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2. Historic process. The second process of thought about Law is the thought of it as changing, moving, developing, from a past through a present into a future, - the historic process. This mode of thought becomes specially important to a lawyer in an epoch when his national law is in a period of rapid change, - that is, change maturing in his own lifetime. To any student it is an important intellectual stage when he first realizes that all law is in a state of constant motion, like a kaleidoscope. I do not remember just when this realization came to me; I know it was not while in the Law School; but as I look back, I note a great difference in all my notions about law since the time of that realization. I am convinced that the acquisition of it should be made at the stage of one's formal legal education.
Many have fondly believed that this can be done and is done by the case-study system. I doubt it. Something indeed can be done; but not enough. There are several reasons for this; to elaborate them would require too much space. But a most important one is that historic change of rule is the result always of causes, — causes more or less discernible but external; and the judicial opinions do not contain sufficient data of those causes. Who, for instance, could attempt to understand the causes that influenced the rule against general warrants, by merely reading Camden's eloquent opinions?
The historic sense is a necessary sense for the lawyer; and the case-study method does not supply data for its genuine cultivation.
3. Legislative process. A third process of thought about Law is the thought of it as something to be created, made by ourselves, and made to be perhaps different from what it now is, — in short, the legislative process. And, in a period of changing law, this too becomes an important process for the lawyer, — the most important in a civic sense.
Now the habitual analysis of judicial judgments does not in the least cultivate the acquisition of this process. The two are fairly alien to each other. One of the notable reasons for our American lack of legislative skill is that our judiciary committees of the legislature, who frame the statutes, are composed of men whose only training (hitherto) has been in the analysis of case-judgments. The really basic principles and problems that attend the legislative process have scarcely been dreamed of by our most competent practitioners. Any one who hesitates to accept so strong a statement
may be convinced by glancing at the current volume (“The Science of Legal Method”) in the Modern Philosophy Series; or at the recent volume of Professor Ernst Freund of the University of Chicago, on “Standards of American Legislation.”
The legislative process of thought about Law is necessary for the lawyer; and the case-study method does not cultivate it at all.
4. Synthetic process. A fourth process of thought about Law is the process of building up individual rules and principles into a consistent system - of being able to trace every rule backwards and upwards to its more and more general expressions and of harmonizing these, - in short, the synthetic process.
This process is needed and has always been used to some extent by lawyers. It characterizes the greatest of them in their arguments, and it ordinarily comes only at their maturest period. It represents their highest capacity. In a period of changing law it underlies the skill that is necessary in order to fit the new law well into the old, - like the skill of an architect restoring an old but solid building, who knows which beams, pillars, and girders are indispensable, and which ones can be removed without scruple.
The case-study method is capable, perhaps, of furnishing some of the material for this process. But it has ordinarily not been so used; in its ordinary use its service is purely or mainly analytic and not synthetic. The treatises on Analytic (thus miscalled) Jurisprudence purport to render the service; they represent synthesis. But their vogue has not been favored under the case-study system. The synthetic process of thought is often dismissed (as in a recent official utterance) with the epithet of “speculative jurisprudence.” But its time must come, if our law is ever to be soundly reconstructed; and legal education must provide for this in its methods.
5. Comparative process. The fifth process of thought about Law is the process of looking outside our own actual law (“the” law), of conceiving a non-Ego in law, of realizing that other communities live and move under other legal systems, and that these must be reckoned with in the life of our own law among nations' laws, in short, the comparative process. This consciousness of “a something not ourselves that makes for Law” (to paraphrase Matthew Arnold's phrase) - a sort of legal altruism, or anti-local spirit, is an important one to acquire, especially in a period like the present. International relations are becoming more and more active
in daily commerce; and national insularization of law can no longer be reckoned upon.
Fortunately, our own federal form of national life has already tended strongly to cultivate in us this sense of law. The free comparison of common-law precedents from all the states has inevitably done this, even under the case-study method. Yet there remains the need of extending it to non-Anglo-American legal systems, and to the systems of law in other epochs.
The case-study materials, as hitherto provided, do not supply this need. Much remains to be done for cultivating the sense of national law as merely a member in the family of laws, — a family in which we must be prepared to seek harmonious adjustment and mutual profitable imitation.
