2 Roscoe Pound Jurisprudence

Citation: 2 Roscoe Pound Jurisprudence 97 1959

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Chapter /0

The Nature of Law

§ 57. The Question a Practical One.§ 58. Analytical Scheme of the Meanings and Constituents of

Law.

§ 59. The Analytical Doctrine.

§ 60. Normative and Realist Analytical Theories.

§ 61. The Doctrine of the Historical School

§ 62. The Doctrine of the Nineteenth-Century PhilosophicalJurists.

§ 63. The Doctrine of the Sociologists.

§ 64. Public Law, International Law, and the Analogy of"Law" in the Physical and other Sciences.

2 Pound Jurisprudence-7 [ 97]1

Chapter 10

The Nature of Law

Section 57Er HE QUESTION A PRACTICAL ONE. Fromthe beginning the question, what is law?--the problem of the nature of law-has been

la battle ground of jurisprudence. More thanone important book on jurisprudence is wholly occupiedwith this question. In recent times, there has been agrowing impatience with it. Bluntschli compared it toPilate's question, "What is truth?";1 and many whopropound it today, like Pilate, will not stay for an an-swer. Yet we cannot ignore so fundamental a question.Too much depends upon it in other connections. More-over, it is not merely academic. In at least six situationsit has been raised as a practical question in the ordinarycourse of litigation in American courts.

1. In one type of case a state constitution or a state stat-ute having been construed by the highest court of the state andlegal transactions having been entered into on the faith of theinterpretation, the state court changes its view in later decisionswith the effect that the transactions will not be upheld in thestate courts. In such cases the federal courts, where otherwise

I. 1 Bluntschli, Gesammelte kleine Schriften (1879) 1. Hart, Definition andTheory in Jurisprudence (1954) 70 Law Quart.Rev. 37.

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there would be "gross injustice" long followed the earlier rath-er than the later state decisions as to the law of the state.2

What the Supreme Court of the United States has since pro-nounced "unguarded language" in some of these cases,3 wentfurther than the actual decisions and suggested that the laterstate decisions amounted to a state law impairing the obligationof contract. They suggested that the judicial construction, so faras contract rights under it were concerned, was to be consid-ered as much a part of the statute as the text itself, and that achange in the course of judicial decision affecting such contractrights was to be treated the same as an amendment of the statuteby an express legislative enactment.4 The proposition that sucha change in the course of decision in the state courts amountedto a "law impairing the obligation of contract" within Article I,§ 10 of the Federal Constitution has been repudiated. 5 But theSupreme Court of the United States still holds that "in determin-ing whether a state law has impaired a contract it must decidefor itself whether there was a contract, and whether the law asenforced by the state court impairs it.6 It is enough to suggest

2. Rowan v. Runnels, 5 How. (U.S.) 134, 139, 12 L.Ed. 85 (1847); Gelpckev. Dubuque, 1 Wall. (U.S.) 175, 17 L.Ed. 520 (1863); Butz v. Muscatine, 8 Wall.(U.S.) 575, 19 L.Ed. 490 (1869); Douglass v. Pike County, 101 U.S. 677, 25 L.Ed.968 (1879); Anderson v. Santa Anna, 116 U.S. 356, 6 S.Ct. 413, 29 L.Ed. 633(1886); German Savings Bank v. Franklin County, 128 U.S. 526, 9 S.Ct. 159,32 L.Ed. 519 (1888); Los Angeles v. Los Angeles City Water Works Co., 177 U.S. 558, 20 S.Ct. 736, 44 L.Ed. 886 (1900).

3. Taft, C. J. in Tidal Oil Co. v. Flanagan, 263 U.S. 444, 454, 44 S.Ct. 197,199, 68 L.Ed. 382 (1924).

4. Ohio Life Ins. Co. v. Debolt, 16 How. (U.S.) 416, 14 L.Ed. 997 (1853);Gelpeke v. Dubuque, 1 Wall. (U.S.) 175, 17 L.Ed. 520 (1863); Butz v. Musca-tine, 8 Wall. (U.S.) 573, 583, 19 L.Ed. 490 (1869); Douglass v. Pike County, 101U.S. 677, 686-687, 25 L.Ed. 968 (1879)., See also Haskett v. Maxey, 134 Ind.182, 190-192, 33 N.E. 358, 360-361, 19 L.R.A. 379 (1892).

5. Tidal Oil Co. v. Flanagan, 263 U.S. 444, 44 S.Ct. 197, 68 L.Ed. 382 (1924).The italics are supplied.

6. Ibid. Citing as examples: Jefferson Branch Bank v. Skelly, 1 Black(U.S.) 436, 443, 17 L.Ed. 173 (1861); Bridge Proprietors v. Hoboken Co., I

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10. The Nature of Law

the bearing upon this question of the later view of the Englishand American analytical jurists that the law is the sum of therules administered by the courts and that a law is such a rule.

2. In another type of case federal courts were called on to

administer the law of a state and, finding the common law estab-lished therein but the rule in respect to some particular pointundetermined by the state courts, determined what in their judg-ment was the rule applicable at common law. After conveyances

had been made on the strength of the decision, the question cameup in the state courts, which took a different view. The ques-

tion being one of a rule of property, under the doctrine whichobtained in the Supreme Court of the United States from 1842

to 1938 state decisions would ordinarily have been controlling.But by a divided court it was held that they would not be fol-lowed so as to impair the rights theretofore acquired. 7 The

dissenting opinion of Holmes, J. brings out clearly that thequestion was one of the nature of law and cited Gray's discussionof that question.'

3. Again, where the federal courts were exercising juris-

diction by virtue of diversity of citizenship, and so were admin-istering the law of a state, if that law was not in the form oflegislation as to the point in question and that point was one of"1general law," those courts except as to rules of property former-

ly exercised an independent judgment as to what was the law

and did not hold themselves bound by the decisions of the state

Wall. (U.S.) 116, 145, 17 LEd. 571 (1863); Wright v. Nagle, 101 U.S. 791, 793,25 L.Ed. 921 (1879); McGahey v. Virginia, 135 U.S. 662, 667, 10 S.Ct. 972, 34L.Ed. 304 (1890).

7. Kuhn v. Fairmont Coal Co., 215 U.S. 349, 30 S.Ct. 140, 54 LEd. 228 (1910).

8. Ibid. 370-371, citing Gray, Nature and Sources of the Law (1 ed. 1909)§§ 535-550. See Schofield, Swift v. Tyson, Uniformity of Judge-Made Law inState and Federal Courts (1909) 4 Ill.Law Rev. 533.

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courtsY But the Supreme Court of the United States has givenup the doctrine,10 and the opinions in which the doctrine is dis-cussed make it clear that the basic question was the nature oflaw." Nice questions as to what the federal courts must taketo be authoritative forms of the state law have remained.' 2

4. Another type of case has arisen in connection with theunhappy doctrine as to restitution where there has been mistakeof law. Where legal transactions have been entered into in re-liance upon judicial decisions which are afterward overruled, hasthere been a change of law or did the parties to the transactionact under a mistake of law? 11 It has been held that when acourt reverses its construction of a statute, this is to be treated

9. Swift v. Tyson, 16 Pet. (U.S.) 1, 18, 10 LEd. 865 (1842); Salem Trust Co.v. Manufacturers' Finance Co., 264 U.S. 182, 191-192, 44 S.Ct. 266, 268, 68 L.Ed. 628, 31 A.L.R. 867 (1924). See Green, Law as Precedent, Prophecy, andPrinciple: State Decisions in Federal Courts (1924) 19 Ill.Law Rev. 217. As tocases where uniform state laws were involved and a particular state court de-parted from the general construction, see Burns Mortgage Co. v. Fried, 292U.S. 487, 493-497, 54 S.Ct. 813, 814-816, 78 L.Ed. 1049 (1934).

10. Erie I. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

1I. Brandeis, J. in Erie R. Co. v. Tompkins, 304 U.S. 64, 78-79, 58 S.Ct. 817,822, 82 L.Ed. 1188 (1938); Butler, J. ibid. 85-86; Holmes, J. in Kuhn v. Fair-mont Coal Co., 215 U.S. 349, 370-373, 30 S.Ct. 140, 147-148, 54 L.Ed. 228 (1910),and in Black & White Taxicab Co. v. Brown & Yellow Taxicab Co., 276 U.S. 518,532-536, 48 S.Ct. 404, 408-410, 72 L.Ed. 681, 57 A.L.R. 426 (1928).

12, It has been held that the federal courts must follow the rulings of theintermediate appellate courts of the state, although the highest court of thestate is not bound by them nor are coordinate appellate courts of the statebound to accept them. Also it is hinted that the course of holding in the courtsof general jurisdiction of first instance in the state must be followed by thefederal courts unless they are "convinced by persuasive data that the suprpmecourt of the state would decide otherwise." West v. American Telephone &Telegraph Co., 311 U.S. 223, 237, 61 S.Ct. 179, 183, 85 LEd. 139, 132 A.L.R. 956(1940). Why not, then, the course of professional opinion in the state as shownby the local text book long in general use there?

13. Cases of this sort are: Kenyon v. Welty, 20 Calif. 637 (1862); Harrisv. Jex, 55 N.Y. 421 (1874).

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as if there was an amendment of the statute.14 But this is sub-stantially the view taken in Gelpcke v. Dubuque,15 which hasbeen rejected.'6 So quaere.

5. In still another type of case, a court having held a penalstatute unconstitutional, some person in reliance on the decision,acts in contravention of the provisions of the statute. Thereaft-er the court changes its view and holds the statute valid. Wasthere a violation of law in what was done before the last deci-sion? One court has said that to give such a decision retroac-tive effect would amount in substance to the prohibited ex postfacto lawmaking.1

6. Also the nature of law comes under discussion in con-nection with questions as to the operation of statutes with respectto acts done abroad.'8 In his opinion in the case cited, Holmes,J. says: "Law is a statement of the circumstances in which thepublic force will be brought to bear upon men through thecourts. But the word commonly is confined to such propheciesor threats when addressed to persons living within the power ofthe courts. A threat that depends upon the choice of the partyaffected to bring himself within that power hardly would becalled law in the ordinary sense." 19 Thus the threat theory of alaw was decisive. But the defendant in that case was a domesticcorporation, and under the theory of forum of the injured state

14. Bagby v. Martin, 118 Okl. 244, 247 P. 404 (1926).

15. 1 Wall. (U.S.) 175, 17 L.Ed. 520 (1863).

16. Tidal Oil Co. v. Flanagan, 263 U.S. 444, 454, 44 S.Ct. 197, 199, 68 L.Ed.382 (1924).

17. State v. Longino, 109 Miss. 125, 133-134, 67 So. 902, 903-904 (1915). SeeFreeman, The Protection Afforded Against the Retroactive Operation of a Ju-dicial Decision (1918) 18 Columbia Law Rev. 230.

18. American Banana Co. v. United Fruit Co., 213 U.S. 347, 29 S.Ct. 511,53 L.Ed. 826 (1909).

19. Ibid. 356-357.

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could have been prosecuted in the United States where its actscontrary to the Sherman Act were injurious.20 Under a rule-of-conduct or rule-of-decision theory of a law the result mighthave been otherwise.

§ 58. ANALYTICAL SCHEME OF THE MEAN-INGS AND CONSTITUENTS OF LAW. In chapterI, for the purposes of a preliminary statement of the sub-ject matter of jurisprudence, I set forth three meaningsof law in the sense in which lawyers use that term. ThereI put the three meanings in the chronological order oftheir recognition by jurists. Now, however, when moredetailed exposition is in order and it is in order to analyzelaw as that term is referred to in these meanings, and toconsider the relation of the proposed analytical schemeto other theories of law, it is more useful to put in logicalorder the three meanings with which, as I see it, we areconcerned in a science of law.

1. First (in logical order) the term "law" is usedto mean the legal order (ordre juridique, Rechtsord-nung), that is, the r6gime of adjusting relations and or-dering conduct by the systematic and orderly application

20. French Code d'instruction criminelle, art. 7; New York Penal Law, §§1930 5, 1933; People v. Zayas, 217 N.Y. 78, 11 N.E. 465 (1916); People v. In-ternational Nickel Co., 168 App.Div. 245, 153 N.Y.S. 295 (1915).

21. Pound, More About the Nature of Law (1935) in Legal Essays in Trib-ute to Orrin Kip McMurray, 513-531; id. What is Law? (1940) 47 W.Va.LawQuart. 1; id. Social Control Through Law (1942) 35-62; id. Sociology of Lawand Sociological Jurisprudence (1943) 5 Univ. of Toronto Law Journ. 1; Fuller,Reason and Fiat in Case Law (1943); Patterson Jurisprudence (1951) chaps.1-7.

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of the force of a politically organized society. This r6-gime is a highly specialized form of social control in adeveloped political society, carried on in accordance witha body of authoritative precepts, applied by an authorita-tive technique, on a background of received ideals,through a judicial and an administrative process.

In the latter part of the nineteenth century and in the pres-ent century, the influence of Jhering through his directing at-tention to the end of law and the rise of social philosophicaland sociological jurisprudence led to a functional attitude to-ward the problems of jurisprudence. Jurists began to thinkof a process or activity directed toward ends or purposes, ratherthan a state or condition maintained by commands of a sov-ereign.22 Much of what is called philosophy of law is a philo-sophical consideration of the legal order. Jurisprudence hascome to be quite as much a science of the legal order as one of theauthoritative guides to conduct or to decision which for a longtime were held to be its sole province. Here again, however,there is a wider idea. The legal order, as has been said, is aspecialized phase of social control. It is, from one standpoint,a regime of ordering conduct through social pressure backed bythe force of a political organization of society. If we go backa bit in legal history, we come to r6gimes of social pressure with-out such backing. Hence, to unify the phenomena of developedsocieties with those of the more primitive social orders, his-torical jurists and sociologists use "law" to mean social controlas a whole.

2. Historically, the oldest and longest continueduse of the term "law" in juristic writing is to mean the

22. Kohler, Einfiihrung in die Rechtswissenschaft (1902) § 1; id. I Lehr-buch des biirgerlichen Rechts (1906) §§ 2-4.

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whole body of legal precepts which obtain in a given po-litically organized society. But laws in this sense needto be distinguished from law. Laws in a sense are butraw materials of law. It is law which gives them life.Law makes laws effective for their purpose as instru-ments of justice. It develops them to meet situationswhich the lawmaker forgot or did not appreciate. Itlimits them to their reason and spirit when the lawmakerfails to pursue his end with exactness. It supplies gapsin the legislator's scheme when he fails to pursue his endwith completeness. When we speak of law, therefore,we speak of something more significant and more endur-ing than laws. The Greeks, for example, had abundantlaws but not law in the sense in which jurists have con-sciously or unconsciously used that term since the classi-cal Roman lawyers. Law, as distinguished from laws,is the system of authoritative materials for groundingor guiding judicial and administrative action recognizedor established in a politically organized society. 3 It is-often looked upon today as a body of norms of conduct or

23. For fuller exposition of details of the outline which follows, see Pound,.Juristic Science and the Law (1918) 31 Harvard Law Rev. 1047, 1060-1063; id.

Theory of Judicial Decision (1923) 36 Harvard Law Rev. 641, 643-653; id. The

Administrative Application of Legal Standards (1919) 44 Rep.Am.Bar Ass'n443, 454-458; id. The Supreme Court and Minimum Wage Legislation (1925)compiled by the National Consumer's League, Introduction; id. The IdealElement in American Judicial Decision (1933) 45 Harvard Law Rev. 136; id.A Comparison of Ideals of Law (1933) 47 Harvard Law Rev. 1; id. Hierarchyof Sources and Forms in Different Systems of Law (1933) 2" Acta AcademiaeUniversalis Jurisprudentiae Comparativae, published also in 7 Tulane LawRev. 475; id. What is Law? (1940) 47 W.Va.Law Quart. 1, 3-9.

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as a body of norms of decision, according to the stand-

point of the particular jurist. But there is more to it

than norms, as the normative analytical theory commonlyputs the matter.

There is here no simple conception. Law in the sense

we are considering is made up of precepts, technique, andideals: A body of authoritative precepts, developed and

applied by an authoritative technique in the light or onthe background of authoritative traditional ideals. Thereis in any developed legal system a traditional technique

of developing and applying legal precepts by which thoseprecepts are eked out, extended, restricted, and adapted

to the exigencies of administration of justice. This tech-nique of developing and applying the precepts, the art of

the lawyer's craft, is quite as authoritative as and noless important than the precepts themselves. Indeed, itis this technique element which chiefly serves to distin-guish from each other the two great systems of law inthe modern world.

In the common law, the system of law of the English-speak-ing world, a statute furnishes a rule for the cases within itspurview, but not a basis for analogical reasoning. For that welook to experience of the administration of justice in the reporteddecisions of the courts. In the civil law, the system of the otherhalf of the world which builds upon the Roman law, the techniquein this respect is wholly different. The civilian reasons byanalogy from legislative precepts and regards a fixed course ofjudicial decision on some point as establishing that precise point,

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The Nature of Law

but not as providing a principle-an authoritative starting point

for legal reasoning.24

For example. In Roman law in order that one acquire title

to an item of property by adverse possession, it was necessary

that the thing be something in which property could be ac-

quired, that it be held under some title, that it have been taken

in good faith, that it have been possessed exclusively and ad-

versely, and that the possession have been continuous for the

time fixed by law.25 The Roman law required some just title,even if bad or defective.26 The French civil code provided in-

stead that in all cases of moveables possession should stand for

title.2 7 A common-law lawyer would say, this proposition is

laid down in the part of the code having to do with acquisitionof title to property by adverse possession. Hence its applica-

tion must be limited to the situation for which it was there en-

acted. It cannot be made to apply by analogy to other fields of

the law.u But the civilian brought up to think of legislation as

24. Capitant, Introduction A l'6tude du droit civil (4 ed. 1923) 109-114;

Schuster, German Civil Law (1907) § 17; 1 Windscheid, Pandekten (9 ed. 1906)

J 35; Stammler, Theorie der Rechtswissenschaft (2 ed. 1923) 633-641. As to

the common law, see Landis, Statutes and the Sources of Law, in Harvard Le-gal Essays (1934) 214-234.

