tended to supersede the metaphysical-historical and the
utilitarian-analytical. All phenomena were determined by inexorable
natural laws to be discovered by observation. Moral and social and
hence legal phenomena were governed by laws as completely beyond the
power of conscious human control as the movements of the planets. We
might discover these laws by observation of social phenomena and might
learn to submit to them intelligently instead of rashly or ignorantly
defying them. But we could hope to do no more. Except as he could
learn to plot some part of the inevitable curve of legal development
and save us from futile flyings in the face of the laws by which legal
evolution was inevitably governed, the jurist was powerless. Many
combined this mode of thought with or grafted it on the
metaphysical-historical theory and fought valiantly against the social
legislation of the last decade of the nineteenth century and the first
decade of the present century with this reinforced juristic pessimism
as a base. Superficially it appeared that the Greek idea of the
naturally just, which in its Roman form of natural law and its
eighteenth-century form of natural rights had made for a creative
legal science as long as such a science had existed, had at length
exhausted its possibilities.
Today, however, we hear of a revival of natural law. Philosophy of law
is raising its head throughout the world. We are asked to measure
rules and doctrines and institutions and to guide the application of
law by reference to the end of law and to think of them in terms of
social utility. We are invited to subsume questions of law and of the
application of law under the social ideal of the time and place. We
are called upon to formulate the jural postulates of the civilization
of the time and place and to measure law and the application of law
thereby in order that law may further civilization and that the legal
materials handed down with the civilization of the past may be made an
instrument of maintaining and furthering the civilization of the
present. We are told that observation shows us social interdependence
through similarity of interest and through division of labor as the
central fact in human existence and are told to measure law and the
application of law functionally by the extent to which they further
or interfere with this interdependence. For the era of legal
self-sufficiency is past. The work of assimilating what had been
received into the law from without during the period of equity and
natural law has been done. The possibilities of analytical and
historical development of the classical materials have been
substantially exhausted. While jurists have been at these tasks, a new
social order has been building which makes new demands and presses
upon the legal order with a multitude of unsatisfied desires. Once
more we must build rather than merely improve; we must create rather
than merely order and systematize and logically reconcile details. One
has but to compare the law of today on such subjects as torts, or
public utilities or administrative law with the law of a generation
ago to see that we are in a new stage of transition; to see that the
juristic pessimism of the immediate past, which arose to save us from
taking in more from without while what had been taken already remained
undigested, will serve no longer; and to see that the jurist of
tomorrow will stand in need of some new philosophical theory of law,
will call for some new philosophical conception of the end of law and
at the same time will want some new steadying philosophical conception
to safeguard the general security, in order to make the law which we
hand down to him achieve justice in his time and place.
II
The End of Law
Making or finding law, call it which you will, presupposes a mental
picture of what one is doing and of why he is doing it. Hence the
nature of law has been the chief battleground of jurisprudence since
the Greek philosophers began to argue as to the basis of the law's
authority. But the end of law has been debated more in politics than
in jurisprudence. In the stage of equity and natural law the
prevailing theory of the nature of law seemed to answer the question
as to its end. In the maturity of law the law was thought of as
something self-sufficient, to be judged by an ideal form of itself,
and as something which could not be made, or, if it could be made, was
to be made sparingly. The idea of natural rights seemed to explain
incidentally what law was for and to show that there ought to be as
little of it as possible, since it was a restraint upon liberty and
even the least of such restraint demanded affirmative justification.
Thus, apart from mere systematic and formal improvement, the theory of
lawmaking in the maturity of law was negative. It told us chiefly how
we should not legislate and upon what subjects we should refrain from
lawmaking. Having no positive theory of creative lawmaking, the last
century was little conscious of requiring or holding a theory as to
the end of law. But in fact it held such a theory and held it
strongly.
As ideas of what law is for are so largely implicit in ideas of what
law is, a brief survey of ideas of the nature of law from this
standpoint will be useful. No less than twelve conceptions of what law
is may be distinguished.
First, we may put the idea of a divinely ordained rule or set of rules
for human action, as for example, the Mosaic law, or Hammurapi's code,
handed him ready-made by the sun god, or Manu, dictated to the sages
by Manu's son Bhrigu in Manu's presence and by his direction.
Second, there is an idea of law as a tradition of the old customs
which have proved acceptable to the gods and hence point the way in
which man may walk with safety. For primitive man, surrounded by what
seem vengeful and capricious powers of nature, is in continual fear of
giving offence to these powers and thus bringing down their wrath upon
himself and his fellows. The general security requires that men do
only those things and do them only in the way which long custom has
shown at least not displeasing to the gods. Law is the traditional or
recorded body of precepts in which that custom is preserved and
expressed. Whenever we find a body of primitive law possessed as a
class tradition by a political oligarchy it is likely to be thought of
in this way just as a body of like tradition in the custody of a
priesthood is certain to be thought of as divinely revealed.
