John Chipman Grey

7/29/2019 John Chipman Grey

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Reported by jed conrad b medina


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http://en.wikipedia.org/wiki/File:JohnChipmanGray.jpg


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was an American scholar of property law andprofessor 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.


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Gray was a graduate of Boston Latin School.From there, he went on to Harvard university,where he earned his Bachelor of Arts degree in

1859, and Harvard Law School, where heearned his Law degree in 1861.

He was admitted to the bar in 1862, andthereafter served a tour in the Union army in

the American civil war


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In 1865, after the end of the Civil War, Grayestablished his law practice in Boston, whichwould eventually evolve into the modern firm ofRopes and Gray. In 1869, he began teaching at

Harvard Law School, first as a lecturer, andbecame a full professor in 1875.

In 1883, he was named Royall Professor of Law, aposition he would hold for 20 years. He received

honorary doctorate of laws degrees from YaleUniversity in 1894, and from Harvard in 1895.

Two years after retiring from teaching, he died atBoston, Massachusetts on February 25, 1915.


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Gray wrote two books on future interests,Restraints on the Alienation of Property (1883),and The Rule against Perpetuities (1886). His best

known work is his survey of the common law,The Nature and Sources of the Law (1909). Gray'swritings were so influential that they are stillused in American law schools and cited in law

journal to this day.


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Historical-

Systematic- proposed to follow thesystematic method since it focuses inanalysis and relations of somefundamental legal ideas rather thanfocuses in history or prophesy future

development Analytic/dogmatic


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Now for what I have called the deontological methodof dealing with the Law, the consideration of its fitnessor unfitness to meet the needs of society. This is forlegislators and the advisers of legislators. How far is it

a method to be followed by judges and jurists ? Theopinions of judges in the Common Law and of juristsin the Civil Law on what society needs haveprofoundly influenced the Law, and for the better.


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A treatise on Law constructed on this third methodwould be a Treatise on Legislation rather than on

Jurisprudence. All writers on Jurisprudence have, how-ever, employed it incidentally. And this is inevitable.

Even Austin, the strictest of the analytic jurists, admitsthat 'it is impossible to consider Jurisprudence quite

apart from Legislation; since the inducements orconsiderations of expediency which lead to the

establishment of laws, must be adverted to inexplaining their origin and mechanism."


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In these lectures I propose to follow the systematicmethod and to call your attention to the analy- sis andrelations of some fundamental legal ideas, rather thanto tell their history or prophesy their future develop-

ment. Not that I am insensible to the value of historicalstudies, nor blind to the fact that legal conceptions areconstantly changing, yet, to borrow a figure from theshop, it is well at times to take account of stock, to

consider and analyze Law in the stage of developmentwhich it has reached, although we believe it neitherpossible nor desirable that the development should notgo on in the future.


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Normal human being- they have a will, canexercise right through agents, etc

Abnormal human being-have no will

Supernatural being are those intelligent Animals

Juristic ex corporation


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A man, therefore, may be bound by a legal duty to doan act, although he cannot possibly do it, and althoughhe does not know that he has been ordered to do it. Theexercise of his will, actual or potential, is not

necessarily involved in the creation of a legal duty towhich he is subject.


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The Law of the State or of any organized body of menis composed of the rules which the courts, that is, the

judicial organs of that body, lay down for thedetermination of legal rights and duties


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The Law of an organized body, political or other, beingthe rules laid down by the judicial department of thatbody, it is now necessary to consider courts or judges ;I use the terms as synonymous. It is, of course, not

necessary that a judge be called by that name ; it is thefunctions which he exercises, and not the name bywhich he is called, that mark his essential character.


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In some primitive communities, the legislative, judicial,and administrative powers are united in the samepersons or in a single individual. A judge of anorganized body is a man appointed by that body to

determine duties and the corresponding rights uponthe application of persons claiming those rights. It isthe fact that such application must be made to him,which distinguishes a judge from an adminstrative

officer.


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It is possible, perhaps probable, that men have livedtogether in certain modes and fashions, have, in otherwords, lived in society, and yet may not have formedan organized body. But the units of such unorganized

bodies may be themselves organisms, and this has inall probability been generally the case. A horde ofsavages who are in the habit of wandering abouttogether, without king or judge, may be composed of

true organisms, families, each with its ruler (alikelegislator and judge) and Law. The horde is made up ofthe family units, and not of the individual humanbeings who make up the family.