6. Operative process. The sixth process of thought about Law conceives of law as being a nominal rule (as declared by courts and legislatures) which may in fact, however, not be enforced and practiced; it seeks constantly to keep aware of the gap, if any, between the nominal rule and the actual custom; it may be called the operative process. This is Professor Ehrlich's “living law.” 18
This is, in one sense, the “practical” side of law (“pragmatic” would more nearly describe it). It is often supposed to be taken care of by the so-called Practice courses; but that belief is an error. Those courses deal mainly with judicial procedure. The present process involves the substantive law. It concerns “practice,” in that the attorney's intelligent advice to his client requires an acquaintance with actual commercial customs, and that this knowledge comes usually through practice only. In reality, this process concerns a specific and distinct conception of the Law, which is just as real and interesting for the scientific scholar as for the practitioner; and thus it ranks as a separate object of legal study, distinct from procedural skill and tact.
The case-study method does something for this object — perhaps a good deal — certainly very much more than in the code countries with which Professor Ehrlich is familiar and in which he saw the special need of study in this part of the field. For the casereports contain copious data of actual commercial customs and of documents set forth verbatim. Again and again they exhibit edify
18 Set forth in his paper read at the 1915 meeting of the Association of American Law Schools.
ingly this contrast of light and shadow (so to speak), of law and custom. But what they do thus exhibit is only casual and scanty, in comparison with what could be and ought to be done. What ought to be done is, in every course, to provide a systematic apparatus of documents taken from today's customs of trade and industry, and to make occasional excursions of inquiry into statistics and other classes of facts. Thus only can this process of thought be adequately cultivated.19
Such are the six processes, or senses of Law, which legal education must be adapted to cultivate. How far does our present curriculum provide for them?
VII A RECONSTRUCTED CURRICULUM Taking the curriculum of the school with which I am most familiar, let us see how its courses of today distribute themselves with reference to their service in developing mainly one or another of the above six processes. They may be classified, roughly, as follows:
1. Analytic process: Contracts; Torts; Real Property; Common Law Procedure; Damages; Personal Property; Evidence; QuasiContracts; Agency; Commercial Paper; Crimes; Equity; Property II; Persons; Judgments, etc.; Public Officers; Carriers; Trusts; Insurance; Public Utilities; Equity Pleading; Bankruptcy; Suretyship; Constitutional Law; Property III; Criminal Procedure; Irrigation; Mining; Code Pleading; Mortgages; Municipal Corporations; Partnership; Federal Jurisdiction; — 33 courses, representing 84 semester hours.
2. Historic process: Legal Biography and History; Roman Law; Evolution of Law; — 3 courses, representing 6 semester hours.
3. Legislative process: Contemporary Legislation; Applied Criminology; Statute Law; — 3 courses, representing 4 semester hours.
4. Synthetic process: General Jurisprudence; Philosophy of Law; — 2 courses, representing 5 semester hours.
5. Comparative process: International Law; Roman Law; Conflict of Laws; Evolution of Law; -- 4 courses, representing 13 semester hours.
6. Operative process: Conveyancing is virtually the only course directly aiming at this object. (But in any adequate method the
19 At some more opportune time I should like to expound a method by which the practical obstacles to securing such an apparatus can be overcome.
process would form a fractional part in almost every course under I above; so that it cannot easily be compared in semester hours with the others.)
This survey shows that out of a total of some 112 semester units offered,2° nearly five-sixths serve mainly or wholly the first abovenamed process, the analytic; while all the other five processes together are served (except incidentally, as noted under 2, 5 and 6) by only a little more than one-sixth of the units. Moreover, in the actual result this disproportion is increased; for since only 70 semester units are required to be achieved, and since in these 70 a minimum of 5 units only is required to be selected outside of the first group, the mass of students (following the orthodox lines) may and do content themselves with little more than that minimum (5 to 10 units) in making the selection. So that, in fact, more than sixsevenths of the education is spent in exercising the analytic process.
The question is, then, Is that enough? I am convinced that it is not. Even after all concessions made (i. e., that the analytic process is the most common one for the practitioner, that it requires for its mastery long-continued and widely varied drill, etc., etc.), its share remains disproportionately large. That its mastery really needs, week after week for three years, in twenty-five or thirty different subjects, the repetition of that identical process of case-analysis, I have for some time ceased to believe. The same benefit could be obtained with less quantity of identical mental effort.
Moreover, the prestige given thus to the analytic process tends to repress in the student body an appreciation of the equal need of the other processes. The need for them is equal (though the quantity of exercise required may not be as much). But the orthodoxy of the first has thus far kept the others in the rank of heterodoxies. They should be given an equality of emphasis.
My proposal is, therefore, that the curriculum be re-grouped with reference to the above six distinct processes; that a better proportion be sought in distributing the pedagogic attention to them; that more suitable materials be devised for cultivating the five now heterodox processes; and that the required subjects be so enlarged that every student is certain to have had a fair elementary training in all of the processes.
20 The purely “Practice” courses have been omitted in the above grouping.