Page:The Green Bag (1889–1914), Volume 25.pdf/86

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Jurisprudence Not an Objective Science the law, he refers not to the generaliza tions themselves but to their content. He says that we may by abbreviation speak of the science of law as "the law," but that when we use "the law" in this sense we mean not the law itself, but our knowledge concerning it, and he is on his guard against what he conceives to be pitfalls of such a catachresis. Essentially, therefore, he conceives of the law as external sequences of phe nomena which not only afford material for legal rules but are to be identified with such rules. This interpretation does violence to the plain and natural meaning of words. By law we clearly mean, in our every day language, not a real or imaginary state of fact, but a rule or principle. The most that can be said in favor of Mr. Bingham's view is that it may help to place the science of law on a socio logical footing, but in doing this we should use words to express accurately what we mean, and the law must not be confused with social phenomena. Nor is it accurate to regard the mate rial with which the science of law deals as objective, however we define law. Governmental sequences may mean either of two things. They may mean the activity of society supplying an external basis for legal ideas, the actual human relationships with which we con nect our ideas of right and obligation; or they may mean on the other hand the intentional striving of society for the realization of ideals of law, namely the human relationships which the sense of law itself creates. In the former case the dynamic basis of law is readily dis tinguishable from the law itself, and in the latter we are likewise driven to con ceive of the law as idea rather than as external object. Legal science is con cerned with something more than social phenomena, and its subject-matter is

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too broad to be comprehended in any purely objective science. Legal science is concerned not with the delineation of external reality, but with an ideal material which offers a valuation rather than a description of human activity. The law of contract, for example, does not merely generalize the course of action usually pursued by the parties to a contract; it rather sets up a rule of justice which the party to a contract will normally observe. This norm is to be ascertained not by generalization from particular instances of contracts actually negotiated, but by definition of that which constitutes proper performance of a contract. A legal norm is something apart from a generalization, though it may make use of generalization when cast in a general form. The law is to be defined as idea, rather than as object; moreover, it is not to be considered as simply an ab stract quality, but as a principle. We say that a certain situation, for example, is just, linking with it the abstract attri bute of justice, but that quality is not synonymous with law. When we say that a certain situation is legal, we are saying that certain external conditions modified by the presence of govern mental force conform to a norm or standard of justice, which means more than merely to say that they are just, for law is not like justice, a quality, but a principle predicating that quality of cer tain ideal conditions. Loosely we might perhaps define law as the concept of a normal govern mental sequence, profiting to this extent by Mr. Bingham's discussion but avoid ing its misconceptions. Such a definition would be incomplete in so far as it fails to recognize the indispensable element of social acceptance. In other respects it might challenge fuller discussion.