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1927

Jurisprudence--Philosophy or Science
Henry Rottschaefer

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 MINNESOTA
LAW REVIEW
Journal of the State Bar Association
VOLUI%1E 11 MARCH, 1927 No. 4

JURISPRUDENCE- PHILOSOPHY OR SCIENCE

By HENRY ROTTSCHAEFER*

T WOULD perhaps be practically impossible to secure for any

definition of the term Jurisprudence any very general accep-
tance. It is doubtful whether there exists even any general agree-
ment as to what subjects are within its scope. The problem of
whether, and in what sense, it is to be considered philosophy or
science, cannot, however, be discussed without adopting at least
some tentative notion of its meaning that shall serve as the basis
for the discussion. This can be more effectively done by a general
description of the types of problem usually dealt with in treatises
and courses on Jurisprudence than by framing a logically correct
definition that secured accuracy and completeness by resort to
a convenient vagueness. Investigation discloses its use to denote
lines of inquiry having little in common other than a professed
interest in general questions and problems concerning law and
justice. It denotes in any case a broader approach to law than
is implied in the mere effort to give a succinct or even scientific
statement of its rules, its use today as synonymous with "law"
represents a survival from an earlier period when it was not at
all uncommon to talk about the "Jurisprudence of New York"
and the "Jurisprudence of Torts." Its current meaning includes
efforts to derive from legal data concepts and broad generaliza-
tions that aim solely to impose on these data the highest degree
of logical systematization, that is, investigations of the internal
structure of legal systems in order to achieve a measure of logical
integration. It is applied to investigations of the content of legal
systems whose professed aims are the discovery of the existence
and development of general ideas that have helped to shape that
content, but which in practise not infrequently constitute slightly
*Professor of Law, University of Minnesota.
 MINNESOTA LAW REVIEW

veiled attempts to formulate a critique of existing law A con-

siderable number of its leading exponents have been chiefly con-
cerned with the problem of delimiting the field of legal from
non-legal phenomena by elaborating definitions of law by proc-
esses of pure abstract reason uncontaminated by empirical fac-
tors-treating it as a special problem in the theory of knowledge.
Others have been primarily interested in developing standards by
which to subject existing systems to searching critiques. There
is a growing tendency to include the intensive study of the inter-
actions between legal and non-legal phenomena, although in prac-
tice this frequently represents merely a step in the process of sub-
jecting law to a particular kind of critique. There is no escape
from including each of these diverse problems within the scope
of Jurisprudence, if prevailing practises are to be our guide, and
there is no practical reason for refusing that guidance. It will,
therefore, be taken to describe all these diverse lines of inquiry
that seem to have little more in common than that they deal with
problems concerning law that possess a particularly high degree
of generality, that is, problems that involve, or can be raised con-
cerning, all or practically all the specific phenomena that comprise
the juridical field. The question, for example, whether a law
is a just law can be asked of every legal rule and solution; that
whether an agent's apparent authority is based on estoppel or an
objective theory of contracts has significance within a quite limited
field. This difference, though one of degree, exists, and, while
probably insufficient to constitute the specific difference required
for framing a logical definition of Jurisprudence, is a useful fac-
tor in its practical description. Another significant difference be-
tween inquiries assigned to Jurisprudence and those pertaining to
other fields of legal study is that the aim of the former is critical,
of the latter dogmatic exposition or historical.
This brief description of its scope clearly shows that Jurispru-
dence is both philosophy and science. There is no particular
objection to including within a single field of study these diverse
types of thought if only it be recognized that Jurisprudence
as philosophy and as science have quite distinct aims and,
to a considerable extent, distinct methods. The inclusion of both
merely implies a recognition of the fact that the data of legal
systems raise general problems of more than a single type. The
situation might, however, raise questions as to which of the
problems involved primarily philosophic inquiry and which of
them required treatment by the methods of science. Truth is that
 JURISPRUDENCE. PHILOSOPHY OR SCIENCE

some of them can be, and have been, dealt with by both meth-
ods. A frandy empirical theory as to the nature of law is not
only conceivable but is actually found in the definitions of such
writers as Gray' and Salmond. 2 Such methods are the very an-
tithesis of attempts to develop the concept of lav by the processes
of abstract reason found in Del Vecchio's Formal Bases of Law
and Tourtoulon's Philosophy in the Development of Law in the
chapter on Scientific or Pure Law 3 It seems, then, that the
classification of the problems under either philosophy or science
will depend upon whether we classify the actual product of juris-
tic thinking or attempt to construct a grouping that slall assign
them to their proper class on the basis of some assumed inherent
nature. The former would possess no special interest for those
whose principal concern is with the problems rather than with the
grouping of particular answers to those problems, the latter
would almost certainly produce a new surge of barren dialectic
with no end' and little purpose. What is needed is a critical ex-
amination of current thinking on these problems in order that we
may discover exactly what we are doing at each stage of their
discussion, whether that discussion be approached from the point
of view of philosophy or science. There is no need for further
general definitions of legal philosophy and legal science, and this
not because those that we already have are adequate but because
those that we are likely to get are quite unlikely to be more so.
There is, however, considerable need for examining and analyz-
ing the steps in our thinking about the problems assigned to
Jurisprudence, not for the purpose of developing a new theory
of knowledge or adapting existing theories to this special case,
but for that of becoming fully aware of the process in the hope
that that may forestall a too assertive dogmatism. The remainder
of the discussion will consider that problem.
The character and function of philosophy have been de-
scribed in terms of varying degrees of inclusiveness and vagueness.
Its orthodox representatives have usually been intent upon unify-
ing and interpreting the totality of phenomena, not for the mere
purpose of a more effective organization of our experience or our
knowledge thereof, but with that of discovering an absolute,
variously conceived. The aim has been to penetrate beyond
phenomenal existence to a realm of essence or being, generally by
'Gray, The Nature and Sources of Law.
2Salmond, Jurisprudence.
aBoth of these have been translated into English as volumes in the
Modem Legal Philosophy Series.
 MINNESOTA LAW REVIEW

