The Nature and Sources of Law [2 ed.]

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THE NATURE AND SOURCES OF THE LAW

THE NATURE AND SOURCES OF THE LAW

BY

JOHN CHIPMAN GRAY LL.D., YALE AND HARVARD LATH BOTALL PROFESSOR OF LAW IN HARVARD

Second Edition FBOM THE AUTHOR’S NOTES, BT

ROLAND GRAY, LL.B.

GLOUCESTER, MASS.

PETER SMITH 1972

UNIVERSITY

Copyright 1909 by Columbia University Press New and revised edition copyright 1921 by Roland Gray. Published 1921 by The Macmillan Company, New York

First published as a Beacon Paperback in 1963 Printed in the United States of America

Reprinted, 1972, by Permisssion of Roland Gray, Jr.

TO

HIS OLD PUPILS WHOSE AFFECTIONATE REGARD HAS BEEN TO HIM A LIFE LONG BLESSING FROM THEIR GRATEFUL

MASTER

Preface to the Beacon Press Edition A story of my own experience of Gray as a law teacher may perhaps serve to introduce his book to the student of the science of law. One morning in the Christmas recess of 1889, during my first year as a student in Harvard Law School, I was in the reading room at work on the first volume of Gray’s Cases on Property. At the beginning of each section Gray had placed an extract from the Institutes of Justinian, in the original Latin. Those were the days when college education was classical and college graduates were expected to read Latin as a matter of course. I was trying to find out what the text of Roman law before me meant and what it had to do with what we were studying; and I thought that I ought to know something about Roman law. So I went to the delivery desk and asked the man in charge for a book on Roman law. He went into the stacks and brought back Lord Mackenzie’s Roman Law, probably the least useful book for any purpose of an American student that could be con¬ ceived. While I was trying unsuccessfully to make something out of it, I heard a gruff voice behind me saying, “Don’t read that.” I looked up, saw that it was Professor Gray, and asked him, “What should I read?” He asked, “Do you read German?” and on my reply that I could, he took Lord Mackenzie’s book away from me, went into the stacks, and came back with Sohm’s Institutionen des romischen Rechts—in those days the great book on Roman law, which had not then been translated into English—“Read that,” he announced and walked off. This was characteristic of Gray as a teacher. He put the

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THE NATURE AND SOURCES OE THE LAW

of right and wrong differ from those of the community,— which ought he to follow—his own notions, or the notions of the community ?

Mr. Carter’s theory requires him to

say that the judge must follow the notions of the com¬ munity.

I believe that he should follow his own notions.

To adopt Mr. Carter’s theory, and to say that the Law in such cases is based on custom, seems to me to overlook the fact that custom is conduct, not opinions or notions, and that Mr. Carter’s view is fully as objectionable as Austin’s that Law is the command of the Sovereign; but, for the purposes of the discussion, I will assume that Mr. Carter’s theory that the judge should follow the ideas of right and wrong prevalent in the community in which he lives, rather than his own, does lead logically and properly to the result that Law is custom,—is that theory correct ? A judge often decides, and properly decides, against his own opinion of right and wrong; for instance, when he is compelled by the precise words of a statute.

Let us see

how a judge’s mind works, and ought to work, when he has to pass on the question whether an act was right or wrong, and we will suppose his own opinion to be that it was wrong. He will first say to himself:—“Is there any statute of the State whose judge I am which declares that the act in question may be done?

If there is, however foolish and

wicked such legislation appears to me, I must follow the statute, and abstain from deciding that the act was wrong. But I find no such statute.” He will next say: in favor of the act?

“Is there any judicial precedent If there is, however much I may re¬

gret that my predecessors decided as they did, and although

CUSTOM

289

I been in their place I should have held otherwise, yet I will follow the precedent. dent.”

But I find no such prece¬

‘‘Although there is no precedent on the point, yet there may be a consensus of judges in their dicta and of jurists in their writings against my notion.

In face of the opin¬

ions of so many learned men, I ought to distrust my own judgment, I do distrust it, I should be slow to rely on it against theirs. But I find no such dicta of judges or writings of jurists.” “Is there any actual practice in the community against my opinion?

If there is, may not my insisting on my

opinion produce worse evils, by introducing change and confusion into daily life, than would be caused by a con¬ tinuance of the practice?

For instance, although there be

no statute or precedent as to the rule of the road, the universal practice, in most of the United States, is to drive to the right, and though I should think, adopting Mr. Carter’s expression, that there would be better conse¬ quences if people drove to the left, as they do in England; that the English practice is more in accord with the prin¬ ciples of utility, tends to produce the greatest happiness of the greatest number, is in short more moral; yet the contrary practice having been thoroughly established here and forming part of the daily conduct of life, I should do more harm than good by interference.

But in this case

before me, I find no actual practice.” “Although on this question I find no statutes, no ju¬ dicial precedent, no opinions of learned men, no actual practice against my notion, yet I do recognize that the prevalent, perhaps the universal, opinion of right and wrong in the community on this matter is against me.”

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THE NATURE AND SOURCES OF THE LAW

Now what ought the judge to do? his own sense of right and wrong ?

Should he follow

Suppose that the gen¬

eral opinion in his community is that a harlot has a right to kill a man who has become tired of her company,— should he so decide? Of course, the motive of a judge’s opinion may be almost anything,—a bribe,

a woman’s

blandishments,

the desire to favor the administration or his political party, or to gain popular favor or influence; but these are not sources which Jurisprudence can recognize as legiti¬ mate.

Is the opinion of his community on a question of

moiality, of right and wrong, not yet embodied in prac¬ tice, a legitimate source of Law to which a judge ought to subordinate his own opinion ?

I know of no moralist or

jurist who has answered this question in the affirmative.1 I do not believe Mr. Carter would have answered it in the affirmative, yet it seems the unavoidable result of his theory.

Perhaps he would have said that the judge is

appealing from Philip drunk to Philip sober, but, even assuming that custom embraces opinion and not merely practice, it is present actual custom which Mr. Carter de¬ clares to be the Law, not what ought to be custom, nor what will be custom. Mr. Carter’s view seems to amount to this: there are two or three general notions of popular positive morality with which the rules laid down by the judges (and legisla¬ tors) are usually not inconsistent.

His conclusion is that

all Law (statutory as well as non-statutory) is custom. I submit that his conclusion is not justified by his premise. 1 See pp. 10, 92, ante.

For instances where the law has been He

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