better than either the analytic or the historical school, better than both combined— something which will adopt whatever is useful in each having regard to the actual conditions of life in our day, and will furnish besides much of first importance which they pass by; in a word, which presents a sounder system of legal education; a suitable name perhaps for which appears in the title to this paper. The subject accordingly concerns the theory of legal education, not the mode of acquiring it.
Let me now endeavor to explain what I mean by a scientific school of legal thought.
Municipal law is founded upon the conception of right; which, as the courts profess and appear to treat it, signifies freedom to carry out one's reasonable purposes in any reasonable way; in short, to do whatever is reasonable. In so far as the law fails to realize this idea, it fails of what I mean by a scientific result; to work the idea into fact on all sides would be to make the law wholly scientific — the law would then be in fact what it professes to be. cannot be too much to say that the law should be constantly working to that end What this means may not appear by the mere statement; as it is of the essence of a scientific school of legal thought, it should be worth finding out.
One thing of importance stands out in clear lines — the law follows right, if law is founded upon a conception of right; it must at least make that its constant aim. It is a mistake, as was noticed in a former paper,[1] a mistake growing out of taking figurative language for fact, to suppose that law is a distinct entity and cause of things. In a secondary way law may in certain cases be said to create rights; as where a grant of authority by the legislature to do what before could not lawfully be done has been accepted and acted upon; but this creative power of law itself springs from right, the right of the State to legislate for the welfare of the people. This appears plainly from the consideration that if the legislative act was itself unauthorized, that is if the State has conferred no right upon the legislature, the legislative action confers no right.
As, then, law follows or at all times endeavors to follow, the judicial conception of right, and right according to that conception signifies freedom to carry out one's reasonable purposes, it results, in sound theory, that law follows or endeavors to follow the reasonable exercise of purpose — law follows and conforms to men's business, men's pursuits. That should be the conclusion; but fact halts on theory, sometimes, only in appearance indeed, far too often in reality. At first appearance it would seem that the discrepancy was very great, great enough almost to cause one to question whether any such theory has a place in the operation of law. Indeed the law seems to be flooded with a priori rules, rules fashioned, if not before, at least It with small regard to, the pursuits of men. How full of such rules the law of property appears to be; how many there seem to be in contract, in criminal law, in tort! Even equity contributes to the common stock; and the statute book and, still more, written constitutions furnish another supply. The first glance would put aside any theory that law follows, or follows with anything approaching consistency, men's pursuits; it would even seem to take from the doctrine that law follows right itself all but a barely theoretic notion. But first impressions are apt to be untrustworthy.
I want to speak now, not merely to lawyers and students of the law, but to the less informed. I want to take the business man and the simple tradesman into my counsel and confidence; nay, I would fain speak to the wayfaring man, in language which I hope will go home to him as well as to his more fortunate neighbor. I would convert the rebellious laboring man to a better
- ↑ Definition of Law, Columbia Law Review, January, 1905.
