Showing papers in "Philosophical Books in 1984"

Essays in Jurisprudence and Philosophy

Abstract: ion from the conditions under which they have to be applied in real life . 3 . 2 . Blindness to the social and individual interests which must be considered, together with other practical problems , in the use and development of legal concepts.4 3 . A belief that it is possible to distinguish between the es­ s ence (das Wesen) and the legal consequences (die Folgen) of a legal rule or concept , so that we may consider concepts in abstracto 'aller seiner realen Wirkungen entkleidet ' as Puchta did in the case of possession. s This leads to a special kind of nonsense in the solution of problems : it licenses us to say o f a concept like possession that it is 'seinem We sen nach Faktum, in seinen Folgen einem Rechte gleich ' . 6 So it is 'Faktum und Recht zugleich '. 7 4. Ignoring the ends and the purposes of law and refusing to ask the question : why is the law thus and so? In the Begriffshimmel 'fragt Niemand nach dem Warum '8 and all concepts deformed by considerations of utility are put into the 'Anatomisch-pathologisches Begriffskabinett ' . 9 5 . A false assimilation of the concepts and methods of legal science to mathematics ; so that all legal reasoning is a mat­ ter of pure calculation in which the contents of the legal concepts are unfolded by logical deduction. 1 o Such , I think, is a summary o f the main features of the style of legal thinking which Jhering is concerned to attack. Nearly al of them were attacked, often in closely similar language, by a great master of the common law from whom many English lawyers have learned a critical approach to their own system. He was not an Englishman, but a great American judge of the Supreme Court and a juris t, Oliver Wendell Holmes , Jr . Be­ tween Holmes 's thought and Jhering 's there are many striking 3 'Die Frage der Anwendung und des Beweises kommt fur ihn gar nicht in Betracht' Scherz und Ernst, 2 7 3 . 4 'Badet sich hier i n dem reinen Gedankenather, unbekiimmert iiber die reale Welt ', ibid. 274 . 5 Ibid. 296 . • I bid. 283 n. 8 ( quotation from Savigny) . 7 Ibid. ( quotation from Savigny) . • Ibid. 2 8 7 . p Ibid. 2 9 7 . Cf. 'thorichte Frage nach seinem praktischen Warum ' ibid. 3 14. 1 0 Ibid. 287-8. Cf. 'Der Jurist rechnet mit seinen Begriffen, wie der Mathe matiker mit seinen Grossen' , ibid. 2 74 . JHERING 'S HEAVEN O F CONCEPTS 2 6 7 parallels ; yet i t seems clear that the American jurist arrived at his own critical position independently . Indeed, the author of the most recent , authoritative , and detailed biography of Holmes expressly states that , though Holmes certainly read four volumes of the Geist des Romischen Rechts in 1 8 79 , there is no indication that he ever recognized that Jhering had uttered protests against 'the beatitudes of logic ' in German legal thought which were similar to his own protests . l 1 Here are some famous phrases from Holmes : 'The common law is not a brooding omnipresence in the sky ', 1 2 and again 'the life of the law has not been logic ; it has been experi­ ence', 1 3 and 'it is a fallacy to believe that a system of law can be worked out like mathematics from some general axioms of cop.duct ' , 14 and again , 'the fallacy that the only force at work in the development o f the law is logic ' , t s and 'general propo­ s itions do not decide concrete cases '. 1 6 'Where there is doubt , the simple tool of logic does not suffice . ' 1 7 Holmes was inspired in such criticism of what he called 'the fallacy of logical form ,l s by the pragmatism and oper­ ationalism of the American philosopher, C. S . Peirce ; but he combined with the pragmatism a deep conviction, similar to Jhering's own concern for 'Zweck im Recht ' , that lawyers must be sensitive in the interpretation and application o f law to the cla'im of 'social advantage'. Holmes was the spiritual godfather of a school o f sceptical American jurists whose most extreme development was to be found in the loosely-knit group of writers known as the 'legal realists ' and whose main work was done in the 1 9 3 0s . But between them and Holmes came the main work of Roscoe Pound who explicitly recognized Holmes and Jhering, all of whose works he had read , as equal pioneers in the work of replacing Begriffsjurisprudenz by Wirklichkeitsjurisprudenz . The influence of Jhering's thought i s plain in Pound 's well­ known Interpreta tions of Legal History 1 9 and in a famous 1 1 Howe, Justice Oliver Wendell Holmes: The Proving Years, ii. 1 52 . 1 2 Southern Pacific Co . v . Jensen ( 1 9 1 7) 244 U.S. 2 05 , 222. 1 3 The Common Law ( Boston 1 88 1 ) , 1 . . 4 'Path o f the Law', in Collected L egal Papers ( London 1 920) , 1 80. 1 5 Ibid. .. Lochner v. New York ( 1 904 ) 1 98 U.S. 45, 74. ' 7 'Law in Science and Science in Law', in Collected Legal Papers , 239. I I 'Path of the Law', 1 84 ubi. rep . 1 9 Cambridge 1922 . 