Page:Harvard Law Review Volume 10.djvu/508

482 These two are in fact more than postulates; they are the necessary conditions of the science. He who condescends to argue within the field of jurisprudence must perforce take them for his data. They may be questioned in their proper place, but within that field they cannot be questioned. If, when properly questioned, they shall be ultimately sustained as valid, the possibility and actuality of jurisprudence will be vindicated; if not, jurisprudence will prove to be but an empty name.

Assuming, however, its own real existence, and therefore its necessarily implied conditions, jurisprudence should begin by determining the reason of the law, and, in determining the reason, determine the form of the law; that is, its several particular rules or principles. With the reason and form thus defined, a particular instance, such as the rights involved in a given litigation, can be determined by demonstrating that it is governed by some one of these principles. Thus the juridical procedure takes a form which in its lowest terms is a syllogism, wherein the major premise is the predication of a juridical principle, the minor premise is a predication that the case at bar comes within its terms as an in- stance of it, and the conclusion is the joinder of the two in the final judgment of the court. The ascertainment of the major premise is the province of the jurist through the process of logical reasoning,; the ascertainment of the minor premise is the province of the court through its process of investigating facts; and the conclusion — that is, the judgment - follows, or should follow, inevitably upon these two. The jurist, then, whether a scholar writing a treatise, or a judge delivering an opinion in the course of a judicial proceeding, must first, if his major premise be a new or not hitherto recognized principle, establish his position by a correct process of reasoning. If, for example, he asserts a principle of unjust enrichment, or a principle of restitution, he must carry his proofs back to a point where he reaches only the necessary postulates or conditions of law; or if he chooses to begin his argument at a point short of the necessary postulates, — that is, with unverified assumptions of certain results of prior logical reasoning, — he must at least make certain that his assumptions will not be questioned. Otherwise his argument will have only the weight of an assertion of his individual opinion, which in the realm of an applied law based on a system of precedents may indeed be considerable, but in the domain of reason will be naught.