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Articles by Maurer Faculty Faculty Scholarship

1-1951

The Challenge of : To Build a Science and of Law

Jerome Hall Indiana University School of Law

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Recommended Citation Hall, Jerome, "The Challenge of Jurisprudence: To Build a Science and " (1951). Articles by Maurer Faculty. 1417. https://www.repository.law.indiana.edu/facpub/1417

This Article is brought to you for free and open access by the Faculty Scholarship at Digital Repository @ Maurer Law. It has been accepted for inclusion in Articles by Maurer Faculty by an authorized administrator of Digital Repository @ Maurer Law. For more information, please contact [email protected]. The Challenge of Jurisprudence:

To Build a Science and Philosophy of Law

by Jerome Hall • Professor at the Indiana University School of Law

0 Jurisprudence, says Professor Hall, is a subject that seems remote from the daily of horno sapiens. Jurisprudence also practice of most . Most members of the profession dismiss it as academic provides a record of the ways in and impractical, he says, and yet ultimately the survival of our legal de- which the most profound men grap- pends upon lawyers' building a rational system of law based on and rightness pled with these difficulties. In doing that it comprises a body of knowl- -a philosophical system that members of the understand, not as an academic edge and a methodology by use of subject, but as a system of law that is superior to its competitors in satisfying human which we can better solve our prob- needs and aspirations. This article is taken from an address delivered before the lems. Thus the challenge of juris- Indianapolis Bar Association last autumn. prudence, stated from another view- point, is a challenge to acquire that The is an uninhibited adventure in ideas, E challenge of jurisprudence is kind of . the unrecordable flash of creative ultimately the challenge to live the The major problems of our times fullest, best life of a . But some mind probing the most difficult hu- reveal the clash of sharply conflicting of man problems. Accordingly, if, smit- the subjects I shall discuss interests. They are problems whose ten by the sting of an inexhaustible seem remote from daily practice. To solution depends on factual knowl- that extent jurisprudence challenges love of wisdom, we rise above the edge, the discovery of sound values, accepted notions of the meaning of inertia of technicality, we can con- the use of rational methods of inves- the lawyer's vocation. It is a chal- fidently predict that men will con- tigation and the threat or applica- lenge to re-examine and revaluate tinue to cultivate the soil of juris- tion of organized coercion. In a word, prudence imaginatively in the future the pattern of legal practice. Certain- they are, basically, legal problems. ly it is a fact that many lawyers have -though temporary blackouts are That is why the challenge of juris- discovered that their participation in not impossible. prudence addresses itself with par- various activities of a jurisprudential ticular emphasis to the lawyer. It nature is far from a handicap. Challenge of Jurisprudence amounts to a challenge to do the best They provide living demonstrations Is Chance To Acquire Knowledge possible thinking on law and legal of the significance which jurispru- Recognition of the permanence of methods and thereby raises the level dence can confer on the practice of jurisprudence implies certain endur- and widens the range of professional law. ing qualities of human nature which skill and influence. jurisprudence is the play of the bring reassurance in times of stress Just as philosophy and science speculative mind on law and legal when men, sensing the limitations of problems. Its history included the finite , feel as impotent as were born in ancient Greece, so, too, thinking of the greatest sticks tossed on a wrathful ocean of was jurisprudence. Greek genius in all places and times until, some- passion and irrationality. Jurispru- sought the of everything. Its what over a century ago, jurispru- dence encourages us not only because searching mind fused with an incom- dence became the dismal science of it heightens regard for human na- parable sense of beauty so that what modern times, with a corresponding- ture; it is also that our for Eastern peoples was a mass of ly narrow appeal. But jurisprudence problems are not entirely new but isolated information, like geometric traditionally and in its recent revival are, instead, the perennial difficulties measurements and rules of thumb,

