, equally, and exactly; and in so far as it fails to perform its function fully, equally, and exactly, it fails in the end fo r which it exists. Law is scientific in order to eliminate so far as may be the personal equation in judicial administration, to preclude corruption and to limit the dangerous possibili- ties of magisterial ignorance. Law is not scientific for the sake of science. Being scientific as a means toward an end, it must be judged by 552 REFLECTIONS ON LAW AND SOCIETY the results it achieves, not by the niceties of its internal structure; it mu st be valued by the extent to which it meets its end, not by the beauty of its logical processes or the strictness with which its rules proceed from the dogmas it takes for its foundation. Two dangers have to be guarded against in a scientific legal system, one of them in the direction of the effect of its scientific and artificial character upon the public, the other in the direction of its effect upon the courts and the legal profession. With respect to the first danger, it is well to remember that law must not become too scientific for the people to appreciate its workings. Law has the practical function of adjusting everyday relations so as to meet current ideas of fair play. It must not become so completely artificial that the public is led to regard it as wholly arbitrary. No institution can stand upon such a basis today. Reverence for institutions of the past will not preserve, of itself, an institution that touches everyday life as profoundly as does the law. Legal theory can no more stand as a sacred tradition in the modern world than can political theory. It has been one of the great merits of English law that its votaries have always borne this in mind. When Lord Esher said, “the law of England is not a science,” he meant to protest against a pseudo-science of technical rules existing for their own sake and subserving supposed ends of science, while defeating justice. And it is the importance of the role of jurors in tempering the administration of justice with common-sense and preserving a due connection of the rules governing everyday relations with everyday needs of ordinary men that has atoned for the manifold and conspicuous defects of trial by jury and is keeping it alive. In Germany today one of the problems of law reform is how to achieve a similar tempering of the justice administered by highly trained specialists. In the other direction, the effect of a scientific legal system upon the courts and upon the legal profession is more subtle and far-reaching. The effect of all systems is apt to be petrifaction of the subject systematized. Perfection of scientific system and exposition tends to cut off individual initiative in the future, to stifle independent consideration of new problems and of new phases of old problems, and to impose the ideas of one generation upon another. This is so in all departments of learning. One of the obstacles to advance in every science is the domination of the ghosts of departed masters. Their sound methods are forgotten, while their unsound conclusions are held for gospel. Legal science is not exempt from this tendency. Legal systems have their periods in which science degenerates, in which system decays into technicality, in which a scientific jurisprudence becomes a mechanical jurisprudence. Roman law in its decadence furnishes a striking example. The Valentinian “law of cita- tions” made a selection of jurisconsults of the past and allowed their writings only to be cited. It declared them, with the exception of Papinian, equal in authority. It confined the judge, when questions of law were in issue, to the purely mechanical task of counting and of determining the numerical preponderance of authority. Prin- ciples were no longer resorted to in order to make rules to fit cases. The rules were at hand in a fixed and final form, and cases were to be fitted to the rules. The classical jurisprudence of principles had developed, by the very weight of its authority, a jurisprudence of rules; and it is in the nature of rules to operate mechanically. Undoubtedly one cause of the tendency of scientific law to become mechanical is to be found in the average man’s admiration for the ingenious in any direction, his love of techni- cality as a manifestation of cleverness, his feelin g that law, as a developed institution, ought to have a certain ballast of mysterious technicality. “Philosophy’s queere st arguments,” says James, “tickle agreeably our sense of subtlety and ingenuity.” Every practitioner has encoun tered the lay obsession as to invalidity of a signing with a lead pencil. Every law teacher has had to combat the student obsession that notice, however cogent, may be disregarded unless it is “official.” Lay hair-splitting over rules and regulations goes far beyond anything of which lawyers are capable. Experienced advocates have insisted that in argument to a jury, along with a just, common-sense theory of the merits, one ought to have a specious technicality for good measure. But apart from this general human tendency, there is the special tendency of the lawyer to regard artificiality in law as an end, to hold science something to be pursued for its own sake, to forget in this pursuit the purpose of law and hence of scientific law, and to judge rules and doctrines by their conformity to a supposed science and not by the results to which they lead. In periods of growth and expansion, this tendency is repressed. In periods GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PRIMARY DOCUMENTS REFLECTIONS ON LAW AND SOCIETY 553 LEGAL SCHOLARSHIP MECHANICAL JURISPRUDENCE of maturity and stability, when the opportunity for constructive work is largely eliminated, it becomes very marked. I have known judges, [said Chief Justice Erle] bred in the world of legal studies, who delighted in nothing so much as in a strong decision. Now a strong decision is a decision opposed to common-sense and to common convenience. A great part of the law made by judges consists of strong decisions, and as one strong decision is a precedent for another a little stronger, the law at last, on some matters, becomes such a nuisance that equity intervenes, or an Act of Parliament must be passed to sweep the whole away. The instance suggested in the conversation from which the foregoing extract is taken illustrates very well the development of a mechan- ical legal doctrine. Successive decisions upon the construction of wills had passed upon the meaning of particular words and phrases in particular wills. These decisions were used as guides in the construction of other wills. Presently rules grew up whereby it was settled that particular words and phrases had prescribed hard and fast meanings, and the construction of wills became so artificial, so scientific, that it defeated the very end of construction and compelled a series of sections in the Wills Act of 1836. I have referred to mechanical jurisprudence as scientificbecause thosewho administer it believe it such. But in truth it is not science at all. We no longer hold anything scientific merely because it exhibits a rigid scheme of deductions from apriori conceptions. In the philosophy of today, theories are “instruments, not answers to enigmas, in which we can rest.” The idea of science as a system of deductions has become obsolete, and the revolution which has taken place in other sciences in this regard must take place and istaking place in jurisprudence also. This revolution in science at large was achieved in the middle of the nineteenth century. In the first half of that century, scientific method in every department of learning was dominated by the classical German philosophy. Men conceived that by dialectics and deduction from controlling conceptions they could construe thewholecontentofknowledge.Eveninthe natural sciences this belief prevailed and had long dictated theories of nature and of natural phe- nomena. Linnaeus, for instance, lays down a proposition, omne vivum ex ovo, and from this fundamental conception deduces a theory of homologies between animal and vegetable organs. He deemed no study of the organisms and the organs themselves necessary to reach or to sustain these conclusions. Yet, today, study of the organisms themselves has overthrown his funda- mental proposition. The substitution of efficient for final causes as explanations of natural phe- nomena has been paralleled by a revolution in politicalthought.Wedonotbaseinstitutionsupon deduction from assumed principles of human nature; we require them to exhibit practical utility, and we rest them upon a foundation of policy and established adaptationtohuman needs. It hasbeen asserted that to no small extent the old mode of procedure wasborrowed from the law.Weare told that it involved a “fundamentally juristic concep- tion of the world in which all kinds of action and every sort of judgment was expressed in legal phraseology.” We are told that “in the Middle Ages human welfare and even religion was conceived under the form of legality, and in the modern world this has given place to utility.” We have, then, the same task in jurisprudence that has been achieved in philosophy, in the natural sciences and in politics. We have to rid ourselves of this sort of legality and to attain a pragmatic, a sociological legal science. What is needed nowadays, [it has been said] is that as against an abstract and unreal theory of State omnipotence on the one hand, and an atomistic and artificial view of individual independence on the other, the facts of the world with its innumerable bonds of associa- tion and the naturalness of social authority should be generally recognized, and become the basis of our laws, as it is of our life. Herein is the task of the sociological jurist. Professor Small defines the sociological move- ment as “a frank endeavor to secure for the human factor in experience the central place which belongs to it in our whole scheme of thought and action.” The sociological movement in jurisprudence is a movement for pragmatism as a philosophy of law; for the adjustment of principles and doctrines to the human conditions they are to govern rather than to assumed first principles; for putting the human factor in the central place and relegating logic to its true position as an instrument. Jurisprudence is last in the march of the sciences away from the method of deduction from predetermined conceptions. On the conti- nent of Europe, both the historical school of jurists and the philosophical school, which were dominant until at least the last quarter of the nineteenth century, proceeded in this way. The GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 554 REFLECTIONS ON LAW AND SOCIETY PRIMARY DOCUMENTS LEGAL SCHOLARSHIP MECHANICAL JURISPRUDENCE difference between them lay in the manner in which they arrived at their fundamental concep- tions. The former derived them from the history of juristic speculation and the historical develop- ment of the Roman sources. The