25. Voet, Commentarius ad Pandectas, Commentary on Dig. 41, 3 (transi.

by Krause 1922, 167). "An old hexameter formulates the requisites of adverse

possession thus: res habilis, titulus, ides, possessio, tempus." 1 Dernburg,-Pandekten (8 ed. 1911) § 182 n.

26. Gaius, 2, 43, 51; Inst. 2, 6, pr.

27. French Civil Code, art. 2279.

28. Millard v. Green, 94 Conn. 597, 609, 110 A. 177, 181, 9 A.L.R. 1610 (1920);

Goodhue v. State St. Trust Co., 267 Mass. 28, 165 N.E. 701 (1929); Guppy v.

Moltrup, 281 Pa. 343, 126 A. 766 (1924); Smith v. Lingelbach, 177 Wis. 170,

187 N.W. 1007 (1922). "I cannot agree that a statutory exception, limited nar-

rowly in its operation, offers much ground for analogy or example in consider-

ing a matter which raises a general principle of law." Langton, J. in TheVernon City [1942] P. 9, 14.

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an ascertainment and declaration of a principle referable to na-tural law, does not hesitate to employ a legislative proposition asa starting point for reasoning anywhere in the law.2 9

How our law reasons by analogy is illustrated by the letterof credit cases which developed after our entry into the WorldWar in 1917. In the course of manufacture and export undercorporations set up by our government and carried on by lettersof credit, a question arose whether a letter of credit could bepledged. On this question recourse was had to an obsolete Eng-lish practice of equitable mortgage of land by deposit of titledeeds. In the absence of a system of recording conveyances, anowner kept his title deeds and when he sold land turned the titledeeds over as showing what he had to convey. He could not ex-pect to sell the land without producing them. But if he hadpledged them he could not get them back to produce to a pur-chaser until he paid the debt. Thus the pledgee of the title deedshad control of the disposition of the land and equity, looking atthe substance rather than the form, treated the transaction asequivalent to a mortgage.3 0 This analogy was applied to thepledging of letters of credit. The pledgor of the latter couldnot get his money from the purchaser of the manufactured arti-cles without attaching the letter to the bill of lading. He couldnot get the letter until he paid the debt for which it was pledged.Hence the pledgee of the letter had a lien on the fund.31 Thecivilian would not think of reasoning from a course of judicialdecision in that way.

For another example, in the common-law system substitutedrelief is the rule; specific relief is given exceptionally when

29. 1 Planiol, Trait' 6l6mentaire de droit civil (12 ed. 1932) nos. 2459 et

seq.

30. Russel v. Russel, 1 Brown Ch. 269 (1783); 3 Pomeroy, Equity Jurispru-dence (3 ed. 1905) § 1264 (see especially the reasoning in note 1).

31. See Hershey, Letters of Credit (1918) 32 Harvard Law Rev. 1, 29-30.

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substituted relief, a money equivalent or money damages, is notadequate to secure the right. Take, for instance, a contract totransfer a specified block of shares of stock in a particular cor-poration. With us the ordinary remedy is damages-an amountof money which will buy the agreed number of shares of thatstock on the market, or, if they were to be sold, the money valueof the bargain. But in a special case, where it is of real impor-tance actually to have that number of shares of that particularstock, and they are closely held and could not be bought on themarket, we should give specific relief and require transfer asagreed.32 In the civil or modern Roman law it is the reverse.The civilian gives specific relief as a rule; but where it is in-equitable or impossible to give specific relief he gives substitutedrelief instead.33 The technique in each system is no less au-thoritative than the precepts which it develops and applies.

Again, although the courts in continental Europe havecome to treat the course of judicial decision as a form of thelaw, and single decisions of the highest court of review are nowcited by commentators as indicating such a course, there is stilla difference between our technique of precedents and that whichhas been developing in the civil-law world.34

Upon review of the examples of the technique ele-ment given, it will be seen that the characteristic featurein each is that they are not legal precepts. They are

32. Cud v. Rutter, 1 P.Wms. 570 (1719); Hyer v. Richmond Traction Co.,168 U.S. 471, 483, 18 S.Ct. 114, 119, 42 L.Ed. 547 (1897); New England TrustCo. v. Abbott, 162 Mass. 148, 154, 38 N.E. 432, 434, 27 L.R.A. 271 (1894); Cush-man v. Thayer Mfg. Jewelry Co., 76 N.Y. 365, 369-370 (1879). See Toles v. Du-plex Power Co., 202 Mich. 224, 168 N.W. 495 (1918) and my comments on thatcase in 33 Harvard Law Rev. 431.

33. See Amos and Walton, Introduction to French Law (1935) 184-189.

34. See post 16 § 104.

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modes of looking at and handling and shaping legal pre-cepts. They are mental habits governing judicial andjuristic craftsmanship. One who sought to reduce thewhole content of law to rules might say it is a rule of lawthat courts shall follow their past decisions and the an-alogy of their past decisions or of the past decisions ofother common-law courts where their own are lacking.But such a rule is not a rule in the same sense as the rulethat a will must have a certain number of witnesses, orthat a promissory note must have words of negotiabilityin order to be negotiable, or that a malicious prosecution,in order to be actionable, must have been without prob-able cause. Nor is it a principle in the same sense as theprinciple of tort liability as a corollary of fault or theprinciple that no one is to be enriched unjustly at anoth-er's expense. The latter are authoritative premises forjudicial reasoning. We use them as the civilian uses atext of a code or a text of the Digest. The circumstancethat the common law of continental Europe is in formlegislation of an emperor while our common law is inform a body of reported decisions, obscures the identityof our analogical reasoning from common-law principleswith the civilian's interpretation of the Roman-law textsor of the provisions of a century-old code. The doctrineof precedents, on the other hand, is not something to bedeveloped by analogy. It is not an authoritative premisefrom which to deduce grounds of decision. It is by nomeans anything so simple as a rule or a principle. It is

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not a legal precept at all. It is a traditional art of judi-cial decision; a traditional technique of deciding withreference to judicial decision in the past; a traditionaltechnique of developing the grounds of decision of par-ticular cases on the basis of reported judicial experience,just as the civilian has a traditional art of construinglegal texts and a traditional technique of developing thegrounds of judicial decision therefrom.

How much our doctrine of precedents differs from a mererule to follow an established course of decision on a given pointof law may be seen by comparing our mode of applying precedentswith the French jurisprudence. With us a precedent will gov-ern a case "on all fours." But it may do much more. We dis-tinguish it and limit it, or we extend its application and developits principle. The French, on the other hand, think only of adefinite proposition as established by judicial decision. Neithera decision nor a course of decision can lay down a general rule.The principles to be developed are found elsewhere. In otherwords, the art of working with the materials of the legal sys-tem is no less different than the content of the materials them-selves.3

Nor is there merely a legal precept that the remedy must beby action at law, and hence the relief must take the form ofsubstituted redress, wherever that remedy will fully secure theinterest legally recognized and delimited. A traditional art ofremedial justice and a traditional technique of applying it, witha consequent judicial and professional attitude toward remedies,are the significant phenomena. This attitude determines our

35. See also Gray's comparison of the juristic technique of the civilianwith that of the common-law lawyer. Nature and Sources of the Law (2 ed.1921) 275-281.

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whole mode of approach to any new situation and determinesour application of legal rules, our development of legal principles,and our deductions from legal conceptions quite as much as thecontent of the precepts for the time being. If this is doubted,note the attitude of our more conservative courts toward thedeclaratory judgment, which they have felt was somehow out ofline with common-law ideas.3 Note the halting development ofpreventive relief in case of injuries to personality,37 and thetendency of common-law courts to say there is an adequateremedy at law in such cases, in spite of the manifest impossibili-ty of valuing feelings in money or restoring peace of mind bybuying it in the market with damages.38 Note the almost pedan-tic squeamishness of courts about certainty in all details as arequisite of specific enforcement of a contract.39 Note the at-tempts to put reason behind a traditional prejudice in case ofspecific enforcement of contracts for construction or for con-tinuous performance. 40 The point in each case is that we havedeveloped an art of justice through the assessment of money

36. Cryan's Estate, 301 Pa. 386, 152 A. 675, 71 A.L.R. 1417 (1930); Nesbitt

v. Mfrs.' Casualty Ins. Co., 310 Pa. 374, 165 A. 403 (1933); Union Trust Co. ofRochester v. Main & South Sts. Holding Corp., 245 App.Div. 369, 370, 282

N.Y.S. 428, 430 (1935); Loesch v. Manhattan Life Ins. Co., 128 Misc. 232, 218N.Y.S. 412 (1926)-holding that there could be no declaratory judgment if

another adequate remedy was available; American Nat. Bank & Trust Co. ofDanville v. Kushner, 162 Va. 378, 174 S.E. 777 (1934); Brindley v. Meara, 209Ind. 144, 198 N.E. 301, 101 A.L.R. 682 (1935); Aetna Life Ins. Co. of Hartford,

Conn. v. Haworth, 11 F.Supp. 1016 (D.C.Mo.1935); Columbian Nat. Life Ins.

Co. v. Foulke, 13 F.Supp. 350 (D.C.Mo.1936).

37. See Pound, Equitable Relief Against Defamation and Injuries to Per-sonality (1916) 29 Harvard Law Rev. 640.

38. See Abbot, Justice and the Modern Law (1913) 32.

39. See Pound, The Progress of the Law-Equity (1920) 33 Harvard Law

Rev. 420, 434.

40. 4 Pomeroy, Equity Jurisprudence (3 ed. 1905) § 1402. As to contracts for

continuous performance, see Pound, The Progress of the Law-Equity (1920)

33 Harvard Law Rev. 420, 435-436.

2 Pound Jurisprudence-8 [ 113]1

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damages by a jury. We have a traditional technique of re-dressing injuries in this way. We hesitate to employ advanceascertainment of rights or coercion of specific action or preven-tion until we are convinced that our common-law remedial tech-nique will not suffice. Even in England, where the courts havemoved faster than have ours in this respect, the courts havehesitated about using injunctions in any way out of the usualcourse of practice.4 ' This attitude colors our whole administra-tion of justice and made it possible for Lord Coke and Mr. Jus-tice Holmes, and the old Supreme Court of New York to tellus that a promisee has no legal claim to performance but onlyone to damages for nonperformance. 2 The civilian, trained toa wholly different technique of an action for fulfilment of the en-gagement and execution in natura, conceives of the obligation ina wholly different way.43

How thoroughly such things determine the effective con-tent and application of legal precepts may be seen in Americanjudicial handling of Lord Campbell's Act. See, for example,the cases which deny to a non-resident plaintiff a right underthe statute. The courts which so held admitted that the statutegave the action "in broad and comprehensive terms." Theyadmitted that the language would include even alien non-residentwidows, children, and parents. But, they said, in order to havesuch an operation, the statute must be express. They said thatto permit non-residents to claim advantage of the act wouldbe to give it extraterritorial effect. It would allow the statute of

41. Kennard v. Cory Bros. & Co., [1922] 2 Ch. 1.

42. Coke, C. J. in Bromage v. Genning, 1 Roll.R. 368 (1617); Holmes, TheCommon Law (1881) 300-303; Holmes, J. in Globe Refining Co. v. Landa Cot-ton Oil Co., 190 U.S. 540, 543, 23 S.Ct. 754, 755, 47 LEd. 1171 (1903); Latti-more v. Harsen, 14 Johns. 330, 331 (1817).

43. 2 Planiol, TraitoG 6l6mentaire de droit civil (8 ed. 1920-1921) no. 166.

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one state to create a right in a person in another state.44 No onewould think of saying that the Sales Act or the Negotiable In-struments Law, which we feel in their main lines are declarato-ry, are given extraterritorial effect when non-residents or aliensare allowed to assert rights under their provisions. But LordCampbell's Act gives a right that did not exist at common law,and hence must be treated as something anomalous and excep-tional. If one assaults another and merely injures him, the as-sailant must justify or repair the injury. If, however, he suc-ceeds in killing his victim and the latter's dependents sue underthe statute, it is not to be assumed that the aggression was whatit appeared to be. The dependents of the assailed must provethat it was wrongful." Such things flow so naturally from ourtraditional common-law habits of thought that they do not appealto the lawyer as anomalous. But let him try to convince studentsthat they are reasonable and part of an enlightened system ofadministering justice, and he will perceive how truly Coke couldspeak of the "artificial reason and judgment of the law" as con-trasted with "every man's natural reason," 46 and how decisivelythat "artificial reason and judgment" is a part of the law itself."To know rules of law," says the Digest, "is not merely to un-derstand the words, but as well their force and operation." 41

This force and operation are determined largely by the tradi-tional technique of decision and juristic thinking-the traditionalcanons of art which determine how legal materials shall be lookedat and how they shall be developed and applied. An account of

44. Deni v. Pennsylvania R. Co., 181 Pa. 525, 528-529, 37 A. 558, 559-560(1897); McMillan v. Spider Lake Co., 115 Wis. 332, 337, 338-339, 91 N.W. 979,980-981, 60 L.R.A. 589 (1902); Roberts v. Great Northern R. Co., 161 F. 239,240 (C.C.9th, 1904). See also Chambers v. Baltimore & 0. R. Co., 207 U.S. 142,149-151, 28 S.Ct. 34, 35-36, 52 L.Ed. 143 (1907).

45. Nichols v. Winfrey, 79 Mo. 544 (1883).

46. Prohibitions del Roy, 12 Co. 64, 65 (1608).

47. Dig. i, 3, 17 (Celsus).

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law that overlooks this element, by confounding it with the ag-gregate of received legal precepts for the time being, gives anuntrue picture of the actual phenomena.

There is also an ideal element in law (using "law"in the sense of the present discussion)-a body of re-ceived, authoritative ideals. This element comes downto a picture of the social order of the time and place, alegal tradition as to what that social order is and so as tothe end or purpose of social control, which is the back-ground of interpretation and application of legal pre-cepts, especially in the application of legal standards, andis crucial in new cases in which it becomes necessary tochoose from among equally authoritative starting pointsfor legal reasoning.

Many examples of this element in the law and of its im-portance may be vouched, extending from the Middle Ages totwentieth-century America. An idea of universality pervadedevery medieval institution and activity. There was the universalchurch and the universities postulated a universal empire. Therewas a universal language for all official action. There was uni-versal scholarship, promoted by universities to which studentsresorted from all lands. There were universal ethical preceptsand customs of chivalry, and we read in Froissart's Chronicleshow knights came from many lands to take part in tournaments,and how men passed freely from country to country, thought ofas Christians rather than as subjects of some particular politicalauthority. The knight, the scholar, and the merchant were, toput the matter in the secular, political speech of today, citizensof Christendom. Admiralty and the law merchant still have onthem the mark of the medieval ideal of a universal law. So has

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the eminently modern subject of conflict of laws. So has thecivil law in half of the world.47%

A striking example of an idealized political picture of theexisting social order made the basis of judicial action is to beseen in the medieval English decisions, which assume as a mat-ter of course and beyond controversy the absolute separation oftemporal and spiritual power and hence hold that acts of Parlia-ment or provisions in such acts attempting to deal with subjectswhich in the then understanding of men came within the purviewof the spiritual power were "impertinent to be observed." 48

How an ideal may be found and developed judicially andbecome authoritative was well brought out in the formative eraof American law in working out a theory of applicability of Eng-lish legal institutions and doctrines and precepts to the social andpolitical conditions of the new world, and in finding criteria ofinterpretating and applying the provisions of written constitu-tions as the fundamental law of the land. There were no rulesdefining how the applicability of English legal precepts toAmerican conditions was to be determined. That English legalprecepts were in force with us so far as they were applicable,and only so far as applicable, was not a principle with any suchhistorically given definiteness of content as the principle thatharm intentionally caused is actionable unless justified, throughwhich courts and jurists have been writing a new chapter in ourlaw of torts in the last generation. Nor was there any traditionaltechnique of receiving the law of one country as the law of an-other which the courts could lay hold of and make use of in themaking of American law. In fact, they determined what was

47a. See Pound, The Church in Legal History (1939) Jubilee Law Lectures,School of Law, Catholic University of America, 16-17.

48. Rous v. The Abbot (1450) Statham, Abridgment, Annuity, 11, Fitzher-bert, Abridgement, Annuity, 41; Prior of Castleacre's Case (1506) Y.B. 21 Hen.

7, 1.

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applicable and what was not applicable to America by referenceto an idealized picture of pioneer, rural agricultural America ofthe fore part of the nineteenth century, and this picture becamepart of the law. It is significant to compare the way in whichthe operation of the first Married Women's Acts was held down,as in derogation of the common law, with the willingness ofcourts to go beyond the letter of the statutes in giving effect tolaws abrogating or altering rules of the feudal property law.49

The received ideal of an American society pictured a simpleownership of land, freely transferable as the chief asset of apioneer community, devolving at death in the same way in whichpersonal property was distributed, and set free from the rulesappropriate to a society ruled by great land owners. It picturedwomen as in the home, not about in the world entering into allmanner of legal transactions. The one set of statutes conformedto the picture and was given the fullest effect. The other did notand was held down in operation. Both were in derogation of thecommon law. Married Women's Acts were no more radical intheir departure from the common law than the statutes whichmade over descent of land. The difference in judicial treatmentis not to be explained analytically by the common-law canons ofinterpretation.

