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Volume 5 Number 3 Volume 5, Summer 1959, Number 3 Article 4

Meaning and Method in the of

Rt. Rev. Msgr. Joseph Graneris

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This Article is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in The Catholic Lawyer by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact [email protected]. MEANING AND METHOD IN THE t

RT. REV. MSGR. JOSEPH GRANERIS*

Translated and adapted by

REV. WILLIAM F. CAHILL, B.A., LL.B., J.C.D.**

[Editor's Note The editors of THE CATHOLIC LAWYER believe that two purposes may be served by presenting in these pages Monsignor Joseph Graneris' essay on the meaning and method of the philosophy of law This essay serve to introduce to American other studies by the same author. Those studies, directed to specific problems in the relationship between and , will be presented from time to time in future issues of THE CATHOLIC LAWYER. Monsignor Graneris has authorized Father Cahill to translate and adapt his work for such presentation. The studies are rooted in the author's deep learning of the philosophy of St. . He draws upon that learning, not merely to speculate about natural law or to develop its moral precepts, as most writers in the scholastic tradition have done, but rather to find in natural law the validating and quickening element of positive law.

t This article, in its original form, was published as the introductory chapter of the author's work PHILOSOPHIA JURIS (1943). * Professor of Philosophy of Law at the Pontifical Institute of Civil and , Lateran University, Rome; Prelate of the Sacred Congregation of the Holy Office. ** Priest of the Diocese of Albany. Professor of Law, St. John's University School of Law. MEANING AND METHOD

The essay, presented here out of its Philosophy in Learning original context and in somewhat altered RISTOTLE EXTOLLS THE STUDENT. of form, serves a more immediate purpose. It , saying that he is to be delineates clearly the concept of jurispru- numbered among those wiser men "whose dence as a complex discipline which draws learning is not pursued for the sake of util- upon general philosophy, as well as upon ity, but for the sake of learning itself."' legal science and , to develop a Yet one should take care not to infer from reasoned philosophy of what law is and this statement that the noblest of mental ought to be, and to implement that philoso- disciplines is to be accounted a useless phy in the lawyer's art. study. The soul of man, though it is not the slave of his body, sustains the body in life. Every inquiry into offers a generalized view of law. The viewpoint God does not exist to serve the world, yet the world's without God is in- taken by any inquirer, in his investigations conceivable. So also, though usefulness is and in his report of them, has for its major not the raison d'etre of metaphysics, for premise the inquirer's philosophy - the the science of metaphysics was not devel- meaning he finds in man and the world. oped to serve utility, yet metaphysics is a Often, the major premise is inarticulate, necessary development of human thought. in the inquirer's report and even in his own Metaphysics is born of that necessity by mind, so that one who reads his report is which the human mind is driven, as if by asked to accept the product of a philosophy its own weight, to investigate the intimate without of the philosophy's char- nature of things and their ultimate causes. acter, and even without notice of its exis- The jurists throw out a question, "What tence. is the use of the philosophy of law?", and With increasing frequency, our contem- the take it up in all serious- porary writers in jurisprudence claim that ness: "Philosophy is beyond the useful, for their study of law has no philosophical it is necessary, indispensable, immanent. In- premises. The disclaimer itself rests upon , one does not philosophize because he wants to, but because it is impossible not to a philosophical postulate- that a philosophy 2 of law is impossible, or that law is a phe- philosophize." nomenon only and is adequately understood The force of this natural desire is so without philosophical inquiry. great and so broad, that whatever be the While the jurisprudential inquirer's view- science to which a man devotes himself, he point on law is inspired by his philosophy, forever feels the insufficiency of his knowl- that viewpoint in turn directs the choice edge and is oppressed by that shortcoming, and use of method in the inquiry. A method until he pursues his study into the realm of whose scope and bent distort the object to philosophy. The several sciences are like be studied, or whose potential for aberra- tion is not realized, can be as misleading to I , METAPHYSICS, Bk. 1, Ch. 1; cf. the inquirer and to his reader as a faulty AQUINAS, COMMENTARY, Bk. 1, Lect. 1, n. 32. philosophy. ] 2 MAGGIORE, FILOSOFIA DI. DmIrTTo 8. 5 CATHOLIC LAWYER, SUMMER 1959