the processes of reason and reflective thinking on the assumption

that their results give us reality of a grade higher than that
derivable from other of the activities that function in our expe-
rience. It is this fact that is largely responsible for the im-
portance assigned to the problem of knowledge, and it is from
that angle that legal philosophy has derived the conceptions of
formal or pure law Dr. J. C. H. Wu, in an article on the
Juristic Philosophy of Justice Holmes, 4 expressly states that the
epistemological is one of the two philosophical problems involved
in the study of law, and he conceives it as that of determining
the logically necessary predicates of law He finds these in
Stammler's four general characteristics of law, namely, that it
is human will in contradistinction to natural phenomena, that it
is communal, self authoritative in contrast with conventional, and
finally inviolable.5 A considerable portion of Del Vecchio's
Formal Bases of Law is taken up with proving the possibility
of establishing an objective or universally valid definition of law
and showing that it is the Kantian theory of knowledge that makes
it possible. Hence he holds that such definition must have refer-
ence only to the form of law, i.e., the logical type inherent in
every juridical experience, and that its essence consists in pure
form alone, which appears in reason as concept. Thinkers of this
type seem bent on giving to a classificatory device adopted for
organizing their experience, and their knowledge of it, the char-
acter of logical necessity rather than mere convention. It may
be true that the concept is logically prior to the objects compre-
hended by it, and the universal a logical pre-condition of the par-
ticular, but these are relational qualities that can have meaning
only after the concept is given. It requires something more than
that, however, to prove that any particular concept has the charac-
ter of logical necessity It may be true that you cannot affirm of
a given rule that it is a rule of law without implying at least
some definition of law, it does not follow that you can make such
affirmation of that same rule only if you adopt one particular
and only definition of law It seems extremely doubtful that there
are any propositions about law without which its conception would
be logically impossible.
But the chief point of interest of this type of thinking for
the purposes of the present discussion lies not in the inadequacy

421 Mich. L. Rev. 523.

5
For an excellent brief statement of Stammler's views see I. Husik,
The Legal Philosophy of Rudolph Stammler, 24 Col. L. Rev. 373.
 JURISPRUDENCE. PHILOSOPHY OR SCIENCE

of the assumption just considered, but in its product. Its concept

of law is not only confessedly devoid of material content, but
professedly derived from pure reason, not from the material
content of concrete legal systems. It is not a mere generalization
of the concrete data of our legal experience, but a true universal
which not only transcends experience but cannot even be derived
from it. Its essence, as Tourtoulon says,6 is that of a categorical
self-evident truth in the same sense and degree in which the
axioms of geometry are such. An examination of the concepts
of law developed by these thinkers reveals a marked tendency to
find among the logically necessary predicates of law many of the
same characteristics found in definitions of law that are frankly
empirical and claim no virtue beyond being fairly accurate general-
izations of a limited portion of our experience. This may, of
course, result merely from the fact that it is the world of experi-
ence that is sought to be unified by the concept, and not be due
to the fact that experience has been appealed to to furnish its
elements. It is impossible to determine with certainty which of
these views constitutes the true explanation, but the actual discus-
sions concerned with developing the concept make it extremely
probable that the logically necessary predicates of law have been
lifted from experience. The concept then loses its character of
logical necessity, of being a categorical self-evident truth, it is
transformed into an attempt at stating the one or more elements
that are common to a great many of our particular experiences for
the purpose of delimiting their field from ot.rs, or at least for
the purpose of indicating one point of view from which they
can be conceived as a distinct group for the convenience of our
thinking about them. It is not an a priori necessity but a con-
vention that can be kept from becoming arbitrary only by keep-
ing in touch with the facts of experience. It is not correct that
there is but one true definition of law any more than that there is
but one true geometry 7 Any definition of law can be tested to
determine how accurately it generalizes the data that it professes
to treat. There is no sense in saying that any one of several, all
of which meet that test of internal consistency in equal measure,
is objectively truer than the others, although they may well differ
greatly in their availibility for different purposes. The purpose
of this rather extended discussion of this philosophical approach
6
7
Tourtoulon, Philosophy in the Development of Law, chapter xiii.
Riemann and Lobachevskl have developed logically consistent systems
on the basis of non-Euclidean postulates in which some of the propost-
tions contradict those of Euclidean geometry.
 MINNESOTA LAW REVIEW

