The Elements of Law / LITTLE, BROWN/AND COMPANY Law Book Department Editorial Board A. JAMES CASNER CHAIRMAN WeldProfessorofLaw, Harvard University LawSchool CLARK BYSE Professor of Law, Harvard University Law School W. BARTON LEACH Story Professor of Law, Harvard University Law School FRANK NEWMAN C. Professorof Law, University of California School of Law at Berkeley WILLIS L. M. REESE Charles Evans Hughes Professor of Law, Columbia University School of Law W. WILLARD WIRTZ Professor of Law, Northwestern University School of Law CHARLES WOODARD F. General Counsel, The Gillette Company ^- The Law Elements of THOMAS DAVITT, E. S.J. Associate Professor of Jurisprudence School of Law Marquette University LITTLE, BROWN AND COMPANY Boston • Toronto 1959 COPYRIGHT, ©, 1959, BY LITTLE, BROWN AND COMPANY ALL RIGHTS RESERVED, INCLUDING THE RIGHT TO REPRODUCE THIS BOOK OR PORTIONS THEREOF IN ANY FORM LIBRARY OF CONGRESS CATALOG CARD NO. 59-IO4I9 SecondPrinting Published simultaneously in Canada by Little, Brown & Company {Canada) Limited PRINTED IN THE UNITED STATES OF AMERICA To the Men of the Law ^ Preface This is an introductory book on jurisprudence. Jurisprudence is here taken as the philosophy of law. It is concerned with the structure of law, that is, with the elements that make law what it is, that run throughout its problems and that integrate their solutions.—A comprehensi—ve ethical evaluation of a part of that structure law's content pertains to a separate study, by what- ever name it may be designated.^ Cases are used to show what judicial thinking is on many points, to note acceptance of controlling definitions, to exemplify think- ing consonant with the positions taken in this book, and —to point out instances of thinking that is not in such agreement all of which tends to show the extent to which the questions considered arise in the everyday work of courts, legislators, and lawyers. Dicta are not distinguished from holdings, because the philosophy of law relied on by courts is revealed in the one as well as in the other. Discussion of fact situations is limited. This is done both because of the possibility of too much overlapping with the sec- tional courses and more especially because the validity of the principles used in cases derives not so much from the fact situa- tion ofeach case as fromother sources. Experience in teaching test editions of this book has shown that under some conditions it may be advisable to cover Parts 1"I believe that the task of jurisprudence is to abstract and systematize the essential principles of law 'without reference to their goodness or bad- ness.' I cannot by any means see why any intelligent person, when he has discharged that task to the best of his ability, should not proceed to criticize the goodness and badness of laws. But that criticism I should hardly call jurisprudence. . . . Jurisprudence, then, would seem to be the scientific synthesis of the essential principles of law." Allen, Legal Duties 18, 19 (1931). See Chapters 3 and 19 on the distinction between law as prudence and the science of jurisprudence. If jurisprudence is defined, as some have done, in terms of "legal science" as opposed to "legal philosophy," it should be kept in mind that according to the root meaning of science, philosophy is a science. ^ Cases on various aspects of jurisprudence may be found in Wu, Cases on Jurisprudence (1958). Vlll PREFACE One and Two fairly rapidly and reach Part Three as soon as practicable, in order that the student may see in good time the relation between principles and solutions to problems with which he is familiar. Pertinent sections of Parts One and Two may be reviewed when needed. In this manner, the student, afforded with examples of the application of principles to problems, is in a better position to grasp the value of the principles them- selves. Part Four may be taken as the need for a more complete understanding of the background of law is felt. My grateful thanks are due to those many colleagues who, by their interest and suggestions, have been of invaluable help. They are conscious, I am sure, of my deep appreciation. Thomas E. Davitt, S.J. Introduction — Every—lawman legislator, judge, practitioner, teacher and student has some kind of a philosophy of law as well as a philosophy of life. In order that his thinking be integrated, there should be a consistency between the two. In this book an attempt is made to trace the outlines of such a coherence between a means-end philosophy of life and the philosophy of law. For those whose philosophy of life is none too definite, the direction which the law takes may be of little concern. But for those of some conviction, this path cannot but be a matter of command- ing importance. The aim of this book, then, is not primarily to acquaint the student with the law as it is. That is the work of the sectional course treatment. Its purpose is rather to make the student aware of the relation between problems in law and their non-legal assumptions. Men in legislative halls and on court benches work for better law when they are dissatisfied with the law as it is. Such discontent stems from critical appraisal of situations examined in the light of held principles. An awareness to some degree of the kind of principles he holds and their impact on his evaluations of law should be acquired by the student before he leaves the law school. Although a knowledge of the development of both man-made law and the different philosophies of law is necessary for a com- prehensive understanding of law, any attempt at either type of survey has been omitted here. A number of such surveys are available.^ Besides, a systematic survey of the varying schools of jurisprudence leaves the accent on the variety of opinions held and not on the meaning and significance of the problems to be solved and the inner consistency of their solutions. Such a survey can be more profitably undertaken, if a partial grasp is had of the problems the various authors are trying to solve and their non- 1 For instance, the various schools of jurisprudence are presented in Patter- son, Jurisprudence: Men and Ideas of the Law (1953). On the development oflaw, there aremanyhistorical treatises. X INTRODUCTION legal assumptions. This can be got best by examining, even pro- visionally, some definite position. Our method in general will be first to isolate the essence of law by examining man-made law. This done, an expression of this core meaning of law will be sought in men's basic drives, which quest will be seen to disclose a man-discovered law. Finally the resulting principles and patterns will be applied to problems that are controlling in practical areas of man-made law.