so many sides of a single mountain - from cept of the universe, so that his every de- whatever side you scale the mountain, your liberate action expresses his and ascent is imperfect and you are less than his conviction upon the purpose and satisfied, unless you reach the summit. And of human life and, therefore, upon the ulti- that summit, from whatever side or science mate meaning of the universe of things. So it be approached, is one and the same. It is true is this, that when life is understood in philosophy, in which within the natural a human and active sense, the common order of knowledge and prescinding from dictum, "one must live first, and then phi- the supernatural, every science must achieve losophize," must give place to the truer its perfection. statement, "to live is to philosophize." It is not to be wondered at that all dis- Philosophy in Life ciplines which directly study human con- What has been said about sciences in duct are under a greater necessity of ascend- general is especially true of those which ing the high mountain of philosophy. The study human action. As long as we merely object they study, human conduct, implic- speculate, there is an apparent possibility itly contains philosophy, as if in its seed, of a skeptical approach, or at least one may and our minds, by an instinct of their own, entertain the illusion that he is not making feel that their-knowledge of this object can- judgments and choices. When, however, we not become perfect until that implicit phi- begin to act, .then we begin necessarily to losophy has been made explicit, revealing struggle against the precepts of skepticism, the meaning and the value of our conduct. and we are conscious of that struggle if our A very clear example of this necessity is action is truly human. We do not act hu- seen in the study of the law of crimes. Be- manly except by the exercise of choice, we cause that branch of the law is concerned choose nothing except from the desire with human conduct more evidently, more for a purpose, we do not set up purposes immediately, and more exclusively, than the for ourselves unless under the command or other areas of law, the study of influence of a settled way of conceiving ahd has always maintained more intimate and ordering our lives. This way is a synthetic more manifest connections with philosophy. or philosophical view of the universe, or All jurists recognize the fact that philosophy this way is at least a necessary, though per- strongly influences the penal law - that they haps remote and subconscious, consequence dispute whether the influence it exercises of that view. is useful or harmful is another matter. Human conduct, because it proceeds We have, in the foregoing, anticipated from choice, therefore drives the actor, not an objection which may be raised, "all law only out of physical inertia, but also out of is oriented toward action, which is far re- that philosophical indifference in which the moved from philosophy." In action itself, skeptics try to immure mankind. The spiri- that is, in the very nature of human con- tual-minded and the materialist, the atheist duct, we find the strongest impulse to phi- and the theist, the ascetic and the sensual- losophical thinking, for our conduct grows ist, rarely accord with each other in their out of philosophy, it has its foundations in aspirations or in their conduct, for in willing philosophy, and its throws us into philoso- and in acting every man is led by his con- phical study. MEANING AND METHOD

Philosophy in Law and law among the objects of their considera- Law in Philosophy tion, and have often attributed to it a prime It is indeed true that the lawyer's greatest position in their studies. Among these we need is for that art or skill by which he ap- must count , who believed that his plies legal rules to facts, and that art may legal writings found favor because they seem remote from the labored dicta of drew upon philosophical wisdom.r, Vico, philosophers. Yet if that art is to have any when well advanced in the study of law, solid foundation, it can never tear itself found himself compelled to go back to the entirely away from philosophy; if it does so, philosophers, to learn not only moral doc- it is reduced to a merely arbitrary and me- trine but metaphysical discipline." Geny, chanical skill of word-weaving. Certainly, in his earlier work, could only describe the no lawyer is a lawyer of the first rank until problems of positive law, and perceived that he so thoroughly grasps certain philosophi- his powers were limited by a deficiency in cal that he can use them to clarify philosophical knowledge. Having again the enacted rules of law and apply those studied philosophy, he undertook his great work, in which philosophical principles ex- rules skilfully. 7 profound control. It is a datum of history that there have ercise always been, between philosophy and law Vico explains more fully the need for and between lawyers and philosophers, a philosophy in legal studies in the prologue mutual attraction and a mutual influence. to his work De Uno, "All jurisprudence is Surely one cannot take too seriously Ul- rooted in and authority, upon these pian's claim which was placed in the very as a basis, jurisprudence professes to apply first line of the Pandects, as if it proposed the enacted to the facts. Reason con- or promised that the Corpus Juris should sists in the necessity of nature, and author- teach "the true philosophy."'3 But perhaps ity in the determinations of lawmakers. one should put even less trust in the words Philosophy explores the necessary causes of of the chief prophet of the modem "pure things, while history