to the problem of the nature of law was not to outline the con-
cepts thereby developed, its aim was to contrast what its adherents
were professing to do with what they were in fact doing. It is
such contrasts that help us to discover the points at which dog-
matism creeps in in the form of unconsciously adopted asstimp-
tions. There is no doubt that these abstract logical methods for
deriving the concept of law have produced ideas of real value,
and have focussed attention on the point that reflective thinking
can be aided by employing principles not wholly given by expe-
rience. Its error lay in failing to recognize that in so doing we
are making an hypothesis, not discovering an ultimate reality
These thinkers, professing to be discovering an ultimate unchang-
ing reality, were in fact constructing from the data of experience
an instrument for organizing their knowledge thereof, to which
they attributed the former character by assuming that the product
of logical thinking possesses that quality
The illustration just discussed shows clearly the danger of
dogmatism inherent in the failure to analyze completely the proc-
esses of our thinking about juristic problems. That danger arises
not from the fact that we make assumptions, without which in-
deed thinking on any general scale is practically impossible. It
lies rather in the failure to make explicit the fact that we make
them, the particular point in the process at which they occur, and
what they are. It is a failure that has especially serious conse-
quences when dealing with what may be called the normative
problem of legal philbsophy since that raises those evaluative ques-
tions that involve most directly the points of contact between law
and life. A brief statement of what that problem involves may
help in understanding the subsequent discussion of some of its
answers. It is an indubitable fact that the objects and events in
,our experience present themselves to us as having qualities that
we describe as good, bad, just, unjust, and so on. It is probably
impossible to discover the ultimate why of this fact, but the fact
itself has a fundamental importance for the normative problem
of law In so far as it becomes an object of our thinking it pro-
duces judgments of value, i.e., judgments that subsume the par-
ticular events of experience under certain more inclusive and
general categories that may as well be called value-standards as
by any other name such as ends. The statement, for example,
that a law is just is no more than a judgment that it possesses the
characteristics that we have set up as the essentials of the value-
standard called justice. It involves something more than an as-
 JURISPRUDENCE. PHILOSOPHY OR SCIENCE

sertion that such law is a means to an end called justice, in so far

as it asserts that in the particular instance the means-end relation-
ship is effectually realized with respect to a particular end. If the
statement that law is a means to an end is understood in this
wider sense, it is unobjectionable, if, however, it is used to denote
no more than that law must be conceived from the means-end point
of view, it can serve as a critique of law only for the purpose of
determining whether it meets that relational test. That is, of
course, a useful purpose, but it is but the preliminary step to the
problem about which most of the controversies in this field are
waged-namely, its effectiveness as a means to a particular value-
standard, not its effectiveness as a means to some value-standard.
The crux of discussions of nqrmative legal philosophy is the
value-standard itself, and, closely bound up therewith, the method
of its discovery, derivation or construction, however you may
describe that process. It is at these crucial points that we must
become aware of our thinking on this problem.
The value-scales of the different individuals composing the
community which we will assume is to be regulated by law are
not the same. The values that one man would sacrifice if neces-
sary to realize others are not in every instance and at every mo-
ment the same as those which another would forego to secure the
latter. There is a sense in which each of us is si generis. The
legal order may from one point of view be conceived as an at-
tempt to realize a definite set of values by that form of societal
action that distinguishes it from other of its forms. The validity
of this approach is independent of any theories as to the why or
the how of the selection of any particular set of such values, al-
though the latter is a problem on which empirical studies may be
expected to throw considerable light. It may be that the actual
selection is the only possible one at the moment that it is made,
historians not infrequently explain the sequence of events by in-
voking theories of inevitability It is, however, true that the actual
selection is in every case considered by some as being but one of
many possible selections. This is the germ of an idea that ulti-
mately develops into theories as to what values law should seek
to realize, whether those theories come from those who approve or
disapprove the legal status quo. The scope and purpose of this
discussion prevents any attempt to trace the psychological process
by which "could" develops into "should"; it is sufficient to note
that it does. The result is almost invariably an attempt to test
law by a standard external to itself. That such standards exist
 MINNESOTA LAW REVIEW

