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THE AMERICAN

LAW SCHOOL
SCHOOL REVIEW.

AN INTERCOLLEGIATE LAW JOURNAL.

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The Study of the Law.

By JAMES BROWN SCOTT, M. A., J. U. D.

Solicitor for the Department of State, Professor of International Law
in the George Washington University.

An Address Delivered at the Opening of the George Washington
University September 26, 1906.

No. 1.

A

GREAT poet, who had the misfortune not to be a lawyer, but who lived in touch with law and lawyers, has outlined in a few exquisite lines the aim and purpose of student and teacher as well as school. of law: "As we task ourselves

To learn a language known but smatteringly
In phrases here and there at random, toil'd,
Mastering the lawless science of our law,
That codeless myriad of precedent,
That wilderness of single instances.
Thro, which a few, by wit or fortune led,
May beat a pathway out to wealth and fame."

Lord Tennyson has here laid before the student the task to master the lawless science of our law, further complicating a problem sufficiently difficult by the suggestion that precedents of law are numbered by myriads leading through a wilderness of single instances, in which, it is to be feared, many a one not led by

wit or fortune has lost his way. That wealth and fame may result from the study of law is for our purposes immaterial; for we do not consider the purpose of the law school to make men either wealthy or famous, but by training to make safe counselors and law-abiding citizens.

To follow the poet in detail-he suggests that there is a science of law, but immediately qualifies it as the lawless science of our law. Admitting law to be a science, it is no doubt lawless in one way. It is not a mathematical science so that a final outcome may be predicted with certainty. Much depends on the twelve good men and true; not a little upon the court, and the lawyer himself who presents the case is an important factor. But, while the ultimate develop

ment may not be predicted with precision, still the direction may be forecast, and the resultant may be a subject of scientific calculation as is any problem in which men are the moving forces rather than abstract rules. The economic man of political economy is an abstraction. He does not exist; and until we can eliminate the human equation economics can never become a mathematical process. The same is true with law. It is, however, a fact that the present is best understood in the light of the past, and a knowledge of the past and the present is necessary to gauge the future whether it be remote or immediate.

If, then, it cannot be said that law is a science in the mathematical sense of the word, it clearly may be called a science in the sense of political economy and ethics. If the law be such a science, and science after all means little more than classified knowledge, it should be studied by methods applicable to science. If, as the late Professor Langdell remarked, the terms of this science, and indeed the materials of the science are to be found in the books, it necessarily follows that resort must be had to the books, to that codeless myriad of precedent, that wilderness of single instances, to be found in reports of adjudged cases. By studying the cases of a particular subject, by separating the cases that deal with a particular subject, by dividing these cases so separated into groups, by analysis and classification, it follows that the principles underlying them all may be discovered and brought to light. In this way a general principle is established, and when once the general principle is established it may be—indeed, must be -applied to analogous cases.

The law is progressive, just as the stream is progressive. At times the channel may be forsaken; but, if a re

turn be not made to the old channel, a new one is beaten out to sea. A bystander on the banks, while he may not measure the current nor gauge its force, can yet perceive the flow. Were law not a growth, were it not progressive, but a mere wilderness of single instances, a codeless myriad of precedent, it would be impossible for any man to hope to master the details of law; because memory, rather than strength of understanding, logical faculty, perception, and training, would be the sword and shield of the practitioner. Were the single instances forgotten, were the pathway in the wilderness lost, darkness and night must overshadow the lawyer whose memory slipped him in time of need.

It cannot be doubted and it is not meant to suggest that memory is unimportant. A well-stocked mind shows to advantage in the court as well as the class room; but the great aim in legal education must be to train the mind to think in terms of law, and, by a knowledge of the law necessarily obtained in the process, to advise laymen and court.

In order to forecast the law, and make a judgment in a particular instance a development or prolongation of precedent, rather than a guess, law must be studied historically and the threads of development knit into a single strand.