January, 1951 - Vol. 37 23 The Challenge of Jurisprudence became in Greece organized knowl- their desire. ' efforts to refute tions to the individualizing processes edge, science, Every science has a this position paralleled the discover- of government. rational as well as a factual aspect. ies of the earlier scientists. Every- and were not only Without the thread of reason, ex- thing we see about us changes in- great theorists; they were great re- pressed in , principles and the- cessantly you can't step into the searchers as well. Plato's Academy ories, men stumbled along in a crude same river twice, it was said (even drafted codes of laws for many com- -and-error method of investiga- once, someone added, because it is munities and Aristotle studied 150 tion. The Greeks created the meth- (hanging every split second you are different . They can ods and the ideas which established putting your foot into it.) But Greek hardly be said to have fully explored Western science and philosophy and scientists had discovered that under- the possibilities of constructing an made them imperishable values of lying the phenomena of ceaseless empirical science of law. But, for our culture. So, too, of the jurispru- change are certain constants, the laws that matter, we are still largely in the dence they left us. of science, not visible entities but stage of discussing the prolegomena able to be apprehended mentally. of legal science rather than of carry- They discovered Greek Jurisprudence ultimate re- ing on the researches necessary to Grappled with Major Problems garding the physical world, the con- construct such a discipline. Finally, stitution of matter and the processes it has recently become rather per- But jurisprudence 'was not the cre- of motion and change. Arid so suasive that the basic legal concep- ation of a gifted people indulging Socrates, turning thought to human tions were familiar notions among in idle speculation. It was also a way, beings and the needs of a social- the Greeks though, again, in this indeed the most important way, of political community, searched for en- branch of their jurisprudence, we grappling with the major problems during principles of conduct, abid- find nothing like the elaborate detail o' their times. By the end of the ing values and methods of discover- provided by Austin and his success- seventh century B. C., the clash of ing them and proving their validity. 0s. interests had already culminated in In the pursuit of his investigations, revolution. The economic structure he made many discoveries which Greek Thinking crystalized in large land owners, Was Not Departmentalized Plato, his student and disciple, fixed peasant farmers, maritime and com- It is impossible here to discuss permanently in the foundations of other mercial classes. Their first efforts Greek contributions to the founding jurisprudence. Plato nurtured the to resolve the social conflicts are of jurisprudence, but one additional Socratic seed; and in a brilliant style, represented in the codes of Draco point of particular never since even approximated in importance must and Solon (594). But the clash of be noted. The Greeks philosophical writing, he added his did not de- interests continued. In addition, con- partmentalize jurisprudential ideas which have their thinking about siderable information about the var- social and political problems. What profoundly stirred thoughtful per- ious Greek city-states and about we call jurisprudence was an integral sons for more than 2000 years. In his foreign countries-Egypt, the Near part of political science, and immortal Dialogues the method of East, Africa, indeed, about all the had the dominant , the so-called Socratic role in this disci- lands bordering on the Mediterra- pline. The method, is elaborated; and lawyers modern age saw the rise nean made it abundantly clear to of specialization with concomitant who have barely heard of Plato have the seafaring Athenians that laws increase in certain been the beneficiaries for centuries. types of efficiency and customs differed widely. The de- purchased, however, at the cost of The nature of law and is ex- feat of Persia led to the rise of Athens understanding the interrelations plored. One of the two or three and as a great naval power, supreme in the whole of social-political prob- greatest in all history is pre- Greece and set on its course of em- lems. sented. Socrates, condemned to death pire. The comrbination of practical I have said that the Greek dis- by a thoughtless , refuses to per- power-politics, the drive for suprem- coveries and contributions were not mit his powerful friends to arrange acy, the clash of economic and polit- the creations of idle speculation but his escape. Instead, he chooses death, ical interests, and the gift of specula- were born of necessity. In fact we extolling tion set time scene and provided the the law of his native city may say that Greek jurisprudence stimuli for the birth of jurisprudence. and supplying the ideas which helped represents the solution of genius Socrates is the father of jurispru- to establish the as the confronting the major social and dence and the situation lie had to distinctive quality of Western polit- political problems of their times. meet was symbolized in cynical, ical . It was Plato, too, Plato and Aristotle studied these power attitudes expressed in the who wrote the first great essays on problems in the declining days of dogmas: Might is right. Law is mere- . Aristotle, Plato's Athens, following the long, disastrous ly conventional, differing from place student and disciple, presented a Peloponnesian wars. The clash be- to place. The natural thing to do is theory of , the classic analysis tween the democracy and the oli- for the strong to bend the weak to of the relations of general prescrip- garchs was bitter to the point of

