« AnteriorContinuar »
My second purpose here is to plead the cause of Nomo-thetics (and incidentally, of Nomo-politics) as a subject of scientific study in law schools and colleges, and in the legal profession; i. e., that branch of legal science which tests a proposed or actual rule of law by asking whether it ought to be the law, by some standard of ethics, or of economics, etc.
Now it is obvious that every legislative act, and many a judicial decision, has been based on some notion of what ought to be the law. To study this might easily involve the study of the policy of thousands of casual proposals, important or trifling. But this would not be science. To study Nomo-thetics and Nomo-politics as a science means to study the system of rules or principles. They are to be regarded as a connected whole, disregarding the isolated rules and policies, however important, such as the regulation of the liquor traffic, the liability of judges, and the like. It means the study of the principal legal relations, so far as they have foundations in ethical, political, economic, and social science, and an inquiry into their correctness; asking whether they ought to be, and testing them by any philosophical school or standard that one pleases to take.
A prime and practical reason for advocating this study is that we are on the eve of a great period of radical reconstruction; in other words, of popular Nomo-thetics on a large scale, and that the legal profession is totally unprepared, by its present habits of thinking, to take leadership or control in this movement. Everything is going to be questioned, and the bar is not even prepared to expound adequately the principles that should be preserved. From the right of property, through the rights of succession, testament, contract, divorce, to the very function of courts and procedure, there is not a single fundamental which we are prepared to expound intelligently from a scientific standpoint. For over a hundred years, since the radical thinking of the Revolutionary period, the Anierican lawyer has thought systematically only of law as it is, not as it ought to be. Even the Harvard Law School, the leader in light and learning of law for forty years past, has hitherto cultivated almost solely the science of Nomo-statics and Nomo-genetics - of law as it is and law as it has been with an emphatic ignoring of Nomothetics and Nomo-politics.
Hence, it is high time to begin the systematic cultivation of Nomothetics as a science.
Where shall we find the materials?
A hundred years ago, and more, they were plentiful, in the treatises on the law of Nature. Since that philosophy has been discarded, there are few available sources. The French and Spanish writers are the only ones on the Continent who have produced any systematic ones in the last forty years; and those are practically all either based on a Roman Catholic philosophy, or are otherwise unadapted for our purpose.
But in English much modern material exists in the ethical and sociological philosophers: Spencer, Green, Sidgwick, Ritchie, are some of the writers whose materials could be gathered into a valuable mosaic for study by lawyers and law students. A volume has been reserved for this subject by the Editorial Committee of the Modern Legal Philosophy Series (published under the auspices of the Association of American Law Schools).
If the philosophers in our Universities will coöperate, this volume can be made highly serviceable for the purpose. The problem is to compress into less than 800 pages a selection of readings which shall represent different philosophical viewpoints on a few main topics, and shall thus furnish material for eclectic reading and for free discussion.
What shall these main topics be? The following division, into two parts and eight chapters, is proposed (advancing from the concrete to the abstract, for pedagogical reasons):
Part I. Institutions of Private Right. 1. Family Relations. 2. Property Relations; Ownership. 3. Property Relations; Testament and Succession. 4. Contract and Industrial Relations. Part II. Methods of Law. 5. Justice and Law (Individual Equity v. Uniform Rule). 6. Courts and Legislation. 7. Procedure. 8. Lawyers and Litigation. I must now admit that a strong doubt has been expressed by a
colleague of mine, learned in pure philosophy as in law, whether the materials of such a volume are entitled to be deemed a part of the “philosophy” of law. Perhaps the answer to this doubt turns on the distinction between the terms “science” and “philosophy,” and thus resolves itself (like many differences of opinion) into a mere question of name. But even if " philosophy" of law be only a part of the "science” of law, and if the topic I champion be not within that field of “philosophy,” I desire to emphasize that it is at least within the field of “science.” That is, there is now proposed for cultivation, not a mere matter of the expediency of a specific legal measure, but a matter of a body of principles systematically connected as a whole. A given legal measure may indeed be treated from the narrow point of view of local immediate expediency; it is then not science. But it may also be treated as part of a system; then it becomes a science. For instance, a piece of carbon serves as the detector in a wireless telegraph apparatus; can you use a diamond pin as a detector, because a diamond is carbon? That is a specific issue, all by itself. But rise to the general question of carbon as a chemical element, its various forms, and its relations to hydrogen in the total quantity of cosmic material, and you have a matter of science. So here in Nomo-thetics. Ask whether by law a father in Illinios should to-day be obliged to leave one-fourth of his estate at least to his child by will; and you have a local issue, if you like, and nothing more, — not a matter worth classing as legal science. But ask whether in general the owner of property should be permitted unlimited power of disposal of his property at death; test this question by its relation to the general ethical and economic principle of individual ownership and the general principles of family and of inheritance; inquire into its world-history; test it by general experience in the countries where such measures have not prevailed. Coördinate it with the general ethical theory on which private right is recognized, both as to acquisition and duration; and endeavor to make a consistent whole. This seems to me to be a genuine matter of science. It involves radically and fundamentally the necessity of finding and having a general principle for the recognition of private right, - in short, a science of Nomothetics or Nomo-politics, — law as it ought to be, as distinguished from law as it is. Moreover, according to whatever school of thought — the positivist, the Kantian, the neo-Hegelian, the idealist, the sociologic, and all the rest of them — you accept for your general philosophy of law, so your result is likely to differ in settling this particular principle of compulsory succession. Which seems to show that the science of law, if not indeed its philosophy, is involved.
Moreover, this branch of legal science seems to me to have a legitimate place in a law-school curriculum, I do not say how large a place it should have. I say merely that it should have some place, and that in our traditional curriculum hitherto it has had no place. And so I plead for the explicit and systematic cultivation, during the next generation, in our law schools and colleges, of the sciences of Nomo-thetics and Nomo-politics.
John H. Wigmore. NORTHWESTERN UNIVERSITY LAW SCHOOL, CHICAGO.
PROXIMATE CONSEQUENCES IN THE LAW
THE question of the proximateness of consequences arises in two
classes of cases: first, where a person is to be held responsible for the consequences of some cause other than his own breach of duty, as in insurance, and secondly, where the cause is a breach of duty by him. The rules that prevail in the two classes of cases are very different. A consequence may be proximate for one purpose and remote for another. In the second class of cases the breach of duty may be a breach of contract or of some noncontractual obligation, or it may be a tort. There is a conflict of opinion as to whether the rules about proximateness are the same in cases of tort and of breach of contract. Without attempting to decide that question, the present discussion will be confined to cases of tort. The word "wrong" in this article will be used only of torts.
The question of proximateness may arise in relation to any one of various elements in a tort. Those elements are as follows.
First, there must be a breach of duty. A breach of duty is by an act or omission. For brevity's sake in the following discussion the word “act” will generally be used. What is said of acts may be applied mutatis mutandis to omissions. A duty is to do or not to do some act. The act to be done or omitted forms the content of the duty. The word “act” is here used in Austin's sense to denote a mere bodily movement, excluding its consequences. This is an act stricto sensu. An act latiori sensu includes certain of the near consequences of the bodily movement, which are called direct consequences. In a trespass the consequences must be direct, i. e., must be included in the "act”; therefore in some cases, e. g., negligently running over a person, where either trespass or case will lie, it is often said that trespass lies for the act itself and case for the consequences.
But an act stricto sensu in and by itself is never commanded or forbidden by law. What the law commands or forbids is always the production of certain consequences, which may be called the defini