Introduction by Research One

elix Frankfurter read the following paper on 27 December 1929 at a meeting of the Association of American Law Schools at New Orleans in Louisiana. Frankfurter was a famous American law professor who was appointed to the Supreme Court of the United States in 1939.

Although some aspects of Frankfurter's paper are now outdated (such as his use of gender-specific language), Frankfurter made some important points about successful legal research that are as relevant today as they were in 1929.

This paper is reproduced with permission of the Iowa Law Review. The citation conventions adopted by the Review are retained as far as possible (even where such conventions conflict with Research One's house style). Use of this article is subject to our usual terms and conditions.

The Conditions for, and the Aims and Methods of, Legal Research

15 IOWA L. REV. 129 (1930) (reprinted with permission)

Felix Frankfurter

We are to discuss this afternoon "the conditions for, and the aims and methods of, legal research," and our President has very kindly asked me to lead the discussion. I shall take at face value President Horack's wish as well as the formulation of our topic. I shall regard this as a discussion, and not subject you to a drowsy, learned or unlearned paper. And not belonging to any theological school of jurisprudence, I shall not avail myself of the theologian's privilege — or is it a right? — to discard the text after announcing. Let me assume, then, that there are only six of us sitting around the table. I am challenged to say all I have to say about research in law — what it is and what it isn't. What fertilizes it? What distracts it? To what end is it pursued, and how do you go about it? My party gives me the free run of talk to say all I have to say, because they well know that if I keep faith with them I shall engage their ears for not much more than twenty minutes.

Speaking thus to a half dozen familiars, it would be understood, of course, that I am not here to criticize others; I am not here to speak pro mea domu, not even pro mea vita. If criticism you must find in what I am about to say, it is directed more against my own school than any other institution because, being provincial, I covet most for my school. Nor must you treat me as representative of anything, except of the views I sponsor. Naturally, I would hold my tongue against my own family — in public. And I am wholly without authority to speak for it. But let us forget the strife of schools and let all the winds of doctrine blow freely this afternoon. Let us pool our individual hopes and fears, avow our biases and predilections.

I shall disappoint you by trying to define my terms. What is research? I deem it highly important to strip the term of its mysteries and to prick the bubble of its novelty. It happens to be a term of fashion, and a word of fashion all too readily becomes encrusted with conceptions alien and irrelevant to its crucial meaning. There is nothing technical about the meaning of research, and there is nothing new except the currency of the term. Maitland and Ames and Holmes did not talk about research nor did they deem themselves researchers. But eliminate their contributions from the history of modern jurisprudence, and you take away its greatest glories, the most powerful influences in the promotion of the scientific temper in law. I do not mean to deny that the atmosphere is now more electric with desire to attain conquests for the mind concerning those phenomena which we call law, than was true in the days of Maitland and Ames, who would have gloried, as Holmes glories, that a later generation has carried on the work begun more than half a century ago. I merely wish to insist that research is not a recent discovery, nor even one of the post-war moralities.

What is research? It is not a method, it is not an object, it is a behavior. "It is a behavior", writes Dr Alfred E Cohn of the Rockefeller Institute, "directed to answering something which exists in nature." Research is the systematic indulgence of one's curiosity — that is, the kind of research that I am talking about, for I am concerned with research that aims at the extension of knowledge. Its spring is curiosity; and when systematically pursued for the elucidation of events, we call it science.

I have already said enough to indicate that I shall refresh your recollection with commonplaces. But commonplaces are sometimes neglected and need reviving. Dealing in commonplaces, I shall shelter myself behind high authorities. For the meaning of sciences I turn to one of Whitehead's essays.

"Science is a permanent record of premises, deductions, and conclusions, verified all along the line by its correspondence with facts."1

In passing let me note that such a conception of science resolves the false antithesis between deduction and induction, for it reveals science as a deductive-inductive-deductive process. But what is our science, the science of the law? What are the phenomena and the materials for its study? For the phenomena that are objects condition methods. What it is about which we are trying to gain knowledge determines how we shall go about seeking knowledge.