in the sense that they are elements in the intellectual and emotional
experience of men cannot be denied, and it is equally indubitable
that they present themselves for the time being as entitled in their
own right not only to measure the actual but also to exercise over
men that compulsion in the direction of their own actualization
that is expressed in the idea that it is men's duty to realize them.
The question arises whether they are or exist in any other sense.
The answer of those who believe in theories of absolute justice is
clearly that they do, their existence is, in the case of the meta-
physical schools, usually conceived as supra-phenomenal or
rational. Such views are open to the same objections already
mentioned in discussing the various formal theories of law There
is no way of either proving or disproving such theories, since
they involve an assumption that cannot be tested by experience.
There is the same inadequacy in those theories that profess a
more scientific, or at least empirical, basis such as Duguit's theory
of Objective Law 8 There are schools, such as the sociological,
that have never explicitly dealt with this question. The reason
for every attempt to give the value-standard the character of ob-
jective reality is plainly the desire to avoid the instability of
anarchic subjectivism. Those who have attempted to escape this
result have not proved their case, but the plight of those who
have made no attempt whatever is no better Del Vecchio states
that the conception of absolute justice is one of the fundamental
needs of the human mind.9 That may be questioned, but it is cer-
tainly true that man has an inveterate habit of postulating value-
standards that transcend those actully experienced, conceiving
them as those that ought to be realized, and viewing them as at
least not wholly arbitrary The quest for the absolute seems fore-
doomed to failure. Does it follow, however, that the only alter-
native is a complete and arbitrary subjectivism? And if not.
by what process is it to be avoided? These are problems that
will have to be explicitly acknowledged and frankly faced if we
are to make an intelligent appraisal of the competing value-stan-
dards that are offered. That has not yet been done. The result
is a measure of concealed dogmatism in them all. It is not a qlues-
tion of how near we can approach the absolute, but of becoming
consciously aware we are making an assumption when we predi-
cate of something that it ought to be. Every theory of justice or
8See chapters by Duguit in Modern French Legal Philosophy (The
Modern Legal Philosophy Series).
9Del Vecchio, Formal Bases of Law, chapter iii.
 JURISPRUDENCE. PHILOSOPHY OR SCIENCE

of the end of law is, therefore, an assumption or hypothesis. Its

use as the basis for a critique of existing law or as a force to de-
termine the direction of its development involves a measure of
transcendentalism in the sense of a going beyond the limits of
experience up to that moment. If that be true, the mere appeal
to fact sometimes made in criticizing judicial decisions is inade-
quate and quite unsatisfactory in so far as it fails to make explicit
that it implies a theory as to the relation between what is and what
ought to be. It appears, therefore, that the question whether our
legal value-standards are necessarily wholly subjective and arbi-
trary is really that of whether men can set up hypotheses that are
not wholly such. I assume, of course, that we are to proceed by
reflective thinking, not by way of some form of mystical experi-
ence or intuition.
It is at this point that assistance can be obtained from a con-
sideration of the physical sciences. These usually assume that
the relations of things which they discover have objective reality,
and are not merely creations of the mind that conceives them
("mind" is here used in a sense so as to exclude the "divine mind"
as that appears, for example, in the idealism of Berkeley) They
are objective in the sense that they are, will become, or will re-
main, common to all rational thinking beings. This being appears
0 2
quite frequently in the writings of Pearson and Poincaire ." and
while never definitely described, seems to be that ideal person
whose habits of mind, procedure and point of view in dealing
with the world have been found particularly compatible with the
acceptance of the scientific method as the one best suited for
analyzing and organizing experience. He is an hypothesis, but
one that stands quite close to experience. We cannot be certain
that every one will give him exactly the same personality, but
the chances of extreme disagreements on that score have been
reduced though not eliminated. It seems to me that the postulate
of a somewhat similar rational thinking being is implicit in every
theory of justice or of the end of law that has ever been seriously
advanced."i It was the value scale of such a person that furnished
10 Pearson, Grammar of Science.
"'Pomcare, The Foundations of Science.
12The use of the term "rational" to describe this hypothetical man

is not to be construed as implying a theory that the desire for any given
value is derived from reason, instinct and emotion probably play a much
more important part in that activity. The use of the term "rational" is
intended to denote no more than that the desire to give our choices the
appearance of being influenced, even if not completely determined, by
reason is probably the most important factor operative when our experi-
ence'is made an object of intellectual activity. The writer, while recogniz-
 MINNESOTA LAW REVIEW

the ideal law of the natural law theorists, it is the value scale of
another such person that is implicit in the theories of sociological
jurisprudence. It is quite natural that this should be so since
those who reflect on such matters at all wish their conduct and
thinking to appear not only reasonable but rational, as the wide-
spread existence of rationalization in its modern sense with its
dubious connotations so strikingly proves.' 3 It represents, more-
over, a sound instinct since it is a device that forces us to make
our critique intelligent and intelligible instead of a mere inarticu-
late process. It remains, however, an hypothesis that appears as
*a premise in our reasoning in this field.
There exists a considerable disparity between the legal value-
standards of the natural law and the sociological jurists. This is
due to the fact that they postulate rational thinking beings that are
somewhat dissimilar; that is, they proceed on the basis of different
hypotheses. I am not now concerned with comparing them, but
with the preliminary question whether there is any way of compar-
ing them that is not itself wholly arbitrary, and, if so, what it is.
In the 5hysical sciences the issue between rival hypothesis is de-
cided by the test of experiment, including therein those less pre-
cise methods of consulting experience that comprise observation.
Resort to that method implies that we can determine the solution
that each of the rival hypotheses would give to the problem that
is the subject of the experiment, and that such solutions are not the
qame for all those being thus tested. This requires that they be
sufficiently definite so that their implications and consequences
can be developed by applying to them an equally definite and
known technique. The question is whether the method is available
in deciding between rival theories of justice or the end of law,
and, if so, in what sense and within what limits. The physical
sciences use it in order to discover whether a suggested generaliza-
tion can be accepted as a basis for making predictions, i.e., as a
practical device for passing from the known to the unknown.
Theories of justice and the end of law are frequently advanced as
answers to the questions, What is Justice, and What is the end of
Law The prevailing generalizations on these matters can scarce-
ly be claimed to help us to predict what will actually happen, al-