26 8 FOUR LEGAL THEORISTS essay 'Mechanical Jurisprudence' ,2° in which he preached Jhering's m essage in his own words , and attacked as pro­ foundly mistaken the belief that the law developed by 'rigor­ ous logical deduction from predetermined conceptions in the disregard and often in the teeth of actual facts ' . Pound had a variety of epithets to describe this mistaken method ; among them are 'automatic ' , 'slot machine ' , 'formal ' , and 'conceptu­ alism '. Yet in spite of these striking similarities , the American on­ slaughts on Begrzffsjurisprudenz or 'conceptualism ' and Jhering's protests diverged in the following way. The objects of Jhering's attack, it will be remembered, were not prac­ titioners but great academic expositors of the law ( Theore­ tiker) . Only these were allowed into the Begriffshimmel and it will be remembered that nearly all of them were Germans ( 'fast nur alle aus Deutschland ' ) . Savigny was nearly refused admission, but obtained entry on the strength of his work on possession because it showed a proper contempt for utility. So little do these theoreticians care for the actual practice of the law that they are prepared to ignore any actual decisions of judges which run counter to their own logical calculations in which they unfold the content of legal concepts . Practice in their view 'spoils the law' and is bad for this reason ; just as someone might condemn war because i t spoils the appearance of soldiers ( 'der Krieg verderbe den Soldaten '2 1 ) . So the theore­ tician if he is worthy of entry into the Begriffshimmel is per­ fectly prepared to condemn the decisions of practical lawyers as logical impossibilities,22 and, as in the case of Roman law­ yers , to attribute their deviations from rigorous conceptual thought to their falling under the evil influence of consider­ ations of utility .23 The great contrast between Jhering's attack and the attack on conceptualism made by Holmes and his followers , Pound and the legal realists , is that the latter directed their main in­ vective not against theoretical jurists but against judges and practical lawyers . For them these vices of legal thought are exhibited by lawyers and judges who place an excessive re­ liance on 'logic ' in deciding cases , and who think that the 2 1 Scherz und Ernst , 289 n. 2. 22 Ibid. 300. 23 Ibid. 297 . JHERIN G 'S HEAVEN O F CONCEPTS 269 application of general rules and concepts in legal decisions was a simple exercise in syllogistic reasoning ; and it is a critique of judicial technique that American jurists have preached this doctrine to English lawyers. No doubt this difference between Jhering and his American counterparts reflects the diffe rent status of the judge in the German and Anglo-American legal systems . Later, of course , Jhering's successors directed their attacks also against judges , who believed that by using only logical operations they could establish with absolute exactness that a given decision of a particular case was predetermined by the legislator.24 Simi­ larly , Holmes 's message was expanded by Pound and his suc­ cessors , and converted into a criticism not only of judges but of juristic writing. ' Notwithstanding these differences I believe the funda­ mental intellectual error about the nature of law and legal concepts , which drew fire from Jhering, was exactly the same as stimulated Holmes and his followers to their attack; and I will attempt to say what the root of this intellectual error is_ It can I think be most simply stated in the following way. The fundamental error consists in the belief that legal concepts ar� /z\"xed or closed in the sense that it is possible to define them exhaustively in terms of a set of necessary and sufficient conditions ; so that for any real or imaginary case it is possible to say with certainty whether it falls under the concept or does not; the concept either applies or it does not ; it is logi­ cally closed (begrenzt) . This would mean that the application of a concept to a given case is a simple logical operation con­ ceived as a kind of unfolding of what is already there ,25 and, in simpler Anglo-American formulation, it leads to the belief that the meaning of all legal rules is fixed and predetermined before any concrete ques tions of their application arises . If we ask why this belief about the nature of legal concepts is wrong, the answer, as I have said elsewhere,26 is that men who make laws are men, not gods. It is a feature of the human predicament, not only of the legislator but of anyone who attempts to regulate some sphere of conduct by means of 24 Gnaeus Flavius, Der Kampf um die Rechtswissenschaft ( 1 9 0 7 ) , 7 . 25 'Die FUlle des Inhalts , der in ihnen beschlossen liegt , fUr die Erkenntnis zu Tage zu famem' (Scherz und Ernst, 287 ) . 26 The Concept of Law (Oxford 1 96 1 ) , 1 25 . 2 7 0 FOUR LEGAL THE ORISTS general rules , that he labours under one supreme handicap the impossibility of foreseeing all possible combinations of circumstances that the future may bring. A god might foresee all this ; but no man, not even a lawyer, can do so . Of course thi