"But apart from a few blemishes ... it is certain, that the common law follows out its principles with a closeness and simplicity of reasoning, which approach, as near as any artificial or moral deductions can, to the rigor of demonstration."2

"Law, considered as a science, consists of certain principles or doctrines ... Each of these doctrines has arrived at its present state by slow degrees; in other words, it is a growth, extending in many cases through centuries. This growth is to be traced in the main through a series of cases ... the number of fundamental legal doctrines is much less than is commonly supposed; the many different guises in which the same doctrine is constantly making its appearance ... being the cause of much misapprehension. If these doctrines could be so classified and arranged that each should be found in its proper place, and nowhere else, they would cease to be formidable from their number."3

Legal history "illustrates the paradox of form and substance in the development of law. The official theory is that each new decision follows syllogistically from existing precedents. But as precedents survive like the clavicle in the cat, long after the use they once served is at an end, and the reason for them has been forgotten, the result of following them must often be failure and confusion from the merely logical point of view. It is easy for the scholar to show that reasons have been misapprehended and precedents misapplied.

On the other hand, in substance the growth of the law is legislative. And this in a deeper sense than that that which the courts declare to have always been the law is in fact new. It is legislative in its grounds. The very considerations which the courts most rarely mention, and always with an apology, are the secret root from which the law draws all the juices of life ... Every important principle which is developed by litigation is in fact and at bottom the result of more or less definitely understood views of public policy; most generally, to be sure, under our practice and traditions, the unconscious result of instinctive preferences and inarticulate convictions, but none the less traceable to public policy in the last analysis ...

What has been said will explain the failure of all theories which consider the law only from its formal side, whether they attempt to deduce the corpus from a priori postulates, or fall into the humbler error of supposing the science of the law to reside in the elegantia juris, or logical cohesion of part with part."4

"The true science of the law does not consist mainly in a theological working out of dogma or a logical development as in mathematics, or only in a study of it as an anthropological document from the outside; an even more important part consists in the establishment of its postulates from within upon accurately measured social desires instead of tradition."5

As is to be expected from a parochial Harvard man, I have quoted three Harvard men, and as is to be expected from Harvard men, they disagree with each other. It is just a hundred years ago since Story found the common law a perfect system of deductive demonstration "apart from a few blemishes." Langdell, in the seventies, still conceived of law as a self-contained system, the logical unfolding of relatively few principles whose history and meaning and direction were all immanent in the cases. Undoubtedly Langdell has had an enormous influence upon the whole atmosphere and temper of American education, not merely legal education, during the last fifty years. Story and Langdell symbolize different epochs. For between Story and Langdell there occurred one of the decisive events in the history of thought — the publication, in 1859, of the Origin of Species. Plainly, Langdell carried over into the law as a method of study the method pursued by Darwin for the verification of his theory. Langdell's method was inductive, but his outlook was that of a theologian — he was an implacable logician, a brilliant reasoner within a fixed formal framework. The extent to which every law library and every law writer today goes beyond case law for the understanding of cases is the measure of Langdell's preoccupation with formal law — marvelously tough-minded in his preoccupation and serving as a constant admonition against loose talk, but nevertheless too neglectful of "the secret root from which the law draws all the juices of life."

Which brings me, of come, to Holmes, the source, I need hardly tell you, of my last quotations. His thoughts are familiar, for he has achieved the triumph by which novel and originally heretical ideas become catchwords. I venture to remind you that his analysis of the paradox of form and substance in law, and tracing its substance to considerations of policy outside the law, was written in the American Law Review just fifty years after Story's inaugural, and exactly half a century ago. It may fairly be said that we have been living on Holmes ever since — that the effort of the modern science of law is to investigate law in the perspective in which he has set the problems of law. Take all our present-day slogans and preoccupations — and I speak as a sinner among you, I speak as friend, not as sceptic — and they are all traceable to Holmes' insight into the stuff of law as a task for those who seek to understand it. "Functional approach," "law in books and law in action," "the administration of law as its center of gravity," — these express perhaps the dominant preoccupations of contemporary jurisprudence and the problems which they imply are as intricate and exhilarating as they are still unanswered. We have as yet only a most meagre number of active votaries. Pitiably few in number as yet are those whose curiosity has been aroused as a life work to try to give answer to these subtle and obstinate inquiries. But it does not detract from the vast work that has been hardly begun and from the answers that still must be found, that Holmes was the first man to put the essential questions. We are still heady with the wine that we have begun to sip — if you will pardon an anachronistic figure — from the new loving-cup of the social sciences. We are still largely in the social stage of the social sciences. We are mostly only talking about collaboration, and have as yet hardly begun to experiment on the processes by which to integrate or coordinate or collaborate with one another.

