Reported by jed conrad b medina

was an American scholar of property law and professor at Harvard law school. He also founded the law firm ropes and gray, with law partner john Codman ropes. He was half-brother to U.S Supreme court justice Horace gray.

where he earned his Bachelor of Arts degree in 1859. he went on to Harvard university. He was admitted to the bar in 1862.  Gray was a graduate of Boston Latin School. and Harvard Law School. where he earned his Law degree in 1861. From there. and thereafter served a tour in the Union army in the American civil war .

Gray established his law practice in Boston. In 1869. he was named Royall Professor of Law. Massachusetts on February 25. first as a lecturer. Two years after retiring from teaching. He received honorary doctorate of laws degrees from Yale University in 1894. and became a full professor in 1875.   In 1865. In 1883. a position he would hold for 20 years. after the end of the Civil War. . 1915. which would eventually evolve into the modern firm of Ropes and Gray. he began teaching at Harvard Law School. and from Harvard in 1895. he died at Boston.

and The Rule against Perpetuities (1886). His best known work is his survey of the common law. Gray's writings were so influential that they are still used in American law schools and cited in law journal to this day. Restraints on the Alienation of Property (1883). . The Nature and Sources of the Law (1909). Gray wrote two books on future interests.

   HistoricalSystematic.proposed to follow the systematic method since it focuses in analysis and relations of some fundamental legal ideas rather than focuses in history or prophesy future development Analytic/dogmatic .

. This is for legislators and the advisers of legislators. How far is it a method to be followed by judges and jurists ? The opinions of judges in the Common Law and of jurists in the Civil Law on what society needs have profoundly influenced the Law. and for the better. the consideration of its fitness or unfitness to meet the needs of society. Now for what I have called the deontological method of dealing with the Law.

admits that 'it is impossible to consider Jurisprudence quite apart from Legislation. All writers on Jurisprudence have. employed it incidentally." . must be adverted to in explaining their origin and mechanism. however. the strictest of the analytic jurists. since the inducements or considerations of expediency which lead to the establishment of laws. A treatise on Law constructed on this third method would be a Treatise on Legislation rather than on Jurisprudence. And this is inevitable. Even Austin.

although we believe it neither possible nor desirable that the development should not go on in the future. yet. Not that I am insensible to the value of historical studies. to consider and analyze Law in the stage of development which it has reached. rather than to tell their history or prophesy their future development. nor blind to the fact that legal conceptions are constantly changing. to borrow a figure from the shop. .sis and relations of some fundamental legal ideas. it is well at times to take account of stock. In these lectures I propose to follow the systematic method and to call your attention to the analy.

can exercise right through agents. etc Abnormal human being-have no will Supernatural being are those intelligent Animals Juristic ex corporation .they have a will.     Normal human being.

. A man. The exercise of his will. may be bound by a legal duty to do an act. therefore. actual or potential. although he cannot possibly do it. and although he does not know that he has been ordered to do it. is not necessarily involved in the creation of a legal duty to which he is subject.

lay down for the determination of legal rights and duties . that is. the judicial organs of that body. The Law of the State or of any organized body of men is composed of the rules which the courts.

it is now necessary to consider courts or judges . I use the terms as synonymous. of course. it is the functions which he exercises. It is. political or other. The Law of an organized body. being the rules laid down by the judicial department of that body. that mark his essential character. . and not the name by which he is called. not necessary that a judge be called by that name .

and administrative powers are united in the same persons or in a single individual. which distinguishes a judge from an adminstrative officer. .In some primitive communities. judicial. the legislative. A judge of an organized body is a man appointed by that body to determine duties and the corresponding rights upon the application of persons claiming those rights. It is the fact that such application must be made to him.

perhaps probable. It is possible. have. lived in society. But the units of such unorganized bodies may be themselves organisms. in other words. The horde is made up of the family units. and not of the individual human beings who make up the family. A horde of savages who are in the habit of wandering about together. . that men have lived together in certain modes and fashions. without king or judge. and yet may not have formed an organized body. families. each with its ruler (alike legislator and judge) and Law. and this has in all probability been generally the case. may be composed of true organisms.

