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THE

AMERICAN LAW REVIEW.

NOVEMBER-DECEMBER, 1914.

LOGIC, JURISPRUDENCE AND THE LAW.

"Therefore I wish of God that all our reasoning might be fastened upon such matters as are necessary, both for the hearer to learn, and also good for the goodly reasoner to teach."-Wilson's "Logike."

It is proposed in this essay, to explain the nature of Logic, of Jurisprudence, and of The Law, and the nature of the relations existing between them. In doing this it will not be sufficient merely to define these subjects. To give significance and life to the several definitions, and to enable us to perceive the mutual relations of the several doctrines, it will be necessary, with regard to each, to explain its method and general principles, and to outline its several subordinate parts. This is doubtless an ambitious task, and it may well be doubted whether in the limited space at my disposal it can be accomplished. But the reader will find in late volumes of this review, a series of essays in which the questions now to be considered are treated more at length and from different points of view; and by referring to these for details, the task may very well be accomplished.1

1 Of the Nature of Jurisprudence and of the Law-a Study in Applied Logic, 38 Am. L. Rev. 68.

Of the Historical Development of the Law, 38 Am. L. Rev. 801.

Of the Old Law of Real Property

VOL. XLVIII.

51

as Modified in America, 39 Am. L. Rev. 1.

Of Actions, Old and New, 39 Am. L. Rev. 223.

Of the Subject Matter of Jurisprudence, 39 Am. L. Rev. 531.

(801)

The relation between the several subjects treated of is very close, but the relations between Jurisprudence and The Law are of a different character from those of Logic to the other two, and far the more intimate. The latter relation is the same Logic bears to all the Moral Sciences; it is, that it is the method essential to their rational investigation. But the relation between Jurisprudence and The Law is one of more or less complete identity, not only in the subject matter treated of, but in method of treatment, and in general principles common to the two.

The general subject will, therefore, be treated of under the two heads: (1) "Of Logic," and (2) "Of Jurisprudence and the Law." The latter subject will be considered under appropriate subdivisions, though very briefly, referring to former essays for details. But Logic will be treated more at large, with a view of presenting a complete rudimentary exposition of the subject. This I feel to be necessary, for the reason, that I am convinced that the existing confusion reigning over the subject of Jurisprudence and the Law, results merely from the failure to resort to what ought to be familiar principles of Logic. In saying this I do not mean to imply that my readers may not be, more or less, familiar with the subject. But even those who are exceptionally familiar with Logic, as treated in the current text books, will, I hope,-at least, in connection with the other subjects treated of,-find something of interest in the view I have taken of the subject.

I.
LOGIC.

§1. ANALYTICAL OUTLINE OF DOCTRINE.

Introductory: In considering this branch of the subject, our attention will be confined to the old or traditional

Of the Nature of Rights and the Principles of Jurisprudence, 40 Am. L. Rev. 58.

Of Logic and Its Uses A Lawyer's View, 42 Am. L. Rev. 230.

1

Logic, which has come down to us from Aristotle through the school men of the middle ages. This will amply serve our purposes; and it will therefore be unnecessary (with one exception to be noted) to avail ourselves of the many new and varying theories that have been invented since the time of Whately, and which now go under the common name of Logic. In saying this I do not wish to be understood as depreciating the results of the labors of the many distinguished and able men, who since the time of Whately, have devoted themselves to the general subject; and with some brilliant results. All I wish to intimate is: That the old Logic is sufficient for our present purposes; and that, to follow the discussion proposed, the reader need not go beyond his "Whately." Whose work, it may be added,owing to the perplexing questions, and resulting discussions, and other incongruous matter, to be found in later works,-may, I think, be regarded as the latest rudimentary treatise to which a young student of the old Logic can be safely referred.

Logic Defined, and its Nature Explained: Whately defines Logic, as "The Science and Art of Reasoning,"-by which, of course, is meant right reasoning; and I have no objection to this definition. But it is with the "Art" of Logic, we are here mainly concerned; and it will, therefore, be more convenient to adopt the older definition of Logic, as merely the "Art of Reasoning or Ratiocination."

This definition, with a little explanation, will serve to disclose the nature of Logic, as traditionally received. Of the two terms involved in the definition, the term, “Art,” is sufficiently simple. It denotes, as here used, merely: (1) The rules by which right reasoning is to be governed, including those rules by which wrong reasoning or fallacy may be avoided, or detected and exposed; and, (2) the theoretical principles upon which these rules rest, and from which they are derived. For practical use, the former is the more important part of Logic; and indeed, with regard

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