HARVARD LAW REVIEW VOL. XXVIII NOVEMBER, 1914 No. 1 THE TERMINOLOGY OF LEGAL SCIENCE THE HE two languages best fitted by circumstances as tools in scientific discussions are English and Japanese, because they can draw traditionally upon two entirely distinct stocks of language-roots (English has virtually three) for the formation of terms. Thus precision in shades of meaning and differentiation of style is attainable. Every student of logic knows, but seldom realizes, the power and the actual historic influence of terms in moulding thought and in affecting the result of controversy. Recently Dr. Wurzel's "Das juristische Denken" (1904) has revealed how deeply the logical aspect of words is responsible for to-day's great problem of securing legal progress by adjusting the functions of judge and legislator. In law, the German language has been less of an obstacle to German scientific thought than in any other field; because the reception of Roman law, four hundred years ago, furnished a second set of roots for terms used in technical discussion and development of ideas. Four hundred years ago the French law language of Norman descent might have formed a suitable nucleus for the development of scientific legal terminology in England. But England later expelled instead of receiving the foreign law, and English law never developed a scientific terminology. Indeed, its French roots went to form the popular and unscientific law-language. Hence, little facility for correct thinking. Even the term "jurisprudence" is used in English in a bastard sense, unrelated to any usage elsewhere. And the advantages of the English language have never been utilized for legal science, while the other sciences have freely made use of them. It is time that we set about developing a proper terminology. With the ground clear, the opportunity is favorable. Though of course it will take a long time to reach an agreement, nevertheless we should essay a beginning. It is a legitimate enterprise for philosophers and jurists. It is here proposed (1) to offer tentatively a terminology for legal science; (II) to make a plea for the special study of one part of legal science. I It is not desired to dispute or to settle now the definition of law itself. Let us assume this: Law is the quality of being uniform and regular in a series of events, whether in human or in external nature. There may, therefore, be cosmic law, moral law, social law, and jural law. The last is here involved. Jural law is a rule expressing the relations of human conduct conceived as subject to realization by state force. The Science of Law - meaning all systematic knowledge about law should be divided, not according to the kinds of law, nor the subject of law, but according to the ways in which we conceive of law as an operative fact in its relations to the world. Such is the thesis of the present paper. Other classifications seem not to have taken this point of view; hence the excuse for this new one. Why is it a useful one? Because the data of our thinking about law differ greatly according as we are thinking about it in one or another aspect. For example, - Is it the law that a father has a right against him who causes the child's death? To answer this, we look at certain statutes and decisions. Ought it to be the law that such a right exists? To answer this, we look chiefly at a different group of materials, regardless of whether the law is or is not so. Dynamically, how did this actual law become whatever it now is? Here, again, we look chiefly at a still different set of data. Thus, if a science is to be subdivided according to its various materials, it seems desirable to subdivide legal science from the above point of view. And as law is a peculiar human fact, having no exact analogy in any of the other sciences (political science is the nearest), it is not strange if such a classification would have no direct parallel elsewhere. In choosing names for the various branches of legal science, let us remember the etymological treasures of our language, and seek to avoid the inherited curse of ambiguity by doing two things, (1) using recognized roots to form words more or less new, and (2) forming a consistent body of terms. (One need not here recall the various writers, from Whewell down, who have discussed, reproved, and justified this method of terminology. In defense suffice it to say that it has orthodox support; that electrical science is a good example of its beneficence; and that its shortcomings in geology and in chemistry are proofs only that it may or may not be feasible with a given science). The proposed terminology would be as follows: The Science of Law as a whole may be termed Nomology. The science may be classified according to the different activities of thought which deal with the fact of law. These are four: Law may be conceived of as (1) A thing to be ascertained as a fact of human conduct; this branch to be termed Nomo-scopy. (2) A thing to be questioned and debated as a rule which by some standard might be different from what it is; this branch to be termed Nomo-sophy. (3) A thing to be taught as a subject of education; this to be termed Nomo-didactics. (4) A thing to be made and enforced by the state organs; this to be termed Nomo-practics. 1. Nomo-scopy has three branches of activity: (a) It may concern itself with ascertaining the actual law of a given moment, by studying the sources in which the existing law is to be found, statutes, decisions, customs, decrees, etc.; this to be termed Nomo-statics. (b) It may concern itself with the former condition, history, and development of a rule of law; this to be termed Nomo-genetics. (c) It may concern itself with the relation between law and other facts and their sciences; this to be termed Nomo-physics. 