tells us what lawmakers doctrine" of law, which promise us a juris- have determined. And so the whole of juris- prudence uncontaminated by any ideo- prudence is a coalescence of three parts - 4 logical element, religious or metaphysical. philosophy, history and the special art of We cannot blink the fact that many of applying law to facts." the most serious philosophers, from Put in another way, the thorough student and Aristotle to Kant and Hegel, have found of law must have three endowments or ac- complishments: a philosophy, which ra- tionally deduces the highest principles of I "For this cause are we called priests; we worship law from the necessary and ultimate causes , we profess to know and , separat- of the universe; a science, which under- ing from iniquity, discerning the lawful stands correctly the laws enacted by human from the unlawful, making men desire goodness, not only by fear of penalties, but by the exhorta- determinations made in the course of his- tion of rewards, professing, if I am not mistaken, the true philosophy and no counterfeit." D. 1, 1, 1, § 1. CICERO, TUSCUL., Bk. 1, n. 3. 4 Kelsen, The Pure Theory of Law, 50 L. Q. REV. 6 Vico, AUTOBIOGRAFIA. 474, 480-85 (1934). 7 GENY, SCIENCE ET TECHNIQUE 5, 10, 11, 19. 5 CATHOLIC LAWYER, SUMMER 1959

tory; and an art, by which enacted laws vision does not entirely content us, for it are applied to facts. One who has the sci- creates at least one grave danger, that of ence only may be called a jurist; one who confounding philosophy with an empiric has also the art may be an effective - application of conclusions drawn from phi- lor; one who has the philosophy, as well as losophy. Just as science, when it is called the science and art, should be called a juris- "applied," is moribund because it is passing prudent, for a man is prudent when he over into a mechanical art in which those knows, not only singular facts and tech- who do not knpw science apply rules im- nical procedure, but also the universal posed by science, so "applied" philosophy principles of reason applicable to the case loses more and more of the character of in hand. Because any student of law quite philosophy, and takes on the marks of an reasonably wishes to deserve the name juris- inferior discipline. Others divide philoso- prudent, so that his science and skill will phy into the general and the particular. The not depart from and justice, we hold former considers the intimate character or with Cicero that "legal learning [should the ultimate causes of in general, and be] drawn deep from philosophy held the latter investigates the characteristics and 8 dearly." causes of single classes of beings. For a lawyer to give his efforts to philo- We prefer this division to the one sug- sophical study is no useless enterprise. He gested above, and we believe that the phi- will not come back empty-handed from the losophy of law can be properly listed among sources whence are drawn the life of the the "particular ," for its object positive law and the vitality of the lawyer's of study is not as such, but that par- art. His contact with philosophy will help ticular historical phenomenon which we call him to recognize and escape that poorness the phenomenon of law. of spirit which he finds so often oppressing We feel that this distinction can be main- him as he reads legal literature - the writing tained, though it is rejected by many mod- lacks the salt of philosophy and has lost erns, especially the idealists, who say that its savor. philosophy has no parts, but only different At this point, it seems needful to con- problems, in whose solution the whole of sider a little more carefully the peculiar philosophy is employed; indeed there are character of the philosophy of law, and some who say that there is only one prob- this we shall do by comparing it with other lem, though it shows itself in many forms, disciplines of the law and of philosophy, to whose solution the entire powers of phi- and by determining more closely the pre- losophy should be constantly applied. cise function and method of the philosophy Certainly the parts of philosophy are of law. bound together by a close nexus into a unity that is divided with difficulty; that unity Is There a Philosophy of Law? arises from the fixed viewpoint from which Some divide philosophy into the pure the views any object, and from and the specialized, and assign the philoso- the constant influence of the principles gov- phy of law to the latter category. This di- erning the philosophical process, and this unity explains why in every philosophical s CICERO, DE LEGIBUS, Bk. 1, n. 5. system the solution of single problems MEANING AND METHOD seems to flow with, and almost to be im- method of induction and deduction which posed by, a certain necessity from the char- is applicable in general philosophy or in acter and spirit of the system. From this it any particular philosophy. In applying this follows that the so-called particular phi- double rhythm to the whole field of philos- losophies do not live their own lives, inde- ophy, it seems best that general philosophy pendent of the general philosophy or outside take the ascending and particular philoso- the complete philosophical system; but one phies the descending method. should not infer from this that the existence In its first