Again, when our courts were called upon to perform thenovel task of interpreting written constitutions and judging oflegislative acts with reference to constitutional texts-somethingwhich they could not but feel was distinct in kind from the inter-pretation and application of statutes-they had no traditionaltechnique at hand. It became necessary to give a content to

49. See e. g. the way in which the court went beyond the statute in reform-ing the law as to estates tail in Gillilan v. Gillilan, 278 Mo. 99, 111-113, 212S.W. 348, 349-351 (1919) as compared with the attitude of the same court to-ward a Married Women's Act in Leete v. State Bank, 115 Mo. 184, 21 S.W.788 (1893).

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abstract constitutional formulas exactly as the civilian had togive a content for modern purposes to abstract oracular textsof the Roman books. Our traditional art of deciding had not beendevised for such problems. Except for Coke's exposition ofMagna Carta and of the legislation of Edward I, there had beenlittle to do in the way of building a system of legal precepts upona foundation of authoritative texts. Moreover, Coke's SecondInstitute was in great part a political tract in the contest of thecommon-law lawyers with the Stuarts. The influence of Coke'sexposition of Magna Carta upon judicial application of our billsof rights is obvious. The most significant provisions of our billsof rights were taken from the Second Institute and represent anattempt to give to the natural rights of men a concrete contentof the immemorial common-law rights of Englishmen as setforth by Coke and Blackstone. Yet this historico-philosophicalcontent, derived from seventeenth-century England and eight-eenth-century France, could not be used, as it came to us, for ameasure of American legislative powers. Hence, the courts fellback upon an idea of the "nature of free government" or the"nature of American government" 50 or the "nature of American

50. Chase, J. in Calder v. Bull, 3 Dall. (U.S.) 386, 388-389, 1 L.Ed. 648 (1798);Terrett v. Taylor, 9 Cranch (U.S.) 43, 3 L.Ed. 650 (1815); Wilkinson v. Leland,2 Pet. (U.S.) 627, 658, 7 L.Ed. 542 (1829); St. Louis v. Wiggins Ferry Co., 11Wall. (U.S.) 423, 429, 20 L.Ed. 192 (1870); Field, J. in Slaughter House Cases,16 Wall. (U.S.) 36, 95, 21 L.Ed. 394 (1872); Miller, J. in Loan Ass'n v. Topeka,20 Wall. (U.S.) 655, 663-664, 22 L.Ed. 455 (1874); Monongahela Navigation Co.v. United States, 148 U.S. 312, 324, 13 S.Ct. 622, 625, 37 L.Ed. 463 (1892);Chicago, B. & Q. R. R. v. Chicago, 166 U.S. 226, 235-241, 17 S.Ct. 581, 584-586,41 LEd. 979 (1896); Holden v. Hardy, 169 U.S. 366, 389, 18 S.Ct. 383, 387, 42L.Ed. 780 (1897); Madisonville Traction Co. v. St. Bernard Mining Co., 196U.S. 239, 251-252, 25 S.Ct. 251, 255-256, 49 L.Ed. 462 (1905); In re Dorsey, 7Port. (Ala.) 293, 377-378 (1838); Jeffers v. Fair, 33 Ga. 347, 367 (1862); Re-gents of the University of Maryland v. Williams, 9 Gill & J. (Md.) 365, 408-409 (1838); State ex rel. White v. Barker, 116 Iowa 96, 105, 89 N.W. 204, 207,57 L.R.A. 244 (1902); State ex rel. St. Joseph & D. C. R. Co. v. Nemaha Coun-ty Com'rs, 7 Kan. 542, 555-556 (1871); Holden v. James, 11 Mass. 396, 405(1814); Commonwealth v. Perry, 155 Mass. 117, 121, 28 N.E. 1126, 14 L.R.A.

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institutions." 51 Nature here meant ideal. It all came to anidealized picture of the legal and political institutions of pioneerAmerica.

In the same way, when in the last quarter of the nineteenthcentury our courts were called upon with increasing frequency topass on the reasonableness of social legislation in the transitionfrom pioneer, rural, agricultural America to the urban, indus-trial America of today, they turned to an idealized picture of theeconomic order of our formative era. They postulated an idealsociety in which there was the minimum of government requiredfor the general security.5 In such a society there was a maximum

325 (1891); White v. White, 5 Barb. (N.Y.) 474, 484-485 (1849); Benson v.Mayor, 10 Barb. (N.Y.) 223, 245 (1850); Nunnemacher v. State, 129 Wis. 190,197-202, 108 N.W. 627, 628-630, 9 L.R.A.,N.S., 121 (1906). In Jeffers v. Fair,this ideal was made to read an extreme doctrine of states' rights into theConfederate constitution, without regard to any specific language of that in-strument.

51. Holden v. James, 11 Mass. 396, 405 (1814); Sohier v. MassachusettsGen. Hospital, 3 Cush. (Mass.) 483, 493 (1849); Gillilan v. Gillilan, 278 Mo. 99,111-113, 212 S.W. 348, 349-351 (1919); State v. Moores, 55 Neb. 480, 490, 76N.W. 175, 177, 41 L.R.A. 624 (1898). In Gillilan v. Gillilan primogeniture inestates tail is held "contrary to the theory on which this and other common-wealths were built." The statute read: "And the remainder shall pass in feesimple absolute to the person to whom the estate-tail would, on the death ofthe first grantee, devisee or donee in tail, first pass according to the course ofthe common law." 278 Mo. at 112, 212 S.W. at 350. Such a provision hadbeen held elsewhere to adopt primogeniture, giving the first taker an estatefor life and the common-law heir in tail a fee simple. Wight v. Thayer, 1Gray (Mass.) 284, 286 (1854). Cf. also Ives v. South Buffalo By., 201 N.Y. 271,287, 94 N.E. 431, 437, 34 L.R.A.,N.S., 162 (1911).

52. "It was once a political maxim that the government governs best whichgoverns the least. It is possible that we have now outgrown it, but it was anidea that was always present to the minds of the men who framed the Con-stitution, and it is proper for courts to bear it in mind when expounding thatinstrument." O'Brien, J. in People ex rel. Rodgers v. Coler, 166 N.Y. 1, 14, 59N.E. 716, 720, 52 L.R.A. 814 (1901). See also Opinion of the Justices, 58 Me.590, 597-598 (1871): Peckham, J. in Lochner v. New York, 198 U.S. 45, 57, 25S.Ct. 539, 543, 49 L.Ed. 937 (1905); State v. Haun, 61 Kan. 146, 161, 59 P. 340,

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of individual free self-assertion. Hence, they took this to be"liberty" as secured in the Fifth and Fourteenth Amendments.It followed that all limitation upon abstract free self-assertion,all derogation from a maximum of free self-assertion, was pre-sumably arbitrary. With such an ideal of the social order andthe end of law before it as the basis of its conclusion, more thanone court pronounced legislation forbidding the payment of wagesin orders on a company store to be subversive of the liberty ofthe workman, reducing him to the position of the infant, thelunatic and the felon, and arbitrarily setting up a status oflaborer in a world which had moved to a r6gime of contract.53

Courts and jurists in any developed system of law havealways proceeded on the basis of something more than the formalbody of authoritative legal precepts for the time being. Eventhe analytical jurist, whose boast is that he goes wholly and ex-clusively upon the actual rules which in fact obtain in the courtsin modern states, in practice imports into his science an idealpattern of what those rules should be which in large part de-termines his results. He sets up an ideal plan which will ex-plain as much as possible of the actual phenomena of the ad-ministration of justice and seeks to make the unexplained re-mainder conform thereto. Baron Parke gave us a classicalstatement of the analytical ideal in Mirehouse v. Rennell. 54 LordJustice Fry shows us the historical ideal in action in Cochrane v.Moore. We may see the eighteenth-century philosophical ideal

345, 47 L.R.A. 369 (1899); Landon, J. in People v. Coler, supra, 23. Dodge, J.in State v. Kreutzberg, 114 Wis. 530, 536-537, 90 N.W. 1098, 1100-1101, 58 L.R.A. 748 (1902).

53. E. g. State v. Loomis, 115 Mo. 307, 315, 22 S.W. 350, 351, 21 L.R.A. 789(1893); State v. Fire Creek Coal & Coke Co., 33 W.Va. 188, 10 S.E. 288, 6 L.R.A. 359 (1889); State v. Haun, 61 Kan. 146, 162, 59 P. 340, 346, 47 L.R.A. 369(1899).

54. 1 Cl. & Fin. 527 (1833).

55. 25 Q. B. D. 57 (1890).

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used as the directive of judicial reasoning in the opinion of ChiefJustice Marshall in Ogden v. Saunders.5 6 The metaphysicalideal may be seen in action in a long line of cases in the nine-teenth century and fore part of the present century which con-ceive that idealized principles of the common law are guaranteedby the bills of rights and so are beyond the reach of legislativeinnovation.

57

It is especially noteworthy how such ideals of the socialand political order and reference of legal questions thereto dic-tated the divergent conclusions of the judges in the Dred Scottcase.5 We deceive ourselves grossly when we devise theories oflaw which exclude such things from "the law." When such idealpictures have acquired a certain fixity in the judicial and pro-fessional tradition they are part of "the law" quite as much asare legal precepts. They give precepts their living content andin difficult cases are the ultimate basis of choosing, shaping, andapplying legal materials in the decision of controversies. Whenwe seek to exclude them from our formal conception of law wenot only attempt to exclude phenomena of the highest significance

56. 12 Wheat. (U.S.) 213, 6 LEd. 606 (1827). He reminds us that the found-ers of our legal polity "were intimately acquainted with the writings of thosewise and learned men whose treatises on the law of nature and nations haveguided public opinion in the subjects of obligation and of contracts." Hencehe argues that the idea of natural law and of the legally binding force of themoral obligation of contract, maintained in those treatises, must be the basisof applying the contract clause of the federal Constitution. Ibid. 353-354.

57. Miller, J. in Pumpelly v. Green Bay Co., 13 Wall. (U.S.) 166, 177, 20 L.Ed. 557 (1871); McKenna, J. dissentiente in Arizona Employers' LiabilityCases, 250 U.S. 400, 436-437, 39 S.Ct. '553, 561, 63 LEd. 1058, 6 A.L.R. 1537(1919); Baldwin, J. in Hoxie v. New York, N. H. & H. R. R., 82 Conn. 352, 359-360, 73 A. 754, 757-758, 17 Ann.Cas. 324 (1909); Taylor v. Porter & Ford, 4Hill (N.Y.) 140, 144-147 (1843); Ives v. South Buffalo Ry., 201 N.Y. 271, 287-289, 293-296, 298, 94 N.E. 431, 437, 439-440, 441, 34 L.R.A.,N.S., 162 (1911);Durkin v. Kingston Coal Co., 171 Pa. 193, 202-203, 33 A. 237, 238-239, 29 L.R.A.808 (1895); State v. Simons, 29 S.C.Law, 761, 767 (1844).

58. 19 How. 393 (1857).

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for understanding of the actual functioning of judicial justice,but, as things are, we do the courts much wrong by laying themopen to a charge of deciding lawlessly when they do what theymust do, and what courts always have been compelled to do whenthey administer justice according to law.

3. As historical jurists and writers on sociology oflaw use the term "law" for social control as a whole, soa group of realists have tended to use the term for allofficial control in a politically organized society. Oneconsequence of the functional attitude toward the prob-lems of jurisprudence is increased attention to the phe-nomena of the actual administration of justice as con-trasted with exclusive attention to the authoritative ma-terials for the guidance of judicial action. Hence manywho have written about "law" recently have meant whatMr. Justice Cardozo has taught us to call the judicialprocess. 9 This way of thinking is stimulated in the Eng-lish-speaking world today by the rise of administrativeadjustment of relations and ordering of conduct, in whichthe process is more significant than authoritative pre-cepts for its guidance.

Not infrequently also "law" is used to include all three ofthe foregoing meanings. This is notable in discussions of therelation of "law and morals." Much of that discussion has beenvitiated by the multiplicity of meanings of the terms used. Com-monly jurists have considered under that head the relation ofmorals or of morality or of both to the body of received or au-

59. The Nature of the Judicial Process (1921).

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thoritative materials for guidance of judicial or administrativeaction, or to the legal order, or to the judicial and administrativeprocesses, or to any two or all three of them. Similarly when wespeak of the science of law we may mean an organized body ofknowledge concerning the authoritative materials of judicial andadministrative determinations, as did the analytical jurists inthe last century. In recent times, however, we are more likelyto mean a body of knowledge or investigation in which the legalorder, the authoritative materials for guidance of judges andofficials, and the judicial and administrative processes are alltaken into account as somehow making up one subject. Indeed,as has been said in another connection,60 and will be explainedmore fully later, the three meanings employed by jurists may beunified by the idea of social control. We may think of a r6gimewhich is a highly specialized form of social control, carried on inaccordance with a body of authoritative precepts applied by anauthoritative technique on a background of received ideals in ajudicial and an administrative process.

Nor are we through when we have carried the dis-cussion thus far. The body of precepts itself is also com-plex. It is made up of rules, principles, precepts defin-ing conceptions, and precepts establishing standards.Rule or rule of law is often used for every type of legalprecept. But in the sense in which the term is used hereit means a legal precept attaching a definite detailed legalconsequence to a definite detailed state of fact. It is theearliest type of legal precept, and the only one known tothe first stage of legal development. The codes of thebeginnings of law get no further. They are made up ofprecepts of this type.

60. Ante chap. I.

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Examples in modern law are rules as to execution and at-testation of wills; rules as to execution of conveyances; rulesas to what makes a negotiable instrument and how such instru-ments are to be negotiated and the effect of negotiation; therules as to estates in land; and the sections of a penal code. Ex-amples in the first stage of legal development are: the provisionin the Laws of Hammurabi: "If a free man strike a free man, heshall pay ten shekels of silver;" Il in the Roman XII Tables:"If the father sell the son three times, let the son be free fromthe father;" 62 in the Laws of Ethelbert, the long and detailedtariff of compositions; 63 in the Salic Law: "If any one shallhave called another 'fox' he shall be condemned to three shil-lings." 64 This is the type of legal precept which those have inmind who urge the threat theory of a law.

A principle is an authoritative starting point for le-gal reasoning from which we seek rules or grounds of de-cision by deduction. Principles are the work of lawyers.They organize experience of interpreting and applyingrules or experience of advice to litigants or tribunals orexperience of judicial decision by differentiating casesand putting generalized propositions behind the differ-ences. They compare a long developed experience of de-cision in some field, referring some cases to one generalstarting point for reasoning and others to some other

61. § 204, Harper, The Code of Hammurabi, 75.

62. Tab. IV, § 2, 1 Bruns, Fontes Turis Romani Antiqui (6 ed. 1893) 21-22(7 ed. 1909).

63. Laws of Ethelbert, 33-61 (1 Thorpe, Ancient Laws and Institutes ofEngland (1840) 13-19).

64. Salle Law, tit. xxx, § 4 (Henderson, Select Historical Documents of theMiddle Ages (1892) 181).

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such starting point, or they find a more inclusive startingpoint for a whole field. They come into the law with theadvent of legal writing and juristic speculation, so thatthe presence of this element as a controlling factor is themark of a developed legal system. Principles as suchappear first at the end of the stage of strict law. But anearlier form in the shape of legal proverbs or maximsgoes back to the beginnings of law.

Examples of principles are: That where one does somethingwhich on its face is an injury to another he must respond for theresulting damage unless he can justify his action; that one whoculpably causes loss to another will be held liable for the injury;that one person is not to be unjustly enriched at the expense ofanother. In none of these is there any definite detailed state offacts presupposed, and no definite detailed legal consequence isattached. Yet jurists and tribunals continually turn to suchprinciples as starting points for reasoning. Restitution (quasicontracts), constructive trusts, election, subrogation, contribu-tion, title by judgment, and the doctrine of equity as to merger,to give but a few examples, have been worked out by reasoningfrom the principle as to unjust enrichment. Again, note howstarting from a principle as to the duty of a common carrier, theprecepts worked out for the carter were extended in one line tothe stage coach, to the railroad, to the trolley car, to the autotruck, and to the airplane, as one type of carrier succeeded an-other. Note how in another line they were extended to tele-graph, telephone, radio, gas, electric light, and power. Then notehow lawyers later worked out a broader principle as to duties in-volved in a public service, which has enabled our law to deal withone after another of these rapidly developing agencies of publicservice by affording a starting point for reasoning.

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A legal conception is a legally defined category intowhich cases may be fitted so that, when certain situationsof fact come within the category, a series of rules andprinciples and standards become applicable. Concep-tions are the work of the systematizing and organizingactivity of the maturity of law, and chiefly the work ofteachers.

Examples are: Bailment, trust, sale, partnership, publicutility. In these cases there is no definite detailed legal conse-quence attached to a definite detailed state of facts. Nor is therea starting point for reasoning. There are instead defined cate-gories into which cases may be put, with the result that certainrules and principles and standards applicable to the category areto be used to guide determination of a controversy. Principlesand conceptions make it possible to get along with many fewerrules and to deal with assurance with new cases for which norules are at hand.

A standard is a measure of conduct prescribed bylaw from which one departs at his peril of answering forresulting damage or of legal invalidity of what he does.6"Standards come in first in the stage of equity and naturallaw.

Examples are: The standard of due care not to subject oth-ers to unreasonable risk of injury; the standard of reasonableservice, reasonable facilities, reasonable rates imposed upon pub-

65. As to standards, see Mutual Film Corp. v. Industrial Commission, 236U.S. 230, 245-246, 35 S.Ct. 387, 392, 59 L.Ed. 552 (1915); Drake, The Rule, thePrinciple, the Standard in Fluctuating Exchange (1927) 25 Mich.Law Rev. 860;

Richards, Insurance (3 ed. 1911) X (4 ed. 1932); Merrill, Covenants in Oil andGas Leases (1926) §§ 72 ff. (2 ed. 1940).