A third and closely related idea conceives of law as the recorded
wisdom of the wise men of old who had learned the safe course or the
divinely approved course for human conduct. When a traditional custom
of decision and custom of action has been reduced to writing in a
primitive code it is likely to be thought of in this way, and
Demosthenes in the fourth century B. C. could describe the law of
Athens in these terms.
Fourth, law may be conceived as a philosophically discovered system of
principles which express the nature of things, to which, therefore,
man ought to conform his conduct. Such was the idea of the Roman
jurisconsult, grafted, it is true, on the second and third ideas and
on a political theory of law as the command of the Roman people, but
reconciled with them by conceiving of tradition and recorded wisdom
and command of the people as mere declarations or reflections of the
philosophically ascertained principles, to be measured and shaped and
interpreted and eked out thereby. In the hands of philosophers the
foregoing conception often takes another form so that, fifth, law is
looked upon as a body of ascertainments and declarations of an eternal
and immutable moral code.
Sixth, there is an idea of law as a body of agreements of men in
politically organized society as to their relations with each other.
This is a democratic version of the identification of law with rules
of law and hence with the enactments and decrees of the city-state
which is discussed in the Platonic Minos. Not unnaturally Demosthenes
suggests it to an Athenian jury. Very likely in such a theory a
philosophical idea would support the political idea and the inherent
moral obligation of a promise would be invoked to show why men should
keep the agreements made in their popular assemblies.
Seventh, law has been thought of as a reflection of the divine reason
governing the universe; a reflection of that part which determines the
"ought" addressed by that reason to human beings as moral entities, in
distinction from the "must" which it addresses to the rest of
creation. Such was the conception of Thomas Aquinas, which had great
currency down to the seventeenth century and has had much influence
ever since.
Eighth, law has been conceived as a body of commands of the sovereign
authority in a politically organized society as to how men should
conduct themselves therein, resting ultimately on whatever basis was
held to be behind the authority of that sovereign. So thought the
Roman jurists of the Republic and of the classical period with respect
to positive law. And as the emperor had the sovereignty of the Roman
people devolved upon him, the Institutes of Justinian could lay down
that the will of the emperor had the force of a law. Such a mode of
thought was congenial to the lawyers who were active in support of
royal authority in the centralizing French monarchy of the sixteenth
and seventeenth centuries and through them passed into public law. It
seemed to fit the circumstances of parliamentary supremacy in England
after 1688, and became the orthodox English juristic theory. Also it
could be made to fit a political theory of popular sovereignty in
which the people were thought of as succeeding to the sovereignty of
parliament at the American Revolution or of the French king at the
French Revolution.
A ninth idea of law takes it to be a system of precepts discovered by
human experience whereby the individual human will may realize the
most complete freedom possible consistently with the like freedom of
will of others. This idea, held in one form or another by the
historical school, divided the allegiance of jurists with the theory
of law as command of the sovereign during almost the whole of the past
century. It assumed that the human experience by which legal
principles were discovered was determined in some inevitable way. It
was not a matter of conscious human endeavor. The process was
determined by the unfolding of an idea of right and justice or an idea
of liberty which was realizing itself in human administration of
justice, or by the operation of biological or psychological laws or of
race characters, whose necessary result was the system of law of the
time and people in question.
Again, tenth, men have thought of law as a system of principles,
discovered philosophically and developed in detail by juristic writing
and judicial decision, whereby the external life of man is measured by
reason, or in another phase, whereby the will of the individual in
action is harmonized with those of his fellow men. This mode of
thought appeared in the nineteenth century after the natural-law
theory in the form in which it had prevailed for two centuries had
been abandoned and philosophy was called upon to provide a critique
for systematic arrangement and development of details.
Eleventh, law has been thought of as a body or system of rules imposed
on men in society by the dominant class for the time being in
furtherance, conscious or unconscious, of its own interest. This
economic interpretation of law takes many forms. In an idealistic form
it thinks of the inevitable unfolding of an economic idea. In a
mechanical sociological form it thinks of class struggle or a struggle
for existence in terms of economics, and of law as the result of the
operation of forces or laws involved in or determining such
struggles. In a positivist-analytical form it thinks of law as the
command of the sovereign, but of that command as determined in its
economic content by the will of the dominant social class, determined
in turn by its own interest. All of these forms belong to transition
from the stability of the maturity of law to a new period of growth.