stage, philosophy strives to of particular philosophies is to be denied, understand the universe of things, specu- provided that their particularity is premised lating about being as such and its most only upon the particularity of the material universal causes, of which the ancient phi- objects they examine and provided, further, losophers enumerated four: the material, that the nature of that object is such as to formal, efficient and final causes. In this require that the philosophical principles, effort, the philosopher does not tarry in an though they remain always the same, shall analytical consideration of single entities, be applied in a particular way. for that is not needed for his purpose, but Since the phenomenon of law presents he views the universe synthetically and then characteristics which not only distinguish it hurries on to the heights of metaphysics; from other phenomena, but which suggest once arrived there, he, in one formula or peculiar problems to be resolved by philo- even in a single word, comprehends the sophical consideration, and which require universe, and describes and explains it. Of a special adaptation in the use of general these formulas, five are used most often philosophical principles, therefore we may in our time: , evolutionism, say that the philosophical examination of , , theism. the phenomenon of law is a particular phi- An examp-fe of this hurried ascent is losophy or, what amounts to the same found in that lucid article9 of the Summa, thing, we may make of this examination a a brief abridgment of all metaphysics and special treatise, distinct from, though not theodicy, in which St. Thomas ascends by independent of, general philosophy. "the five ways," to the first mover un- moved, to the first efficient cause, to the Legal Philosophy and entity per se necessary, to the source of the World Philosophy goodness and perfection of all things, to To clarify the meaning we attribute to the supremely intelligent something which the distilnction between general philosophy directs all things to their ends. He exam- and particular philosophy, it may be help- ines no species of beings in any special way, ful to differentiate between the ascending but views them all at once from the most and descending methods of philosophical general aspects of motion, efficient causal- study. The first rises from a consideration ity, contingency, graded perfection, and of beings to an investigation of their ulti- finality; and from these common marks, as mate causes; the second descends from the if by public highways, one terminus is ultimate causes to an explanation of beings. reached, namely God, so that the whole It will occur to the reader that this double method is quite similar to the binary ) AQUINAS, SUMMA THEOLOGICA, i, q. 2, a. 3. 5 CATHOLIC LAWYER, SUMMER 1959 metaphysical system of St. Thomas takes "the prime philosophy," is a necessary the character and name of theism. prelude. Since one who has completed this philo- sophical ascent views in a single glance The Law of the whole world's , he is pre- When the philosopher, coming down pared to consider the world's several parts, from the mountain-top, begins his analysis, each in its relation to the whole; this con- he finds all things divided into two great sideration is the task of the return journey, classes; the first embraces all things ruled the descent from the summit achieved in by necessity; the other, all those which obey the synthetic process; this is the second the laws of liberty. They are, respectively, phase of philosophical inquiry, in which the the realm of nature and the realm of spirit. object of consideration is "this kind of be- Here, we can ignore all the further dis- ing," the single classes of beings and their tinctions that may be made in the realm of particular characteristics, which were ne- nature, for the law which we are to study glected during the ascent. is not linked with natural necessity but with We feel that in proceeding thus, the order spiritual liberty. But we must attend to dis- of thought and learning is more securely tinctions occurring in the realm of spirit, preserved; the ascent to the metaphysical for they closely touch the object of our summit is not altogether impossible for one study. who begins in the analytical way, yet it cer- First, the philosophers usually distin- tainly is much more difficult, as the recent guish the consideration of spirit itself from unhappy history of so-called "scientific phi- the consideration of spirit in its activities, losophy" shows; since that philosophy took that is, psychology and its related disci- the analysis of selected classes of beings as plines, as set apart from the other areas of its' point of departure, it could never break the philosophy of the spirit such as art, eco- out of the bounds which it imposed upon nomics, ethics whose object is some activity itself at its inception; for this cause, though of the spirit. it assumed the name "philosophy," it never These activities of the spirit divide them- achieved universality, which is the true dig- selves into two classes, according as they nity and apex of contemplation which char- have or have not connected with them a acterizes philosophy. Why it could not make sense of obligation. Art is typical of the that achievement is not hard to