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lie utilities; the standard of fair conduct of a fiduciary; thestandard of reasonableness in the law as to restraint of trade;due process of law under the Fourteenth Amendment (i.e. wheth-er a measure is reasonable or, on the other hand, arbitrary andunreasonable) ; the standard of use by a usufructuary in Romanlaw.66 Note the element of fairness or reasonableness in stand-ards. This is a source of difficulty. As has been said, there is noprecept defining what is reasonable and it would not be reason-able to attempt to formulate one. In the end, reasonableness hasto be referred to conformity to the authoritative ideal.

Conduct requires standards. It is enough to instance one at-tempt to reduce conduct to rule, namely, the old "stop, look, andlisten" rule. 7 Compare applying this rule to a horse and buggycrossing a single track railroad where trains ran thirty miles anhour with a heavy motor truck crossing a four-line track onwhich streamlined trains as like as not go one hundred miles anhour. By the time the driver has stopped, got off the truck,looked up and down the tracks, got back on his truck and startedup again, the streamlined train may have come four miles.68

Thus the difficulties in discussion of the nature oflaw arise primarily from the different meanings of theword so that analytical and historical and philosophicaljurists in the last century were not talking about thesame thing although talking about the same word. Forexample, analysis of some one constituent of the body

66. Dig. 7, 9, 1, pr.; French Civil Code, art. 601.

67. Benner v. Philadelphia & R. R. Co., 262 Pa. 307, 105 A. 283, 2 A.L.R.759 (1918).

68. Pokora v. Wabash R. Co., 292 U.S. 98, 54 S.Ct. 580, 78 L.Ed. 1149, 91A.L.R. 1049 (1934). See the discussion at pages 102-106 of 292 U.S., at pages582-583 of 54 S.Ct. of Baltimore & 0. R. Co. v. Goodman, 275 U.S. 66, 48 S.Ct.24, 72 L.Ed. 167, 56 A.L.R. 645 (1927).

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of authoritative materials of a legal system was madeto stand for the whole and then was assumed to sufficefor the two other meanings of "law" as well. Some an-alytical jurists saw only the legislative element in thebody of authoritative precepts, others thought in termsof the traditional or rational element. Historical juristssaw a continuity of social control and so did not recognizethe differentiation which has come with the development

of politically organized society and resulted in setting off

the highly specialized social control through law in thelawyer's sense of that term. Philosophical jurists saw

chiefly, if not solely, the ideal element as the significantfeature of law in the lawyer's sense. Moreover, the nine-

teenth-century schools took no account of the discretion-ary element in the judicial process, nor of the administra-tive process as an agency of upholding the legal order.

The realists in the present century have taken these up

and sought to make them the basis of theories of law in

all of its meanings.

But the different meanings of the term "law" are

not the only source of difficulty in discussions of the "na-

ture of law." If we restrict the term to the body of au-

thoritative materials for guidance of judicial and admin-istrative determination, it is possible to look at those

materials from more than one standpoint, and the answer

to the question, what is law? will depend much upon thestandpoint from which it is asked.

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There are at least six standpoints from which law in thesense of the body of authoritative precepts may be looked at.

First is the standpoint of the lawmaker. He thinks of some-thing that ought to be done or ought not to be done and so of acommand to do it or not to do it. Today the realist puts the re-sult from this standpoint in terms of a theory of a law as athreat. It is a threat that, given certain conduct or a certainstate of facts, those who wield the force of politically organizedsociety will apply that force in a certain way. This defines lawin terms of rules, by no means the most significant part of oneelement in law used in one of its three senses.

Second is the standpoint of the individual subject to the le-gal precept, who would walk in the straight path of social con-duct and wishes it charted for him. If, instead he is the bad manof whom Mr. Justice Holmes speaks,6 9 who has no care for thestraight path but wishes to know what path he may take withimpunity, he will no doubt think of a legal precept as a threat.But the ordinary man who does not "wash the idea in cynicalacid" 70 has more commonly thought of it as a rule of conduct, aguide telling him what he ought to do at the crisis of action. Thisis the oldest idea of a law. It goes back to the codified ethicalcustom of the earlier stages of legal development.

Another standpoint is that of a judge who has a case beforehim for decision or a ruling to make in the course of a trial; orthat of an administrative official called upon to make some deter-mination. Here the significant thing seems to be a body of au-thoritative grounds or models or patterns of decision or of ad-ministrative determination.

Fourth, there is the standpoint of the counselor at law or le-gal adviser who would advise a client as to what he may do or

69. Holmes, Collected Legal Papers (1921) 170, 173.

70. Id. 174.

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may not do safely, or how he may act with assurance that courtsand administrative officials will back him and further his questof desired results. From this standpoint law may seem to be abody of threats of official action upon given states of fact, or itmay seem to be a body of bases of prediction of official action.Even looked at in this way, however, it must be insisted that alaw or a legal precept is not a prediction, as some realists deemit."' It is the adviser not the law that does the predicting. AsMr. Justice Cardozo pointed out a law or a legal precept is a basisof prediction!

2

Fifth, there is the standpoint of the jurist or teacher who iscalled on to put in the order of reason the materials recognizedor established as the basis of decision or at hand for the coun-selor, or provided for the guidance of the citizen or individual.He may find it hard to say that one of the foregoing aspects, asthings are today, is more significant than another, or to find themore inclusive order which will enable him to fit a theory to allof these points of view. From his own special point of view heis likely to regard a law or a legal precept as a basis of develop-ment of doctrine.

Finally, there is the standpoint of the entrepreneur or manof business, which was taken at one time by writers on the natureof law but is less heard of today. From this standpoint legal pre-cepts have been thought of as charts and legal conceptions as de-vices for the carrying out of business plans or carrying on ofbusiness enterprises. 73

It is submitted that the different ideas of a law, reachedfrom these several standpoints, can be unified in terms of the

71. Id. 167-173.

72. The Growth of the Law (1924) 52.

73. E. g. Bohlen, Old Phrases and New Facts (1935) 83 U. of Pa.Law Rev.305, 307, 311. I have considered this idea in The Call for a Realist Jurispru-dence (1931) 44 Harvard Law Rev. 697, 708-709.

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idea from the standpoint of the judge. Judges and benches ofjudges are expected to and for most practical purposes will fol-low and decide in accordance with the established precept or es-tablished starting point for legal reasoning developed by an au-thoritative technique. Hence, the precept or developed startingpoint may serve as a command or threat, or as a rule of conduct,or as a basis of prediction, and the legal conception may serve asa business device.

§ 59. THE ANALYTICAL DOCTRINE.74 An-alytical jurists use the term "law" in the second of thethree senses above set forth; they consider only the pre-cept element of law used in that sense; they take the ruleof law in the narrower meaning as the type of legal pre-cept; and they think of rules either as rules of conductor as rules of decision, or, in the most recent analyticaldiscussions, as threats.

All subsequent analytical theories of law in Englishbuild on Austin. Moreover, recent French " and Ger-man 6 analyses, if not actually developed from Austin,

74. 1 Austin, Jurisprudence, Analysis of Lectures 1-6 (5 ed. 1885, 81-85)lect. 1; Hobbes, Leviathan (1651) pt. II, chap. 26, par. 6; Bentham, A Com-ment on the Commentaries (1928) §§ I-VI, VIII; Holland, Jurisprudence (13ed. 1924) chaps. 2, 3; Markby, Elements of Law (6 ed. 1905) §§ 1-26; Pollock,First Book of Jurisprudence (1896) chap. 1; Salmond, Jurisprudence (1902)§§ 5, 16, 17; Brown, The Austinian Theory of Law (1906) §§ 552-639; Clark,Roman Private Law: I Jurisprudence (1914) § 2; Jhering, Law as a Meansto an End (transl. by Husik, 1913) 233-246.

75. LUvy-Ullmann, La difinition du droit (1917); 1 Roguin, La science ju-ridique pure (1923) 3-55.

76. Soml6, Juristische Grundlehre (1917) § 11; Kelsen, Reine Rechtslehre(1934); id. The Pure Theory of Law (1934) 50 Law Quart.Rev. 474; id. The

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reach similar results by a like procedure, and on the samepresuppositions. Hence we may begin with Austin's an-alysis.

Austin makes three preliminary assumptions. Thefirst is that law is an aggregate of laws. Accordingly hisanalysis of "law" starts with analysis of "a law." Bent-ham had insisted on approaching the subject in this way.He said: "Law or the law . . . is an abstract orcollective term which . . can mean nothing morenor less than the sum total of a number of individual lawstaken together." " That is, "law" is a collective expres-sion for the aggregate of "laws." Therefore we mustfirst see what is meant by "laws" or by "a law." I havepointed out above why I do not consider this a valid as-sumption. It excludes or ignores the technique elementand the ideal element in law in the second sense.

Salmond also challenges Austin's first assumption. He saysthat "law" has an abstract sense (the law) and a concrete sense(a law). The law, he says, is not made up of laws but of rules oflaw or legal principles. He adds: "A law means a statute, en-actment, ordinance, decree or any other exercise of legislative au-thority. It is one of the sources of law in the abstract sense. Alaw produces statute law, just as custom produces customarylaw, or as precedent produces case law." 78 Gray agrees to theextent of holding that a statute is only a source of the law; that

Pure Theory of Law and Analytical Jurisprudence (1941) 55 Harvard LawRev. 44.

77. 1 Works (Bowring ed. 1859) 141.

78. Jurisprudence (1902) § 5.

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it is only a basis on which courts make the rules and principleswhich are the law? 9

With respect to Salmond's point, so far as it is more than astatement of what he takes to be usage of English speech, heseems to have drawn the idea from his reading of Continentalwriters. For example, in France the articles of the code and thelegislative enactments supplementary thereto are lois. The wholebody of doctrine, principles, tradition of judicial decision, andtechnique, by which justice is administered and whereby gaps inthe lois are supplied for the case in hand, is called droit. Untilrecently only a settled course of judicial decision was regarded asa form of law. Later the doctrine that single decisions of thehighest court do not constitute binding precedents and do not im-mediately furnish a rule to stand with loi for the future, but atmost show a tendency toward such a rule to become establishedby a fixed course of decision, had in practice been coming close toone of the force of the single decision.8 0 Indeed the draft of thenew French Civil Code (1955) omits Article 5 of the Code of1804 ("Judges are not allowed to decide cases submitted to themby way of general or rule-making decisions.").so1 a But the usageas to loi and droit goes back to the doctrine of the civil law. TheGermans use Gesetz and Recht in the same way.8' Is the Con-tinental usage applicable with us where the single decision of theultimate court of review makes a binding precept? We refercourts for the basis of decision to, first, rules of enacted law,and, second, rules or principles of the traditional law and pre-cepts established by precedent. If no precepts of either sort ex-

79. Nature and Sources of the Law (2 ed. 1921) 170-172.

80. 1 Planiol, Traitd 4ldmentaire de droit civil (11 ed. 1928) nos. 204, 205.

80a. Ldon Julliot de la MorandiMre, The Draft of the New French CivilCode: The Role of the Judge (1956) 69 Harvard Law Rev. 1264.

81. 1 Enneccerus, Kipp, und Wolff, Lehrbuch des biirgerlichen Rechts (21ed. 1928) §§ 27, 32.

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ist, we expect the court to ground its decision upon some generalprecept to be worked out from the traditional legal materials byanalogy, and that precept then takes its place in the legal systemas an authoritative ground of deciding like cases. Bentham, andAustin following him, had statute before their minds as the typeof a law in our system. But they were not in error in regardinga precept fixed by judicial decision, in a system where the doc-trine of precedents obtains, as generically like one fixed by legis-lative enactment. E. g. the common-law rule against perpetui-ties is generically like a statutory enactment of it. Even wherethe doctrine of precedents is not admitted, a rule established byusus fori is generically like an enacted rule.

As to Gray's point, to Bentham's proposition that law is onlyan aggregate of laws, he would say that a law is a source of thelaw but not part of the law. We may leave this on one side forthe moment, since it only affects a question whether Austin, inhis analysis of a law is ultimately analyzing the law or one of thesources of the law.

Secondly, Austin's analysis assumes that the preceptelement of law is made up of rules; that a law is a rule.In a wide sense of the term "rule" this is so. Adminis-tration of justice according to law is administration byrule in the sense of an authoritative guide to the result,as contrasted with administration according to the per-sonal feeling of the magistrate for the case in hand. Butanalytical jurists have been prone to think of rule in thenarrower sense of a precept attaching a definite detailedlegal consequence to a definite detailed state of fact, as ina rule of property or a section of a penal code. The threattheory assumes rules in this sense. It is possible, nodoubt, to make Austin's assumption apply to legal princi-

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ples and to conceptions and standards as well as to rulesin the narrower sense. We might say that there is a ruleto deduce decisions from the principle; a rule to refer

cases to the appropriate conception; a rule that thestandard must be lived up to. But what rule tells us

which principle to start from when, as often happens,more than one of equal authority is at hand? The au-

thoritative technique and received ideals are decisive insuch cases. The Continental jurists assumed that there

was one and only one principle of natural law or text ofthe Digest or section of the code from which to reason.

Austin had learned from them.

Austin was a chancery barrister. We must note that the

Court of Chancery in the first half of the nineteenth century was

mostly concerned with family settlements and trusts and admin-istration suits in which detailed rules such as those of the law

of property are chiefly significant. Gray was a teacher of thelaw of property. Thus both Austin and Gray analyzed the law

of property and put the result as an analysis of all law.

Thirdly, Austin assumed that laws are rules of ac-

tion, and of human action. From the standpoint of theindividual looking at the body of precepts in accordance

with which the legal order is maintained through the ad-

ministration of justice, this is clear enough. They have

to do with what one does, not with what he is. From

Austin's standpoint laws are rules of conduct governing

the acts of each so far as they affect others.[ 136 ]


Assuming these things, Austin finds five character-istics of laws or of rules of law in a developed legal sys-tem. The first is that a law is a command of a sovereign.This proposition came down to him from the eighteenthcentury. He simply worked it out logically to its fullcontent. As he puts it, laws are commands set by sov-ereign to subject.2 To understand this we must look in-to the meaning which he gives to each of the three sub-stantives. By sovereign he tells us that he means thatperson or body of persons to whom the bulk of a givensociety are in the habit of obedience, such person or bodyof persons not being in the habit of obedience to any de-terminate human superior. 3

Examples which he had in mind were the Eastern Roman orByzantine emperor, the French king of the old rdgime, the Czarof the old r~gime in Russia, and King, Lords, and Commons inParliament in Great Britain. The labor leader who is obeyed im-plicitly by half a million workingmen was unknown in Austin'sday. But no doubt he would have said that they were not thebulk of the political society in which they lived, and that theleader in most of the affairs of life was in a habit of obedience tothe determinate body of persons who exercise the authority ofthe politically organized society.

A command, Austin tells us, "is distinguished fromother significations of desire, not by the style in which thedesire is signified, but by the power and purpose of the

82. 1 Jurisprudence (5 ed. 1885) 86-87.

83. Id. 220-221.

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party commanding to inflict evil or pain in case the com-mand be disregarded." 84 Where this power and purposeexist, Austin says, the person commanded is "bound" or"obliged" to obey. He is under a duty to obey. He mayor may not be morally bound, but he is obliged or bound.In case of a command of the state he is legally bound.'As Mr. Justice Holmes put it, Austin washes the concep-tion of duty in cynical acid."

In appraising this we should bear in mind that the nine-teenth century, by way of reaction from the infusion of moralsinto law and identification of law with morals in the seventeenthand eighteenth centuries, sought to separate them. It soughtcertainty rather than ethical results. Also we should rememberthat Austin began life in the army. His conception of commandand duty of obedience is thoroughly military.8 7 Hobbes puts theidea in another way, saying that commands are "precepts inwhich the cause of obedience depends on the will of him whocommands; not counsels which are precepts in which the reasonfor obedience is taken from the thing itself which is advised." 88

This is in contrast to the philosophical jurists who found the ba-sis of the authority of a legal precept in its intrinsic justice or in-herent reasonableness.

A good example of what Austin meant is furnished by theenactments of Congress under the Articles of Confederation.Hamilton said of them: "Though in theory their resolutions

84. Id. 89.

85. Id. 89-92.

86. Collected Legal Papers (1921) 173-174.

87. See example given by Austin, 1 Jurisprudence (5 ed. 1885) 93.

Z8. De Cive, cap. 14, § 1.

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. . . are laws, constitutionally binding on the members ofthe Union, yet in practice they are mere recommendations, whichthe states observe or disregard at their option." 89 Austin wouldsay that the Congress of the Confederation had no power to in-flict any consequences if its enactments were disobeyed. Hencethey were not binding. They were only recommendations, notlaws. No court administered the Articles of Confederation asthe supreme law of the land. Note the contrast to the natural-law way of thinking, which would be that they were morallybinding and hence were legally binding. Austin would say theywere not binding because they were not imposed nor imposableas commands. Nothing happened or could happen if they weredisregarded. There was no agency to make or try to make any-thing happen. On the other hand, the Civil War showed that theCongress of the United States had the power and purpose of in-flicting consequences if its enactments were disobeyed. Hence,Austin would say, its acts within the limits of its power are bind-ing and are laws. Today this is put in another way by sayingthat a law is a threat of certain action by the agencies of a politi-cally organized society.90

By subjects, Austin means those whom the deter-minate person or body of persons who exercise the powerof a politically organized society is in a position to coerceinto obeying his or its commands.9

Even as to developed systems of law there are seri-ous objections to this idea of a law as a command. In thefirst place, Austin's sovereignty is a postulate which he

89. Federalist, no. 15.

90. Ldvy-Ullmann, La ddfinition du droit (1917) 165; 1 Roguin, La sciencejuridique pure (1922) 122; Kelsen, Reine Rechtslehre (1934) 25.

