The Green Bag
effective argument that could be made against the legal profession and preva lent "legal science," if it could be proven, would be that they and it are "not con cerned with the delineation of external reality." The indictment, I submit, cannot be proven. Lawyers are con cerned most intimately with "external realities" of a certain class, and with comprehending and delineating them; and we are in great need of a develop ment of our science along lines which will give us a firmer and more intimate grasp of these realities and greater facility and efficiency in predicting, di recting, and controlling them. I appreciate Mr. Spencer's recognition of the bearing of my theory upon the problem of putting the law upon what he calls "a sociological basis." I am convinced that a most effective clog on the understanding of legal problems and results, on the successful adminis tration of justice, and on the progress of law reform, is the old fiction that the law, (that is the thing of which the lawyer is supposed to have intimate, specialized knowledge,) consists of rules and principles which have an independent external existence, are imposed on gov ernmental agencies by some external authority, and dictate particular govern mental actions and effects. As long as this fallacy pervades legal thinking and dulls its edge for clear perception of the true objective field of legal study, we cannot reasonably expect that law yers habitually will display a criti
cal, investigating, unsatisfied attitude towards the phases of social existence under their charge and an alertness, professional eagerness, and scientific skill to make the concrete operations of government more efficient and pro gressively responsive to needs, similar to the intelligent activities which have produced such wonderful results in other fields of modern industry. It is time that our profession rid itself of an inherited incubus of ideas which are as befogging and misleading as were some of the pre-scientific medical falla cies, and became intelligently progres sive, and learned in a sense that is not Pickwickian. An idea that even my feeble strokes may assist in hastening the accomplishment of such a result encouraged me to lay my lance in rest and spur Rozinante against Mr. Spencer's criticism.8 8 I do not believe that the ideas expressed by my article are peculiar or novel. I believe that a great many lawyers have views concerning the law which substantially are in accord with mine, and that a great many more habitually think and act (perhaps semi-instinctively) concerning legal prob lems in a way which is an unconscious tacit endorse ment of such views. Particularly are these state ments true of careful students of the law and of those who have been trained in our modern law schools. My criticism is directed (1) against pre valent legal theory, (2) against lawyers who have only a commercial view of the profession and neither a very broad nor a very deep and thorough knowledge of the law itself, and (3) against those who do not see the necessity of studying intensively and thoroughly the concrete operations and effects of government in order to obtain professional mastery and learning comparable to that of masters of medicine, but prefer to follow the easier and more pleasant course of dallying with vague legal abstrac tions and generalities, definitions, and superficial dialectics.
EDITORIAL NOTE ON THE FOREGOING ARTICLE It is always exceedingly difficult to state with accuracy the steps of an argu ment with which one disagrees. The task of criticism is two-fold, that of view ing a subject from the special standpoint of the writer considered, and at the same
time from what one conceives a more normal vantage-point. Not only is language elastic and affected with what painters call "atmosphere," no matter how clearly subjects in its immediate foreground may be defined by precise