24 American Bar Association Journal The Challenge of Jurisprudence suicidal civil war. The international From what I have been saying, the situation was acute and threatening. challenge of jurisprudence may seem Finally, the rise of Alexander brought to be a challenge to participate in the promise of world federation un- the building of a sound international der the aegis of Greek culture. East law. World problems are obviously and west the products of Greek important, but their: solution does genius spread. The vast influence of not require every country lawyer to Greek culture in the Hellenistic Age engage in international affairs. Still, is indicated in the fact that the chances of his contributing to studied under Greek teachers, later their solution should not be ignored. to become a major link between For if the American lawyer becomes Greek civilization and the rising star a legal scientist and , the of Imperial Rome. impact of the profession will be felt The Romans were not original everywhere. Not the least important thinkers, but they were gifted legis- step in that direction is the role of lators and administrators. Roman the lawyer-philosopher as a teacher rule expanded until it encompassed in his particular community, how- most of the then-known world. Al- ever small it may be or remote from Jerome Hall has been a professor of though brilliant generals and well- world highways. The formation of a law at Indiana University since 1939. He sound American opinion regarding trained armies were necessary to the is the author of several books on juris- the problems of jurisprudence, even Roman conquest, it was sound law, prudence, the most recent of which is reaching heights of professional though the average layman never Living Law of Democratic Society (1949). competence that have never been hears that word, may well become He is chairman of the Association of excellhd, and equal administration the most important single factor in American Law Schools' Editorial Com- of that law which held many diverse contemporary world history. mittee on A Twentieth Century Legal peoples together for centuries. Here, But beyond any world-wide influ- Philosophy Series, and has been a mem- too, if time allowed, some relevancies ence or speculation is the daily life for the present American situation ber of the American Bar Association of the average practitioner and the since 1930. might be indicated. increase in professional effectiveness and enjoyment which jurisprudence Greco-Roman Civilization are here concerned with the problem offers him. The challenge of juris- Influenced Whole Western World of finding relevant law, the practi- prudence extends to every aspect of We are told that Greece and Rome cality of the question immediately the lawyer's vocation. It brightens perished and the implication is- becomes evident. A great part of the his more reflective hours with the what is the use of law and jurispru- lawyer's working life is spent in fundamental questions that have ap- dence? But did Greece and Rome searching through digests and ency- pealed to thoughtful lawyers through really die? The whole of Western life clopedias for cases in point. It is diffi- all the ages, though they have been is permanently stamped with the seal cult work which becomes ever more minimized in the recent past by the of Greco-Roman civilization. Greek discouraging as the of fifty compulsions and advantages of spe- genius left its island home only to jurisductions pour out their massive cialization. (May I add, parentheti- win a world to its way of scientific, products. The whole business would cally, that just as it is possible to see philosophical and artistic thought. be impossible and its future utterly all of life through the window of Rome no longer rules by force, but hopeless were it not for the fact that the law, so, too, is it possible for a the greater part of the civilized world law is susceptible of systematic ar- specialist to give his particular lives by and its deriva- rangement, that doctrines and prin- knowledge a very wide perspective tives. The question therefore is not ciples subtend millions of rules, and a deep foundation). The oppor- one of biological life or death- making the search for apt cases man- tunities to expand legal horizons and Greeks and Romans lived on after ageable. The familiar subjects of the make the more signif- the glory had departed. It is rather substantive law and the distinctions icant through the use of jurispru- a question of sustaining the gift of between that and procedure indicate creativeness, of nurturing the highest dence are unlimited. some of the broad lines of classifica- values, of providing conditions that Consider, for example, the system- tion. And, within each subject, permit the human spirit to flourish atization of the law. If we say that propositions of varying generality in its still untapped potentialities. this problem lies in the field of ana- provide the instruments whereby the In short, as Socrates put it, the ques- lytical jurisprudence, many lawyers numerous rules and the cases can be tion is not life, but a life. For are apt to assume that we are talking organized and found with more or us, the question is how can law con- about some esoteric bit of academic less success. tribute to that end, lore. But if it is pointed out that we The success is less frequent -and