91. Jurisprudence (5 ed. 1885) 95-97.

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takes from the jurists of the era of absolute governments,the seventeenth and eighteenth centuries. It has notbeen easy for jurists of today to place the Austinian sov-ereign in democratic and in federal states. There is notso much difficulty in a purely democratic state in whichall laws would be enacted by referenda and all adminis-tration would be carried on by town meeting in a small-town city-state. While not so simple a case as Justinianor Louis XIV, or the Czar of the old r6gime in Russia,or as King, Lords, and Commons, yet where laws are en-acted by referenda the greater number for the time beingof those who have the ius suffragii, taken collectively, inAustin's sense promulgate a command, or in Kelsen'ssense make an authoritative pronouncement as to an itemof desired behavior.2 In a federal state there is moreapparent difficulty. But it may be said that exercise ofAustinian sovereignty is parceled out by mandates be-tween central government and states and among depart-ments of government and officials. 3

Lundstedt objects that "commands are not conceivable with-out the existence of a will that forbids or enjoins" and that "thelegal command cannot apply to anyone else but to the person whohas received and understood the command." 94 But a threat im-

92. Kelsen, The Pure Theory of Law and Analytical Jurisprudence (1941)Z5 Harvard Law Rev. 44, 58.

93. Constitution, X Amendment; Coxe, Judicial Power and Unconstitution-al Legislation (1893) 114-121. See also 1 Austin, Jurisprudence (5 ed. 1885)258-262.

94. Superstition or Rationality in Action for Peace-A Criticism of Juris-,prudence (1925) 35-37.

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plies a will quite as much as does a command. We may say thatthose who exercise the authority and power of a politically or-ganized society command, or that they threaten; in that sense thestate does so. As to the proposition that command implies com-munication to and understanding by the person commanded, isnot that equally true of a threat? It might be argued in moralsthat no one ought to be bound by the command nor subjected tothe threat unless it has been communicated or understood. How-ever, the implication here is from the standpoint of morals only.For the practical purposes of maintaining the general security,the legal order may well postulate communication and under-standing from the prescribed promulgation. An unpromulgatedcommand or threat is none the less a command or a threat if theone who makes it chooses to enforce it or to carry it out. Thedifficulty which Lundstedt raises is not logical but moral. It maybe conjectured to have arisen from the ethical element in the,word used to mean law on the continent.

A second objection arises from the difficulty of rec-onciling the establishment of legal precepts through adju-dication with Austin's theory of the precept as the com-mand of a sovereign. Cases arise which are not governedby settled precepts but which courts must decide. Thecourts decide them and in the common law, if the decisionis one of a court of ultimate or appellate jurisdiction, aprecedent results. A legal precept is established by thedecision. In the civil law, a tendency to decide the samequestion in the same way results, which develops into us-us fori (jurisprudence fixe, Gerichtsgebrauch) and thuscreates an authoritative legal precept having its originin judicial decision. The nineteenth-century legal theorywas that the precept was pre-existent, and was found by

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the court rather than made. Historical jurists held thatit existed in customs transmuted into legal precepts bylegislation or judicial decision. 5 Philosophical juristsheld that it existed in principles of morals or of reasonapplications of which got the guinea stamp of the stateby some agency of law finding. 6 Austin thought thatcustoms or precepts of positive morality were "turnedinto rules" by judicial decision." Courts and practition-ers, with the civilians, conceived that the precept appliedto decide the new case was contained logically or poten-tially in (a) the principles of the common law,"8 or (b)the sections of a code, or (c) the subsidia to which a coderefers the judge,99 and was simply drawn therefrom by alogical process. In fact, this judicial finding or makingof law takes place chiefly by analogical application ofrules and doctrines and by analogical reasoning from thedata which the existing body of law affords. But it is andought to be influenced to a greater or less extent by simi-lar considerations to those which affect legislative law-making, namely, the judicial sense of right and justice,and the judicial conception of social advantage.1 O Such

95. Carter, Law: Its Origin, Growth, and Function (1907) 79, 310-312.

96. "The decision . . . is the exposition of the idea of right involvedin the particular relation of two self conscious beings." Miller, Lectures onthe Philosophy of Law (1884) 59.

97. 1 Jurisprudence (5 ed. 1885) 101-102.

98. Rensselaer Glass Factory v. Reid, 5 Cow. (N.Y.) 587, 628 (1825).

99. 2 Austin, Jurisprudence (5 ed. 1885) 672-673.

100. Holmes, Collected Legal Papers (1921) 180-184. The old books calledthis the argumentum ab inconvenienti, Co.Lit. 66a.

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things are decisive in the choice of a starting point forreasoning from among a number of equal authority. Butusually they operate in the form given them by receivedideals.

Consider the difference which it makes in many places in thelaw of partnership whether start is made from the idea of a busi-ness device or of a juristic person, on the one hand, or from anidea of co-creditors, co-debtors, and co-owners, on the otherhand; 101 whether in the law of water rights start is made froma possessory idea or a use idea; 102 whether in the law of de factocorporations start is made from an idea of a corporation as astate-granted monopoly or from one of a business device.103 Com-pare the result of our starting from the analogy of a feudal rela-tion of co-tenants owing one duty to the lord to work out the li-ability of co-promisors 104 with the Roman working out of thesame question in the obligatio plurium pro parte on the analogyof co-heirs. 105

It is said that legal precepts established in this wayare not commanded by the sovereign. Austin's answeris that they are "tacit" 1' commands while statutes areexpress commands. This is a characteristic bit of eight-

101. See e. g. Crane, Unintended Partnership (1924) 31 W.Va.L.Q. 1.

102. E. g. 1 Wiel, Water Rights in the Western States (3 ed. 1911) § 500.

103. Compare Davis v. Stevens, 104 F. 235 (D.C.S.D.1900) with MerchantsBank v. Stone, 38 Mich. 779 (1878).

104. Sheppard's Touchstone, 375; White v. Tyndall, 13 App.Cas. 263, 276(1888).

105. Inst. 3, 16, pr.; Dig. 45, 2, 11, 1. Such is the law of Louisiana also.Groves v. Sentell, 153 U.S. 465 (1894).

106. "Tacit" is the civilian's word for our term "implied."

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eenth-century thinking, derived from his study of theearly nineteenth-century Pandectists. The Roman ju-rists of the early empire held that the will of the Romanpeople was the basis of law, but that it could make no dif-ference whether this will was signified by voting or byusage." 7 The eighteenth-century civilians, however, byderivation from the academic conception of the CorpusIuris as legislation binding on Christendom, thought ofstatutes as the normal form of law, so that the authorityof custom could only rest on the tacit consent of the law-maker.0 8 In the spirit of this doctrine, Austin says:"If the desire be signified by words . . . the com-mand is express. If the desire be signified by conduct,the command is tacit. Now when customs are turnedinto rules by decisions of subject judges,1' the legal ruleswhich emerge from the customs are tacit commands ofthe sovereign legislature. The state which is able to abol-ish, permits its ministers to enforce them; and it, there-fore, signifies its pleasure by that voluntary acquies-cence, that they shall serve as a law to the governed." 110

There is a false assumption here. Customs of popular ac-tion are seldom the basis of decision. Mostly decision goes on

107. Dig. 1, 3, 32.

108. 1 Bierling, Kritik der juristischen Grundbegriffe (1883) 23; 1 Dern-burg, Pandekten (8 ed. 1911) § 20.

109. Note the erroneous assumption that judicial lawmaking turns customsof popular action into rules of law. This is seldom true. It turns profes-sional habits of thought into legal precepts.

I10. Jurisprudence (5 ed. 1885) 102.

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analogical reasoning. This argument by which Austin meetsthe objection that his theory of a law is not applicable to legalprecepts established by judicial decision was much discussed inthe nineteenth century. The debate was occasioned in great partby the exigencies of the dogma of separation of powers. Whenand where the separation of powers was received as a funda-mental juristic dogma, writers were loth to admit that a legalprecept could be or was made by the judicial organ of the state.But in a developed state there is often much formal warrant forsaying that judges exercise a certain expressly conferred powerof lawmaking. Thus it is provided in the French Civil Code thatwhere there are no rules in the code to govern a cause, the judg-es cannot refuse to decide or refuse relief for that reason. Theyare made liable if they refuse."' In such cases it is said in theConferences on the Code that the judges may resort to naturalequity, natural law, the Roman law, the old customary law, usage,the course of decision, general principles, maxims, and text books,for the ground of decision.11 The Austrian," 3 Italian," 4

Swiss,1 1 5 and Brazilian 16 codes have express provisions forthese subsidia, as Savigny 17 and Austin "s following him callthem. In other words, the judges are expected to frame a rulefor themselves for the case in hand. In the civil law this did not

I H. French Civil Code, art. 4. This provision is omitted in the draftrevision of 1955.

112. See Savigny, Vom Beruf unsrer Zeit fUr Gesetzgebung und Rechts-wissenschaft (3 ed. 1840) 74, where there are full references.

113. Austrian Civil Code, Introduction, § 7.

114. Italian Civil Code, art. 3.

115. Swiss Civil Code, art. 1.

116. Brazil, Civil Code (1917, 1919) Intr. art. 7.

117. Vom Beruf unsrer Zeit fUr Gesetzgebung und Rechtswissenschaft (3ed. 1840) 73.

118. Jurisprudence (5 ed. 1885) 672.

2 Pound Jurisprudence-[10 [ 145 ]

The Nature of Law

make a rule for other like cases.11 In the theory of the civil lawonly legislation could do that. But if it was followed in othercases, the resulting usus fori was treated as having the force oflaw.120 Thus ultimately in all systems the judges as well as thelegislators do make rules which are held to be binding upon tri-bunals.

Austin's position as to these judge-made or judicially estab-lished legal precepts is borne out to some extent by Americanlegislation. In at least twenty-seven states by constitution orstatute 121 it is enacted that in the absence of constitutional orstatutory provision the common law of England is to be made the

119. Cod. 7, 45, 13; French Civil Code, art. 5; Austrian Civil Code, In-troduction, § 8; 1 Planiol, Trait6 6l6mentaire de droit civil (11 ed. 1928) nos.208-210.

120. 1 Dernburg, Pandekten (8 ed. 1911) § 23; Erskine, Principles of theLaw of Scotland (1754) bk. i, tit. 1, § 17.

121. Code of Ala.1940, tit. 1, § 3; Pope's Dig.Stats.Ark.1937, § 1679 [Ark.Stats. § 1-101]; Arizona Code 1939, 1-106 [A.R.S. § 1-201]; Deering's Pol.Code of California 1937, § 4468 [West's Ann.Civ.Code § 22.2]; 1935 ColoradoStats.Ann. chap. 159, § 1 [C.R.S. '53, 135-1-1]; 1941 Florida Stats. § 2.01[F.S.A. § 201]; Code of Georgia Ann. § 2-8503; Smith-Hurd, Illinois Ann.Stats. chap. 28 § 1; Burns' Ann.Indiana Stats.1933, § 1-101; Ann.Code ofMaryland (Flack) 1939, Const. art. 5 [Code 1957, Const. art. 5]; Rev.Stats.Missouri 1939, § 645 [Section 1.010 RSMo 1949, V.A.M.S.]; Rev.Codes of Mon-tana 1935, § 5672 [R.C.M.1947, § 12-103]; Comp.Stats.Nebraska 1929, § 49-101[R.R.S.1943, § 49-101]; Nevada Comp.Laws 1929, § 9021 [N.R.S. 1.030]; NewYork Con.Laws Ann. bk. 2, art. 1, § 14; North Carolina Code of 1939, § 970[G.S. § 4-1]; Oklahoma Stats.Ann. tit. 12, § 2; Rhode Island Gen.Laws 1938Ann. chap. 306, § 1 [Gen.Laws 1956, 43-3-1]; South Dakota Code of 1939,§ 65.0103; Vernon's Ann.Rev.Civ.Stats.Texas 1925, tit. 1, art. 1; Rev.Stats.Utah 1933, tit. 88, § 88-2-1 [U.C.A.1953, 68-3-1]; Pub.Laws of Vermont 1933,chap. 53, § 1234 [V.S. '47, § 1263]; Virginia Code of 1942, tit. 2, chap. 2,§ 2 [Code 1950, § 1-10]; Remington's Rev.Stats. of Washington Ann. to 1931,chap. 1, § 143 [R.C.W. 4.04.010]; West Virginia Code of 1937, chap. 2, § 22;Wisconsin Stats.1941, Const. art. XIV, § 15 [W.S.A.Const. art. 14, § 13]; Wy-oming Rev.Stats.1931, chap. 26, § 101 [W.C.S.1945, § 16-301]. See also Const.Kentucky, § 233, Rev.Stats.1942 [KRS Const. 233].

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rule of decision in the courts.1 2 Such legislation might be saidto be a command to apply the traditional legal precept either im-mediately or in a novel case by analogy, and to make a precedentand adhere to it in the future according to the common-law doc-trine of precedents. But is there really anything more here thana direction to the judges how to decide and from what materials?There is no command directly to private individuals.

In the states where the common law is in force by the usageof the courts only 123 there is an authoritative technique and thereare authoritative ideals which enable a starting point for use ofthe technique to be found in the received materials. No one hascommanded the parties to do or not to do something. If there isany command it is one addressed to the courts to employ the re-ceived technique of developing and applying grounds of decision.This, too, is not like a legal precept or rule of conduct addressedto private individuals.

In the common-law system, after the decision in such a case,a precept is established which is thereafter binding on privatepersons as well as on the courts. That precept, Austin argues, isimpliedly commanded by the sovereign. But this does not meetthe decision in the first instance. As to that, Austin's propositionwould require us to say there was a decision without law; nota very satisfactory theory. If, however, we recognize the receivedtechnique and received ideals as part of the law, then the first

122. Such provisions are generally construed as adopting the common-lawsystem rather than as prescribing adherence to English decisions of any par-ticular date. Williams v. Miles, 68 Neb. 463, 470, 94 N.W. 705, 708, 62 L.R.A.383 (1903); Pope, English Common Law in the United States (1910) 24 Har-vard Law Rev. 6.

123. In some of these the common law was prescribed by the colonial char-ter. In others it was prescribed by the Northwest Territory Ordinance of1787, which was afterward extended to the Mississippi Territory, or whatis now Alabama and Mississippi. See State v. Cawood, 2 Stew. (Ala.) 360(1830).

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decision on the novel point is according to law, simply when aprecept in point is lacking, employing the other elements to frameone for the case in hand and others like it thereafter.

To understand Austin's position we must rememberthat most writers in the nineteenth century were underthe influence of Montesquieu's exposition of the separa-tion of powers. 4 Hence it was natural at that time toassume that judicial lawmaking in modern states was asurvival from a stage before a separation of powers hadbeen achieved. It was natural to assume that until acomplete system of express commands had been set up,the deficiency would be eked out by a device of judiciallyestablished precepts, which the state impliedly command-ed ad interim until it got around to issue express com-mands. If one accepted the separation of powers as afundamental juristic dogma he might well say: Thereis difficulty in applying the theory of a law as a commandto judicial lawmaking because that belongs to an oldercondition in the development of the state in which judi-cial, executive, and legislative functions were undiffer-entiated or confused, whereas the command theory isappropriate to a fully developed political and legal orderin which these functions are well differentiated and hencethe legislative organ does tacitly command what part ofthe law is established by judicial decision. But the sepa-ration of powers is a political rather than a juristic dog-

124. L'esprit des lois (1748) liv. XI, chap. 6.

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ma. As we understand it, it is a doctrine of Americanconstitutional law and political theory. It is not a doc-trine of universal law. The functions of finding the law,interpreting the law, and applying the law, are to someextent inseparable. The judge from the very nature ofhis office, whether he will or not, is compelled to be inpart a lawmaker."5

A third objection to Austin's theory of a law as acommand is that a legal precept is often addressed tocourts, to govern decision, rather than to private individ-uals to govern conduct. In the earlier history of law alaw or a legal precept has for its object more directly togive directions to the tribunal, to impose rules upon it todetermine the decision of controversies, than to lay downa course of conduct for the private individual.

Good examples may be seen in the tariffs of compositions inthe beginnings of law. Even modern legislation takes both forms.For example, in one statute the legislature will enact that if per-sons contract for more than a fixed interest, no interest shall berecoverable in the courts and all payments by way of interestshall be credited on the principal (a precept addressed to thecourts) ; 1-6 in another it will enact that railroad companies shallfence their rights of way and shall be liable for all damages tocattle straying on the track if they do not 121 (addressed to both

125. See Zitelmann, Die Gefahren des biirgerlichen Gesetzbuches flir dieRechtswissenschaft (1896) 19.

126. See the different statutes summarized in Folsom, A Summary ofUsury Laws and Decisions (1927) 104-107.

127. Smith-Hurd, Illinois Ann.Stats. ch. 114, § 53.

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The Nature of Law

the railroad companies and the courts) ; and in another that whena chattel mortgage is paid it shall be cancelled of record or re-moved from the files in the office where filed, with a civil penaltyrecoverable by a party injured if this is not done.128 All of thesemay be construed as commands to the individual. But they mayalso be construed as rules of decision imposed upon the courts.

Historically, the first type in our law is rules as to how andwhen one may have a legal remedy. The significant law book ofthe medieval common law is the Registrum Brevium. It is truethat in a modern industrial community the individual must havelegal precepts to go by or there could be no division of labor andno industrial enterprise. Hence more and more it becomes thefunction of the state to lay down rules of conduct as such. Inthe maturity of law a great part of the law has been laid down bythe legislative organ of the state in this way and another greatpart in substance indicates to the private individual or his ad-viser the line he may safely take in his conduct, and so may bemade to serve as a body of rules of conduct. In that sense it ispossible to say that the individual is commanded to adhere tothese rules. But that portion of the law which consists of generaldoctrines, modes of thought, principles (i. e. premises upon whichjuristic and judicial reasoning may proceed), and legal concep-tions does not fit into such a theory except as by straining a pointwe say that the lawmaking organ of the state acquiesces in thesedoctrines, modes of thought, premises and conceptions, and sotacitly commands their logical consequences. As to this, onemust repeat that it is seldom that application of doctrines andprinciples and conceptions is so simple. Usually the reasoningis analogical rather than deductive. The idea that it is deductiveand that all finding of law for new cases is a drawing out of thelogical content of authoritatively established texts, comes from

128. See the statutes summarized in Jones, Chattel Mortgages (2 ed. 1883)§ 663.

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the teaching of law in the universities from the twelfth centuryto the Reformation, under the academic dogma of the continuityof the empire, as a drawing out of the logical content of theCorpus Iuris.

