Vanderbilt Law Review


Merton Ferson

First Page



One thing that distinguishes a lawyer from other educated persons is his facility in the use of legal concepts. And yet there is a current notion that the study of legal concepts, as such, is academic and im-practical. Professor F. H. Lawson, delivering the Cooley Lectures at the University of Michigan in 1953, notes that it is fashionable among both civil and common lawyers to disparage the use of concepts. He then goes on to say: "This is of course nonsense. The very persons who inveigh against the use of concepts have been so thoroughly educated in a system built on concepts that they do not realize how much they are always using them."

The legal profession has developed concepts that are different from the ordinary concepts that are in general use. These peculiar legal concepts, although entirely ethereal like other concepts, are different in that they have come to be things. Rights and powers, for instance,have no physical existence and yet they are treated by lawyers as things. The words "right" and "power" are not merely class words. A specific right or power, even though it has no physical existence, is thingified. Like tangible things, it can exist and endure. A right can be bought, sold, inherited and taxed. Of what stuff is this thing made? How does it come to exist? And what is its function?

Legal concepts, although treated as things, are not naturally phenomena. They are artificial and intangible things invented by lawyers in order to sum up and prolong the result of operative facts and, if need be, to transmute those facts into judgments or decrees.