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In theology it may be that the chief artificial person is theChurch; but in Jurisprudence the chief artificial person isthe State. The State is an artificial person created in orderthat, by assuming it as the entity whose organs are the

men engaged in protecting a mass of human beings fromexternal and internal fraud and violence, a unity ofoperation may be given to those organs. Austin, in his "Province of Jurisprudence Determined " The State,

according to him," is usually synonymous with theSovereign.'


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is the science of Law, the statement and systematicarrangement of the rules followed by the courts and ofthe principles involved in those rules. There are threekinds of Jurisprudence : first, Particular Jurisprudence,

or the science of the Law of a particular community ;second, Comparative Jurisprudence, or the comparisonof the Law of two or more communities ; third. General

Jurisprudence, or the comparison of all the legal

systems of the world. Austin says that the appropriatesubject of Jurisprudence is positive Law


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The first Sources from which the courts of

any human society draw the Law are the formalutterances of the legislative organs of the society.

a country with a written constitution, the body of personswhich enacts the constitution is the supreme legislature

all other bodies and persons having legislative powers,

including the ordinary Legislature, Congress, Assembly,

Cortes, are subordinate to it.


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The second source of the Law, that is, of the

rules by which the courts govern their action, is to be

found in Precedents. Precedent has a very wide meaning.

It covers everything said or done which furnishes arule for subsequent practice, especially in matters of form

or ceremony

COURTS MAKE EX POST FACTO LAW


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There are four questions under the English Law as toPrecedents to consider :

1. How great is the authority of a decision in the courtwhich made it, or in a court of coordinate jurisdiction ?

2. Is there any court which is absolutely bound byits own decisions ?

3. Does a lower court ever decide in opposition toa higher court of appeal ?

4. Can decisions of the courts be properly consideredas sources of Law ?


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. A third source of Law, and one of great

importance, is found in the opinions of experts. Some-

times these opinions have been taken up by the legislative

organ of a community and published as part of the StatuteLaw. The most familiar and striking instance of this

was when Justinian compiled the Digest from the treatises

of the Jurists.


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Custom is another of the sources of the Law.

The courts have adopted certain rules, not because any

statutes have required them to do so, not because therewere

any precedents for such rules in the reports of decided

cases, not because they found any doctrine calling for the

laying down of the rules in the writings of jurists, not be-

cause the rules recommended themselves to their moral

sense, but because they found them followed, in societyat large, or in some parts of it, in the intercourse of the

members of the society with each other. Thus, in the

Common Law, three days' delay in payment, called days

of grace, are allowed on bills of exchange.


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When a case comes before a court for decision, it may bethat nothing can be drawn from the sources heretoforementioned; there may be no statute, no judicialprecedent, no professional opinion, no custom, bearing

on the question involved, and yet the court mustdecide the case somehow; the decision of cases is whatcourts are for.


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And I do not know of any system of Law where ajudge is held to be justified in refusing to pass upon acontroversy because there is no person or book orcustom to tell him how to decide it. He must find out

for himself; he must determine what the Law ought tobe ; he must have recourse to the principles ofmorality.


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Theories on The Nature of Law


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Thefirst theory is made up of the commands ofthe sovereign. This is Austin's view. "Every

Positive Law," he says, "obtaining in anycommunity, is a creature of the Sovereign orState; having been established immediately bythe monarch or supreme body, as exercising

legislative or judicial functions; or having beenestablished immediately by a subjectindividual or body, as exercising rights orpowers of direct or judicial legislation, whichthe monarch or supreme body has expressly ortacitly conferred ."1


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The second theory on the nature of Law is thatthe courts, in deciding cases, are, in truth,applying what has previously existed in thecommon consciousness of the people.


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third theory of the Law remains to consider.

That theory is to this effect: The rules followedby the courts in deciding questions are not theexpression of the State's commands, nor arethey the expression of the common

consciousness of the people, but, althoughwhat the judges rule is the Law, it is puttingthe cart before the horse to say that the Law iswhat the judges rule.


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This theory concedes that the rules laid downby the judges correctly state the Law


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COURTS MAKE EX POST FACTO LAW

That reason is the unwillingness to recognizethe fact that the courts, with the consent of the

State, have been constantly in the practice ofapplying, in the decision of controversies, ruleswhich were not in existence and were,therefore, not knowable by the parties when

the causes of controversy occurred


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Legal realism can roughly be characterized bythe following claims:

the class of available legal materials isinsufficient to logically entail a unique legaloutcome in most cases worth litigating at theappellate level (the Local Indeterminacy Thesis);

in such cases, judges make new law in deciding

legal disputes through the exercise of alawmaking discretion (the Discretion Thesis);and


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judicial decisions in indeterminate cases areinfluenced by the judges political and moralconvictions, not by legal considerations.

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John Chipman Grey