understand; activities which are not connected with this unless one has seen a region from its moun- sense; of the other kind there are three taintop, he has difficulty in achieving a clear principal types: religion, , the law. concept of the region's unity by laboriously Here we have three objects of philosophical plodding each of its ways and by-ways; that speculation which comprise a distinct sec- is to say, unless one has examined syntheti- tor of the realm of spirit in which our liberty cally into the meaning of the whole uni- is under the yoke of obligation, and the law verse, it will be nearly impossible for him is one of these objects. to interpret the universe part by part. These To state briefly the position of the phi- are the why we believe that, to the losophy of law within the universal philoso- particular or analytical philosophies, the phy, this discipline of ours is a particular general, synthetic philosophy, rightly called philosophy having for its object one of the MEANING AND METHOD spiritual activities in which the sense of an indication of the legal scientists' uncer- obligation is found. tainty regarding the scope of their field. From what follows it may more clearly That uncertainty will be discussed later. appear just what area of the province of activity we have described belongs, respec- The History of Law - tively, to religion, morality, and law. Whence Came the Law? History considers laws in their making, The Science of Law - investigating the evolution of law in succes- What Says the Law? sive times. It has the same generalizing Legal studies can be distributed under propensity that we found in science. The three headings: science, history, and phi- propensity's effect in history shows itself in losophy. Science considers laws in being, a series of stages roughly parallel to the analyzing individual legal rules, explaining stages of scientific generalization. their meaning, their effects and their limits, We will discuss only the last stage or so that Kant could say that the jurist knows level of historical study, for that comes only what is law, that is, what is determined closest to the level of philosophy. As his- by the law of a given time and place. torical inquiry broadens and deepens, the Yet one must recognize that scientific investigators manifest an increased intellec- knowledge is influenced by the human tual impulse to discover organic connec- mind's deep seated tendency to rise from tions between the diverse elements of the the particular to the general. In legal sci- lives of the several peoples, and more easily ence the effect of this generalizing tendency find general evolutionary forms which are appears in four distinct phases. called the laws of legal evolution. All these In the first, particular enactments are ex- discoveries and findings, taken together and plained merely analytically and expositorily. reduced to a single system, comprise the In the second, the enactments which have highest level of history, called "," or a common object are collected and co6rdi- "eternal," or philosophical history, which nated into a sort of unity, as a distinct legal parallels the theory of law mentioned in , such as the domestic relations. the preceding section. In the third phase, fundamental princi- Here, in the ultimate stage of historical ples are drawn from the single enactments inquiry, recurs the uncertainty of denomi- and existing in the law of a nation mentioned in connection with the given society, and from these principles a last stage of scientific inquiry into law. That legal system is elaborated. uncertainty merits closer examination. It In the final stage of generalization, a arises because different investigators give higher unity is sought out and established different value to the conclusions reached by searching several legal systems for those in the ultimate level of science and of his- general principles commonly contained and tory. Some regard the conclusions as mere enunciated in those systems. This last step general formulas, relative and therefore in progressive synthesis or scientific gen- variable, and valid only for the legal sys- eralization is called, variously, jurispru- tems from which they were drawn. But dence, or the science, the doctrine, or the there are others who ascribe to these con- theory of law. The multiplicity of names is clusions a universal validity, as principles 5 CATHOLIC LAWYER, SUMMER 1959

and doctrines valid always and everywhere, treating of the material universe, or of any to which all possible legal systems must individual thing, or any class of things, the yield conformity and obedience. object he deals with is always taken, at This uncertainty in the interpretation of least formally or methodically, under the the ultimate conclusions of legal science and aspect of universality - each object is con- of legal history, while it explains the variety sidered in relation to the universal complex in denomination, reveals also a latent of beings and the universal causes of things equivocation rooted in unclear Because the object of philosophical in- of the concepts and respective boundaries quiry is always universal, at least in its of science, history and philosophy. To bring formal aspect, it follows that the inquiry's order out of this confusion, some remarks conclusions