On the whole, without regard to historical consid-erations, which will be noticed presently, merely fromthe analytical standpoint, Austin's theory of a law as acommand rather shows us what tends to become the mostprominent type of law in a developed state in the maturi-ty of law, in the service state where there is so large adelegation of power to administrative agencies, than asound criterion of laws in general.

A second characteristic upon which Austin insistsis that laws are rules set by determinate authority; thatthey proceed from a tangible source instead of arising,as it were, at large. This characteristic, he urges, setsoff laws strictly so-called from moral laws or rules, which,he says, rest on conscience, from natural laws resting onreason, and from rules or laws of honor, resting on pub-lic opinion. His proposition is that laws strictly so-calledproceed from the state, which is a determinate authority,whereas moral precepts, principles of natural law, andrules of fashion or of honor proceed from the conscienceor the ethical sentiment of a greater or less but whollyindefinite portion of society."

It is a sound distinction from a strictly analytical standpointthat a law has the state behind it while ethical principles and

129. 1 Jurisprudence (5 ed. 1885) 87, 179.

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The Nature of Law

moral precepts have only public opinion of greater or less forcebehind them. But the premises of a legal system, the modes ofthought, the Systematik, which play so large a part in the in-terpretation and application of laws have no definite authoritybehind them which establishes them. Their origin is quite asmuch at large as the origin of moral precepts. What state isbehind the common law or the civil law? Yet these generalsystems often count for more than the statutes for the time beingof this or that state. A better distinction between legal preceptsand moral precepts is that courts apply and are required to applylegal precepts, but not moral precepts as such nor except as re-sort to them may be necessary in order to supply a gap in the lawor furnish a guide to interpretation or application. When courtsdo apply moral precepts as rules of decision, in our law theythereby become legal precepts; in the civil law they are put inthe way of becoming legal precepts when so applied. Hencejudicial application and enforcement, to which we must now addadministrative application is a criterion which does all that isrequired in distinguishing laws from analogous bodies of pre-cepts. It avoids the difficulties involved in Austin's proposition.

A third characteristic of laws, according to the an-alytical jurists, is that they are rules of general applica-tion. 30 Postulating that laws are rules, Austin arguesthat it follows that they are general rules. That thereare general rules for the determination of controversies,instead of a special rule for each individual case (whichwould be no rule) is what distinguishes administration ofjustice according to law from administration of justicewithout law. But, as he points out,'3' laws may or may

130. Id. 92-95.131. Id. 92-93.

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not oblige generally all persons or all persons of a class.Special exemptions of greater or less extent have beenand are common.

For example, in state anti-trust and anti-conspiracy laws ageneration ago it was common to exempt labor unions and farm-ers. 132 Except for constitutional restrictions there is nothing toprevent exemption of a single union or a particular farmer.Indeed, American colonial legislation did make such particularexemptions. 1' The Romans called them privilegia.34 In com-menting on this Clark 135 says truly that generality as to personsor persons of a class enters into the idea of law.136 This idea isexpressed in provisions against special or class legislation in amajority of the state constitutions in the United States in the lastcentury.137 The natural-law theory especially insists on gener-ality. But today, as the political idea of law as will has come to

132. E. g. Michigan, Public Acts, 1889, no. 225, § 6, p. 333.

133. E. g. 1 Hening, Stat.L.Va. 252; 2 id. 321; Rhode Island Laws, 1768-1773, 24, 32-33, 47; 1 Colonial Laws of New York, 555, 768; 2 id. 868; 5id. 771, 911, 992, 1028, 1036; 1 Laws of Delaware, 1700-1797, 95; 38 Archivesof Maryland, 132, 134, 137, 237, 257.

134. Dig. 50, 17, 156.

135. Practical Jurisprudence (1883) 113.

136. "Laws are established not for individual persons but for general ap-plication." Ulpian in Dig. 1, 3, 8.

137. Const.Ala.1875, art. 4, §§ 23-25; Ark.1874, art. 5, §§ 24-26; Colo.1876,art. 5, § 25; Fla.1868, art. 1, § 12, art. 5, §§ 17-18; Ga.1865, art. 2, § 6, 1868,art. 2, § 26; I1.1870, art. 4, §§ 22-23; Ind.1851, art. 1, § 23, art. 4, §§ 22-23;Iowa 1846, art. 1, § 6, art. 3, § 30 (also in Const.1857, art. 3, § 30); Kan.1859,art. 2, § 17; Ky.1850, art. 2, § 38; Me. amendment of 1876 to Const.1820, art.4, pt. 3, §§ 12, 14; Md.1867, art. 3, § 33; Mo.1875, art. 4, § 53; Neb.1875,art. 3, § 15; Nev.1864, art. 4, §§ 20-21; N.J. amendment of 1875 to Const.1844,art. 4, § 7, 11; N.Y. amendment of 1874 to Const.1846, art. 2, § 18; N.C.Const.1868, art. 2, § 13; Ohio, 1851, art. 2, § 28; Ore.1857, art. 4, § 23; Pa.1873, art. 3, § 7; Tenn.1870, art. 11, §§ 6, 8; Tex.1876, art. 3, § 56; W.Va.1872, art. 6, § 39.

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The Nature of Law

be more prominent in the United States, there is not the same in-sistence on generality. 138 The criterion should be generality ofapplication to persons or acts within their scope rather than gen-erality of scope. They apply to all acts within their scope, butneed not have general application to persons.

Analytical jurists put it as a fourth characteristicof laws that they are rules dealing with external humanaction. They have to do with acts-with doing, not be-ing. No one seriously questions this except when, in thestage of equity and natural law, law and morals arethought of as identical.3 9

Finally, the analytical jurists insist on sanction asa characteristic of laws. In developed legal systems thisis a significant characteristic. Austin treats it as a cor-ollary of his fundamental proposition that a law is a com-mand. Commands, he tells us, imply a sanction, that is,they imply, if they do not express, an intimation thattheir author will see to their being obeyed.1"'

In developed law sanction is added to legal preceptsby (a) punishment, (b) interference of courts or officialsin advance of threatened disobedience in order to preventit, (c) reinstatement of things either specifically or by

138. E. g. The Norris-LaGuardia Act, 47 Stat. 70-73 (1932) and like leg-islation in many states putting "labor disputes" in a special category, exemptfrom the law governing other controversies. Cf. the English Trade DisputesAct, 1906 (6 ed. 7, c. 47).

139. See ante, § 33, notes 4-10.

140. 1 Jurisprudence (5 ed. 1885) 89-92, 443.

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substitution of some equivalent to the position in whichthey were before infraction of the precept. Discussionof this subject has not been helped by a tendency to thinkof legal precepts in terms of sections of a penal code andof sanctions in terms of punishment.

The origin of the term brings out its meaning.Sanctio was that which made the legal precept holy, thatis, put it on the same basis as the divinely ordained rulebreach of which involved sacratio, devotion of the wrong-doer with his household and wealth to some one of thegods."" Consciously made human laws were fortified bygiving them the same consequences as those involved inbreach of the traditional precepts regarded as proceedingfrom the gods.'

In considering this feature of Austin's analysis it must beborne in mind that punishments are only one class of sanctionsand that motive is not sanction, although the purpose of sanc-tion may be in part to furnish a motive for conformity to thesanctioned precept. Sanction implies constraint; an applicationof force or a threat of applying a force which is at hand. In thebeginnings of law, sanction is at best but feebly developed. Ajudgment creditor is simply authorized to help himself. 43 InRoman law the older seizure of the person was superseded by

141. Festus, 3 Bruns, Fontes Juris Romani Antiqui (6 ed. 1893, 7 ed. 1909)35.

142. See examples in 1 Bruns, Fontes Juris Romani Antiqui (6 ed. 1893)7, 31, 14. There is such a provision in one of the Twelve Tables, tab. VIII,1. 21-1 Bruns, Fontes (6 ed. 1893) 33.

143. Gaius, 4, 21.

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The Nature of Law

universal execution. 1 44 But it was not till the empire and thepost-classical period that special execution by distraint and pub-lic sale of single items of property or natural execution (enforce-ment manu militari) developed.145 There was only an indirectspecific enforcement through the clausula arbitraria, which indefault of specific restitution by a defendant allowed the plain-tiff to assess the value. The assessment was not looked intocritically, 146 and the prospect of a heavy money judgment wasrelied on to coerce performance. In the Anglo-Saxon dooms, itis only exceptionally that the king threatens to "ride" to aneighborhood where the law is not observed.1 47 In Pennsylva-nia, before the courts were given equity jurisdiction, specificperformance could only be enforced indirectly by directing ajury to find heavy damages, to be released if the condition in theverdict was complied with.1" Effective sanctions belong todeveloped law. As the legal order develops, the enforcing ma-chinery becomes continually better organized. There is a con-tinuing tendency toward enforcement of rules of conductthrough the force of politically organized society. The historyof laws and legal institutions is full of illustrations of the func-tion of sanctions in giving precepts character as laws.

For example, as already pointed out in another connection,Congress under the Confederation had no power to enforce itsacts and resolves. Hence they were not regarded by the states

144. Id. 3, 78-79.

145. Dig. 42, 1, 31; Dig. 6, 1, 68.

146. Dig. 12, 3, 11.

147. Laws of Athelstan, Judicia Civitatis Lundoniae, cap. vii, 2 (about 930).As to the feebleness of executive power in English law before the Conquest,see a good statement in Pollock, English Law Before the Norman Conquest(1898) 14 Law Quart.Rev. 291, 296-297.

148. Clyde v. Clyde, 1 Yeates (Pa.) 92 (1791); Decamp v. Feay, 5 S. & R.(Pa.) 323, 328 (1819).

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and were nugatory, although on subjects which the states haddelegated to Congress. 149 Another illustration may be seen inthe constitutional "understandings" or customs of which Eng-land has many and we have a few. In the last century criticsof analytical jurisprudence made much of them. Historicaljurists spoke of them as laws. Thus in a book published in 1890by a professor of law, the then supposedly established customof no third term for the president and the custom that presiden-tial electors vote for the candidate nominated by the party whichnominated them are vouched for the thesis of an unwritten con-stitution.150 The customs of the Senate as to seniority uponcommittees and unlimited debate have sometimes been calledconstitutional law. But the custom as to a third term for thePresident went by the board without any formal abrogation andthere is an obvious distinction between the case of a presidentelected by electors nominated to vote for someone else and that ofa person claiming to have been elected who was not a native borncitizen. Dicey has pointed out that one or another of these con-stitutional customs is frequently disregarded without entailingany legal consequences.' 51

Again, the canon law was a system of law. It actually ob-tained as a body of precepts governing many important depart-ments of human relations and items of human conduct and hadbehind it a religious organization of society in western Europewhich had the power and the intention to see its precepts en-forced. Until the sanction of excommunication lost its force atand after the Reformation, it was a developed system of law.Now, except for the internal government of the Roman church,it has only historical interest.

149. Supra, note 89.

150. Tiedeman, The Unwritten Constitution of the United States (1890)chaps. 3, 4.

151. Dicey, Law of the Constitution (8 ed. 1915) chap. 14.

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The Nature of Law

To sum up the characteristics of a law in a developedsystem which Austin makes the basis of his definition,he says that a law is (1) a command, (2) set by a sov-ereign to subjects and so set by determinate authority,(3) a general command, (4) laying down a course of ac-tion, and (5) sanctioned because sanction is implied incommand.

It has been pointed out in another connection 15that the second generation of English analytical juristsmodified this analysis by substituting as a test enforce-ment by the sovereign for command of the sovereign or

establishment by the sovereign. In this view legal pre-cepts are not necessarily set by the sovereign, but theagencies of politically organized society add sanction toprecepts which may be set by the legislative organ or dis-

covered and formulated by the courts or may be tradi-tional. The precepts to which this sanction of state en-forcement is added are laws. As a rule, traditional prin-ciples, the premises of the legal system, are not expresslyset forth by the lawmaking organ.153 But in this way ofthinking, if traditional principles and doctrines are partof the law it is because of the sanction involved in en-forcement in the judicial tribunals of the state. Later

152. Ante, § 54.

153. There are cases, however, of statutory assumption or adoption or dec-laration of a common-law doctrine. See the Sherman Anti-Trust Law of 1894(26 Stat. 209); the Federal Trade Commission Act, 38 Stat. 717, § 5.

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writers add enforcement by administrative tribunals.!MThis is clearly an improvement upon Austin's analysis.

Professor Gray's formula, "rules which the courtslay down," "I is an American variant influenced by thejudicial attitude toward legislation in this country. Itassumes the universality of the Anglo-American doctrineof precedents.

If laws are commands, they may be set by the statethrough the agency of the legislature or of the courts.Professor Gray rejects the idea of laws as commands,but does not reject the idea of a law as something set bypublic authority. Only, he says, they are really set notby the legislature but by the courts through applicationof statutory rules, traditional rules and traditional prin-ciples. Hence, he argues, common law, statute, and textwriting are the sources or raw materials out of whichthe courts fashion the law. He wrote before the rise ofadministrative adjudication in the United States, anduntil the limits of judicial review of administrative adju-dication become settled it is not clear how application anddevelopment of statutes by administrative agencies isto be fitted to his theory. In any event, I should preferto say that the sanction is given by judicial and adminis-trative application. Nothing that is not so applied andsanctioned is law in the second sense of that term. But

154. Clark, Roman Private Law: I Jurisprudence (1914) 75.

155. Nature and Sources of the Law (2 ed. 1921) 93.

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The Nature of Law

the court is not a free agent as the legislature is. It isreferred to statutes, traditional principles, and tradi-tional precepts for the bases of its decisions-both forthe raw materials and for the modes of developingthem-and its work of lawmaking or law finding, byselecting and developing by analogy the rules which itwill apply or the starting points for its reasoning, is in-cidental only. The raw materials of decision are the lawin the second sense. Even precedents pass into this massof raw materials. Hence Professor Gray's view comesto this that there is no law, there are only sources, thatis, raw materials. Moreover, courts are less and less do-ing the work of formulation.

There are signs that the courts in America may not be ableto maintain the conditions demanded for purely judicial develop-ment of the common law. Pressure of business in the courts oftoday is making it unlikely that the courts will much longer beable to do more than give authoritative form to what has beenworked out and formulated by other agencies. In 1813, the ratioof cases disposed of to the number of judges in the SupremeCourt of the United States was twelve to one.156 In 1913, theratio had become 33 to one.157 In 1934, it was 113 to one.158

In the October term, 1941, it had become 129 to one.159 A like

156. 9 Cranch, covering February 1812 to March 1913.

157. See 230 U.S. reporting 60 cases in which opinions were handed downon June 16, 1913.

158. See 290-292 U.S.

1 59. See the table, 316 U.S. 719. Perhaps it should be added that since

the abrogation of the rule in Swift v. Tyson, 16 Pet. (U.S.) 1, 10 L.Ed. 865(1842) by Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188,

[160]


story can be told of the highest courts of the states.6" All thisdoes not mean merely that the judges are compelled to workrapidly and with the minimum of deliberation. In order to hearthese cases at all the time allowed to counsel must be greatlyabridged, and many cases are determined upon printed argu-ments. Hence where a century ago counsel were heard untilevery detail had been gone into thoroughly in oral argument,today the courts are compelled to restrict arguments to an arbi-trary allowance often of no more than half an hour and seldommore than an hour and a half to each side.16' It is increasinglymanifest that the formulation of law is taking place out of court.It could hardly be contended that either legislation or judicialdecision, with no aid from without, could have done for our lawof evidence what has been done by Wigmore, or by Williston forcontracts, or for conflict of laws by Beale, or for trusts byScott, or for restitution (quasi contract) by the reporters of theAmerican Law Institute. Indeed, the work of American lawteachers in the Restatement of the Law, and the reception of thework by the courts and the profession speak for themselves.Now that jurists have given up the exclusively historical meth-od which governed in the immediate past and have come to be-lieve that the law can be bettered by conscious effort, the lawteacher and the law writer (and they very likely will be one)must be our ultimate reliance. There are signs of this in Eng-land, especially in the increasing use of text books by the

114 A.L.R. 1487 (1938) the creative influence of decisions of the SupremeCourt of the United States upon questions of private law has probably cometo an end.

160. Jackson, The Supreme Court in the American System of Government(1955) 13-17.

161. See a statement as to the state courts in Pound, The Judicial OfficeToday (1939) 25 Am.Bar Ass'n Journ. 731, 731-732. See also Cardozo, TheGrowth of the Law (1924) 11-17.

2 Pound Jurisprudence-l [1[ 161 ]

The Nature of Law

courts. 12 The teacher of law is coming to work in the condi-tions of permanence and independence which were the strengthof the common-law judge. He is in a position to do historical,critical, and analytical work which would be impossible, even ifin place, in a modern judicial opinion. Moreover, he may dealwith the law and with departments of the law as a whole, whilea court must look at each piecemeal. Questions of law are ceas-ing to be local. We are so unified economically that no questionis limited by jurisdiction and venue as it used to be. Questionsof law have been coming to be country-wide or even world-wide.Creative work cannot be done upon them under limitations ofparties and jurisdiction and venue.