ing the considerable part played by rationalization in the sense in which

it has come to be used, is of the opinion that its importance has been
overemphasized with the result that the really significant problem of the
function of reason in human conduct has been obscured by a fog of clever
but insubstantial superficialities.
13james Harvey Robinson, The Mind in the Making.
 JURISPRUDENCE. PHILOSOPHY OR SCIENCE

though they do afford a basis on which we can judge whether that

will possess certain qualities. This, of course, does not mean that
an inductive study of a particular legal system at a particular time
may not reveal certain fairly definite conceptions of justice or
the end of law which can be used as the basis for such predic-
tions. But that is not the problem which the theories now being
considered profess to answer, their claims are much more pre-
tentious. It is apparent, then, that if the method is to be used to
test rival theories or competing conceptions of the rational think-
ing being implicit in them in this field, it will have to be construed
quite differently than in the physical sciences, since it alms to dis-
cover not what is, but what should be. It cannot be done by mere-
ly determining how they work, since the dispute is as to what
work we think the legal system ought to perform. That view is a
mere statement of the problem in a different form. The demand
that law take account of *the facts is equally inadequate, the rival
theories are themselves facts, and the real problem is as to which
of such facts should be chosen to direct its course. If the facts
referred to be those more particular events and conditions that
comprise the content of individual and group experience, the ap-
peal fails in so far as it offers no theory whatever as to the rela-
tion between such facts and the assumed ideal or end. The appeal
to experience which the physical scientist makes in testing rival
hypotheses by experiment contains an element of subjectivism in
so far as its view of objectivity postulates a rational thinking
being, and it might appear that the use of the method in our field
involved merely a comparable ultimate assumption which is not
sufficient to make its use therein practically impossible. That is
in a measure correct; in neither case do we reach the absolute.
There is, however, this difference; the being postulated by the
scientist has a much more definite outline and is more nearly
realized in the mass of individuals than is the case with the com-
parable being in our field. The result is a much more coherent
and effective organization of experience from the point of view of
using it as a guide for action than is the case with those organiza-
tions of our juridical experiences found in the theories under con-
sideration. The difference may be one of degree, but it is suffi-
ciently large to make it extremely doubtful whether the methods
employed to test hypotheses in the one field are of any practical use
in the other. Since our hypotheses do not lend themselves to serv-
ing as bases for predictions as to what will be as distinct from
judgments as to what ought to be, it is difficult to see how the issue
 MINNESOTA LAW REVIEW

between them can be resolved by the methods employed ii the

physical sciences. We seem doomed to continue indefinitely to
guide our destinies, in so far as we seek them through law, by
unproved and unprovable assumptions. This does not imply that
experience will not in fact play a considerable part in construct-
ing our hypotheses. It is certain that we shall continue not only
to rely on experience for that, but also for a check on extravagant
claims as to the ideal. This will not .enable us to escape a high
degree of subjectivism in the field, but may help to prevent our
assumptions from becoming wholly arbitrary This is as much
as we may hope for, but it is insufficient to make the competition
between standards as intelligent and rational a process as the com-
plexity of the problems involved requires. It is, however, impera-
tive that we recognize that we are making assumptions.
It is not enough to realize merely that we are proceeding by
way of hypotheses, it is equally esential to be aware of what those
hypotheses are. Practically every one of these theories falls down
hopelessly at this point. The standard is phrased in terms so
vague that it might have almost any conceivable content. This is
sufficiently patent as to the formulas of those jurists who have
adopted the metaphysical approach. Stammler's generalized for-
'mula that the test of just law is that it must harmonize all the
purposes of all the individuals in a given society is practically of
little use. In so far as he himself employs it in reaching solutions
that strike us as just, we feel their justice for no reasons con-
nected with his formula or his method. Sociological jurisprudence
shows the same defect. There is implicit in it the theory of a so-
ciety in which law is to be used within the limits of effective legal
action to achieve some scale of values, but what scale has not yet
been formulated as definitely as the materials permit and as its
effective utilization demands. Only a partial and quite fragmen-
tary picture of the society could be painted from the materials fur-
nished by its advocates. Something more, however, is required
than a mere catalogue of interests, the whole conception requires
considerable further and critical study to give it that definiteness
of outline of which it is capable and which is essential if it is to
retain its value for an intelligent, as distinct from an emotional,
critique of law It is quite futile to expect or demand that our
hypotheses in this field shall have the exactness and definiteness of
mathematical formulae. There must be room for modifying them
as experience expands and our knowledge of it increases, but this
scarcely accounts for the prevailing vagueness. It should be
 JURISPRUDENCE. PHILOSOPHY OR SCIENCE

