THE GREEN BAG

better than either the analytic or the his right, the right of the State to legislate for torical school, better than both combined the welfare of the people. This appears — something which will adopt whatever is plainly from the consideration that if the useful in each having regard to the actual legislative act was itself unauthorized, that conditions of life in our day, and will fur is if the State has conferred no right upon nish besides much of first importance the legislature, the legislative action con which they pass by; in a word, which pre fers no right. sents a sounder system of legal education; As, then, law follows or at all times en a suitable name perhaps for which appears deavors to follow, the judicial conception in the title to this paper. The subject ac of right, and right according to that cordingly concerns the theory of legal edu conception signifies freedom to carry out cation, not the mode of acquiring it. one's reasonable purposes, it results, in Let me now endeavor to explain what I sound theory, that law follows or endeavors mean by a scientific school of legal thought. to follow the reasonable exercise of pur pose — law follows and conforms to men's Municipal law is founded upon the con business, men's pursuits. That should be ception of right; which, as the courts pro the conclusion; but fact halts on theory, fess and appear to treat it, signifies freedom sometimes, only in appearance indeed, far to carry out one's reasonable purposes in too often in reality. At first appearance any reasonable way; in short, to do what it would seem that the discrepancy was ever is reasonable. In so far as the law very great, great enough almost to cause fails to realize this idea, it fails of what I one to question whether any such theory mean by a scientific result; to work the has a place in the operation of law. Indeed idea into fact on all sides would be to make the law seems to be flooded with a priori the law wholly scientific — the law would rules, rules fashioned, if not before, at least then be in fact what it professes to be. It with small regard to, the pursuits of men. cannot be too much to say that the law How full of such rules the law of property should be constantly working to that end appears to be; how many there seem to be in What this means may not appear by the contract, in criminal law, in tort! Even mere statement; as it is of the essence of a equity contributes to the common stock; scientific school of legal thought, it should and the statute book and, still more, writ be worth finding out. ten constitutions furnish another supply. One thing of importance stands out in The first glance would put aside any theory clear lines — the law follows right, if law that law follows, or follows with anything is founded upon a conception of right; it approaching consistency, men's pursuits; must at least make that its constant aim. it would even seem to take from the doc It is a mistake, as was noticed in a former trine that law follows right itself all but a paper,1 a mistake growing out of taking barely theoretic notion. But first impres figurative language for fact, to suppose sions are apt to be untrustworthy. that law is a distinct entity and cause of I want to speak now, not merely to law things. In a secondary way law may in yers and students of the law, but to the less certain cases be said to create rights; as informed. I want to take the business man where a grant of authority by the legislature and the simple tradesman into my counsel to do what before could not lawfully be done and confidence; nay, I would fain speak to has been accepted and acted upon; but this the wayfaring man, in language which I creative power of law itself springs from hope will go home to him as well as to his 1 Definition of Law, Columbia Law Review, more fortunate neighbor. I would con luary, 1905. vert the rebellious laboring man to a better