« 이전계속 »
concrete things, such as the "law of electricity" and the "law of automobiles." Likewise, they group the rules of a particular subject around certain things, or certain acts, as, in Sales, bills of lading, or delivery of possession.
On the other hand, the rules may be grouped according to persons affected, which is the plan I have chosen. Each rule may itself be discussed as relating to a legal right of one person, a lack of right in another, or a legal power of a third. For example, the transfer of a bill of lading by an insolvent buyer may, in some circumstances, terminate the seller's right to retake possession of the goods while still in transit. This one legal result can be discussed as a right of the buyer of the bill of lading to receive the goods themselves, as a lack of right in the original seller to retake possession, or as a power of the original buyer to cut off his seller's right of stopping the goods. Or the one rule can be discussed by repetition under all three forms. This last method has the advantage of the clarity which comes from demonstrating a matter in all its aspects. Nevertheless, it is not at all essential to completeness of presentation and does require a great amount of space. For the sake of brevity, I have discussed each rule only once, and, so far as practicable, I have treated each rule in the aspect of a right of some person. In some instances, however, notably as to the rights of original owners against persons other than the buyer, it seemed advisable, for the sake of orderliness, to put the discussion under lack of right of the other person.
Although discussing any particular rule once only saves considerable space, it does force upon the reader the task of making his own comparisons between different rights, and requires him to remember that any right of one person connotes a complementary lack of right in other persons.
In presenting my own idea of what law is, I have said that it is the rules which courts feel more or less obliged to follow. I do not believe that even in theory courts are absolutely bound to follow the rules of precedent. Actually, it is indisputable that they do modify and depart from established rules when they believe that economic utility so warrants. Witness, for instance, the development of rules as to implied warranty in sales of food. If courts do thus consider the economic effect of a decision, and consciously or subconsciously depart from the letter of established rules at the dictate of pragmatic considerations, one who would predict the decision in any case must do more than familiarise himself with the rules of precedent alone. He must observe and understand the trend of change which is taking place in those rules. He must be a student of socio-economic rules and theories as well as of the rules of legal precedent.
It is not improbable that, eventually, complete textbooks will include an analysis of economic and social factors likely to affect judicial decision, which they will correlate with their discussion of precedent. The idea is most intriguing. I have, myself, however, made no attempt to do this, but have conventionally left to the reader the contentious question whether courts may properly depart from precedent and, when they do so depart, by just what considerations they are influenced.
It has been said that technical text-books are necesaarily too elementary and incomplete to be of much value to readers already trained in the subject, or are too difficult reading for untrained students. I do not think this is true of books on law. The subject is full of terms, to be sure, which have a technical connotation unrecognized by laymen, and many rules are really complexes of other more elemental rules which lawyers rather take for granted. But a book which uses words and phrases in their usual sense and which proceeds sequentially from elemental principles to the more complex ones can be clear and comprehensible to lay readers and yet be so detailed in its subject-matter as to serve also the needs of trained practitioners.
It is in this belief that I have written what follows, hoping that the small size of the book and its arrangement, without necessarily derogating its real technical value, will make it more available to some readers than a more voluminous work would be.
John Barker Waite.
Ann Arbor, Michigan,
TABLE OF CONTENTS