are universal. They are not on philosophy should be added to what has limited to any number of things, nor even been said on science and history. to things that exist or have existed or will exist, but they extend to all possible within The Philosophy of Law that determined area of being which com- What the Law Is and Should Be prises the material object of the inquiry Philosophy is the knowledge of things made by the particular philosophical dis- viewed in relation to their ultimate causes. cipline. The philosopher undertakes to explain Since the examination of a thing under things, not by their immediate or proximate its universal aspect is naturally calculated causes, but by their mediate or remote to discover the principles or conditions causes and, thus, by their ultimate causes. which that thing must obey if it is to accord This is the mark that fundamentally distin- with the universe, and if the part is not to guishes philosophy from science and from be at odds with its whole, we may say that history, for those two disciplines inquire philosophy differs from science and from into a thing's causes which are immediate history because philosophy studies law, not and proximate, not into those which are as law exists or as law is made, but as law ultimate. should be and should be made. Necessarily, The more remote a cause is within its this differentiation is denied by all schools series, the broader its scope of influence, so of thought, like agnosticism and , that as one's mind rises higher in pursuing which profess not to know what should be, an inquiry, it reaches causes which explain as well as by those, like idealism, which an even greater range of things, until it identify what is with what should be. Kel- reaches the causes that explain all things sen declares that his pure science of law and bring all into unity. Thus, an explana- presents "law as it is," without qualifying tion of anything, if pursued to the ultimate, it as just or unjust. For Hegel, the reason- comes to relate that thing to the causes of able was real, and the real reasonable. Of all things, and to assign that thing to its course, neither the science of law nor legal proper place in the universe. Because phi- history merely describes existing law - losophy consists precisely in this tracing to these disciplines evaluate existing law and the ultimate, one may say that to philoso- guide the lawmaking process. They do so, phize on anything is to view it in its uni- however, only in the light of the proximate versal aspect. Whether the philosopher is causes and circumstances, special or gen- MEANING AND METHOD eral. They can, therefore, indicate how a The task is approached in two steps: an particular system of law can be improved, investigation of law's constitutive elements, or better adapted to the peculiar social at- and a search for law's necessary relations titudes of a given people or to the needs of with the world as a whole. a certain society. They cannot, obviously, Through the first inquiry is formed the discover the ultimate rules to which any and concept or abstract idea of law or the for- all enacted laws must conform. mal category of - the assembled From what has been said, should appear marks, characteristics and essential ele- the reason why, though the general science ments of law yield the definition of law. To of law and ideal legal history are not in define anything is to distinguish it from all fact philosophical disciples, many persons other things, giving it its proper place in take them for philosophies. Such science the order of thought. Therefore, this first and history have objects and bases that are inquiry is the logical function of the philoso- less than universal - therefore they are not phy of law. philosophies. Yet, because their objects and The secQnd investigation, which seeks to bases are extremely general, they closely know the relations between law and all else approach the character of philosophy. Per- in the world, though it does not center on sons who take these two disciples to be the single forms law has taken in history, philosophies, or who attempt to put them nevertheless must study law as a thing in the place of philosophy, do so either be- really existing. It represents, therefore, the cause they are influenced by positivism to metaphysical function of the philosophy of ignore or to deny the existence of philoso- law. i i phy properly so called, or because they The real relations between any one thing push beyond the limits of science and his- and other things fall into two classes or tory, unwittingly and perhaps unwillingly, orders - they are relations of either effi- and then stray obliquely into the province cient or final . To complete his of philosophical universality. Vico pushed task, the legal philosopher must discover his historical studies of the law into philo- both the basis of law and the purpose of sophical conclusions. Radbruch remarks law. The basis of law is the ultimate effi- upon the legal scientists whose "purely em- cient cause of law - that which validates pirical general jurisprudence" purports to law, or that which gives to the dis- do away with the philosophy of law, at the crimination between law and things which same time that the scientists' writings mani- have the name and appearance of law but fest