2. Nomo-sophy has three branches of activity: (a) It may take a standard of logic, analyze the rules of law, and examine their consistency as a system; this to be termed Nomocritics. (b) It may, by a standard of ethics (whether divine, moral, or social) examine their conformity to that standard; this to be termed Nomo-thetics.1 (c) It may, by a standard of economics or other policies of social welfare, examine their conformity with this standard; this to be termed Nomo-politics.2 3. Nomo-didactics has a single branch only. 4. Nomo-practics has three branches of activity: (a) It may be considered as a rule requiring to be particularized and applied in specific controversies and realized in concrete instances, thus giving rise to the judicial function, including the 1 To illustrate the distinction between Nomo-critics on the one hand, and Nomothetics and Nomo-politics on the other hand: Let the theory of corporate existence be determined on; e. g., let a decision be rendered which goes upon the theory that a corporation is a real person created by the state's franchise; then when two corporations by vote attempt to consolidate, what is the effect, as a logical deduction from the theory already accepted in the prior decision? Most legal decisions under our traditional system reach their result solely by such a standard of reasoning; i. e., they are dealing with the law as a science of Nomocritics. But now ask whether economic or political conditions and policies ought to permit the consolidation of two corporations, and on what conditions; and here you come into the realm of Nomo-politics. Again, take Derry v. Peek. The promoters of a corporation circulate a prospectus in which erroneous statements are recklessly made; an investor loses money by trusting to the prospectus. One legal question is whether the accepted doctrine of the law of deceit, as hitherto laid down, logically holds the promoters liable; i. e., whether twenty-five prior decisions on various groups of circumstances logically are consistent with such a result. This is Nomo-critics. But if we ask further whether by accepted standards of ethics the rule of law ought to hold the promoter liable, regardless of the logic of prior decisions, we are traveling into Nomo-thetics. Legal decisions frequently discuss a question by both standards. But they are none the less distinct standards, involving distinct branches of the science. By the way, Bentham used the word "Nomo-thetics," but, I think, in a different sense. 2 One might urge that this distinction between the standard of ethics and the standard of economics, etc., is not definite enough to mark off two branches of the science. It is indeed not definite, at boundary points. But that is only because the sciences of ethics and of economics, etc., are at certain points, not distinct. To the extent that they are, a distinction in legal science becomes needful. The distinction between ethics and economics used to be marked enough, fifty years ago. Perhaps it will become so again. advocates and other court officers; this to be termed Nomodikastics.3 (b) It may be considered as a rule requiring to be formulated by some form of expression of the state's will, thus giving rise to the legislative function and its methods; this to be termed Nomopoietics.1 (c) It may be considered as a rule of action for various officers having duties under it, thus giving rise to the executive function; this to be termed Nomo-drastics. One word, finally, in explanation. Though these sciences are theoretically distinct, the content of two or more of them may in actual life be needed or used by the same person at one time; thus the legislator may have to consider Nomo-thetics or Nomo-politics, just as any citizen may; the judge may make use of Nomo-scopy; and the teacher and the student may use all. Each of these terms covers a distinct form of thought about law; yet the different branches, of course, are neither physically nor intellectually separate bodies of learning, for example, in the way that a book on astronomy may be expected to be separate from a book on economics. This is because law deals with conduct, and with our relation to that conduct, and our thought of law is and must be often passing from one aspect to the other, or dealing with several at once. Thus, a student may say, "That is the law, and if it is not, it ought to be"; and at that moment he is thinking both nomo-statically and nomothetically. The important thing is to separate these two modes of thinking about law, and to label them with terms which will emphasize their distinctness. The virtue of the above classification is that it forces us to realize that in one and the same page or speech our thought is dealing with a different mass of data about law. Take any page of juristic writing, and see for oneself how much ambiguity is cleared up by keeping separate these different aspects of legal science. 'This branch involves in strictness only the structure and mechanism of judicial action, and that of its appurtenant organs; e. g., the distinction between judicial and legislative or executive action, the organization of courts, the liberty of decision for the courts (stare decisis, etc.), the relation of advocate to court and of the state prosecutor to the court, etc. 'This involves the structure and mechanism of the legislature, the methods of its action, the scope of different legislative bodies' powers (constitution, etc.), and, of course, the relation of legislature to courts and executive. |