Legal theory

“ In consequence of this divergence, partly intentional and avowed, partly accidental and unavowed, between the law and the fact of possession, it is impossible that any abstract theory should completely harmonise with the detailed rules to be found in any concrete body of law. Such harmony would be possible only in a legal system which had developed with absolute logical rigour, undisturbed by historical accidents, and unaffected by any of those special considerations 238which in all parts of the law prevent the inflexible and consistent recognition of general principles. ”

“ But if we take the view of our friend the bad man we shall find that he does not care two straws for the axioms or deductions, but that he does want to know what the Massachusetts or English courts are likely to do in fact. I am much of his mind. The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.
Take again a notion which as popularly understood is the widest conception which the law contains;—the notion of legal duty, to which already I have referred. We fill the word with all the content which we draw from morals. ”

“ When, therefore, in an ordinary trial in an action at law we speak of the common law we refer to the law of the state as it has been adopted by statute or recognized by the courts as the foundation of legal rights. It is in regard to decisions made by the state courts in reference to this law, and defining what is the law of the state as modified by the opinions of its own courts, by the statutes of the state, and the customs and habits of the people, that the trouble arises. ”

“ By the concepts of law, State, and property one may understand, first, the concepts of law, State, and property in the science of a particular legal system.
These concepts of law, State, and property contain all the characteristics that belong to the substance of a particular legal system. They embrace only the substance of this system. They may, therefore, be called concepts of the science of this system. For we may designate as the science of a particular legal system that part of jurisprudence which concerns itself exclusively with the norms of a particular legal system. ”

“ Whatever might be the answer of a moralist to this question, a jurist must search for its legal solution, in those principles of action which are sanctioned by the usages, the national acts, and the general assent, of that portion of the world of which he considers himself as a part, and to whose law the appeal is made. ”

“ It is concerned not with the simplest and easiest, but with some of the most abstruse and difficult portions of the legal system. Theoretical jurisprudence is not elementary law, any more than metaphysics is elementary science. ”

“ It is requisite that the law should postulate one or more first causes, whose operation is ultimate, and whose authority is underived. In other words there must be found in every legal system certain ultimate principles, from which all others are derived, but which are themselves self-existent. Before there can be any talk of legal sources, there must be already in existence some law which establishes them and gives them their authority. ”

“ But, while it is the duty of the courts to put a construction upon statutes which shall, so far as possible, be consonant with good morals, we know of no legal principle which would authorize us to pronounce a statute of this kind, which is plain and unambiguous upon its face, void, by reason of its failure to conform to our own standard of social and moral obligations. ”

“ The reader must bear in mind that the law herein dealt with is the law as it is administered in the legal forms of his country, in no degree changed and in no degree colored by the imagination of the author. Every legal statement represents an established principle, thoroughly analyzed by the courts of last resort. There can be no question as to the probable truth of these legal conclusions. They are as certainly established as it is possible for the decisions of courts to establish any principle of law. ”

“ As is true of many problems in the law, the answer is to be found not in legal learning but in the realities of the record. Though variously expressed in the decisions, the governing principles are clear. ”

“ Practical legal exposition acknowledges no call to rise to first principles, or to proceed to ultimate analysis. From the point of view of law as an art, the importance of conceptions and principles varies inversely with their abstractness or generality. Practical jurisprudence proceeds from below upward, and ascends no further than the requirements of use and practice demand. Theoretical jurisprudence, on the contrary, attributes value to the abstract and the general, rather than to the concrete and the particular. ”

“ Wherever, by either the common law or the statute law of a State, a right of action has become fixed and a legal liability incurred, that liability may be enforced and the right of action pursued in any court which has jurisdiction of such matters and can obtain jurisdiction of the parties. ”

“ All legally recognized interests of substance in developed legal systems are normally individual interests. To the historical jurist of the nineteenth century, this fact, coupled with the development of ownership out of possession, served to show us the idea which was realizing in human experience of the administration of justice and to confirm the position reached by the metaphysical jurists. ”

“ Legal tribunals have also powerfully assisted to shape and modify conceptions of proprietary right by means of the distinction between Law and Equity, which always makes its first appearance as a distinction between jurisdictions. ”

“ All systems do to some extent, and those which recognise precedent as a chief source of law do more especially, show a tendency to carry this process of development too far. Under the influence of the spirit of authority the growth of law goes on unchecked by any effective control, and in course of time the domain of legal principle comes to include much that would be better left to the arbitrium of courts of justice. ”

“ Under matured systems of jurisprudence a great variety of agreements are denied legal recognition, on the ground that their performance would involve a violation of law, or would be incompatible with good morals or public policy. ”

“ It is necessary, therefore, for us to understand correctly, and to understand with precision and accuracy, exactly what the law means by them, because they have a legal meaning; they have a meaning that is peculiar to the law ”

“ Conceding, or better realizing, this inherently fluctuating character or quality of public policy, we see that the enactment of statutes to declare or define it must of necessity be a dangerous business, because such statutes, however accurately they reflect the public policy of the moment of their enactment, must almost immediately begin to be wrong. The Common Law, reposing, according to the legal fiction, in the bosom of the court, is flexible, and can change or be changed, as we have seen, with the change of condition ”