the inextinguishable human tendency which are spurious. The purpose of law to philosophize. refers io the purpose inherent in all law and in any system of law. The contempla- The Philosophy of Law - Its Functions tion of that purpose yields the fundamental, Philosophy, then, considers law under its constant and universal rules to which the universal aspect, and law as it ought to be. legal order must yield obedience. Here, as in any of the particular or "de- Thus the metaphysical function of the scending" philosophies, the basic task is to philosophy of law is dual: the ontological understand the particular object studied function is to investigate law's ultimate and to determine its place in the universe. sources or universal basis; the deontologi- 5 CATHOLTC LAWYER, SUMMER 1959 cal Junction is to deduce from the ultimate Deductive and Inductive Methods - purpose of law the necessary rules which Their Uses and Abuses govern all human activity in which law is Best known is the distinction between enacted, interpreted or applied. deductive and inductive methods. The de- ductive works down from principles to applications, from the general to The Philosophy of Law - Its Divisions the par- ticular, from rules to facts. The inductive In outline, the philosophy of law is rises from applications to principles, from divided as follows: the particular to the general, from facts to Philosophy of law rules. The one is said to proceed a priori, logical part the other a posteriori. Philosophical litera- (on ) ture and even single works employ the ontological part (on the basis of law) terms analytical and synthetic variously, at metaphysical times to signify the a priori and a posteriori deontological part (on legal method) methods respectively, and at other times in a converse signification. The deductive or a priori method in the The Philosophy of Law - Its Object philosophy of law develops the ultimate ele- In the scholastic tradition, the philosophy ments or the ultimate causes of the legal of law studied only natural law. The object order out of pure rational principles; the of the present study is broadened to include inductive or a posteriori method searches positive law as well. In another respect, out those elements or causes among the however, this study's object is narrower'than facts of . those contemplated by many of the older Either method involves difficulties and writers on natural law. Their deductive dangers, especially in the philosophy of elaboration of the several precepts of nat- law. Holding fast to rational principles and ural law seems not a proper task for the neglecting to examine empiric facts, the philosophy of law. deductive method risks falling into an abuse of abstraction. Being content with formulas extremely indefinite and rather empty, this Method in the Philosophy of Law method views the legal phenomenon from In general, method is the way by which afar, and explains it imperfectly, or even one arrives at a set goal - in the philosophy does violence to it, casting it into forms of law, method is the route of inquiry which arbitrarily conceived and quite unsuited to leads to a correct philosophical evaluation the phenomenon. The inductive method, of law. with its grasp tight upon historical facts, and Clearly, the development of the several straining to extract from them all elements parts of the philosophy of law will require and principles of law (as if law were noth- special discussions of method, so that the ing more than a fact to be described by present remarks are very general, being di- scientific investigators), leans by its own rected to the broader lines of development weight toward positivism. in legal philosophy. We have said that these two contrary MEANING AND METHOD dangers are intensified in the philosophy in which the philosopher draws his conclu- of law. That is so because law is neither a sions from an analysis of a single legal sys- pure doctrine of the ideal order only, to be tem, is distinguished from the comparative evolved theoretically, nor a fact only, to be method, in which several systems are examined and described empirically; rather, analysed. law has two elements, one empiric And the Particularism is the method to which other ideal. Law is an idea seeking facts in writers are addicted who, for example, dis- which it may assume a concrete and histori- course upon the basis only of the Roman cal form, or law is an historical fact having Law, as Jehring does, or of the Napoleonic in the ideal order laws to govern it, that Code, as did most of the French jurists of is, having an intrinsic necessity to move the nineteenth century. Some natural law in obedience to rational principles. writers, like Puffendorf and Wolff, philos- The philosopher cannot speak correctly ophized upon the basis of natural law only, of law unless he has always before his eyes and considered natural law as a code ana- law's two elements, the ideal examined by logous to the codes of positive law, and even deductive method, and the empiric studied as the model of the code enacted in their inductively. Thus, to guide his inquiry in own time and country. direction and depth, he cannot rely exclu- Comparativism is held so firmly by some sively and slavishly upon either of these writers that they assert that if philosophy of methods, but must