possible to describe our hypotheses more definitely The reason

for our failures is probably that we have never explicitly admitted
that they were such, and have thus unconsciously erected a new
absolute, whose character has escaped us because it appeared
somewhat elastic.
The aim and purpose of Jurisprudence as philosophy, there-
fore, are the critical examination of our thinking about general
questions raised by law for the purpose of discovering and exam-
ining the assumptions made in that connection. It remains to'
consider in what sense it may be termed a science. All science is
classificatory in the sense that it aims to set in order the data given
by experience. There is no single necessary order, the one se-
lected will depend upon the point of view from which the data
are considered, and that turns on the purpose for which it is made.
The data of our juridical experience are sufficiently many-sided
to admit of several schemes for their ordering or organization.
The claim of analytical jurisprudence to be a science is uninpeach-
able, but the limitations imposed on it by its very special purpose
must be clearly recognized to prevent a misapplication of its
theories. It is merely a device for securing the maximum logi-
cal unification of the materials by the employment of concepts
developed on the assumption that there exist certain general and
logically necessary conceptions implicit in the materials, it treats
these materials as parts of a closed system. It is an effective ana-
lytical tool, but barren as a source of material legal content in
which the chief significance of law consists. This must not be
construed as involving a denial that the desire to employ deduc-
tive logical methods as a means for certainty in law is a real
factor in developing its content, but that is not the basis on which
analytical Jurisprudence rests.
I shall merely refer, without discussing it, to that scientific
aspect of Jurisprudence which consists in inductive studies for the
discovery of the values, and the order of values, which a given
legal system has in fact adopted. This type of activity is especially
important in a system that relies as largely as does ours upon the
judicial development of its content. Its generalizations do not
state merely logical relations, but express correlations, however,
imperfect, between observed data. The concepts of analytical
Jurisprudence help us to state a problem as a legal problem with
considerable precision, the generalizations of this other method
afford a real basis for predicting its solution, i.e., the specific con-
tent of its decision. Since, however, every such generalization is
 MINNESOTA LAW REVIEW

the product of an abstraction in the sense that it is an inference

from less than the totality of the observed data within the system,
it will necessarily be incomplete. We cannot state all knowledge
of the system in a single proposition. There are certain to be not
only omissions of relevant data, but in abstracting we necessarily
eliminate the possible effects upon the data covered by the gen-
eralization of the facts not included with in its scope. Our pre-
dictions, therefore, are mere statements of probabilities, not
certainties. This situation is aggravated by the fact that the impli-
cations of various of these generalizations are frequently contra-
dictory A choice must then be made which can sometimes be
done by reference to some more inclusive principle already con-
tained within the legal system but may require reference to fac-
tors outside it. It is in connection with the latter process that
hypotheses of the kind heretofore considered are likely to prove
the decisive factors, and I know of no principle that affords a safe
basis for prediction in such case. These inductively derived gen-
eralizations, like the concepts of the analytical jurists, are con-
cerned wholly with what may be described as data within the
legal system in the sense that society has already formulated a
legal judgment on the crude facts involved. The study of the
more general and pervasive of such generalizations comes prop-
erly within Jurisprudence, and to that extent it is a science.
The question whether law is, or can become, a science in some
sense other than that of the analytical jurists is not exactly one as
to whether, and in what sense, Jurisprudence is a science. It is,
however, one that Jurisprudence must consider. What seems to
be meant by it is whether the methods of science can be employed
in dealing with the problems of law It cannot be answered with-
out some consideration of those methods. The essence of science
has been described by Professor Whitehead as consisting of the
union of a passionate interest in detailed facts with an equal
devotion to abstract generalization. 14 Its methods are according-
ly concerned both with finding facts, formulating generalizations,
and testing the latter It is sometimes interested in an isolated
fact-for example, the existence of some particular element. It
is more frequently concerned with relations between facts. Poin-
car6 defines it as a system of relations. It avails itself of two
methods for discovering facts and relations, simple observation
and that more refined and exact type of observation, known as
experiment. I do not include the process of developing the 2m-
14A. N. Whitehead, Science and the Modern World.
 JURISPRUDENCE. PHILOSOPHY OR SCIENCE

