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The Present and the Future of Jurisprudence in the United States, 5 N.C

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The Present and the Future of Jurisprudence in the United States, 5 N.C NORTH CAROLINA LAW REVIEW Volume 5 | Number 3 Article 1 4-1-1927 The rP esent and the Future of Jurisprudence in the United States Edward James Woodhouse Follow this and additional works at: http://scholarship.law.unc.edu/nclr Part of the Law Commons Recommended Citation Edward J. Woodhouse, The Present and the Future of Jurisprudence in the United States, 5 N.C. L. Rev. 197 (1927). Available at: http://scholarship.law.unc.edu/nclr/vol5/iss3/1 This Article is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Law Review by an authorized administrator of Carolina Law Scholarship Repository. For more information, please contact [email protected]. THE PRESENT AND THE FUTURE OF JURIS- PRUDENCE IN THE UNITED STATES EDWARD JAMES WOODHOUSE* Ignorance of Jurisprudence is one of the greatest weaknesses of this Nation. Jurisprudence is the Science of Law. All students of Jurisprudence are in as complete agreement on this general definition of their subject as they and all others using the terms are in disagree- ment and uncertainty in answering the next questions, namely, what is science and what is law. Workers in the Natural Sciences, espe- cially in those known as the Experimental or Laboratory Sciences, have resented and protested the use of the term Social Sciences to designate History, Economics, Political Science or Government or Politics, Sociology and allied studies, and have insisted upon known laws, certain and susceptible of objective and mathematical proof, predictability, possibility of experimentation or other characteristics as necessary to a real science. Many followers of the Social Sciences have meekly yielded to this arrogant claim without examining its validity. It is very doubtful that such a narrow definition of the word "science" can be justified either from its derivation or from the usage of it by the majority of careful and well qualified persons speaking and writing in the English language. Scientia meant knowl- edge, and there seems no good reason for restricting its English derivatihe "science" to a narrow kind of knowledge. Very little of our human knowledge in any field is so certain and definite as to be undisputed by a large and respectable minority, so why -should seek- ers for maximum approximations to the truth in any field be intoler- ant of the seekers in any other field merely because their methods happen to be different? Does not "scientific" by its derivation and by the best usage have reference more to honest search for the truth without prejudice and with an open mind rather than to any special details of method? At any rate, the Social Sciences are 'Very gen- erally so designated and will continue to be, and Jurisprudence is one of them. Professor James W. Garner of the University of Illinois has very well said,1 "For our purposes a science may be described *asa fairly * Acting Professor of Government in the University of North Carolina. Garner, Introduction to Political Science, 17. [1971 THE NORTH CAROLINA LAW REVIEW unified mass of knowledge relating to a single subject, acquired by systematic observation, experience, or reason, the facts of which have been coordinated, systematized and classified. The scientific method of examining facts is not peculiar to one class of phenomena nor to one class of investigators; it is applicable to social as well as to physical phenomena, and we may safely reject the claim that the scientific frame of mind belongs exclusively to the physicist or the naturalist." Karl Pearson has said,2 "The classification of facts, the recognition of their sequence and relative significance, is the func- tion of science." But what is the Law, of which Jurisprudence is the science? What is this subject about which we in Jurisprudence wish to acquire knowledge, to be classified, systematized, co~rdinated, unified into a science? One distinguished Law teacher has given this definition and explanation relating to Law,3 "A law is a rule concerning human conduct, established by those agents of an organized society who have legislative power. These agents may be a king, a council, a court, a legislature composed of a few representatives, or the entire mass of voters. When a rule of law has been reduced to words it is a state- ment of the legal effect of operative facts (operative fact: any fact the existence or occurrence of which will cause new legal relations between persons. Operative facts have also been described as 'investitive,' 'constitutive,' 'causal,' and 'dispositive.' The 'extin- guishment' of a legal relation is necessarily the creation of a new one.) ; that is, it (a rule of law reduced to words) is a statement that certain facts will normally be followed by certain immediate or remote consequences in the form of action or non-action by the judicial and executive agents of society. Whenever any such opera- tive facts exist, the persons who will be affected by the stated conse- quences are said to have a legal relation each to the other. When we state that some particular legal relation exists, we are impliedly asserting the existence of certain facts, and we are expressing our present mental concept of the societal consequences that will norm- ally follow in the future. A statement that a legal relation exists betwen A and B is a prediction as to what society, acting through its courts or executive agents, will do or not do for one and against the other." 