162. Formerly it was the rule in England that a text book was not to be

cited unless the author was or had become a judge, and the living were notto be cited. Lord Eldon in Johnes v. Johnes, 3 Dow, 1, 15 (1814); Ion's Case,2 Den C.C. 475, 488 (1852); Kekewich, J. in Union Bank v. Munster, 37 Ch.Div.51 (1887); Note (1888) 4 Law Quart.Rev. 236; Note, id. 360-361; Note, id.229. In the most recent English reports the judges frequently refer to or

even discuss the views of living text writers not on the bench. See the longlist of citations in Pound, The Formative Era of American Law (1938) 167,note 2. To this list should be added from subsequent volumes of the law

reports, United Australia v. Barclays Bank, [1941] A.C. 1, 18 (the restatementof the law of restitution by the American Law Institute cited and approvedby Lord Simon); Joseph Constantine Steamship Line v. Imperial SmeltingCorporation, [1942] A.C. 154, 169, 205 (Salmond and Winfield on Contracts

cited by Lord Porter); In re An Arbitration, [1942] 1 K.B. 232, 239 (Oppen-heim's International Law cited by DuParcq, L. J.); Sea and Land Securi-ties v. William Dickinson & Co., [1942] 1 K.B. 286, 289, 298 (Carver on Car-riage by Sea, and Maude and Pollock on Merchant Shipping cited and dis-

cussed by Atkinson, J.); In re O'Keefe, [1940] Ch. 124, 130 (Cheshire on

Private International Law cited by Crossman, J.). In addition in these vol-

umes there are many citations of Halsbury's Laws of England. Dicey on

the Conflict of Laws is cited and relied on in In re Paine, [1940] Ch. 46, 49;

In re O'Keefe, id. 124, 130; In re Luck's Settlement Trusts, id. 864, 883-

884, 890. Also Westlake on Private International Law is cited in In re Paine,

supra, and by Scott, L. J. in In re Luck's Settlement Trusts, supra, 915. Scott,

L. J. also cites Foote on Private International Law, id. 914, and Lafleur on

Conflict of Laws, ibid.

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What the courts do, then, is to put the guinea stampof the state upon precepts which in part they work outand formulate themselves, but in larger part they selectand develop and adapt from doctrinal writing.163

§ 60. NORMATIVE AND REALIST ANALYT-ICAL THEORIES." A different type of analysis, cul-minating in Hans Kelsen's pure theory of law, beginswith Binding's Die Normen und ihre Uebertretung.'Writing from the standpoint of criminal law, he thoughtof law in the second sense as a body of norms. Normmeans literally a model or pattern. But in jurisprudenceit has an imperative connotation. Binding and thosewho have followed him mean an imperative statement ofwhat ought to be as distinguished from a statement ofwhat is or a prediction of what will be. So they think ofa law as an authoritative statement of how courts should

163. See Pound, The Formative Era of American Law (1938) 138-167.

I. 1 Binding, Die Normen und ihre Uebertretung (2 ed. 1890) § 5-20;Thon, Rechtsnorin und subjektives Recht (1878) 1-11; 1 Bierling, JuristischePrincipienlehre (1894) § 3; Jellinek, Allgemeine Staatslehre (3 ed. 1914) 332-337; 1 G6dny, Science et technique en droit priv6 positif (1914) § 22; Livy-Ullmann, La ddfinition du droit (1917); Roguin, La rggle de droit (1889); 1Roguin, La science juridique pure (1923) 118-130; Kelsen, The Pure Theoryof Law (1934) 50 Law Quart.Rev. 474; id. Das Problem der Souverdinitht(1920) 85-101; Pound, Progress of the Law: Analytical Jurisprudence (1927)41 Harvard Law Rev. 174.

See also Kelsen, Apergu d'une th,6orie gndrale de l'dtat (1926) 33 Revue dudroit public, 562, 571-578; Voegelin, Kelsen's Pure Theory of Law (1927) 42Political Science Quart. 268; Wilson, The Basis of Kelsen's Theory of Law(1934) 1 Politica, 54; Jones, Modern Discussions of the Aims and Methods ofLegal Science (1931) 47 Law Quart.Rev. 52, 78-84.

2. Vol. I (1872, 2 ed. 1890), vol. II (1877, 2 ed. 1914-1916), vol. 1II (1918).

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The Nature of Law

decide, how officials should act and how men should con-duct themselves. A law, as they see it, is an authorita-tively established model or pattern of action or conductor behavior backed by threat of exercise of the force ofa politically organized society. Thus a law as a norm ismuch the same idea as Austin's idea of a law as a com-mand, but is not so rigid and is more inclusive.

Kelsen and his followers treat ethics and jurisprudence as''normative" sciences and contrast them as such with naturalsciences, holding that the latter depend on observation whereasthe former depend on postulates. Thus postulates are at thefoundation of jurisprudence; that is, we find a logical founda-tion in assumed postulates instead of a political foundation inthe state. But Austin postulates the state as the basis of histheory of law. This point of view is to be contrasted with thepositivist sociological position that jurisprudence depends uponobservation of what takes place in the legal order thought of asa specialized social control.

Recent writers from the analytical standpoint conceive oflaw in the second sense as an aggregate of norms or of delimit-ing precepts, derivable from the highest norm set up by thosewho wield ultimate political power. They agree on what givesefficacy to these precepts, holding that they have behind thempolitically supreme power, definite governmental agencies, and asystematic application of physical constraint. The characteristicmarks of these norms, which set them off from the purely sub-jective ethical precepts to which a judge resorts in matters leftto discretion in contra-distinction from those governed by lawin the second sense, are generality, universality, and predicta-bility. But predictability is a quality of the judicial process, notof norms or precepts. What is meant is adaptability to serveas the basis of prediction as to how they will be developed and

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applied by legal reasoning. They are norms applying generallyto all matters within their scope; they are universal norms sofar as possible-an outgrowth of the demand for equality in thematurity of law; they are certain norms so far as possible-anoutgrowth of the demand in the maturity of law for security,that is the social interest in the security of acquisitions andthe security of transactions. It will be seen that this is a de-veloped form of Austin's doctrine.

Of recent anlytical theories those most urged todayare Holmes's prediction theory, partly adopted andamended by Cardozo, and urged on the Continent byJahrreiss, and Kelsen's normative theory, a formulationin terms of threat. These are framed in terms of howlaw (in the second sense) works, how it achieves the endsof the legal order, instead of in terms of how it comes in-to existence. In this insistence on function we may seethe influence of sociological jurisprudence.

Holmes argues that law is a body of predictions asto how courts will decide.' The idea seems to be the sameas Binding's and Kelsen's norm or pattern. Law in thesecond sense is considered not with respect to a function

of furnishing guides for conduct or guides for decisionbut with respect to the function of furnishing a basis ofadvice for the counselor who has to advise as to conductand the conduct of enterprises. Indeed, the contextshows clearly that the standpoint chosen was that of the

3. The Path of the Law (1897) 10 Harvard Law Rev. 457, 460, 461.

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The Nature of Law

practising lawyer.4 He was lecturing to law teachersand pointing out a feature to which the attention of stu-dents ought to be directed. Certainly for the judge thelaw is not a body of predictions as to what he will do. Itis a body of authoritative statements of what he oughtto do or of authoritative materials from which he feelsbound to reach his decision. The norm theory is applica-ble from his standpoint. The individual at the crisis ofaction might regard the law in the second sense as a bodyof predictions of legal consequences. This is anotherway of putting the threat theory. He might equally,however, think of a body of authoritative precepts forguidance. The counselor, called on to advise, might lookon law in the second sense as a body of predictions. Butit is he that does the predicting, not the law. Even fromhis standpoint, the law is not a body of predictions. Itis a body of authoritative materials serving as the basisof predictions. This point was well made by Cardozo.'

Although Kelsen has pointed out fully the differencebetween his pure theory of law and English analyticaljurisprudence with respect to the nature of law,' his idea

4. "People want to know under what circumstances and how far they willrun the risk of coming against what is so much stronger than themselves,and hence it becomes a business to find out when this danger is to be feared.The object of our study, then, is prediction, the prediction of the incidenceof public force through the instrumentality of the courts." Id. 460.

5. The Growth of the Law (1924) 52. See also Jahrreiss, Berechenbarkeitund Recht (1927); Bingham, What is Law? (1913) 11 Mich.Law Rev. 1, 11, 15.

6. The Pure Theory of Law and Analytical Jurisprudence (1941) 55 Har-vard Law Rev. 44.

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of the legal order as "an organic, interrelated totality ofpositive norms" (compare the analytical idea of a systemof logically interdependent precepts), his sharp distinc-tion of "is" and "ought to be," and his insistence on lawas "essentially a coercive system" connect with the ana-lytical jurisprudence of the last century rather than withthe historical or the philosophical jurisprudence of thattime. As Kelsen conceives it, reduced to its lowest terms,the rule of law pure and simple, involves a pronounce-ment with respect to unqualified human behavior, i.e.not characterized as good or bad, but with all moral ele-ment excluded, and, second, a pronouncement with re-spect to the constraining action (Zwangakt) of those whowield the force of the legal order. The latter is made todepend upon the former. Given the behavior or the eventdescribed in the first pronouncement, the constrainingaction is to follow. So a law is an authoritative pro-nouncement, put forth or recognized by a politically or-ganized society thought of as a legal order, that givencertain defined behavior or a certain defined event, cer-tain defined action of those who exercise the authorityof the legal order shall follow.'

It should be noted how this meets the objections to the com-mand theory and covers such cases as the Massachusetts mini-mum wage law 8 and the former Massachusetts mode of constrain-

7. The proposition is well stated in English in Voegelin, Kelsen's PureTheory of Law (1927) 42 Political Science Quart. 268, 270-271.

8. General Laws, Tercentenary ed. chap. 151, §§ 4, 11.

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The Nature of Law

ing a public utility 9 by extra-political social control; by publi-cation of the findings of fact and appealing to public opinion in-stead of applying the force of the legal order. It should be notedalso that it conceives of law as an aggregate of laws and of a lawin terms of a rule. A section of the penal code is the type, as itwas to Bentham.10 But, as has been said in other connections,there is much in law (in the second sense) and in the precept ele-ment, with which alone analytical jurists have been concerned,which cannot be fitted to a theory of sections of a penal code.For example, the maxims of Anglo-American equity are not un-qualified pronouncements upon items of conduct. The clean handsmaxim, the doctrine as to fair conduct of a fiduciary, the doctrineas to unfair competition pronounce definitely upon the moral as-pect of conduct. It is not that there is a series of definite pro-nouncements that defined items of conduct will bar equitable re-lief. The court of equity reaches a moral judgment upon par-ticular items in a case in hand and if it find the complainant'sconduct inequitable bars relief upon the principle expressed inthe maxim.1 ' Nor does such a maxim as "equality is equity" adda threat of employment of state force to a pronouncement uponany defined conduct or event. It is a starting point for legal rea-soning.

9. Mass.Acts and Resolves, 1869, chap. 408, §§ 3, 4.

10. "The legal norm refers to the conduct of two entities: the citizenagainst whose delict the coercive measure of the sanction is directed; andthe organ that is to apply the coercive measure to the delict. The functionof the legal norm consists in attaching the sanction as a consequence to cer-tain conditions among which the delict plays a leading part." Kelsen, ThePure Theory of Law and Analytical Jurisprudence (1941) 55 Harvard Law Rev.44, 58.

II. The Court of Chancery would not "interfere on behalf of a plaintiffwhose own conduct in connection with the same matter or transaction hadbeen unconscientious or unjust, or marked by a want of good faith, or hadviolated any of the principles of equity and righteous dealing which it is thepurpose of the jurisdiction to maintain." 2 Pomeroy, Equity Jurisprudence(3 ed. 1905) § 398.

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Partly as a development from the third stage of the Englishanalytical theory and partly as a development from the sociologi-cal theory-partly carrying out Gray's doctrine of "what thecourts lay down" and partly carrying further Holmes's predictiontheory-American realists have given over discussion of the na-ture of "a law," seeking instead a theory of single judicial deter-minations.12

§ 61. THE DOCTRINE OF THE HISTORICALSCHOOL.1 It has been seen that seventeenth and eight-eenth-century jurists very generally looked on statuteas the only normal form of positive law.' Hence the au-thority of custom could only rest upon the tacit consentof the lawmaker. The historical school in the nineteenthcentury took an opposite position. It presupposed thatwhat it called Volksiiberzeugung (a people's convictionbased on experience) not arbitrary will had binding forceand it derived both custom and statute from this con-viction of a people as to what was right and just.3 This

12. Frank, Law and the Modern Mind (1931) 42-47. See also, Llewellyn,

The Bramble Bush (1930).

I. Maine, Early History of Institutions (1874) lect. 13; Clark, Practical

Jurisprudence (1883) pt. I, chaps. 7, 11-16; Clark, Roman Private Law: I

Jurisprudence (1914) § 5; Carter, Law: Its Origin, Growth, and Function

(1907) lects. 1-8; Jenks, Law and Politics in the Middle Ages (1898) 1-6;

Rattigan, Science of Jurisprudence (4 ed. 1919) §§ 8-11a; Wigmore, Prob-

lems of Law (1920) 5-10.

2. Hale, History of the Common Law (1713) chap. 1. "The statute law

is the will of the legislature in writing; the common law is nothing else but

statutes worn out by time; all our law began by consent of the legislature,

and whether it is now law by usage or by writing, it is the same thing." Wil-

mot, C. J. in Collins v. Blantern, 2 Wils. 347, 348 (1767).

3. A good statement of this doctrine may be found in Tiedeman, The Un-

written Constitution of the United States (1890) 7-15.

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The Nature of Law

popular conviction, as the historical jurist held, was re-flected directly in custom and indirectly in statute.4

As the historical jurists, while thinking of law asan aggregate of legal precepts, took custom for the typeof precept and thought of it as something found, notmade, they examined the characteristics of law in archaicor undeveloped systems in comparison with those onwhich analytical jurists insisted in the analysis of ma-tured systems. Thus they rejected most of what Austinhad laid down.

In the first place, laws in the beginning are not com-mands either express or implied. As men think at first,it is not the sovereign or any organ of politically organ-ized society that makes the law. The sovereign is boundby the law, which is above all men.

Thus as late as the tenth century, a Saxon analist tells usthat the mooted question whether grandchildren were to share inan inheritance by representation of their father along with theiruncles was regarded as one not to be settled by an assembly ofthose taken to know the customary law, but as something callingfor discovery of the truth and so requiring ascertainment by bat-tle.5 Compare also the saying attributed to Bracton (thirteenthcentury) that the king ought not to be under any man but underGod and the law,6 and the first in the catalogue of abuses in the

4. 1 Bierling, Kritik der juristischen Grundbegriffe (1883) 23; 1 Dernburg,Pandekten (8 ed. 1911) § 20.

5. 2 Widukindi, Res gestae Saxonicae (ed. Waitz) 8 III Mon.Germ.Hist.Scrip-torum (1839) 440.

6. Bracton (1569) Fo. 74.

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Mirror of Justices (probably late thirteenth century) is "thatthe king is beyond the law, whereas he ought to be subject to it." I

Sovereignty in Austin's sense and lawmaking are relativelylate developments. Even after no small degree of political organ-ization has developed, after a real Austinian sovereignty has beenevolved, law is long thought of as something independent of thestate. Later politically organized society takes up the religioususage, kin-group ethical custom and social habits, which are thematerials of social control, and puts the sanction of state enforce-ment behind them. But it does not command them. At most itrecognizes them. It provides a better enforcing agency for pre-existing precepts.

Again, archaic law is not a body of rules set by a de-terminate authority. At first laws are not set conscious-ly at all; there is no conscious lawmaking by any one.The idea of conscious lawmaking is repugnant to the be-ginnings of law. As King Alfred put it, "I durst not setdown in writing much of my own." ' The legal preceptsin this stage are those which have grown up partly as so-cial habits and partly in the practice of settling disputesand administering justice-at first thought of as divine-ly inspired and afterwards as resting on immemorialusage.

Thirdly, in the beginnings of a legal order there isno sanction, in the modern sense of that term, or is atmost but feeble sanction. In the beginnings of Roman

7. Mirror, bk. V, chap. 1, § 1 (Selden Soc. ed. 1895).

8. Prologue to Alfred's Dooms (perhaps 892 or 893), 1 Thorpe, AncientLaws and Institutions of England (1840) 59.

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The Nature of Law

law fas (what is directed or approved by the gods) andboni mores (what is approved by the morality of the timeand place) with sanctions of pontifical correction and ex-piation and of discipline by the gens or collegium, in otherwords, religion and opinion of one's fellows, were atleast as important for social control as ius. lus gradual-ly took the task over from them. State enforcement isless efficacious in the beginnings of law than religiouspressure and self-help.

Thus, in the Anglo-Saxon laws there are many exhortationswhich the king addresses to his subjects, exhorting them as Chris-tians to keep the peace and obey the dooms. The laws are thoughtof as binding them not as subjects but as Christians.9 The ear-liest sanctions of the Roman law are taken from religion. Execu-tion was a sacrifice to an offended god.10 The evil man whose im-piety was offensive to the gods must be put away. The TwelveTables provide that the harvest thief be hanged as a sacrifice toCeres," and the incendiary burnt, as it is believed, by way of of-fering to the fire god.'2 A law attributed to Numa provided thatif one plowed up a boundary stone both he and the oxen were tobe "devoted." 13 The "devoted" man (homo sacer) is taken tohave been in the position of a sacrificial victim, awaiting the

9. For invocation of curses and religous preambles in charters and writsin Anglo-Saxon and Norman England, see Winfield, Chief Sources of EnglishLegal History (1925) 289-290, 293-295.

10. Mommsen, Rimisches Strafrecht (1899) 902, 918; Girard, Histoire deV'organisation judiciaire des romains (1901) 33-34; 1 Strachan-Davidson,]Problems of the Roman Criminal Law (1912) 2.

