Science and the Law matic that the practical interest of lawyers and of laymen lies in the con crete operations and effects of govern mental machinery and not in generali zations excepting insofar as they cause, explain, or indicate such phenomena; and I challenge any lawyer to produce the expression of a legal generalization which has authoritative, reliable, in dicative value peculiar to its legal charac ter and independent of any testing of its efficiency as a mental tool through the ordinary process of investigating the concrete details and results of par ticular "cases." That judicial generali zations are not inherently reliable is a fact which the case-system student of law learns before he has proceeded beyond the boundaries of elementary training and which the young lawyer sometimes relearns by bitter experience. Valid legislative expression is authori tative in the sense that courts and other law-determining agencies are constrained to "construe and apply" it; but no competent lawyer would venture to rely on an independent careful interpre tation of constitutional or statutory expression as either an accurate or an adequate guide to the concrete effects which those agencies will give it through their "applications," without resort to investigation or his professional exper ience. In short, legal generalizations as depositaries of knowledge and accurate guides to solutions of legal problems never are authoritative. They possess a capacity as mental tools similar to the capacity of rules and principles concerning any field of scientific inquiry, but their reliability and efficiency can be determined only by methods analogous to those of any science. Some of the "collaterally contributing sequences" to which I referred above may result from legislative expression which is "interpreted" and "applied" in the
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determination of the case, and generally there are some sequences whose causal contribution to the decision are pre cedents of one sort or another. I shall not repeat here the indications which I gave in my article of the causative effects of precedents and legislation upon subsequent cases; nor shall I repeat my summary of the different phases of the element of judicial generali zation and its expression. With respect to such generalizations, however, I wish to correct a mis-perception which Mr. Spencer states in the third paragraph of his criticism. He says: —6 ... he includes in his definition of law not only the foregoing objective material, but also past judicial generalizations concerning the phenomena. He conceives of laws as mental processes in this sense, inasmuch, it would appear, as they are merely the reflection of the concrete sequences described. Other generalizations than these actual ones of the past he excludes. It is apparent, on examination, that in treating past judicial generalizations as the law, he refers not to the generalizations themselves but to their content. He says that we may by abbre viation speak of the science of law as "the law," but that when we use "the law" in this sense we mean not the law itself, but our knowledge concerning it, and he is on his guard against what he conceives to be pitfalls of such a catachresis. Essentially, therefore, he conceives of the law as external sequences of phenomena which not only afford material for legal rules but are to be identified with such rules. I certainly include past judicial gen eralizations and also their expression in the official opinions among the phe nomena in the field of legal study. I include them as part of "the foregoing objective material," however, and I would also include within objective potential governmental sequences the potential judicial generalizations and expressions in those sequences. I in clude official judicial generalizations in > 25 Green Bag 74-75 (Feb. 1913).