“ So great is the superiority of legislation over all other methods of legal evolution, that the tendency of advancing civilisation is to acknowledge its exclusive claim, and to discard the other instruments as relics of the infancy of law. The expressed will of the state tends to obtain recognition not only as the sole formal source of law, but as its exclusive material source also. Statute law has already become the type or standard, from which the other forms are more or less abnormal variations. ”

“ Philosophical theories have arisen to explain existing rules and have been the basis of new rules and of remaking of old ones. But they have been the means also, at times, of intrenching the rules they sought to explain and of fastening on the law doctrines of which it were better rid. Nowhere is the reciprocal action of legal rules and philosophical theories more strikingly manifest than in our law of contractual liability. ”

“ Nevertheless the gigantic bulk and bewildering difficulties of our own labyrinthine system are far beyond anything that is called for by the necessities of the case. Partly through the methods of its historical development, and partly through the influence of 26that love of subtilty which has always been the besetting sin of the legal mind, our law is filled with needless distinctions, which add enormously to its bulk and nothing to its value, while they render great part of it unintelligible to any but the expert. ”

“ Evidence of the kind may be admitted for the purpose of defining what is uncertain, but it is never properly admitted to alter a general rule of law, nor to make the legal rights or liabilities of the parties other or different from what they are by the common law. ”

“ And in order that you may thoroughly carry out this principle, procure, if you can, a legal education; because there are a great many flaws in titles, agreements, and the like, the knowledge of which will often enable you to lay hands upon various kinds of property to which at first sight you might appear to have no claim. Should you ever be so circumstanced as to be beyond the control of the law, you will, of course, be able to take whatever you want ”

“ They know all the nice points and proud formalities on which legal justice rests, or by which it may be eluded. The conflicting cases and opposing opinions, which may be brought to bear on an unsound horse, or a contested footpath, are deeply pondered over, carefully investigated. But the great edifice of general jurisprudence, though standing on his wayside, is usually passed by the legal traveller with averted eyes: the antiquary and the philosopher, indeed, may linger there; but the plodding man of business scorns to arrest his steps. ”

“ Our common law system consists in applying to new combinations of circumstances those rules of law which we derive from legal principles and judicial precedents, and for the sake of attaining uniformity, consistency and certainty, we must apply those rules when they are not plainly unreasonable and inconvenient to all cases which arise ”

“ These capacities, attributes and rights, however, in order to possess a legal entity, and mach more to be susceptible of a legal perpetuity, must be invested in some natural or corporate body; for in no other way can they be exercised or vindicated. ”

“ It is in this tendency that we find the key to much that is otherwise unaccountably harsh, technical, or absurd in early judicial remedies and procedure. Whenever any recognized legal right came to be regarded as unconscionable or otherwise objectionable, rules adapted to hamper or imperil the complainant in the pursuit of his remedy were sure to spring up. ”

“ The development of a legal system consists in the progressive substitution of rigid pre-established principles for individual judgment, and to a very large extent these principles grow up spontaneously within the tribunals themselves. That great aggregate of rules which constitutes a developed legal system is not a condition precedent of the administration of justice, but a product of it. ”

“ Among these he mentions a law which punishes a citizen for an innocent action; a law that destroys or impairs the lawful private contracts of citizens; a law that makes a man a judge in his own cause; and a law that takes the property from A. and gives it to B. 'It is against all reason and right,' says the learned justice, 'for a people to intrust a legislature with such powers ”

“ We have hitherto taken it for granted that legal principles are necessarily inflexible—that they are essentially peremptory rules excluding judicial discretion so far as they extend—that they must of necessity be followed blindly by courts of justice even against their better judgment. ”

“ Recognizing the difficulty in defining with exactness the phrase "due process of law," it is certain that these words imply a conformity with natural and inherent principles of justice, and forbid that one man's property, or right to property, shall be taken for the benefit of another, or for the benefit of the State, without compensation; and that [p391] no one shall be condemned in his person or property without an opportunity of being heard in his own defence. ”

“ We are enquiring what the law is, not what it ought to be. Reason may be applied to shew the impropriety or expedience of a law, but we must have either statute or precedent to prove the existence of it. At the same time, I do not mean to admit that the late resolution of the house of commons is defensible on general principles of reason, any more than in law. ”

“ Our lawyers to-day are so far from believing that the balance of Justice should, in private law as well as in criminal law, weigh the injustice which has been done, and not only the pecuniary interest, that, in daring to speak about it, I must expect to hear it objected that in this precisely lies the difference between criminal law and the law pertaining to the rights of persons. ”

“ On condition that you protect my rights, I will protect your rights. How, then, does some party obtain the right to claim the protection of the other? Evidently, by actually protecting the rights of the other.
But if this is so, no party will ever obtain a strictly legal claim to the protection of the other. ”

“ And hence it is that our lawyers are with justice so copious in their encomiums on the reason of the common law; that they tell us, that the law is the perfection of reason, that it always intends to conform thereto, and that what is not reason is not law. Not that the particular reason of every rule in the law can at this distance of time be always precisely assigned ”