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Apologia
The author's legal principles have been criticised by a current but ephemeral school of legal philosophy as conceptual and legalistic.If this means,as it seems to do,that they are the fruit of thought and lawyerlike,the author accepts the criticism as in the highest degree honorable.If it is intended to charge the author with inventing each principle and then deducing from it rules based rather on logic than on reality,the criticism is untrue.
The author believes that law is a traditional manner of thought about right behavior; the lawyers and judges are experts in it.To learn it the process seems to be as follows:First,many decisions are examined,before a provisional opinion is formed,followed by discussion on the basis of ethical,economic,and social considerations as well as the historical course of the law.Error having been found in the first opinion,an opinion is formed,which in absence of being shown false is accepted as true.This process of trial and error,which is the true scientific process,as the author understands it,is the method which appears to be that of every lawyer desiring to argue a case or to make a brief.
One cannot deny that most of the statements in this work will be dogmatic.Does not the Bar desire dogmatic statements?It is true that the principles herein developed rest in the last analysis only on the authority of the author; but it is believed that a lawyer goes to a treatise principally to find the state of judicial authority on a topic,and if he seeks anything else it is,such as it may be,of the author for the proposition mentioned.In general,therefore,the author will state his conclusions dogmatically,particularly when he may rest them on the authority of the American Law Institute.When he differs from the form of statement of the Law Institute he will so state.
They reckon falsely who think of the author as an exponent of a school of legal philosophy.Philosopher he is none; nor need he apologize for this fact in a book written for lawyers.One deals in facts only.One studies decisions,which are facts of our law,and the inferences from these which after forty years study and teaching seem to be necessary.The value of this book will depend upon how far the author's inferences are justified.If they appear on the whole to be justified the book will have served its purpose.
Relation of this Work to the Restatement
This work is printed in the form of a Commentary on the Restatement of the Conflict of Laws issued by the American Law Institute.The author has therefore followed the numbering of the sections in the Restatement.Each section in this book is doubly numbered.Before the decimal point the numbering is that of the section in the Restatement.After the decimal point comes the serial number of the sections commenting upon the Restatement section.Certain parts of the work cover subjects not taken up in the Restatement,such as Section 9A,on Rights,and Chapter 4A,on Jurisdiction to Tax.The same form of numbering sections,however,has been carried out in these portions of the work.Chapter 6,on Corporations,goes considerably beyond the scope of the similar chapter in the Restatement,and is in fact a second edition of the nonstatutory portion of the author's treatise on Foreign Corporations.
This form of writing has its advantages.It at once directs attention to the Restatement; and the Restatement has been worked over by the most extraordinary group of teachers of the subject,of judges of distinction,and of lawyers who stand at the head of their profession,ever collected for the purpose of developing the Conflict of Laws of common-law countries.No lawyer can safely give an opinion or argue a question of law without considering the Restatement.To such as need a commentary,this work is offered,ready for the purpose so far as its division into sections is concerned.
But there are disadvantages also in this plan.The Restatement was not prepared as a basis for a treatise.The first four chapters were,to be sure,based upon an "accompanying treatise" prepared to fit the Restatement; a plan that was soon abandoned.Some of the later chapters were written after the Restatement took shape.Chapter 6,however,is based upon the author's treatise on Foreign Corporations,written thirty years ago; and it ill fits with the form of the Restatement.Even there,however,it is believed that a study of the table of sections at the beginning of the chapter will enable the user of the Restatement to find what he wishes.
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Apologia
The author's legal principles have been criticised by a current but ephemeral school of legal philosophy as conceptual and legalistic.If this means,as it seems to do,that they are the fruit of thought and lawyerlike,the author accepts the criticism as in the highest degree honorable.If it is intended to charge the author with inventing each principle and then deducing from it rules based rather on logic than on reality,the criticism is untrue.
The author believes that law is a traditional manner of thought about right behavior; the lawyers and judges are experts in it.To learn it the process seems to be as follows:First,many decisions are examined,before a provisional opinion is formed,followed by discussion on the basis of ethical,economic,and social considerations as well as the historical course of the law.Error having been found in the first opinion,an opinion is formed,which in absence of being shown false is accepted as true.This process of trial and error,which is the true scientific process,as the author understands it,is the method which appears to be that of every lawyer desiring to argue a case or to make a brief.
One cannot deny that most of the statements in this work will be dogmatic.Does not the Bar desire dogmatic statements?It is true that the principles herein developed rest in the last analysis only on the authority of the author; but it is believed that a lawyer goes to a treatise principally to find the state of judicial authority on a topic,and if he seeks anything else it is,such as it may be,of the author for the proposition mentioned.In general,therefore,the author will state his conclusions dogmatically,particularly when he may rest them on the authority of the American Law Institute.When he differs from the form of statement of the Law Institute he will so state.
They reckon falsely who think of the author as an exponent of a school of legal philosophy.Philosopher he is none; nor need he apologize for this fact in a book written for lawyers.One deals in facts only.One studies decisions,which are facts of our law,and the inferences from these which after forty years study and teaching seem to be necessary.The value of this book will depend upon how far the author's inferences are justified.If they appear on the whole to be justified the book will have served its purpose.
Relation of this Work to the Restatement
This work is printed in the form of a Commentary on the Restatement of the Conflict of Laws issued by the American Law Institute.The author has therefore followed the numbering of the sections in the Restatement.Each section in this book is doubly numbered.Before the decimal point the numbering is that of the section in the Restatement.After the decimal point comes the serial number of the sections commenting upon the Restatement section.Certain parts of the work cover subjects not taken up in the Restatement,such as Section 9A,on Rights,and Chapter 4A,on Jurisdiction to Tax.The same form of numbering sections,however,has been carried out in these portions of the work.Chapter 6,on Corporations,goes considerably beyond the scope of the similar chapter in the Restatement,and is in fact a second edition of the nonstatutory portion of the author's treatise on Foreign Corporations.
This form of writing has its advantages.It at once directs attention to the Restatement; and the Restatement has been worked over by the most extraordinary group of teachers of the subject,of judges of distinction,and of lawyers who stand at the head of their profession,ever collected for the purpose of developing the Conflict of Laws of common-law countries.No lawyer can safely give an opinion or argue a question of law without considering the Restatement.To such as need a commentary,this work is offered,ready for the purpose so far as its division into sections is concerned.
But there are disadvantages also in this plan.The Restatement was not prepared as a basis for a treatise.The first four chapters were,to be sure,based upon an "accompanying treatise" prepared to fit the Restatement; a plan that was soon abandoned.Some of the later chapters were written after the Restatement took shape.Chapter 6,however,is based upon the author's treatise on Foreign Corporations,written thirty years ago; and it ill fits with the form of the Restatement.Even there,however,it is believed that a study of the table of sections at the beginning of the chapter will enable the user of the Restatement to find what he wishes.
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