BY JOHN BARKER WAITE PROFESSOR OF LAW IN THE UNIVERSITY PRINCETON UNIVERSITY PRESS LONDON: HUMPHREY MILFORD PREFACE Law is often defined as the rules by which courts will decide controversies. If this be correct, the art of practice is in forecasting how courts will decide particular cases. Decisions are no longer, even in theory, mere repetitions of precedent, nor even purely logical development of precedent to fit new circumstance. The practical effect of one decision or another has openly, or, more often, covertly, drawn many a judge from the straight path of abstract logic. Primarily, of course, a practitioner must be familiar with precedent and must be trained so to analyze it as to perceive to the uttermost thread that web of ever fining principles which constitute the rules of law. But beyond this, in order to prognosticate the future pattern which his threads will weave, he must observe, in addition to the pattern of the past, the extraneous factors which influence judicial decisions; he must know to what extent declared principles have been deduced through logic and how far merely supported by it. He must comprehend the ideas of policy and the pragmatic reasoning which permeate all the modern law. It is partly because it can at least suggest this background that a proper text-book has an informational value greater than that of either digest or encyclopedia. But more particularly does the text book serve a special purpose in so showing the derivation of a rule, in expounding and explaining it in relation to other rules, as to indicate its probable direction and application. I have endeavored to do this so far as possible without getting into either speculation or philosophic discoursiveness, but, partly in consequence thereof, some propositions of law are not so categorically stated as one might like. Since law is what will be developed from what has been determined, one can be quite positive and define only as to the past and, in regaid to some matters, even that can not be formulated into a rule. In occasional instances I have not hesitated to state what I believe ought to be the rule, where the V 437189 |