Science and the Law By Joseph W. Bingham Associate Professor of Law Leland Stanford Jr. University THE editor has kindly allotted me space in these pages for a brief reply to his criticism 1 of my theory of the field of legal study. I hasten to break a lance with him, partly because he has misunderstood and therefore misstated the gist of my sketchy argument, and partly because it may have been pro ductive of similar misapprehensions in other minds. The nucleus of my theory is indicated by the following passages from my article.2 The field of any science consists of sequences of concrete phenomena which are studied to determine their causes and effects, and, if the science is not purely historical, to predict con cerning similar future sequences. The generali zations and definitions used are only mental implements manufactured by the mind and senses to aid in acquiring, retaining, and com municating knowledge of the objective phe nomena within the scope of the science. I assume that no one will contradict that the field of law is part of the field of the science of government. What are the proper objects of comprehension within this field? Only or primarily rules, principles and definitions? No. The lawyer, as does the scientist, studies sequences of external phenomena and he studies them with a similar purpose — to determine their causes and effects and to acquire an ability to forecast sequences of the same sort. I have stated that the field of law is part of the field of the science of government. I delimit it further by saying that it includes only the organization of the institutions and agencies of authoritative government, their concrete opera tions and effects, and the causal facts which bring about those operations. These things ■ 25 Green Bag 74 (Feb. 1913). • 11 Mich. Law Rev. 9-12.
constitute external sequences of phenomena which correspond to the working field of the scientist. Knowledge of such concrete govern mental phenomena obtained by observation, report, inductive and deductive reasoning, and the other implements of scientific investigation, may be generalized into rules and principles. A technical vocabulary and stereotyped methods of phrasing may be developed with accompany ing definitions. When thorough knowledge so obtained has been fully organized we shall have that which may with propriety be called a science of law. Though the entire range of the operations of authoritative government come within the scope of the lawyer's profession, he is usually concerned particularly with one sort of these operations — those of the law-determining bodies and their complementary and supplementary agencies. Of these, the courts are the most prominent in the view of the student of law, for in the great majority of cases, where stubborn disputes over questions of law are fought out, those questions are ultimately determined by the courts. It will facilitate our discussion and not prejudice its soundness, I think, to confine it to law which has been or may be so determined. . . . To clarify the expression "external govern mental (or legal) phenomena" which I shall use occasionally, imagine any case which passes through our courts of law to final judgment. The actual concrete facts on which the action is or might be based and defended are external and generally non-legal phenomena. When the suit is initiated, however, the string of legal consequences commences and continues until it finally is disposed of, by full execution of judgment or otherwise, and completion of the records. Such strings or combinations of inter woven strings of causal external facts and legal external consequences constitute the laboratory material of the lawyer and jurist. In using such material, their purposes are, first, to learn by mental processes similar to those employed in scientific investigation, essential causal elements in the strings of occurrences producing certain of the legal consequences in those strings, and