We have hardly got over the discovery that we are members of the same family; we have not yet acquired family habits with one another. But in all this ferment, Mr. Justice Holmes must recall with gladness what he said more than a generation ago and without pedagogic pedantry:

"We must beware of the pitfall of antiquarianism, and must remember that for our purposes our only interest in the past is for the light it throws upon the present. I look forward to a time when the part played by history in the explanation of dogma shall be very small, and instead of ingenious research we shall spend our energy on a study of the ends sought to be attained and the reasons for desiring them. As a step toward that ideal it seems to me that every lawyer ought to seek an understanding of economics. The present divorce between the schools of political economy and law seems to me an evidence of how much progress in philosophical study still remains to be made."6

Law, then, is as broad and deep as those social desires which have behind them or seek to have behind them the coercive will of society — whether that expresses itself through penalties or prisons, through injunctions or public ill-will. To understand these desires, their origin, their intensity, the means of their satisfaction, the cost of consequences of the means — these are the business of the science of law. And the behavior which makes men turn to this business we now call research. But whatever called, only those who have a deep curiosity to inquire into these matters and to seek what little light may be vouchsafed to them, have the necessary equipment for the enterprise and the pertinacity for its quicksands. For research requires the poetic imagination that sees significance and relation where others are indifferent or find unrelatedness; the synthetic quality of fusing items theretofore in isolation; above all the prophetic quality of piercing the future, by knowing what questions to put and what direction to give to inquiry.

This brings me to another age-old and futile antithesis between theory and practice. Again I shall let Whitehead speak for me:

"Science is a river with two sources, the practical source and the theoretical source. The practical source is the desire to direct our actions to achieve predetermined ends. The theoretical source is the desire to understand. Now I am going to emphasize the importance of theory in science. But to avoid misconception I most emphatically state that I do not consider one source as in any sense nobler than the other, or intrinsically more interesting...

The importance, even in practice, of the theoretical side of science arises from the fact that action must be immediate, and takes place under circumstances which are excessively complicated ... Success in practice depends on theorists who, led by other motives of exploration, have been there before, and by some good chance have hit upon the relevant ideas. By a theorist I do not mean a man who is up in the clouds, but a man whose motive for thought is the desire to formulate correctly the rules according to which events occur. A successful theorist should be excessively interested in immediate events, otherwise he is not at all likely to formulate correctly anything about them."7

I emphasize the importance of theory in legal science because in the balance of culture, particularly in the culture of our present-day civilization, we have far too little theory — the odds are all against its pursuit. Sir Frederick Pollock very recently touched on this theme, in his paper on "Judicial Caution and Valour,"8 "the balance," he said, "is weighted against speculation by the fact that it needs a share of energy, intelligence and imagination beyond the average allowance of educated citizens, and still more by the constant passive resistance of mere inertia." I venture to believe that even more powerful forces weight the balance against theoretical science — the push and pressure of our times for quick and immediately practical results and the high rewards that go for the immediate and practical, rewards of comfort as well as rewards of public esteem. Our moral climate is against the pursuit of science as a systematic effort at understanding.

I deem it fundamental to the advance of the research about which I have been talking that we differentiate two distinct stages in the progress of ideas, namely, their invention and their acceptance. Significant advance in the social sciences requires that we keep rigorously apart the modes by which we arrive at tentative truths and working hypotheses, and the process of securing their acceptance with such modification and qualification as a world of compromise requires. To borrow, as is the custom these days, the language of the business world, it is vital not to confuse the production of ideas with their distribution. The two involve different processes, different methods, different atmospheres, above all, different temperaments. It is, I believe, fatal to the development of new ideas to pursue them in an atmosphere and with processes that predominantly reflect a desire to "put over" ideas. Those who have the aptitude for discovery, for invention, for fashioning new hypotheses are seldom equipped to secure their practical applications. An indispensable condition for fruitful theoretical research is the right kind of intellectual climate for important ideas to come to life. That means a total lack of the urgencies of the immediate and a freedom from worry about all the accommodations and compromises that become pertinent when ideas are to be translated into action or to be formulated for acceptance. This may all sound very abstract, but it expresses the deepest conviction I have regarding the most concretely indispensable condition for seminal or even significant thinking in law. There must be freedom from pressure for results, for approval by committees or conferences or foundations, for satisfying this hope and allaying that fear, which necessarily and properly condition the whole psychological atmosphere under which the work of securing acceptance for ideas proceeds.

