The life of the law has not been logic; it has been experience.
* * *
The confusion with which I am dealing besets confessedly legal conceptions. Take the fundamental question, What constitutes the law? You will find some text writers telling you that it is something different from what is decided by the courts of Massachusetts or England, that it is a system of reason, that it is a deduction from principles of ethics or admitted axioms or what not, which may or may not coincide with the decisions. But if we take the view of our friend the bad man we shall find that he does not care two straws for the axioms or deductions, but that he does want to know what the Massachusetts or English courts are likely to do in fact. I am much of this mind. The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.
Certainly, an evaluation of “what the law is?” must begin with the text of the law, whether statutory or court decisions. But, instead of the text being the end of the inquiry, it is usually only the beginning. Each case is unique. Facts will blend with the Law, which in some respects is a social practice. And so, the question in practice is “how will the law be used?” Experience is a good guide; a broad perspective is best. (more…)
