What is the Law?

Authors

Joseph W. Bingham, Leland Stanford Junior University

Abstract

It is intended that this title shall demand an analysis of the field of study in which the lawyer or jurist works and a determination of its essential and contributing elements. The purpose of the article is to sketch briefly a partial answer which will be instructive and helpful to the student who faces the problem as I faced it some ten years ago. I do not expect that anything new will be found in these ideas. I imagine that all of them must have been expressed many times before. Some of them are common­place. None is esoteric. Probably the value of what I shall say will lie in focusing the attention on facts which commonly influence thought and action, but seldom are brought before the footlights of consciousness, comprehended, and properly correlated. At the outset I wish to free my discussion from a cloud which would dim whatever clarity it might otherwise possess. In all philosophical debate there is much that is only a wrangle over language and its meanings. This is true of the literature of jurisprudence. It is not easy to keep a controversy concerning a hazy topic of substance from stumbling into the ditch of merely verbal disputes. It requires unprejudiced, receptive, and discriminating habits of thought to understand opposing statements as the maker understood them, to get fully and "in proper relief his point of view, and then to criticise, not his expression, but his perception and comprehension of facts. The flexibility of language and the uncommonness of clear, adequate exposition increase the difficulty. It is comparatively easy to attach an unintended meaning to expression in honesty and with plausibility which will open it to criticism. The ensuing dispute frequently will rage interminably over matters of language without either party realizing that this is the only issue. Such differences between myself and my reader I hibernioally desire to remove before they occur. It will be necessary in the course of this article to mention various legal meanings of the word "law;" but this definition of the word is only for the purpose of facilitating the communication of my ideas. Therefore I shall not quarrel with anyone who chooses to evolve different meanings or to object to some or all of mine. All I ask on this matter is that my language be interpreted in accordance with my discussion of its meanings. The reader may make mental reservations of his own definitions and usage. I do not regard such differences as important ones and I am not concerned to war over them. My purpose is not to define the word "law," but to focus your attention on each of several sorts of elements which exist in the field of legal study and their essential differences and correlations. My language and its definition are merely means to this end. Do not let your criticism of the means prevent the full accomplishment of the end.

Recommended Citation

Joseph W. Bingham, What is the Law?, 11 Mich. L. Rev. 1 (1912).
Available at: https://repository.law.umich.edu/mlr/vol11/iss1/2