The Nature and Sources of the Law by John Chipman Gray

John Chipman Gray, David Campbell, Philip A. Thomas, David Campbell, Philip A. Thomas

• Publisher: Taylor & Francis
• Year: 2019
• eBook ISBN: 9780429516566
• Edition: 1
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

First published in 1909 and then again in 1997. John Chipman Gray (1839-1915) spent the greater part of his professional life as a professor at Harvard Law School where he taught property, trusts and future interests. The Nature and Sources of the Law was first published in 1909. The book is divided into two parts which respectively look at 'Nature' and 'Sources'. In Part I, Gray warns that the study of jurisprudence, in isolation, could lead to dogmatism. Rather he advocates the structure offered by common law with its reliance on flexible interpretations of statutes, the use of all relevant cultural inputs and a highly adaptable approach to the resolution of disputes. Gray, in Part II, turns his attention to sources of the law and begins with statutes. Here he asserts that judges are the ones who actually turn into law, going against the conventional scholarship that judges merely interprets statutes. He also extensively examines the influence of tradition and the common law.

Part I
The Nature of the Law

Introduction

Analytic study of legal conceptions

The Law of a community consists of the general rules which are followed by its judicial department in establishing legal rights and duties.¹ Τo determine the Law, we have to consider the sources from which that department has drawn it.

In this volume I propose to call your attention to the analysis and relations of some fundamental legal ideas, rather than to tell their history or prophesy their future development. Not that I am insensible to the value of historical studies, nor blind to the fact that legal conceptions are constantly changing, yet, to borrow a figure from the shop, it is well at times to take account of stock, to consider and analyze Law in the stage of development which it has reached, although we believe it neither possible nor desirable that the development should not go on in the future.

Besides, as one should remember, though most legal conceptions alter, and there may be few which are so based on eternal principles that they cannot change while the order of nature continues, yet their change is often exceedingly slow, and many of them go back as far as we have a clear knowledge of human affairs, and show to our eyes no signs of decay.

The analytic study of the general conceptions of the Law is not, as experience has shown, without its dangers. It may easily result in a barren scholasticism. 'Jurisprudence,' as Mr Dicey says,² 'is a word which stinks in the nostrils of a practising barrister. A jurist is, they constantly find, a professor whose claim to dogmatise on law in general lies in the fact that he has made himself master of no one legal system in particular, whilst his boasted science consists in the enunciation of platitudes which, if they ought, as he insists, to be law everywhere, cannot in fact be shown to be law anywhere.' Yet, as Mr Dicey in the same article goes on to show, 'Prejudice excited by a name which has been monopolised by pedants or impostors' should not blind us to the advantage of having clear and not misty ideals on legal subjects.

Especially valuable is the negative side of analytic study. On the constructive side it may be unfruitful; but there is no better method for the puncture of windbags. Most of us hold in our minds a lot of propositions and distinctions, which are in fact identical, or absurd, or idle, and which we believe, or pretend to ourselves to believe, and which we impart to others, as true and valuable. If our minds and speech can be cleared of these, it is no small gain.

This is the great merit of Austin. His style is inexpressibly wearisome. He himself once expressed a doubt whether his love-letters were not written in the fashion of an equity draughtsman; and certainly his treatise resembles in manner more the charging part of an old bill in equity than any other kind of human composition. The insolence of his language also—though very likely not of his thought—is often offensive, and the theories which he advanced have not remained unshaken. But his unwillingness to let others juggle with words, or to juggle with them himself, or knowingly to leave any dark corner of a subject unexplored, has seldom been equalled, and to many students has made the reading of his crabbed book a lesson never to be forgotten in intellectual honesty.³

Classification and definition

The task of an analytic student of the Law is the task of classification, and, included in this, of definition. It has been truly said that he who could perfectly classify the Law would have a perfect knowledge of the Law; but the besetting sin of the analytic jurist is the conviction that his classification and definitions are final. He is often sensitive, over sensitive, to this fault in other writers, but he feels that he himself has said the last word. I cannot hope to escape this failing of all our tribe. But I want to warn my readers of its existence, that they may exercise a judicious scepticism. I shall be more than satisfied if I can interest them enough in the subject to make them think it worth while to question my conclusions.