Lord Mansfield, a name greatly honored in the annals of law, felt and expounded this truth:

"The law of England would be a strange science indeed if it were decided upon precedents only. Precedents only serve to illustrate principles, and to give them a fixed authority. But the law of England, which is exclusive of positive law enacted by statute, depends upon principles, and these principles run through all the cases, according as the particular circumstances of each have been found to fall within one or the other of them." Jones v. Randall, Cowper, 37.

The late Lord Bowen, who represented for many years literature upon the bench,

and whose devotion to the law was a loss to literature, expressed this truth even more gracefully:

"The only reasonable and the only satisfactory way of dealing with the English law is to bring to bear upon it the historical method. Mere legal terminology may seem a dead thing. Mix history with it, and it clothes itself with life."

To resume the analogy of the flowing river, my Lord Bacon happily and truly said that law is colored by the materials of the clay through which it flowed. In the same way, the law is naturally modified by the usages and customs of the day in which it is administered, and, inasmuch as these usages and customs themselves develop, it follows that the law of a subsequent generation changes with them, in order that the intent of man may be discovered in the usages and customs of the day as well as by his word of mouth. Or, to quote for a second time the two noble lords, "as times alter," said Lord Mansfield, "new customs and new manners arise, and these occasion exceptions, and justice and convenience require different applications of the exceptions within the general rule." And as Lord Bowen said: "Legal doctrines should be so applied as to meet the broadening requirements of a growing country, and the gradual illumination of the public conscience."

If, therefore, law be considered as an organism; if it be considered as growing and progressive, as yielding of necessity, from its very nature, to usage and custom, it follows that a careful consideration of these various elements leads to a correct knowledge of the law in our day and creates a science of the law.

Admitting that law is a science, it necessarily follows that it should be studied as a science; and if, as Descartes said, the first principle of the philosopher is to doubt, the first step in science is

experiment, and perhaps the happy combination of doubt and experiment may produce, not merely a science, but a philosophy, of law.

Almost within our own day we have discarded the text-book for the experiment, and high schools as well as colleges and universities turn the student into the laboratory. Chemistry, for example, is no longer a pleasing exhibition performed by an instructor in a darkened room to the delectation of freshmen. The student is put to the test, he takes the problem, he experiments, he solves it, and in so doing acquires a training and knowledge which cannot or which should not be divorced. The text-book is not neglected, for otherwise each student would have to reconstruct in his laboratory the experiments of the ages; but the training and knowledge gained in the laboratory fit the student to read with pleasure and profit approved texts, and in rare cases the training and knowledge so acquired may advance by experiment the science of chemistry.

To take another and not less concrete illustration. The student of medicine may read, indeed study, text-books of anatomy, but until he comes in contact with the skeleton and handles it as a specimen he does not really know the human frame. Should he aim to make himself a surgeon, it follows that the mere study of anatomy from books will avail but little. He must see the operation performed, he must himself do it, and by the happy combination of knowledge and experience and the training derived from both he becomes a master hand. If he wish to succeed as a general practitioner, he must haunt the clinic and make his own diagnosis.

Illustrations of this kind are common knowledge, and further enumeration would add little to the principle involved.

The law student must imitate the student of medicine. The method must necessarily differ, because the subject is different; but if he wishes to study law as a science, and if he further wishes to practice law as a profession, he must do what the medical practitioner does, namely, acquire a knowledge of and a training in his chosen subject. The student of medicine or chemistry resorts to the experiment. The student of law must take up the concrete case, examine it, discuss it, and decide it in the light of theory. The reports furnish these concrete cases, and a careful study of selected cases covering the various fields of law is, it would seem, at once the scientific and theoretical way of mastering law. It is also the practical way, for an examination of the case in a class room renders the task of the law office easy and familiarizes the student with the line of reason obtaining in courts of justice. It is theoretical, because the concrete case is discussed in the light of theory in order to discover the principle which reason and precedent have established as applicable to a case so circumstanced.

If, then, we find that the scientific method provides a discussion of the concrete case, and the concrete cases which form that codeless myriad of precedent, that wilderness of single instances, and that from this discussion the student is trained at once in the knowledge of the precedent and in the theory of the law, it follows that the study of the concrete case, being at once theoretical and practical, is the ideal method of preparation for the practice of law.