2 Pearson, Grammar of Science, 6. 'Arthur L. Corbin, Legal Analysis and Terminology, 29 Yale Law Journal 163, 164. PRESENT AND FUTURE OF JURISPRUDENCE 199 It may be said, then, that the law of a community or organized society of human beings is the set of rules set up .y the community through its legislative agency, to regulate the relations of the mem- bers to each other and as far as lies within its power, their individual and collective relations to other communities and their members. Dean Pound has indicated views as to the nature of Law similar to these suggested definitions by saying,4 "As a means toward the administration of justice, jurisprudence is to that extent the science of justice; not of justice in general, however, but of justice applied to the relations of men with each other, of men with the state or society, and of states with each other, so far as it may be so applied by tribunals in organized societies." Strangely enough, there has been and still is a disposition on the part of students of Government or Political Science in the United States to exclude Private Law so called from their field though they accept Public Law as within their jurisdiction. And so, while Con- tracts, Torts, Property, etc., are left exclusively to Law Schools, Constitutional Law, International Law, Administrative Law, have been generally studied as Political Science, and Criminal Law has been reluctantly admitted and occasionally counted for credit in Arts courses as Political Science. Municipal Corporations is seldom given as Political Science. Criminology has been well established as a proper subject of study for Sociologists and may in time come to be admitted as among the fields of Political Science. Jurisprudence, though seldom taught in Arts or Law Schools, is an eminently respectable member of the Political Science family provided it is con- fined chiefly to theory and studied and taught from the older books such as Austin's, Salmond's, Holland's and from more recent theo- retical ones like the volumes of the Continental Legal History Series. Historical Jurisprudence or Historical-Sociological Jurisprudence has had little attention in this Country. A very few students and writers have been interested in the social backgrounds and histories of the various systems of law in Western civilization, but they have had few followers in that interest. Jurisprudence, then, is recognized as a part of Political Science but not much known or taught in Political Science Departments. It receives recognition but probably less attention in Law Schools, and the writer knows of not one separate department of Jurisprudence 'Article on Jurisprudence in McLaughlin and Hart's Cyclopedia of Ameri- can Government. THE NORTH CAROLINA LAW REVIEW in any educational institution in the United States. Some Law Schools incorporate the word in their title but make little difference on that account in their curricula. Political Scientists are justified in thinking that they have more than enough to do in attacking the dense ignorance of this Nation on other phases of Political Science,6 but after all, there is much to be said in favor of devoting most effort where the greatest need lies. If the lack of interest of Americans in politics is disappointing and their ignorance thereof discouraging, the condiion of legal knowl- edge in this nation is probably the very worst in all of American intellectual life. This is a true but strange thing to say of a people who were characterized by Edmund Burke before the American Revolution as a nation of lawyers. 6 The average citizen devotes at least some attention to politics, spasmodic and emotional as that little is apt to be, rather than constant and intellectual as it ought to be. But law, the favorite study of most educated men in Revolution- ary America, has been labelled technical and vocational, and laid aside for the exclusive attention and control of professional lawyers. The American people, though claiming to be the most independent, most individualistic, and most self-governing people in the world, have entrusted their great system of legal institutions, one of their greatest inheritances, to one class of business men, for American 'The general indifference to government and ignorance of it is discussed by the writer of this article, in the South Atlantic Quarterly, volume XXV, 223- 239 (July, 1926), under the title "The Challenge to Training in Politics." 'Burke said: "Permit me, Sir, to add another circumstance in our colonies, which constitutes no mean part towards the growth and effect of this intract- able spirit.
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