MATERIALS AND METHODS IN

THE STUDY OF LAW

CHAPTER X.

THE USE OF STATUTES, REPORTS, AND SEARCH

BOOKS.

78. Aims in the study of law. The student of law must keep before him in his efforts a two-fold aim. He must acquire both a knowledge of the rules and principles which compose the content of the legal system he seeks to master, and also the power of legal reasoning that makes it possible to use and apply these rules in advising his clients and presenting his contentions before a court. Indeed it may fairly be said that mastery of the law is a matter of acquiring a method of thinking even more than of storing the mind with an accumulation of legal rules. As has been pointed out,39 the foundation principles of our Anglo-American legal system are éssentially the product of judicial experience and reasoning. It is built up by the slow but safe and steady process of deciding actual cases according to general principles-a process in which the trained reason of professional administrators of justice has

39 See §§ 8-10, 17.

been brought to bear upon concrete situations with the purpose of bringing these particular facts within some principle of justice. The task of the student of law is, therefore, primarily to familiarize himself with the methods of thought of the jurists whose ideals, reasoning, and experience have built up the structure of our law; to make these methods natural to him so that he moves comprehendingly and easily through its characteristic reasonings. No man is a master of the common law, no matter how vast and encyclopedic his acquaintance with its detailed rules, unless those processes of reasoning characteristic of what is called the legal mind have become habitual with him.

79. Material for study-Books of primary and secondary authority.-Law, as the great teacher, Professor Langdell, has remarked, is a science the terms and materials of which are found in books. This material of the common law is conveniently divided into two classes-books of primary and books of secondary authority. The law in the AngloAmerican system is found in three forms, legislation, reports of litigated cases, and a few legal classics known as books of authority. These three literary sources furnish the only authentic evidence of what the law is, and are the primary authorities with which the student must deal. But dealing with these authorities is often a difficult matter. In the first place, they have not been written at all with the student in view. They are not arranged with a view to setting forth in a logical order the rules and principles he is seeking. They employ a highly

technical and unfamiliar vocabulary and style. In the second place, they are enormous in bulk, running into thousands of volumes, and growing in number almost daily. For these reasons there has come into being a great mass of secondary literature. This is of two distinguishable sorts, being designed either to expound the law or to render it accessible to one searching the primary authorities for law on a particular point: on the one hand, institutes, treatises, text-books, and commentaries; on the other, digests, citators, and similar search-books.

80. Lines of study. The aims the student has in view and the material with which he has to work dictate the lines along which his study must be directed. In acquiring the power of legal reasoning nothing can take the place of first-hand acquaintance with and analysis of the primary authorities. But as aids in this analysis and as helps of practical convenience in acquiring a knowledge of legal rules, the student may well pursue the study of the comment and discussion he will find in treatises and text-books. Finally, the enormous multiplication of the authorities and consequently the increasing difficulty in determining how far the law has been formulated upon a given point, make it highly desirable that a student should acquire such familiarity with the books which are the apparatus of his profession that he can use them intelligently and quickly, and knows where and how to find the information he needs.

81. Enacted law-Kinds and characteristicsRelation to case law. Enacted law consists, in the

main, of three distinct types: constitutions, statutes, and ordinances. These differ in the manner of their enactment and the source and extent of their authority. They are properly recognized as belonging to the one genus legislation because they are all explicit declarations by competent legislative authority of rules which the courts must observe in the administration of justice. Moreover, these rules are, so far as the skill of the enacting body can produce the desired result, explicitly and directly stated, in brief, clear, and accessible form, as abstract propositions of law. Hence, the chances of uncertainty as to what the rule intended is, are slight compared with those involved in the derivation of a rule from decided cases. Yet even statutes raise difficult problems of interpretation, so difficult as to call for special treatment.

A

82. Reports Nature. From the point of view of the student the most important primary authorities for law are the reports of decided cases. report is in essence the recorded opinion of a court delivered in explanation of its decision of a case, and supplemented by such further information as will help in understanding the opinion. Not every lawsuit results in a reported decision. Indeed the vast majority of suits do not. Most suits never come to a trial at all. The defendant usually has no defense and lets a judgment be taken against him by default; often also the plaintiff withdraws a suit, having succeeded in getting a satisfactory settlement or having given up hope either of winning the suit or of get

ting anything out of his judgment. Again, if a trial is had it is quite likely that the decision depends on the determination of matters of fact in dispute, and when this dispute is settled the law which the trial judge is called on to apply is admitted or clear. If, however, the decision by the trial judge on the points of law involved is unsatisfactory to either party, provisions are made for its review in a higher appellate tribunal where a bench of judges, after hearing argument on the points of law and after deliberation and consultation, reach a decision on principle, which it is their practice to embody in an opinion read in court. This opinion, together with whatever explanatory matter from the record of the case is useful in making the decision clear, is what constitutes the report.

83. Reports Official and unofficial.-So useful to the profession are these reports as primary authorities as to the law that, in the form either of rough notes such as are found in the Year Books or of more systematic accounts of the cases by individual lawyers or specially trained reporters, a series but little broken records the decisions deemed to be important in England and America from the time of Edward I to the present.

In England this work has been continuously the work of private enterprise, although since 1865 a quasi-official association representative of the organized legal profession have published the series known as The Law Reports, and thus given them a special authority. In America from an early time the federal and various state governments have established