January, 1951 - Vol. 37 25 The Challenge of Jurisprudence complete than it should be. Indeed, addition, the aesthetic pleasure to better state and the na- what assurance have you after long be derived from an appreciation of tional Congress have increasingly painstaking research that very im- the architecture of the legal order as relied on factual information in the portant cases have not completely well as the increased efficiency in study and drafting of - eluded your investigation? The law- making one's way through the lab- though even here, that is sporadic yer must rely on the staffs of pub- yrinthian byways of a great legal and superficial. It will probably be lishers. He must rely on an old, system. These are joys and utilities granted also that some , espe- makeshift, classification of the law. which any lawyer can . cially in constitutional cases, lean One need not be unappreciative of There are serious international heavily on the findings of factual re- the publishers' efforts to be skeptical consequences of the common lawyer's search. Many lawyers have heard of of the professional literature they disinclination to organize his law. the pioneering Brandeis brief, which have provided. Nor are the publish- His contacts with foreign lawyers are emphasized facts rather than the ers to be blamed. The plain fact is rendered difficult, and his participa- cases. Yet all that seems remote from that the Bar has not interested itself tion in international efforts to unify the- daily work of most lawyers. I in the development of a legal system law are limited. Beyond that extends grant that, but nonetheless submit nor has it cultivated the aptitudes the curtailment of American influ- that factual research relevant to law necessary for sound organization of ence on other cultures. The Romans, and legal problems should be a the law. by contrast, left their law in the serious concern of the thoughtful In this regard the Anglo-American convenient form of the Justinian practitioner. Code; and its successors, lawyer has lagged behind the Con- the Swiss In order to indicate a perspective tinental lawyer who inherited the and German civil codes and the on the question quickly, I point to systematic treatises of the modern French and Italian penal codes, have our brethren in the medical profes- been adopted throughout Roman law. On the Continent this the world sion. I do so without intent to draw from Turkey to China and is manifested in which, Peru. invidious comparisons or to imply joined to a looser grip of , This nation, despite its strategic posi- that there are no major differences tion, is unable to exercise makes the practice of law less ardu- a similar or to suggest that anyone is to blame influence on world culture because OtiS. because lawyers are not held in the its law in foreign eyes is a formless same high esteem which the doctors My purpose is not to insinuate mass of countless rules piled helter- enjoy. I can only mention one aspect that code systems are superior to case skelter in terrifying Gargantuan di- of a large problem, namely, that law, nor do I think a revival of the mensions. I do not mean to suggest medicine rests on science and is it- Field-Carter debates on that subject that the imitation of American law by self, to a substantial degree, a science, is called for. That issue has been foreign countries should be pressed. whereas the practice of the law does clouded by the myth pervading aca- Our influence, .if any, may be better not even pretend to rest on organized demic circles, at least, that the basic extended in assisting others to de- empirical knowledge. For three cen- methbds of legal thinking are quite velop free institutions in ways con- turies science has received the su- different, that the Continental law- genial to their own culture. To do preme accolade of Western culture, yer deductively from the that, however, we must improve our and medicine participates in that broad propositions of his code while competence to communicate the prestige. Nor is it merely a matter the common lawyer reasons induc- character and significance of Ameri- of public esteem. The reputation is tively from case to case until he can legal experience. deserved because the doctors are con- constructs the required . It tributing to our knowledge of health is impossible here to set forth the "Legal Sociology" Implies in many important ways. The con- reasons for believing that this ac- a Factual Science quest of disease by scientific methods count is mythology. And it is more I turn now to the challenge of juris- is universally appreciated as are pre- pertinent to point out that the com- prudence with regard to a factual ventive medicine and the efforts of mon law abounds in doctrines and science of law, a , doctors to educate the public. The principles no less than do the civilian which is not concerned with system- clinic and the laboratory and the systems. This suggests that the differ- atization of legal precepts but with scientific medical publications are ence lies in the articulation and or- the functioning and effects of law, established and highly regarded. ganization of these generalizations the interrelations of legal and non- rather than in basic methods of ana- legal institutions, and the like. In Granted that law is fundamentally lyzing legal problems or deciding short, legal sociology carries the con- different in important regards, it is cases. It also implies that, quite apart notation of science in its ordinary nonetheless pertinent to consider the from official enactment of codes, the meaning; it is or, rather, will be, if possible significance of research and effort to systematize the it is ever brought into , a legal science for the practice of law. would make the authoritative ma- distinctive factual science. This is not an easy problem because terials more usable. There is, in It is widely recognized that the (Continued on page 85)

26 American Bar Association Journal