When the idea of the self-sufficiency of law gives way and men seek to
relate jurisprudence to the other social sciences, the relation to
economics challenges attention at once. Moreover in a time of copious
legislation the enacted rule is easily taken as the type of legal
precept and an attempt to frame a theory of legislative lawmaking is
taken to give an account of all law.
Finally, twelfth, there is an idea of law as made up of the dictates
of economic or social laws with respect to the conduct of men in
society, discovered by observation, expressed in precepts worked out
through human experience of what would work and what not in the
administration of justice. This type of theory likewise belongs to the
end of the nineteenth century, when men had begun to look for
physical or biological bases, discoverable by observation, in place of
metaphysical bases, discoverable by philosophical reflection. Another
form finds some ultimate social fact by observation and develops the
logical implications of that fact much after the manner of the
metaphysical jurist. This again results from the tendency in recent
years to unify the social sciences and consequent attention to
sociological theories.
Digression is worth while in order to note that each of the foregoing
theories of law was in the first instance an attempt at a rational
explanation of the law of the time and place or of some striking
element therein. Thus, when the law has been growing through juristic
activity, a philosophical theory of law, as declaratory of
philosophically ascertainable principles, has obtained. When and where
the growing point of law has been in legislation, a political theory
of law as the command of the sovereign has prevailed. When the law has
been assimilating the results of a prior period of growth, a
historical theory of law as something found by experience, or a
metaphysical theory of law as an idea of right or of liberty realizing
in social and legal development, has tended to be dominant. For
jurists and philosophers do not make these theories as simple matters
of logic by inexorable development of philosophical fundamentals.
Having something to explain or to expound, they endeavor to understand
it and to state it rationally and in so doing work out a theory of
what it is. The theory necessarily reflects the institution which it
was devised to rationalize, even though stated universally. It is an
attempt to state the law, or the legal institution of the time and
place in universal terms. Its real utility is likely to be in its
enabling us to understand that body of law or that institution and to
perceive what the men of the time were seeking to do with them or to
make of them. Accordingly analysis of these theories is one way of
getting at the ends for which men have been striving through the legal
order.
What common elements may we find in the foregoing twelve pictures of
what law is? For one thing, each shows us a picture of some ultimate
basis, beyond reach of the individual human will, that stands fast in
the whirl of change of which life is made up. This steadfast ultimate
basis may be thought of as the divine pleasure or will or reason,
revealed immediately or mediately through a divinely ordained
immutable moral code. It may be put in the form of some ultimate
metaphysical datum which is so given us that we may rest in it
forever. It may be portrayed as certain ultimate laws which inexorably
determine the phenomena of human conduct. Or it may be described in
terms of some authoritative will for the time and place, to which the
wills of others are subjected, that will deriving its authority
ultimately and absolutely in some one of the preceding forms, so that
what it does is by and large in no wise a matter of chance. This fixed
and stable starting point is usually the feature upon which the chief
emphasis is placed. Next we shall find in all theories of the nature
of law a picture of a determinate and mechanically absolute mode of
proceeding from the fixed and absolute starting point. The details may
come from this starting point through divine revelation or a settled
authoritative tradition or record, or an inevitable and infallible
philosophical or logical method, or an authoritative political
machinery, or a scientific system of observation, or historically
verifiable ideas which are logically demonstrable to be implications
of the fundamental metaphysically given datum. Third, we shall see in
these theories a picture of a system of ordering human conduct and
adjusting human relations resting upon the ultimate basis and derived
therefrom by the absolute process. In other words, they all picture,
not merely an ordering of human conduct and adjustment of human
relations, which we have actually given, but something more which we
should like to have, namely, a doing of these things in a fixed,
absolutely predetermined way, excluding all merely individual feelings
or desires of those by whom the ordering and adjustment are carried
out. Thus in these subconscious picturings of the end of law it seems
to be conceived as existing to satisfy a paramount social want of
general security. Certainly the nineteenth-century jurist had this
conception. But is this because the function of law is limited to
satisfaction of that one want, or is it because that want has been
most conspicuous among those which men have sought to satisfy through
law, and because the ordering of human conduct by the force of
politically organized society has been adapted chiefly to satisfying
that one want in the social order of the past?