The Common Law has often been reproached with the lack of precision and certainty in its definitions, but, in truth, it is a great advantage of the Common Law, and of the mode of its development by judicial decision, that its definitions are never the matters resolved by the cases; they are never anything but dicta. If at the end of the sixteenth, or of the seventeenth, or even of the eighteenth century, there had been definitions binding by statute on the Courts; if the meaning of 'contract,' and 'malice,' and 'possession,' and 'perpetuities,' had been fixed, what fetters would have been imposed on the natural development of the Law. And it is the great disadvantage of a written code, that practising lawyers and jurists alike are hampered by the cast-iron classification and definitions of a former generation, which, in the advancement of legal thought and knowledge, are now felt to be imperfect and inadequate.⁴

But although our attempts at classification are necessarily provisional and temporary, although the one certain prophecy that the legal writer can make is that the classification which approves itself to him at the beginning of the twentieth century will surely not be the one which will prevail at its end, yet our imperfect efforts may not be useless; our classification and our definitions, inadequate as they will doubtless prove to be, may yet be stepping-stones to higher things. It may be well to climb up the hill of knowledge, although we feel sure we shall never reach the top.

Value of concrete instances

The danger in dealing with abstract conceptions, whether in the Law or in any other department of human knowledge, is that of losing foothold on the actual earth. The best guard against this is the concrete instance, the example. Much fine-spun speculation has been demolished by showing that it did not fit the facts. I shall, therefore, try to test the soundness of any theories I may advance, by applying them to sets of facts and seeing how they work in practice. Nor shall I apologize for the familiar and homely character of my instances—the more familiar the better.

The Common Law is the system whose fundamental conceptions I shall try to analyze, but from time to time I will compare them with the like conceptions in the Civil Law,⁵ as exemplified in the Law of Rome, of Germany, of France, and of Scotland. As to the other countries of Europe, I regret to say that I have next to no knowledge of their Law.

Notes

1 See pp. 54 et seq. post.

2 5 Law Mag. and Rev. (4th series) 382.

3 The above four paragraphs are reproduced in substance from the author's article, 'Some Definitions and Questions in Jurisprudence,' in 6 Howard Law Rev. 21, 23.

4 Cf. Chalmers, Bills of Exchange (8 th ed.) p. 1iii.

5 I.e. the law deriving its origin from ancient Rome.

Chapter 1
Legal Rights and Duties

The Law is so closely concatenated that it is hard to determine where to approach it; an attack upon any part, to be successful, seems to call for a previous knowledge of other parts. Yet one must begin somewhere. Where shall it be? Man was not made for the Law, but the Law for man. The Law has, for its subject matter, the legal rights and duties of men. With those rights and duties we will begin. But first, a word or two on rights and duties in general.

Rights and duties in general

Human intercourse in all stages of civilization above the lowest condition of savagery (if even that be an exception) assumes that there is a difference between right and wrong, and that men ought to do right and to refrain from doing wrong. I do not propose to consider the true test of right and wrong—whether it be the will of God, or living according to Nature, or the dictates of conscience, or the principle of utility, or anything else; nor shall I attempt to analyze the meaning of the word 'ought,' or to explain the origin of the feeling of obligation; whatever its origin, the members of every society which is far enough advanced to have a Law have acquired it.

The ambiguity of language has been an obstacle in the path of even the physical sciences, but the harm which it has worked in the moral sciences is far greater. These latter deal with the conduct of life, and we are constantly using words, now loosely, as the counters of daily talk, and now with the attempt to pin them down to serve as the exact expressions of the most abstract notions. So it is with the word 'right.'