latter, through metaphysical inquiries, arrived at certain propo- sitions as to human nature, and deduced a system from them. This was the philosophical theory behind the eighteenth-century movement for codification. Ihering was the pioneer in the work of superseding this jurisprudence of conceptions (Begriffsjurisrudenz) by a jurisprudence of results (Wirklichkeitsjurisprudenz). He insisted that we should begin at the other end; that the first question should be, how will a rule or a decision operate in practice? For instance, if a rule of commercial law were in question, the search should be for the rule that best accords with and gives effect to sound business practice. In the Civil Law, the doctrine as to mistake in the formation of a contract affords an example of the working of the two methods. Savigny treated the subject according to the jurisprudence of conceptions. He worked out historically and analytically the conception of a contract and deduced therefrom the rules to govern cases of mistake. It followed, from his conception, that if A telegraphed B to buy shares and the telegram as delivered to B read sell, there was no contract between A and B, and hence no liability of A to B; and for a time it was so held. But this and some of the other resulting rules were so far from just in their practical operation that, following the lead of Ihering, they have been abandoned and the ordinary understanding of businessmen has been given effect. And, in this same connection, the new German code has introduced, as a criterion of error in the content of an expression of the will, the question, what would be regarded as essential in the ordinary understanding of business. Even better examples of the workings of a jurisprudence of conceptions, for our purposes, may be found in the manner in which common-law courts have dealt with points of mercantile law. For instance, the law of partner- ship is made difficult and often unjust by the insistence of the courts upon deducing its rules from a conception of joint ownership and joint obligation, instead of ascertaining and giving effect to the actual situation as understood and practiced by merchants. The legal theory does not affect the actual course of business an iota. But it leads to unfortunate results when that course of business, for some reason, comes before the courts. Again, the refusal of Lord Holt to recognize the negotiability of promissory notes proceeded upon a deduction from the conception of a chose in action. A jurisprudence of ends would have avoided each of these errors. In periods of legal development through juristic speculation and judicial decision, we have a jurisprudence of ends in fact, even if in form it is a jurisprudence of conceptions. The Roman jus gentium was worked out for concrete causes and the conceptions were later generalizations from its results. The jus naturale was a system of reaching reasonable ends by bringing philosoph- ical theory into the scale against the hard and fast rules of antiquity. The development of equity in England was attained by a method of seeking results in concrete causes. The liberalizing of English law through the law merchant was brought about by substituting business practice for juridical conceptions. The development of the common law in America was a period of growth because the doctrine that the common law was received only so far as applicable led the courts, in adapting English case-law to American condi- tions, to study the conditions of application as well as the conceptions and their logical con- sequences. Whenever such a period has come to an end, when its work has been done and its legal theories have come to maturity, the jurisprudence of conceptions tends to decay. Conceptions are fixed. The premises are no longer to be examined. Everything is reduced to simple deduction from them. Principles cease to have importance. The law becomes a body of rules. This is the condition against which sociologists now protest, and protest rightly. A period of legislative activity supervenes to supply, first new rules, then new premises, and finally a systematic body of principles as a fresh start for juristic development. But such periods hitherto have not been periods of growth. Usually legislative activity has not gone beyond the introduction of new rules or of new premises, and the chief result has been a summing up of the juristic accomplishment of the past in improved form. The further step, which is beginning to be taken in our present era of legal development through legislation, is in reality an awakening of juristic activity, as jurists perceive that they may effect results through the legislator as well as through the judge or the doctrinal writer. This step has yet GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PRIMARY DOCUMENTS REFLECTIONS ON LAW AND SOCIETY 555 LEGAL SCHOLARSHIP MECHANICAL JURISPRUDENCE . (1841–1917). GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 546 REFLECTIONS ON LAW AND SOCIETY PRIMARY DOCUMENTS LEGAL SCHOLARSHIP THE PATH OF THE LAW any adequate way. I refer to statutes of limitation and. imagination of any scope the most far-reaching form of power is not money, it is the command of ideas. If you want 43 Phil. des Rechts, § 190. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PRIMARY. footnotes have been renumbered. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 548 REFLECTIONS ON LAW AND SOCIETY PRIMARY DOCUMENTS LEGAL SCHOLARSHIP THE PATH OF THE LAW Legal Scholarship Brief