第4章

We are not likely to underrate the force that has been exerted if we look back upon its work."There is not a creed which is not shaken, not an accredited dogma which is not shown to be questionable, not a received tradition which does not threaten to dissolve.20 Those are the words of a critic of life and letters writing forty years ago, and watching the growing scepticism of his day.I am tempted to apply his words to the history of the law.Hardly a rule of today but may be matched by its opposite of yesterday.Absolute liability for one's acts is today the exception; there must commonly be some tinge of fault, whether willful or negligent.Time was, however, when absolute liability was the rule.21 Occasional reversions to the earlier type may be found in recent legislation. infringement, material and moral, of my rights." 28 Everyone feels the force of this sentiment when two cases are the same.

Adherence to precedent must then be the rule rather than the exception if litigants are to have faith in the even-handed adminisration of justice in the courts.A sentiment like in kind, though different in degree is at the root of the tendency of precedent to extend itself along the lines of logical development.29 No doubt the sentiment is powerfully reinforced by what is often nothing but an intellectual passion for elegantia juris, for symmetry of form and substance.30 That is an ideal which can never fail to exert some measure of attraction upon the professional experts who make up the lawyer class.To the Roman lawyers, it meant much, more than it has meant to English lawyers or to ours, certainly more

than it has meant to clients."The client," says Miller in his "Data of Jurisprudence," 31 "cares little for a 'beautiful' case! He wishes it settled somehow on the most favorable terms he can obtain." Even that is not always true.But as a system of case law develops, the sordid controversies of litigants are the stuff out of which great and shining truths will ultimately be shaped.The accidental and the transitory will yield the essential and the permanent.The judge who moulds the law by the method of philosophy may be satisfying an intellectual craving for symmetry of form and substance.But he is doing something more.

He is keeping the law true in its response to a deep-seated and imperious sentiment.Only experts perhaps may be able to gauge the quality of his work and appraise its significance.But their judgment, the judgment of the lawyer class, will spread to others, and tinge the common consciousness and the common faith.In default of other tests, the method of philosophy must remain the organon of the courts if chance and favor are to be excluded, and the affairs of men are to be governed with the serene and impartial uniformity which is of the essence of the idea of law.

You will say that there is an intolerable vagueness in all this.If the method of philosophy is to be employed in the absence of a better one, some test of comparative fitness should be furnished.I hope, before Ihave ended, to sketch, though only in the broadest outline, the fundamental considerations by which the choice of methods should be governed.In the nature of things they can never be catalogued with precision.Much must be left to that deftness in the use of tools which the practice of an art develops.A few hints, a few suggestions, the rest must be trusted to the feeling of the artist.But for the moment, I am satisfied to establish the method of philosophy as one organon among several, leaving the choice of one or the other to be talked of later.Very likely I have labored unduly to establish its title to a place so modest.Above all, in the Law School of Yale University, the title will not be challenged.I say that because in the work of a brilliant teacher of this school, the late Wesley Newcomb Hohfeld, I find impressive recognition of the importance of this method, when kept within due limits, and some of the happiest illustrations of its legitimate employment.His treatise on "Fundamental Conceptions Applied in Judicial Reasoning" is in reality a plea that fundamental conceptions be analyzed more clearly, and their philosophical implications, their logical conclusions, developed more consistently.I do not mean to represent him as holding to the view that logical conclusions must always follow the conceptions developed by analysis."No one saw more clearly than he that while the analytical matter is an indispensable tool, it is not an all-sufficient one for the lawyer." 32 "He emphasized over and over again" that "analytical work merely paves the way for other branches of jurisprudence, and that without the aid of the latter, satisfactory solutions of legal problems cannot be reached" 33 We must know where logic and philosophy lead even though we may determine to abandon them for other guides.The times will be many when we can do no better than follow where they point.

Example, if not better than precept, may at least prove to be easier.

We may get some sense of the class of questions to which a method is adapted when we have studied the class of questions to which it has been applied.

Let me give some haphazard illustrations of conclusions adopted by our law through the development of legal conceptions to logical conclusions.

A.agrees to sell a chattel to B.Before title passes, the chattel is destroyed.

The loss falls on the seller who has sued at law for the price.34 A.agrees to sell a house and lot.Before title passes, the house is destroyed.