By way of illustration, I am sorry to see that the scientific inquiry which has just been undertaken with Presidential blessing into the "social trends" resulting from our great technological developments, should be promptly followed with a statement that this inquiry is expected to lead to "constructive action." If researchers have to satisfy expectations of practical results which they arouse, it will affect the course of their inquiries and influence the formulation of their findings. Thus they will be subject to all those pulls and pressures and will be making all those compromises which are appropriate when one comes to apply knowledge, but are wholly irrelevant to seekers for understanding. This is a long way of saying, you will say to yourself, that the work of the thinker is quiet and unhurried work, with complete indifference to a predetermined output or a predetermined public. That is all I am saying. But if it be true that these are the conditions of effective scholarship, then we must insist upon them and offer what resistance we can to all the distractions and diversions that beset research in an age which professes as never before to worship it.

"The success of the Origin may, I think, be attributed in large part to my having long before written two condensed sketches, and to my having finally abstracted a much larger manuscript, which was itself an abstract. By this means, I was enabled to select the more striking facts and conclusions. I had, also, during many years, followed a golden rule, namely, that whenever a published fact, a new observation or thought came across me, which was opposed to my general results, to make a memorandum of it without fail and at once; for I had found by experience that such facts and thoughts were far more apt to escape from the memory than favorable ones. Owing to this habit, very few objections were raised against my views which I had not at least noticed and attempted to answer."9

The story is familiar to you but it will bear recalling in Darwin's own words: "I gained much," he continues, "by my delay in publishing from about 1839, when the theory was clearly conceived, to 1859; and I lost nothing by it, for I cared very little whether men attributed most originality to me or Wallace; and his essay no doubt aided in the reception of the theory."10

I will not labor the point. But please do not brush Darwin and his example aside as irrelevant, or as a counsel of perfection. To be sure, his was monumental work. Much important work is done on a much smaller scale and does not need twenty years of incubation after insight has conquered. But the conditions under which Darwin worked and the standards to which he subjected himself, govern all enduring work in the domain of theoretical science.

I avouch very practical authority for the dependence of civilization upon theoretic research and the dangers to which it is at present exposed.

"Every practical advantage gained in utilizing natural forces for the benefit of mankind can be traced back to a necessary basis established through fundamental research in pure science by men who had no other object than to ascertain the truth."11

These are the words of Elihu Root. And our engineer President is even more explicit:

"The sudden growth of industrial research laboratories has in itself endangered fundamental research by drafting the personnel of pure science into their ranks. Applied science itself will dry up unless we maintain the sources of pure sciences. We must add to knowledge, both for the intellectual and spiritual satisfaction that comes from widening the range of human understanding, and for the direct practical utilization of these fundamental discoveries."11

The research laboratories of industry have done more than deplete the available human resources for theoretical research. They have largely set the psychologic pace for scientific endeavor. The aims and methods, the assumptions and the atmosphere of present-day highly organized industry are steadily, though unconsciously, associated with the purposes and the methods of research. Organization is at present exerting dominant influence. And nothing is more hostile to the progress of new ideas. Origination must precede organization of thought, and must remain constantly free. Let me draw upon one of the natural sciences and quote from the opening address of Professor Krogh at the International Physiological Congress last August:

"The catchword of our post-war times is organization ... The individual freedom is our chief asset, the mainspring of the really new ideas, the guarantee of progress. Physiology does not go forward as an ordered line of battle on a continuous front, but must be carried on, as someone has aptly said, as a guerilla warfare against the unknown, conducted single-handed or by quite small units. There is no need for an extensive organization of research, but there is much need for voluntary cooperation on a limited scale between individuals and laboratories. There are many problems which can only be successfully attacked when experimental physiologists operate with histologists, with chemists or physicists or with clinicians, and some problems will require the combined efforts of several of these groups, but the affair is always one of local and voluntary cooperation and does not concern us here.

While I have no faith in the organization on a large scale of research I think there is a wide and fruitful field for organization of what we might term the services behind the front."12

By these services behind the front, Professor Krogh of course means the familiar tools of indices to periodicals and the like. This may include gathering of data once we know exactly what data we want to gather. But we must beware of the ambiguities that lurk in data nor can we expect mere technicians and fact-gatherers to bring forth the promethean spark of illumination that only comes from working material at first hand. I once heard Wallace Notestein say that an historian must get his own hands dirty with the documents. First hand contact is necessary. And skill is needed as well as sincerity, deftness as well as detachment. As a result of getting his own fingers dirty, Notestein is responsible for a reconsideration of the whole constitutional history of the Tudor period and is giving us profoundly new insight into the significance of procedure in the attainment of parliamentary government in Great Britain. Men like Maitland and Notestein read documents with a poet's mind. In them, as in all first-class researchers, science and art are wedded.

