What Law Business is About

What is this law business about? It is about the fact that our society is honeycombed with disputes. Disputes actual and potential; disputes to be settled and disputes to be prevented; both appealing to law, both making up the business of the law. But obviously those which most violently call for attention are the actual disputes, and to these our first attention must be directed. Actual disputes call for somebody to do something about them. First, so that there may be peace, for the disputants; for other persons whose ears and toes disputants are disturbing. And secondly, so that the dispute may really be put at rest, which means, so that a solution may be achieved which, at least in the main, is bearable to the parties and not disgusting to the lookers-on. This doing of something about disputes, this doing of it reasonably, is the business of law. And the people who have the doing in charge, whether they be judges or sheriffs or clerks or jailers or lawyers, are officials of the law. What these officials do about disputes is, to my mind, the law itself.

There are not so many, I think, who would agree with me in thus regarding law. It is much more common to approach the law as being a set of rules of conduct, and most thinkers would say rules of external conduct to distinguish them from the rules of morality: be good, sweet maid, and let who will be clever. And most of the thinkers would probably say rules enforced by external constraint, to distinguish them not only from rules of morality, but also from some phases of custom, such as wearing ties and Paris garters. And many thinkers would add, rules laid down by the state, in order to distinguish them from the commands of a father, or the regulations of a university, or the compulsion to be a Democrat in Georgia. Most thinkers, too, would take these rules as addressed to the man on the street and as telling him what to do and what not to do. To most thinkers, I say, rules are the heart of law, and the arrangement of rules in orderly coherent system is the business of the legal scholar, and argument in terms of rules, the drawing of a neat solution from a rule to fit the case in hand--that is the business of the judge and of the advocate.

All of which seems to me rather sadly misleading. There is indeed much, in some parts of law, to be said for this view that "rules laid down for conduct" are the focus, quite apart from disputes. Rules that everyone's income tax return must be made out on the same type of form do not look to disputes so much as to convenience of administration. Rules as to fencing elevator shafts look primarily to avoiding not disputes, but injuries. And indeed it may properly be said that as civilization grows more complex there is a widening slice of law in which disputes as such sink out of sight, and the focus of law becomes the arrangement or rearrangement of business or conduct to get things done more quickly, more easily, more safely.

It may properly be said that in many such cases there is not even (as there is in requiring travel on the left side of the road or on the right; or in fixing the one effective form for validating will or deed) a purpose of dispute-avoidance running beside the purpose of convenience. It may properly be said, finally, that even where the purpose clearly is dispute-avoidance, that purpose in turn often sinks into the background, and men talk about contracts, and trusts, and corporations, as if these things existed in themselves, instead of being the shadows cast across the front stage by the movements of the courts unheeded in the rear. All of this, however, goes not so much to the importance of "rules" as to the non-exclusive importance of disputes. Whether about disputes, or about when wills are valid, or about the form for income tax reports, we come back always to one common feature: The main thing is what officials are going to do. And so to my mind the main thing is seeing what officials do, do about disputes, or about anything else; and seeing that there is a certain regularity in their doing--a regularity which makes possible prediction of what they and other officials are about to do tomorrow. In many cases that prediction cannot be wholly certain. Then you have room for something else, another main thing for the lawyer: the study of how to make the official do what you would like to have him.