plications of even fairly well established hypotheses, useful as this

is for directing observation and experiment; for example, spec-
trum analysis made it highly probable that the element Illinium
exsted, but it was established as a fact only by experiment. Its
use of generalization, and resort to observation and experiment to
test them, requires no discussion. Its cuef concern is no longer
with the classification of facts on the basis of assumed essential
characteristics, but with the relations between them. Its ideal is
the formulation of those relations in quanitative terms, which re-
quires a considerable equipment of measuring units, although the
degree to which the different sciences approach this ideal varies
greatly. To the extent, however, that it is realized do we obtain
not only a statement that a relation exists but one that further
tells us something quite defimte about its character. A biometri-
clan, for example, who is interested in discovering whatever cor-
relation may exist between body length and the length of par-
ticular body structures hopes ultimately to be able to express it in
a mathematical formula. There exist similar trends in the social
sciences such as sociology and political science, in which the con-
ception of correlation is tending to supplant that of cause and
effect. Hence the importance in those fields of statistical analysis
which is nothing but a technique for arriving at generalizations.
The questions are to what extent do the facts with which law
deals lend themselves to these methods, and what is involved in
their use. Since the aim is to discover relations between facts,
the first requisite is to select the facts whose relations, if any,
are to be investigated. The possible choices here are practically
unlimited. The facts may be the variations of two legal rules of
the same system during an historical period; or the relations be-
tween institutions in one system and their inter-relation in another
Examples could be multiplied almost indefinitely. The present
demand for a science of law comparable in method and aim to
other sciences does not, however, have reference to investigations
of such data. Its primary interest is in the inter-actions of legal
data in the narrower sense and non-legal data. As such it is con-
cerned both with the influence of non-legal factors in shaping the
content of law and with the results of legal data upon non-juridical
elements in our experience. An example of the former is the re-
lation betveen the economic opinions of judges and their interpre-
tations of the due process clause as a limit on the substance of
legislation, an illustration of the latter is the relation between anti-
trust laws and the maintenance of a competitive economic order
 MINNESOTA LAW REVIEW

These are problems that are theoretically amenable to the methods

of science in so far as their solution should be based on inductive
studies. It is unnecessary to discuss its methods, but it may be
remarked that the present stress on quantitative expressions of
relations in the social sciences makes it quite probable that statis-
tical analyses will constitute an important part of the technique
employed in these fields. The degree of refinement required m our
inductive investigations will depend upon whether we wish to
establish merely the existence of a relation and its direction or also
its amount. In most cases the former is sufficient for our pur-
poses. What we are after is not so much an efficient tool for
prediction as information that will help us to guide our actions
intelligently The science of law in this sense can be useful with-
out becoming one of accurate measurements. Take, for example,
the problem already mentioned of the effect of anti-trust laws upon
the maintenance of competition, we wish to know this not because
our knowledge will enable us to predict the future course of legal
development or that the observed relations will continue, but rather
because it will help us to decide whether a means that we have
adopted to secure a postulated end is in fact proving effective, in
order to guide us in deciding whether to continue or abandon it.
Our decision will undoubtedly be affected by our belief as to
whether the observed relation will continue, and in that connec-
tion we may use the generalization as a basis for a prediction, but
that is only incidental to another more immediate and direct pur-
pose. The fact that our purposes can be generally realized with-
out any very definite knowledge of the amount of relationship
between the data being studied does not, however, mean that we
can dispense with the use of whatever exact and quantitative meth-
ods are available for determining the existence of the relation and
its direction. That is a matter that goes to the correctness and
adequacy of the generalizations in which we state those relations,
and is, as far as we employ statistical methods, a question of statis-
tical theory beyond the scope of this discussion. We must, in any
event, recognize that we are dealing in probabilities, not certain-
ties, and that quite frequently we can only get at the fact we are
interested in indirectly by measuring some related quantity It
would, for instance, be practically impossible to directly measure
competition, it may be possible to get at it through such facts as
percentages of supply controlled by the different units of supply,
consolidations of prior independent units, and so forth. Science
of law in this sense is quite possible and has probably always ex-
 JURISPRUDENCE. PHILOSOPHY OR SCIENCE

isted in some form. It is preferable to both the deduction of

such relations from a priori premises and the dogmatic assertion
of assumptions as proven facts, but is, and will probably continue
to be, an imperfect tool of limited value. It must be used with a
lively consciousness of these limitations if it is not to engender a
new dogmatism as questionable as that which it aims to replace.
The expression "science of law" sometimes seems to denote a
quite different theory It is assumed that by the employment of
the methods of science, by which observation and induction appear
to be intended,' we can discover the ends society should strive to
realize. The data to be thus studied are the facts of our experi-
ence, particularly our social experience, and the interactions of
legal and non-legal phenomena which have just been discussed.
This view is frequently associated with the adoption of the phi-
losophy of Pragmatism and the acceptance of the views of Pro-
fessor Dewey, stated particularly well in his Essays in Experi-
mental Logic and his Experience and Nature. The difficulties of
this position have already been stated in discussing Jurisprudence
as philosophy. It is primarily a theory as to how we are to de-
termine the values that law should aim to realize. It has in it an
element of truth in so far as it directs attention to the fact that
the ends actually postulated have their basis in the facts of that
experience which it proposes to investigate, and that these are
modified in time by our interpretations of prior experience while
experimenting with other assumed ends. Its emphasis on the
importance in that connection of the observed limits within which
individual and group actions occur is a wholesome factor in ex-
cluding the extremely arbitrary from our hypotheses. Its stress
on their developing character is a force making for correct critical
judgments on assumptions that might otherwise tend to be con-
ceived as fixed and eternal. It is preferable as a method for de-
ciding what assumptions we are to make as to the ends of law
to their derivation by a priori logical processes. If that is all that
is intended, it is a move in the direction of a more intelligent ap-
proach to the problem of ends. If, however, it claims for its re-
sults any great measure of that high degree of probable correct-
ness that we attach to the results of the method in the physical
sciences, it is creating an illusion. There seems to be, more-
over, considerable vagueness in defining just what is meant by
the method in this connection. It will have to make thorough in-
vestigations of the assumptions that underlie its use of these
methods in these matters, and much remains to be dine in the
 MINNESOTA LAW REVIEW