If the student classifies and digests the knowledge so obtained, if he examines a problem in the light of history, in view of the usages and customs obtaining, it results necessarily that he makes of himself a digest of the law which "neither moth

nor rust doth corrupt," and which "thieves do not break through nor steal." How shall the student best obtain this knowledge and training? The methods are many and various. One thing, however, is certain: that the student only obtains permanent results from that which he himself does. It is an everyday occurrence to all of us that that which comes in at one ear goes out at the other, but that which we have thoroughly mastered remains as a continual possession.

The important matter, therefore, in any method, is that the student must rely upon himself, and if he does not rely upon himself he must be taught to do so. Therefore the fundamental requirement, whatever method be adopted to effectuate it, is and must be that the student is trained to think and to reason logically and legally. If we cannot say, with my Lord Coke, that law is the perfection of reason, we must admit that that which is not reasonable cannot long be law, and, although the reason of the law is artificial and difficult of attainment, it is nevertheless reason.

Therefore the student must be persuaded, if necessary, forced, to understand this reason, to master this reason in the concrete case, and to apply it in action. That method which best trains the student in legal thinking and in legal reasoning is necessarily the best method for the student of law. The lecture method fails to arouse the student. He listens and looks at the clock, and falls asleep betimes. If listening would make a lawyer, the church goer would needs become in the course of days an expert theologian; but common experience teaches us that the science of theology is not absorbed from the pew, but is acquired either in the cloister or in the school of theology.

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The teaching of the law by means of selected texts is an improvement upon the lecture method, because the student is forced to think; but it requires a trained mind to think in abstract terms, and it must be an exceptional person who from the abstract statement can suggest and apply concrete illustrations. Any one who has had experience in the classroom knows that the student is awakened by an illustration taken from the professional experience of the instructor, and that the concrete illustration remains when the abstract principle is forgotten which it was sought to illustrate.

If, then, the excellence of the text-book method is found in discarding the text. and resorting to a concrete case, it necessarily follows that a discussion of a subject based solely upon selected concrete cases should commend itself to teacher and student alike. The concrete case is grasped by any student of average intelligence, and, once grasped, he is prepared to follow in detail the discussion of the case. If to the concrete case hypothetical instances and modifications be suggested, the student is led perforce into a theoretical discussion in which he discovers the theory underlying the case and its modifications. By the constant application of this method, not as a test of memory, but as an investigation of principles of law, the student is led insensibly to a grasp of legal principle. The concrete case suggests the theory, and theory and practice thus go hand in hand. From their happy combination knowledge of the law is produced. By means of this method the student is the chief factor; he trains himself; he discovers and reconciles difficulties and receives in proper cases the guidance and assistance of the instructor.

The excellence of this method of instruction has commended itself alike to

theorist and practitioner, and at the present day schools of law have adopted it in all parts of our country. The analogy between the study of medicine and the study of law by this method at once becomes evident, and the student by actually studying the case masters the case, and with each case mastered becomes better trained and more capable. The student thus relies upon himself, and for the printed page and the voice of the instructor substitutes himself.

Self-reliance is not a discovery of one] day, although we are perhaps more insistent on it in education than were our fathers. The self-reliant method of studying law is as old as the first lawyer, but the emphasis placed upon independent thought and investigation as a means of legal training dates from the call of one Christopher Columbus Langdell-a name well becoming a discoverer or in- ! novator to a professorship of law in Harvard University.

Mr. Langdell started out in life with the belief that law was a science and that it should be studied as such. In his years of practice he matured and strengthened his belief by the study of the case as the source of legal knowledge, and in his professorate he made the case the basis of examination and discussion. He took the case in his hand and squeezed from it a precious essence. From his class room the disciples passed into other class. rooms and into active practice, and the law thus classified and distilled has become a thing of beauty, easy of apprehension, and capable of scientific treatment and measurement. "The voice of one crying in the wilderness" has indeed pointed out the way to legal salvation. Or to phrase it differently:

"No one has stated the fundamental premise better than President Eliot in speaking of Professor Langdell, to whom the science of law owes a heavy debt: 'He told me

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