Ambiguity of word 'right'

In most of the languages of Europe, the same word is used to express 'a right' and also 'Law.' Thus, Jus, recht, droit, diritto, derecho, etc. This double meaning of the word has worked woeful confusion in the legal philosophy of the Germans. If they have finally grasped the distinction between what they style objectives recht, or 'Law,' and subjectives recht, or 'a right,' the grasp is, on the part of many writers, with a by no means firm hand.

Though in English we are spared this particular ambiguity, the English word 'right' furnishes another. It is sometimes a substantive and sometimes an adjective. As an adjective, 'right' means 'in accordance with what ought to be.' But what does 'right' mean as a substantive? When we say that John Doe has a right to a farm, what do we mean? I am not speaking, for the moment, of legal rights. But, apart from the Law, has a man rights, and if so, what are they? He certainly has, in common parlance. Let us try to get at the meaning of the word a little more precisely.

Right is a correlative to duty; where there is no duty there can be no right. But the converse is not necessarily true. There may be duties without rights. In order for a duty to create a right, it must be a duty to act or forbear. Thus, among those duties which have rights corresponding to them do not come the duties, if such there be, which call for an inward state of mind, as distinguished from external acts or forbearances. It is only to acts and forbearances that others have a right. It may be our duty to love our neighbor, but he has no right to our love. Aime-moi, ou je te tue, is an extravagance. The utmost to which our neighbor has a right is that we should treat him as if we loved him.

Again, a duty to which a right corresponds must be a duty to act or forbear towards other persons. Among the duties with correlative rights are not included self-regardant duties, those which have no reference whatever to other persons. In our complex state of society, there may be few duties which are absolutely and solely self-regardant; but such duties may be conceived. If a ship, laden with Medford rum, be wrecked on a desert island, although the owner be the sole survivor, and although he have no hope or chance of rescue, it may yet be his duty not to pass his time in drinking up the cargo. But no one has here any right.

Once more, in order to give a man a right, there must be a duty to act or forbear in his interest. There may be a duty to do an act to a person where we cannot say that he has a right to have the act done. Thus, it may be the duty of Jack Ketch to hang Jonathan Wild, but we do not say that Wild has a right to be hanged.

Excluding what ought to be excluded, we have, then, this as a definition of moral right: When one is under a duty to act or forbear in the interest of a person, such a person has a right to that act or forbearance.

Relation of public opinion to rights

Another meaning given to 'a right' is to be found adopted and explained in Mr Holland's Elements of Jurisprudence, as well as anywhere.

What, then, is 'a legal right'? But first, what is a right generally? It is one man's capacity of influencing the acts of another, by means, not of his own strength, but of the opinion or the force of society. When a man is said to have a right to do anything, or over anything or to be treated in a particular manner, what is meant is that public opinion would see him do the act, or make use of the thing, or be treated in that particular way, with approbation, or at least with acquiescence; but would reprobate the conduct of any one who should prevent him from doing the act, or making use of the thing, or should fail to treat him in that particular way.¹

But is this approval by public opinion a necessary element in the idea of a right? In some of the United States—as, for example, in Texas—statutes exempt the property of debtors to a very large amount from being taken for their debts, and these statutes, judging from the language of the Courts, meet with the hearty approval of the public opinion of the neighborhood, as designed, they say, 'to cherish and support in the bosoms of individuals, those feelings of sublime independence which are so essential to the maintenance of free institutions.'² Does this give the Texan farmer a right not to pay his debts? Does the fact that he lives in a community where such things are practised and praised affect the question? If a man has to pass upon the rights of himself or of any one else, it is more than probable that his judgment will be affected by the tone of the community in which he lives, but, if he is honest, he does not consciously admit the voice of public opinion as the test of the ...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• Preface to the new edition
• Introduction
• Preface to the first edition
• Preface to the second edition
• PART I THE NATURE OF THE LAW
• PART II SOURCES OF THE LAW
• APPENDIX I Pii Usus in the Later Roman Empire
• Table of Cases Cited
• Table of Authors Commented on or Quoted
• Index