An Introduction to the Philosophy of LawPound, Roscoe
Philosophy
An Introduction to the Philosophy of Law
Pound, Roscoe
Law -- Philosophy
Three theories of application of law obtain in the legal science of
today. The theory which has the largest following among practitioners
and in dogmatic exposition of the law is analytical. It assumes a
complete body of law with no gaps and no antinomies, given authority
by the state at one stroke and so to be treated as if every item was
of the same date as every other. If the law is in the form of a code,
its adherents apply the canons of genuine interpretation and ask what
the several code provisions mean as they stand, looked at logically
rather than historically. They endeavor to find the pre-appointed code
pigeonhole for each concrete case, to put the case in hand into it by
a purely logical process and to formulate the result in a judgment. If
the law is in the form of a body of reported decisions, they assume
that those decisions may be treated as if all rendered at the same
time and as containing implicitly whatever is necessary to the
decision of future causes which they do not express. They may define
conceptions or they may declare principles. The logically
predetermined decision is contained in the conception to which the
facts are referred or involved in the principle within whose scope the
facts fall. A purely logical process, exactly analogous to genuine
interpretation of a legislative rule, will yield the appropriate
conception from given premises or discover the appropriate principle
from among those which superficially appear to apply. Application is
merely formulation in a judgment of the result obtained by analysis of
the case and logical development of the premises contained in the
reported decisions.
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