" is usually synonymous with the Sovereign. In theology it may be that the chief artificial person is the Church. Austin. but in Jurisprudence the chief artificial person is the State. The State is an artificial person created in order that. in his " Province of Jurisprudence Determined " The State. according to him.' . by assuming it as the entity whose organs are the men engaged in protecting a mass of human beings from external and internal fraud and violence. a unity of operation may be given to those organs.

 is the science of Law. second. the statement and systematic arrangement of the rules followed by the courts and of the principles involved in those rules. or the science of the Law of a particular community . Comparative Jurisprudence. General Jurisprudence. or the comparison of the Law of two or more communities . Particular Jurisprudence. or the comparison of all the legal systems of the world. There are three kinds of Jurisprudence : first. third. Austin says that the appropriate subject of Jurisprudence is positive Law .


are subordinate to it. including the ordinary Legislature. Cortes. . Congress. Assembly. a country with a written constitution. the body of persons which enacts the constitution is the supreme legislature all other bodies and persons having legislative powers.The first Sources from which the courts of any human society draw the Law are the formal utterances of the legislative organs of the society.

It covers everything said or done which furnishes a rule for subsequent practice. especially in matters of form or ceremony COURTS MAKE EX POST FACTO LAW .The second source of the Law. is to be found in Precedents. Precedent has a very wide meaning. that is. of the rules by which the courts govern their action.

There are four questions under the English Law as to Precedents to consider : 1. How great is the authority of a decision in the court which made it. Is there any court which is absolutely bound by its own decisions ? 3. Can decisions of the courts be properly considered as sources of Law ? . Does a lower court ever decide in opposition to a higher court of appeal ? 4. or in a court of coordinate jurisdiction ? 2.

is found in the opinions of experts. A third source of Law.. The most familiar and striking instance of this was when Justinian compiled the Digest from the treatises of the Jurists. and one of great importance. . Sometimes these opinions have been taken up by the legislative organ of a community and published as part of the Statute Law.

not because they found any doctrine calling for the laying down of the rules in the writings of jurists. not because the rules recommended themselves to their moral sense. three days' delay in payment. are allowed on bills of exchange. called days of grace. in the intercourse of the members of the society with each other. not because there were any precedents for such rules in the reports of decided cases.Custom is another of the sources of the Law. in society at large. but because they found them followed. in the Common Law. Thus. The courts have adopted certain rules. or in some parts of it. not because any statutes have required them to do so. .

there may be no statute. no custom. no judicial precedent. bearing on the question involved. .When a case comes before a court for decision. it may be that nothing can be drawn from the sources heretofore mentioned. and yet the court must decide the case somehow. the decision of cases is what courts are for. no professional opinion.

. he must determine what the Law ought to be . He must find out for himself. And I do not know of any system of Law where a judge is held to be justified in refusing to pass upon a controversy because there is no person or book or custom to tell him how to decide it. he must have recourse to the principles of morality.

 Theories on The Nature of Law .

as exercising rights or powers of direct or judicial legislation. is a creature of the Sovereign or State."1 . "obtaining in any community. which the monarch or supreme body has expressly or tacitly conferred . having been established immediately by the monarch or supreme body. This is Austin's view." he says. "Every Positive Law. as exercising legislative or judicial functions. The first theory is made up of the commands of the sovereign. or having been established immediately by a subject individual or body.

are. The second theory on the nature of Law is that the courts. in truth. . applying what has previously existed in the common consciousness of the people. in deciding cases.

That theory is to this effect: The rules followed by the courts in deciding questions are not the expression of the State's commands. third theory of the Law remains to consider. . it is putting the cart before the horse to say that the Law is what the judges rule. nor are they the expression of the common consciousness of the people. although what the judges rule is the Law. but.

 This theory concedes that the rules laid down by the judges correctly state the Law .

therefore. not knowable by the parties when the causes of controversy occurred . in the decision of controversies.  COURTS MAKE EX POST FACTO LAW That reason is the unwillingness to recognize the fact that the courts. have been constantly in the practice of applying. rules which were not in existence and were. with the consent of the State.

in such cases.   Legal realism can roughly be characterized by the following claims: the class of available legal materials is insufficient to logically entail a unique legal outcome in most cases worth litigating at the appellate level (the Local Indeterminacy Thesis). judges make new law in deciding legal disputes through the exercise of a lawmaking discretion (the Discretion Thesis). and .

. judicial decisions in indeterminate cases are influenced by the judge’s political and moral convictions. not by legal considerations.

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