combine them, one with law exists at all, its sole admissible function the other, to meet the exigencies of the or basis is the comparative study of different material studied. systems of law. Neither method is entirely uniform in its Both tendencies have their vices and mode of operation. The deductive has more their dangers. Theoretically, it is, of course, of such uniformity than the inductive, and possible to draw a universal understanding yet it varies, for example, according as the of a species from the analysis of an individ- principles employed are drawn from differ- ual. Practically, however, the slowness of ent sources or are endowed with different the human mind makes success in the values - thus we have the deductive meth- undertaking difficult, for there is serious ods called innativistic, critical, idealistic, risk of confounding individuating character- etc. istics with the species' essential elements. Thus, the particularizingmethod in philos- The Particularist and Comparative ophy of law is in danger of reaching con- Approaches to Induction clusions'not valid for all legal systems, or In the inductive method there are more of doing no more than picturing or ideally obvious differences which, though they may representing the legal system that is taken not constitute distinctly individual methods, for the single specific sample. The com- at least indicate the tendencies and attitudes parative method avoids this extreme nar- which prevail in various schools of philos- rowness, but has no greater facility in ophy. These differences are manifested prin- ,reaching universal conclusions, and so does cipally in the scope of the material studied not achieve a philosophy of law but only a and the manner of viewing it. general science of law or, an ideal history As to scope, the particularized method, of law. Those who follow this method are 206 5 CATHO'LiC LAWYER, SUMMER 1959 so influenced by a desire for uniformity that The followers of the genetic preference they tend to create fictitious similarities and confuse two questions - being asked "What to ignore differences between the legal is law?" they answer with a statement of systems they examine. how law comes to be, confounding the of a thing with the manner of its The Dynamic and Static Tendencies beginnings. They have another difficulty, in Induction which occurs in the selection of primary inductive method varies, according to The legal facts, either in the primitive life of the manner of viewing the material studied, society or in the dawning of individual con- between the static and dynamic tendencies. sciousness. In the first stages of any thing's The former argues, as one does in science, development, the elements of the thing from facts viewed in a determined or fixed developing usually appear unclearly and form, or in a given time and place, without intermingled, so that extreme difficulty is attention to the historical development of the facts. The latter tendency, characteristic experienced in distinguishing various forms, of history rather than science, leans in the especially forms that are closely inter- opposite direction, passing over the un- related. Then, there is difficulty in selecting changing elements of a situation and per- the first facts which are to be the object of ceiving only the continuous flow of change. investigation. It is not easy for the ethnolo- Its conclusions are often extremely flexible gist to say which are the truly primitive and nearly empty formulas, indicating peoples and, even-after that determination neither the substance of things nor their has been made, it is hard to understand and essential characteristics, but only pointing interpret the folkways of people whose cast the alleged direction of the law's evolution. of mind is so far removed from our own. In the dynamic tendency, one can dis- The psychologist often confuses two sources tinguish an historical predilection, which from which he draws conclusions -the pursues facts through every stage of their empirical source which is the individual known development, and a genetic prefer- consciousness, and the ideal source which ence, which attends only to the mutations offers universal principles. To confuse these that occur in the first moment of develop- sources is easy, because the principles can- ment. The genetic preference is to study the not exercise their influence except through birth processes of law, either in the early the consciousness of the empirical subject. epochs of the lives of the various peoples These various tendencies are rarely found that it is an ethnological tendency), or (so in isolation, being usually mixed and shift- in the law's first manifestations in individual ing, so that their respective shortcomings consciousness (a psychological tendency). are partly compensated and partly aggra- One who relies exclusively upon histori- vated. cal method must collect single facts ad To list the composite methods would be infinitum; logically, he can never rest. Nor can he offer conclusions universally valid, an interminable task. The chief of them for the basis of facts collected and analysed are the methods of comparative ethnology will never be complete - thus, any conclu- and comparative history, which draw their sion he reaches is less than certain. (Continued on page 237)