If we turn to the ideas which have obtained in conscious thinking
about the end of law, we may recognize three which have held the
ground successively in legal history and a fourth which is beginning
to assert itself. The first and simplest idea is that law exists in
order to keep the peace in a given society; to keep the peace at all
events and at any price. This is the conception of what may be called
the stage of primitive law. It puts satisfaction of the social want of
general security, stated in its lowest terms, as the purpose of the
legal order. So far as the law goes, other individual or social wants
are ignored or are sacrificed to this one. Accordingly the law is made
up of tariffs of exact compositions for every detailed injury instead
of principles of exact reparation, of devices to induce or coerce
submission of controversies to adjudication instead of sanctions, of
regulation of self-help and self-redress instead of a general
prohibition thereof, and of mechanical modes of trial which at any
rate do not admit of argument instead of rational modes of trial
involving debate and hence dispute and so tending to defeat the
purpose of the legal order. In a society organized on the basis of
kinship, in which the greater number of social wants were taken care
of by the kin-organizations, there are two sources of friction: the
clash of kin-interests, leading to controversies of one kindred with
another, and the kinless man, for whom no kin-organization is
responsible, who also has no kin-organization to stand behind him in
asserting his claims. Peace between kindreds and peace between
clansmen and the growing mass of non-gentile population is the
unsatisfied social want to which politically organized society must
address itself. The system of organized kindreds gradually breaks
down. Groups of kinsmen cease to be the fundamental social units.
Kin-organization is replaced by political organization as the primary
agency of social control. The legal unit comes to be the free citizen
or the free man. In this transition regulation of self-redress and
prevention of private war among those who have no strong
clan-organizations to control them or respond for them are demanded by
the general security. The means of satisfying these social wants are
found in a legal order conceived solely in terms of keeping the peace.
Greek philosophers came to conceive of the general security in broader
terms and to think of the end of the legal order as preservation of
the social _status quo_. They came to think of maintaining the general
security mediately through the security of social institutions. They
thought of law as a device to keep each man in his appointed groove in
society and thus prevent friction with his fellows. The virtue on
which they insisted was _sophrosyne_, knowing the limits which nature
fixes for human conduct and keeping within them. The vice which they
denounced was _hybris_, wilful bondbreaking--wilful transgression of
the socially appointed bounds. This mode of thinking follows the
substitution of the city-state political organization of society for
the kin-organization. The organized kindreds were still powerful. An
aristocracy of the kin-organized and kin-conscious, on the one hand,
and a mass of those who had lost or severed their ties of kinship, or
had come from without, on the other hand, were in continual struggle
for social and political mastery. Also the politically ambitious
individual and the masterful aristocrat were continually threatening
the none too stable political organization through which the general
security got a precarious protection. The chief social want, which no
other social institution could satisfy, was the security of social
institutions generally. In the form of maintenance of the social
_status quo_ this became the Greek and thence the Roman and medieval
conception of the end of law.
Transition from the idea of law as a device to keep the peace to the
idea of law as a device to maintain the social _status quo_ may be
seen in the proposition of Heraclitus, that men should fight for their
laws as for the walls of their city. In Plato the idea of maintaining
the social order through the law is fully developed. The actual social
order was by no means what it should be. Men were to be reclassified
and everyone assigned to the class for which he was best fitted. But
when the classification and the assignment had been made the law was
to keep him there. It was not a device to set him free that he might
find his own level by free competition with his fellows and free
experiment with his natural powers. It was a device to prevent such
disturbances of the social order by holding each individual to his
appointed place. As Plato puts it, the shoemaker is to be only a
shoemaker and not a pilot also; the farmer is to be only a farmer and
not a judge as well; the soldier is to be only a soldier and not a
man of business besides; and if a universal genius who through wisdom
can be everything and do everything comes to the ideal city-state, he
is to be required to move on. Aristotle puts the same idea in another
way, asserting that justice is a condition in which each keeps within
his appointed sphere; that we first take account of relations of
inequality, treating individuals according to their worth, and then
secondarily of relations of equality in the classes into which their
worth requires them to be assigned. When St. Paul exhorted wives to
obey their husbands, and servants to obey their masters, and thus
everyone to exert himself to do his duty in the class where the social
order had put him, he expressed this Greek conception of the end of
law.
Roman lawyers made the Greek philosophical conception into a juristic
theory. For the famous three precepts to which the law is reduced in
Justinian's Institutes come to this: Everyone is to live honorably; he
is to "preserve moral worth in his own person" by conforming to the
conventions of the social order. Everyone is to respect the
personality of others; he is not to interfere with those interests and
powers of action, conceded to others by the social order, which make
up their legal personality. Everyone is to render to everyone else his
own; he is to respect the acquired rights of others. The social system
has defined certain things as belonging to each individual. Justice is
defined in the Institutes as the set and constant purpose of giving
him these things. It consists in rendering them to him and in not
interfering with his having and using them within the defined limits.
This is a legal development of the Greek idea of harmoniously
maintaining the social _status quo_. The later eastern empire carried
it to the extreme. Stability was to be secured by rigidly keeping
everyone to his trade or calling and his descendants were to follow
him therein. Thus the harmony of society and the social order would
not be disturbed by individual ambition.