Table Of ContentThe Elements of Law
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The
Law
Elements of
THOMAS DAVITT,
E. S.J.
Associate Professor of Jurisprudence
School of Law
Marquette University
LITTLE, BROWN AND COMPANY
Boston • Toronto
1959
COPYRIGHT, ©, 1959, BY LITTLE, BROWN AND COMPANY
ALL RIGHTS RESERVED, INCLUDING THE RIGHT
TO REPRODUCE THIS BOOK OR PORTIONS
THEREOF IN ANY FORM
LIBRARY OF CONGRESS CATALOG CARD NO. 59-IO4I9
SecondPrinting
Published simultaneously in Canada
by Little, Brown & Company {Canada) Limited
PRINTED IN THE UNITED STATES OF AMERICA
To the Men of the Law
^
Preface
This is an introductory book on jurisprudence. Jurisprudence
is here taken as the philosophy of law. It is concerned with the
structure of law, that is, with the elements that make law what
it is, that run throughout its problems and that integrate their
solutions.—A comprehensi—ve ethical evaluation of a part of that
structure law's content pertains to a separate study, by what-
ever name it may be designated.^
Cases are used to show what judicial thinking is on many points,
to note acceptance of controlling definitions, to exemplify think-
ing consonant with the positions taken in this book, and —to point
out instances of thinking that is not in such agreement all of
which tends to show the extent to which the questions considered
arise in the everyday work of courts, legislators, and lawyers.
Dicta are not distinguished from holdings, because the philosophy
of law relied on by courts is revealed in the one as well as in the
other.
Discussion of fact situations is limited. This is done both
because of the possibility of too much overlapping with the sec-
tional courses and more especially because the validity of the
principles used in cases derives not so much from the fact situa-
tion ofeach case as fromother sources.
Experience in teaching test editions of this book has shown
that under some conditions it may be advisable to cover Parts
1"I believe that the task of jurisprudence is to abstract and systematize
the essential principles of law 'without reference to their goodness or bad-
ness.' I cannot by any means see why any intelligent person, when he has
discharged that task to the best of his ability, should not proceed to criticize
the goodness and badness of laws. But that criticism I should hardly call
jurisprudence. . . . Jurisprudence, then, would seem to be the scientific
synthesis of the essential principles of law." Allen, Legal Duties 18, 19 (1931).
See Chapters 3 and 19 on the distinction between law as prudence and the
science of jurisprudence. If jurisprudence is defined, as some have done, in
terms of "legal science" as opposed to "legal philosophy," it should be kept
in mind that according to the root meaning of science, philosophy is a
science.
^ Cases on various aspects of jurisprudence may be found in Wu, Cases on
Jurisprudence (1958).
Vlll PREFACE
One and Two fairly rapidly and reach Part Three as soon as
practicable, in order that the student may see in good time the
relation between principles and solutions to problems with which
he is familiar. Pertinent sections of Parts One and Two may be
reviewed when needed. In this manner, the student, afforded
with examples of the application of principles to problems, is
in a better position to grasp the value of the principles them-
selves. Part Four may be taken as the need for a more complete
understanding of the background of law is felt.
My grateful thanks are due to those many colleagues who,
by their interest and suggestions, have been of invaluable help.
They are conscious, I am sure, of my deep appreciation.
Thomas E. Davitt, S.J.
Introduction
—
Every—lawman legislator, judge, practitioner, teacher and
student has some kind of a philosophy of law as well as a
philosophy of life. In order that his thinking be integrated,
there should be a consistency between the two. In this book an
attempt is made to trace the outlines of such a coherence between
a means-end philosophy of life and the philosophy of law. For
those whose philosophy of life is none too definite, the direction
which the law takes may be of little concern. But for those of
some conviction, this path cannot but be a matter of command-
ing importance.
The aim of this book, then, is not primarily to acquaint the
student with the law as it is. That is the work of the sectional
course treatment. Its purpose is rather to make the student aware
of the relation between problems in law and their non-legal
assumptions. Men in legislative halls and on court benches work
for better law when they are dissatisfied with the law as it is. Such
discontent stems from critical appraisal of situations examined in
the light of held principles. An awareness to some degree of the
kind of principles he holds and their impact on his evaluations
of law should be acquired by the student before he leaves the
law school.
Although a knowledge of the development of both man-made
law and the different philosophies of law is necessary for a com-
prehensive understanding of law, any attempt at either type of
survey has been omitted here. A number of such surveys are
available.^ Besides, a systematic survey of the varying schools of
jurisprudence leaves the accent on the variety of opinions held
and not on the meaning and significance of the problems to be
solved and the inner consistency of their solutions. Such a survey
can be more profitably undertaken, if a partial grasp is had of the
problems the various authors are trying to solve and their non-
1 For instance, the various schools of jurisprudence are presented in Patter-
son, Jurisprudence: Men and Ideas of the Law (1953). On the development
oflaw, there aremanyhistorical treatises.
X INTRODUCTION
legal assumptions. This can be got best by examining, even pro-
visionally, some definite position.
Our method in general will be first to isolate the essence of law
by examining man-made law. This done, an expression of this
core meaning of law will be sought in men's basic drives, which
quest will be seen to disclose a man-discovered law. Finally the
resulting principles and patterns will be applied to problems that
are controlling in practical areas of man-made law.