way of making explicit its assumptions as to the nature of

human conduct. Until then it is almost impossible to formulate
any more definite critique of it. It has not yet been established
that it is for science to determine our ends, although that is a
factor in the process whose exact contribution has never been
satisfactorily measured.
It is frequently stated that law must become scientific. What
is meant is seldom, if ever, explicitly defined. It is one of those
expressions that it is quite proper to use uncritically in this scien-
tific age. The time seems opportune for giving this formula at
least some meaning. It frequently seems to mean that the law
should accept the results of scientific research in those fields that
directly touch on those spheres of conduct with which law is con-
cerned. If, for example, a definite correlation should be estab-
lished between certain objectively ascertainable data and degrees
of mental or moral responsibility, the demand is that the law
shall avail itself of that knowledge whenever the legal quality of
an act turns on those factors. This is within limits a perfectly
justifiable demand. But it sometimes denotes a much more ex-
treme position. Law is at times accused of being unscientific
merely because it refuses to adopt the latest unproved hypotheses
of such quasi-sciences as sociology and psychology as the basis
for its action. It has been suggested, on the basis of a completely
psycho-analytic assumption, that every judicial opinion is neces-
sarily the justification of the personal impulses of the judge in
relation to the situation before him, and that their psycho-analytic
treatment would yield abundant results.15 That result in the case
actually analyzed in the article referred to was the discovery by
inference of a skeleton in the judicial closet. There is also a
tendency in some quarters to reproach the law for not adopting a
thorough-going behavioristic point of view It seems rather ex-
treme to accuse the law of being unscientific solely because of its
refusal to embrace such hypotheses at present, and this inde-
pendently of their ultimate validity or invalidity Bertrand Rus-
sell states in the A. B. C. of Relativity that the question of the
nature of an electron is not answered when we know all that
mathematical physics has to say about the laws of its motion and
of its interaction with its environment, so too there may be phases
of human conduct of vital concern for law that are not completely
disclosed in a knowledge of its physiological accompaniments. If
15T. Schroeder, The Psychologic Study of Judicil Opiniois, 6 Cal.
L. Rev. 89.
 JURISPRUDENCE. PHILOSOPHY OR SCIENCE

law can become scientific only at such a price, it is wise in choosing

to forego the prestige of such description of its character. The
demand that law become scientific has therefore, both a legitimate
and a doubtful meaning, and it is only reasonable that those who
make it should indicate dearly what they mean by it in order that
others may fairly appraise their claims.
The preceding discussion has been evoked principally by a
feeling that the dangers of dogmatism and obscure thinking are
very real ones in our consideration of those general problems
concerning law with which Jurisprudence deals. They are due
primarily to the uncritical use of terms, phrases and ideas. The
result has been an incongruous blending of hypothesis and fact
which may be quite an effective device for enlisting our emotions
on behalf of approved, values but is scarcely likely to furnish an
intelligent guide for choice and action. The remedy lies in a
thorough and critical examination of our thinking in these fields.
The claims of those who contend for a philosophy of law or a
science of law cannot be adequately appraised until those concep-
tions have been sufficiently definitized to furnish a basis for intelli-
gent discussion. Divergent views on such matters are not fatal if
each is conceived and expressed with sufficient definition to enable
others to understand clearly what is meant. Hohfeld has shown
the importance of an accurate and carefully defined terminology in
legal analysis; something similar is required for the other general
legal problems. But that alone is insufficient. Our chief diffi-
culties lie not in an inability to frame proper defimtions or to
agree upon the labels to be used in our discussions, serious as
these sometimes are, they lie rather in an inability to give our
conceptions that definiteness of outline essential to intelligent think-
ing, and these cannot be wholly overcome by even the most accur-
ate and universally accepted set of labels. Lack of accuracy in defi-
ntions can and does raise additional difficulties, but exactness in
that matter will not alone resolve our problems. These go beyond an
inability to agree on a terminology No amount of quibbling about
definitions can save us from the consequences of an obscure under-
standing of our problems. Our thinking must therefore be closely
analyzed in order to discover its assumptions, whether these occur
in dealing with such problems as the ends of law or such a question
as what is involved in the attempt to make law a scieni:e. To
present our thinking on these problems as based on assumptions
and hypotheses is not to condemn it to futility, but merely to
312 MINNESOTA LAW REVIEW

demand a recognition of its limitations. The absolute is beyond

our reach, but our choice is not between believing everything and
doubting everything, there is the alternative of intelligent and
critical fhinking but its value depends on being conscious of its
limitations.