These considerations are of special moment to us in the law. The ultimate concern of the social sciences, law among them, is the conquest of knowledge leading, one hopes, eventually to new and important insights into the good life of society. But we are still at the very beginning of this effort and the methods, the criteria, even the aims of the social sciences are still at large and still unshapen. There must be every inducement, every encouragement, towards originality, spontaneity and variety, always provided that men of real capacity are engaged in the enterprise. Correspondingly, with scope and encouragement men of capacity will be drawn to the enterprise. These are considerations decisive also for the form and atmosphere which should determine graduate work. I would not divide a faculty into rigid departments or institutes nor have any formal director of research nor formal organs of research, but depend upon the free collaboration of scholars who are colleagues to share in the furthering of intellectual effort no less disciplined and directed because self-directed and self-disciplined, not organized as business is organized. That means a very small number of rigorously selected graduate students. For no man can explore the unknown, track new knowledge with more than a handful of students. Graduate work implies a personal relation between two students, one of whom is a professor. If there is not common intellectual enterprise between professors and graduate students, there may be facilities for giving degrees but not graduate work in any fruitful meaning of the term.

As for methods — there are no sovereign answers and no sovereign methods. Methods must attend problems. If a significant inquiry is pursued on a significant level, it will suggest to a man eager for discovery and familiar with its history the various modes of attack. There should be much flexibility as to method. Once the central issues of a problem are apprehended the imagination should not be confined by a paper program. Cavalry attacks will be needed again and again, and many reconnoitering parties will have to be sent into the unknown territory. Freely must we utilize all the allies there are — statistics, history, anthropology, psychology.

But let us beware of their limitations and particularly of our own. Addressing students of economics, a distinguished mathematical economist admonished them that "when you take a complex tool from the mathematical statistician and start using it yourself, don't expect it to do everything for you, or swallow anything it may tell you, without critical inspection and reservation."13

So we have to be constantly on our guard lest psychology be more unequivocal in her wisdom when she speaks to lawyers than when she speaks to psychologists. In the treacherous domain of the social sciences we must be wary lest we live on one another's washing — lest we prove an unknown in one field by an unknown in another. By all means let us use all the aids and all the insights that other workers in the kingdom of the mind put at our disposal. Let us not disperse our very limited resources by controversy over superiorities. There are more roads to wisdom than are trodden. There are more roads to wisdom than we know of. Let us not engage in wasteful conflict over primacy, particularly over primacy of method, nor lose ourselves in pride of place. Let us avoid the strife of formal theories, untested by experience, except in so far as even such strife makes for illumination. The whole of truth is never even remotely in sight. Let us labor humbly but passionately, gaining here an insight, revising there an assumption, jettisoning one error now and perhaps taking aboard a bit of weighty cargo later.

FELIX FRANKFURTER

HARVARD LAW SCHOOL

ENDNOTES

1 Whitehead, Aims of Education (1929), 162.>

2 Story's inaugural address as Dane Professor of Law at Harvard University, August 25, 1829, in his Miscellaneous Writings, (1835), 445.

3 Langdell, Cases on Contracts (1871), viii-ix.

4 Oliver Wendell Holmes, "Common Carriers and the Common Law," 13 Am. L. Rev. 609, 630-31 (1879).

5 Oliver Wendell Holmes, "Law in Science and Science in Law" (1899), in his Collected Legal Papers (1920), 225-26.

6 Oliver Wendell Holmes, "The Path of the Law," (1897), in his Collected Legal Papers (1920), 194-95. From an address delivered by Mr. Justice Holmes, of the Supreme Judicial Court of Massachusetts, at the dedication of the new hall of the Boston University School of Law, on January 8, 1897. Copyrights by O. W. Holmes, 1897. Originally published in 10 Harv. L. Rev. 457.

7 Whitehead, Aims of Education (1929), 154-55.

8 (1929) 45 L. Q. Rev. 293, 296.

9 Darwin, Life of Darwin (1892), 42.

10 Ibid. 43.

11 I am indebted to Professor Harlow Shapley, the Harvard astronomer, for these quotations.

12 Krogh, The Progress of Physiology (1929), 7.

13 Sir Josiah Stamp, Some Economic Factors in Modern Life (1929), 276.