II. Pliny, Nat. Hist. xviii, 3, 12.

12. Dig. 47, 9, 9 (Gaius on the Twelve Tables).

13. Girard, Textes de droit romain (6 ed. 1937) 7.

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stroke of the ax before the altar. If he escaped, any man mightwith impunity dispatch him to his appointed place. If by acci-dent or the neglect or connivance of the magistrate he evadedpublic execution, every man's hand was against him and he fellby the private stroke of the first comer.14 Thus religious devotionof the wrongdoer to the offended gods becomes outlawry and theexecutioner's ax ceases to have religious significance and becomesthe symbol of magisterial authority.

Archaic law is full of provisions aimed at producing obedi-ence indirectly because there was no machinery for bringing itabout directly. A striking example is the Hindu practice of sit-ting dharna.15 The suitor may get judgment, but he must executeit himself. Even today, the sheriff is the agent of the executioncreditor.' 6 The state may aid eventually if the defendant's kins-men prevent justice. But it is slow to move and often much for-mality is required to move it. Effective sanction and the au-thority which makes enforcement by the state possible are mod-ern institutions.

Finally, archaic law is recognized rather than en-forced.

No one at first is bound to come into court. The plaintiffmust get him in. The Roman Twelve Tables provided that whereone was summoned before the judicial magistrate (in ius uocatio)if he did not go, after further summons with witnesses, he was tobe taken by force. If he evaded or absconded, his person was tobe attached. If sickness or old age prevented a carriage was to

14. Macrobius, Saturnalia (c. 325-385; ed. by von Jan 1848-1852) iii, 7, 5;1 Strachan-Davidson, Problems of the Roman Criminal Law (1912) 8-9.

15. This and like institutions are described in Maine, Early History ofInstitutions (Am. ed. 1875) lect. 10.

16. Colvard v. Oliver, 7 Wend.(N.Y.) 497 (1832).

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The Nature of Law

be used."7 Usually archaic law thinks of jurisdiction as requir-ing the consent of the defendant. In Roman law, there was a pro-cedural contract by litis contestatio with coercion of this contractby distress or by a penal action with attachment of the person(manus iniectio) for not obeying a summons.' 8 In the beginningsof legal procedure all manner of expedients are resorted to in or-der to bring about consent to adjudication. Distraint is thecommonest of them." At common law an action of trespass be-gan with arrest and bail.20 Other actions employed mesne proc-ess, involving distraint of goods, seizing of the profits of lands,attachment of the person, and ultimately outlawry.2 1 In equitythere was a commission of rebellion, treating the defendant "asa rebel and contemner of the king's laws and government" fornot appearing in obedience to the king's command, and sequestra-tion of his property.2 2 In the canon law, the defendant who didnot appear might be fined or his property might be sequestrated,or some ecclesiastical sentence might be imposed, or in the endthe libel was taken for confessed as a punishment for contumacyin not appearing.' 3 Pressure was employed to compel submis-sion to the jurisdiction instead of the simple modern device ofrendering judgment by default.2 4 International arbitration fur-

17. Tab. I, 1-3. Girard, Textes de droit romain (6 ed. 1937) 12.

18. As to litis contestatio see Wenger, Institutes of the Roman Civil Pro-cedure (transl. by Fisk, 1940) § 13. As to the action for not obeying a sum-mons, see Gaius, 4, 46.

19. Maine, Early History of Institutions (1874) lects. 9-10.

20. 3 Blackstone, Commentaries (Lewis' ed. 1897) 281-285, 287.

21. Id. 280-284.

22. Id. 444-445.

23. Lancelottus, Institutiones luris Canonici (1578) lib. iii, tit. 6.

24. Compare the crude method of compelling plea to an indictment bypeine forte et dure, where today the court simply enters a plea of not guiltyon the record. 4 Blackstone, Commentaries (Lewis' ed. 1897) 325-327.

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nishes a significant analogy ;25 likewise arbitration of industrialdisputes before recent legislation providing for administrative ad-justment. Pressure of public opinion was employed to force ar-bitration. In other words, state enforcement and state enactmentare developments. Historically the state recognizes preceptswhich have originated outside or independent of the state. Intime, it takes them over and enforces them. In time, it con-sciously and avowedly makes at least some of those it enforces.

Theories of sanction from the standpoint of thehistorical school. 6 The importance of sanction in de-veloped law is so obvious that historical jurists have de-voted much attention to devising a theory of it whichwould meet the circumstances of the beginnings of law,archaic law, positive law in a modern state, internationallaw, and constitutional usage or customs of the constitu-tion. 7 Historical jurists have found sanction in the dis-pleasure of one's fellow men,"8 in the habit of obedience, 9

in public sentiment and opinion," and in the social stand-

25. Maine, International Law (1888) 210-218.

26. 1 Vinogradoff, Historical Jurisprudence (1920) 353-361; Hartland,Primitive Law (1924) chap. 6.

27. It might be asked, why were historical jurists in the last century soeager to include constitutional usage? It was because in continental countries,having little or no constitutional law in the analytical sense, the body of con-stitutional usage passed by the name of constitutional law; and this accord-ed with the doctrine that custom was the type of law.

28. Clark, Practical Jurisprudence (1883) bk. i, chap. 16.

29. Maine, International Law (1888) 50-52.

30. Lightwood, The Nature of Positive Law (1883) 362, 389. For a recentexample of legislative reliance on appeal to public opinion as a sanction, seeNote, The National Industrial Recovery Act (1933) 47 Harv.L.Rev. 85, 96-98.

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The Nature of Law

ard of justice.31 In substance these four reduce to two,Clark's sanction of human displeasure and Maine's re-placing of sanction by habit of obedience.

Clark contends that the four bodies of precepts re-ferred to have in common what he calls "the ultimatesanction of all law," namely, "human displeasure"-"thedispleasure of that human association in which the lawobtains." 3 As with historical jurists generally, "law"here is used of all social control. Sociologists also gener-ally give "law" the same wide meaning. Clark is defin-ing sanction in a very wide sense with reference to all so-cial control. But sociologists have been making someneeded distinctions. Malinowski distinguished "valid,sanctioned customs" from "neutral or indifferent cus-toms." "' This should be compared with the distinctionproposed by Sumner who divided folkways into usages,which are merely practised, and mores, which are regard-ed as necessary to the welfare of the group and so areheld sacred. In a wide sense of the term "sanction," themores are sanctioned customs.3 The sanction may bediffuse or organized. The mores are backed by what

31. Carter, The Ideal and the Actual in Law (1890) 13 Rep.Am.Bar Ass'n217, 224-225.

32. Clark, Practical Jurisprudence (1883) 134, 172, 188. See also RomanPrivate Law: I Jurisprudence (1914) 76.

33. Introduction to Hogbin, Law and Order in Polynesia (1934) at pp.xxv-xxvii.

34. Folkways (1934) 57.

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Radcliffe-Brown happily terms "diffuse sanctions." In-stitutional social control is backed by "organized sanc-tions." Ostracism or boycott may be joined in by anyone. Only the properly set up authority or appointed of-ficer of an institution (in Hauriou's sense) may exercisethe sanctions or carry out the sanctioned procedures ofthe institution.35 The highest type of institutional socialcontrol is the legal order, control by the systematic em-ployment of the force of a politically organized society.The jurist, whose immediate concern is with the latter,will probably continue to feel that limitation of the term"law" to this type is expedient. Radcliffe-Brown consid-ers it more convenient also "for purposes of sociologicalanalysis and classification." 36

From the standpoint of the jurist there are grave objectionsto thinking of the effective sanctions of the maturity of law interms of the diffuse social pressure behind other forms of socialcontrol. The analytical jurist is not wrong in distinguishingbetween a motive persuading compliance and a legal sanctioncompelling it. The discovery of effective sanctions is one of theconspicuous achievements of legal development. The line be-tween a motive to induce obedience to a legal precept and a sanc-tion to compel it is clear enough in modern law even if it is notso clear as we go back in legal history.

As Jhering has put it, "A legal proposition withoutlegal compulsion behind it is a contradiction in itself; afire that burns not, a light that shines not." 17

35. Social Sanction (1934) in 13 Encyc. of the Social Sciences, 531-534.

36. Primitive Law (1934) in 13 Encyc. of the Social Sciences, 202.

37. Der Zweck im Recht (3 ed. 1893-1898) 322.


The Nature of Law

Effective sanctions come very late in legal development.Compare the actio arbitraria with execution in natura. Comparespecific performance in actions at law in Pennsylvania before1835 with decrees enforced in rem under modern statutes. Com-pare the action of trespass quare clausum with injunction againstrepeated trespasses or the action on the case for waste with in-junction. But injunction to restrain torts is one of the later de-velopments of equity. It did not become thoroughly effective tillthe second third of the nineteenth century 3s and was long ham-pered by a doctrine that complainant's right must be first estab-lished in an action at law. 39 Compare also the modern Englishaffirmative decrees and mandatory injunctions with the olderprejudice against affirmative decrees. 40 Effective sanctions area mark of matured law. They are generically distinct from thedevices of the beginnings of law. Indeed, they mark the changefrom the "recognized" of archaic law to the "enforced" of thematurity of law. The theories of sanction urged by the historicalschool ignore the course of development which has set off the le-gal order as a highly specialized form of social control. It doesnot help us understand developed law to extend juristic use of theterm "sanction" to make it cover a stage in which sanction as wenow understand it had at most only begun to evolve. The "sanc-tion of human displeasure" is as inadequate to describe sanctionin a developed system of law as Austin's theory is inapplicable tothe beginnings of law. The one has reference to social control

38. Compare Mogg v. Mogg, Dickens, 670 (1786) and Mortimer v. Cottrell,2 Cox 205 (1789) with Lowndes v. Bettle, 3 New Rep. 409 (1864).

39. Gause v. Perkins, 56 N.C. (3 Jones, Eq.) 177 (1857). Compare Echel-kamp v. Schrader, 45 Mo. 505 (1870) and 1 Ames, Cases on Equity Jurisdiction,515, n. 2.

40. Compare Lane v. Newdigate, 10 Ves.Jr. 192 (1804) with Jackson v.Normanby Brick Co., [1899] 1 Ch. 438. For successive stages in the develop-ment of mandatory injunctions, compare 2 Story, Equity Jurisprudence (1886)§ 862; 3 Pomeroy, Equity Jurisprudence (1 ed. 1883) § 1359; Kennard v. Cory,[1922] 2 Ch. 1.

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as a whole and the first stage of legal development. The otherhas reference and applies to individual legal precepts in a ma-tured system.

Historical theories of sanction, when applied to developedlaw, are often supported by the analogy of "laws" of fashion and"laws of honor," which are backed only by the displeasure ofone's fellow men.41 There is an analogy between these and theunsanctioned or feebly sanctioned beginnings of law in the stagein which religion, law, morals, and ethical custom are undifferen-tiated. But there is a radical difference between them and ma-tured law. Men obey the laws of fashion and laws of honor ornot as they choose. They are compellable to obey the law of theland whether it pleases them or not. Timasheff puts a very perti-nent question: In the fore part of the last century it was univer-sally held in many parts of the country that one who consideredhimself insulted and so sent a challenge to a duel had a claim tothat form of satisfaction, to which a duty to accept the challengewas correlative. There was also a social machinery which ap-plied heavy pressure to one who refused the challenge. Shall wesay, therefore, he asks, that there was law as to duels, or shall wedifferentiate the custom which called for them from the law whichlater put them down? 42 The analytical jurists are entirely jus-tified in insisting upon this point.

Sir Henry Maine sought to replace the idea of sanc-tion entirely. He found a common element in the positive

41. Clark, Practical Jurisprudence (1883) 189-192, 193-195.

42. Sociology of Law (1939) 277. See Alexander Hamilton's reason for ac-cepting Aaron Burr's challenge. Smucker, Life and Times of Alexander Ham-ilton (1857) 359, 363, 395-396; Lodge, Alexander Hamilton (1883) 248-249.Compare the case of an injunction against an order of bishops and preachersof a religious sect who had ordered a boycott of one who had departed fromthe practices of the sect. Chafee and Pound, Cases on Equitable Reliefagainst Torts (1933) 136-137.

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The Nature of Law

law of each state, international law, constitutional usage,and the beginnings of law in the habit of obedience on thepart of those subject to them. He considered that thisrather than sanction, was the significant point in law.It was the common element by virtue of which each of thefour bodies of precepts might be called law.43 What hasbeen said as to Clark's sanction of human displeasureapplies here also.

While the beginnings of law may rest chiefly or solely on in-dividual habits of obedience, developed systems have got beyondthis. There may be a well developed habit of individual disobedi-ence, as, for example, the old land laws in Ireland, excise lawsin many communities, the Fugitive Slave Law in the northern,states before the Civil War,44 the National Prohibition Act.45

Such laws illustrate also the objection of the analytical jurist toClark's sanction of human displeasure or Carter's sanction of thesocial standard of justice.4a There may not be any special pub-lic feeling behind statutes even in the wider area whose political,organization is behind them. It may be that they simply haveorganized political machinery back of them which mechanicallygives them effect. Again, in a modern urban, industrial commu-nity, where a multitude of minor police regulations are required,the public as a rule is largely, if not wholly, indifferent to them.Yet they are recognized and given effect by tribunals as laws. If

43. International Law (1888) 50-52.

44. See In re Booth, 3 Wis. 1 (1854); Ex parte Booth, 3 Wis. 145; In reBooth and Rycraft, 3 Wis. 157; Ableman v. Booth, 21 How. (U.S.) 506, 15 L.Ed. 464 (1858).

45. National Commission on Law Observance and Enforcement, Report onthe Enforcement of the Prohibition Laws of the United States (1931).

46. The Ideal and the Actual in the Law (1890) 13 Rep.Am.Bar Ass'n 217,224-225.

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they had behind them only human displeasure or habit of obedi-ence they would achieve nothing. Again, as to traditional pre-cepts and doctrines there is neither pleasure nor displeasure in-volved. There is only indifference. The doctrines of equity asto conversion or clogging the equity of redemption, the rules oflaw as to contingent remainders and future interests in proper-ty, are wholly indifferent to the public.

Human displeasure as a sanction is rather a theoryof social control as a whole, as a regime, than of the sanc-tion of particular laws or legal precepts. It is more atheory for the simple tabus of a tribal society than forthe complex penal code, police regulations, and positiveprivate law of a developed industrial society. Likewise,Maine's theory is one of what is behind the legal order asa whole, not of what is behind particular laws or legalprecepts, which is what Austin is speaking of. Maine isthinking of the legal order. Austin is thinking of "alaw" and of law as an aggregate of laws, that is, of lawin the sense of a body of authoritative rules of conduct orguides to determination.

Results of philological investigation. Philologicalinquiry into the words used to mean law has been resort-ed to in order to discover what Clark calls the "uncon-scious definition." " Summarily it comes to this: Thefirst words used mean etymologically that which is fit-ting, and have a religious flavor-that which is fitting

47. Clark, Practical Jurisprudence (1883) 11-89; Noyes, The Institution ofProperty (1936) 562-569.

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The Nature of Law

for religious reasons or that which has been approved bythe gods; " thence they come to mean that which is order-ly and regular by reason of long observance; " then asthe precepts of systematic social control are taken overand administered by the developing state, and are en-forced and finally to a large extent laid down by thestate, we get words meaning that which is established orprescribed or set."0 This history of words largely repro-duces the process by which law (in the second sense) wasdifferentiated from an undifferentiated body of religiousand moral precepts. The analytical jurist insists rightlyenough that it became law, for the purposes of jurispru-dence, at the point when the state got behind it; that abody of precepts is law because the state administers itand is not law unless the state administers it; whereashistorically the state administered precepts because theywere held to be law, thought of as over even the state, andthe precepts were thought of as having an independentvalidity, not as law simply because the state recognizedand enforced them.51

One may agree that the ought does not come from the statenor from any one's will. What ought to be a legal precept andwhat a legal precept ought to be depend on principles beyond thestate. Principles of lawmaking are above the state. But the is

48. 0teIu, fas, Anglo-Saxon dom.

49. A[Kfq, ius, Gothic witoth, Anglo-Saxon ae.

50. N6bVoq, lex.

51. 1 Hensler, Institutionen des deutschen Privatrechts, § 1.

[ 182 ]


does come from the state through its tribunals and its legislativeorgans. It is no ethical or philosophical justification of a legalprecept that it is ordained or recognized by the state; but it is acriterion of its existence as a legal precept.

Summing up the results of the historical school, rec-ognition by tribunals, becoming enforcement by tribu-nals, is the one characteristic of a law to which we maytie. In its history and development law (or rather oneelement in law in the second sense) is a body of preceptsrecognized or enforced in the public administration ofjustice among men. This still leaves two elements of lawin the second sense out of account, namely, the techniqueelement and the ideal element. But until the presentcentury, jurists have looked only at the precept element.If we are describing the body of precepts it might bebetter to say: The body of authoritatively recognizedmaterials made use of as the grounds of decision in thepublic administration of justice. It will be seen that thisis not far from the position arrived at by the Englishanalytical school in its third stage.

§ 62. THE DOCTRINE OF THE NINE-TEENTH-CENTURY PHILOSOPHICAL JURISTS.'In contrast to the natural-law jurists of the eighteenth

I. Miller, Data of Jurisprudence, chaps. 4, 5; id. Lectures on the Phil-osophy of Law, appendix A; Lorimer, Institutes of Law (2 ed. 1880) 255-259;Miraglia, Comparative Legal Philosophy (transl. by Lisle, 1912) chap. 7;Korkunov, General Theory of Law (transl. by Hastings, 1909) 40-165; Binder,

Philosophie des Rechts (1925) § 6; Del Vecchio, Legons de philosophie du droit

(1936) 177-249; Sauer, Rechts- und Staatsphilosophie (1936) § 43.

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The Nature of Law

century, who held that a law was formulated reason, themetaphysical jurists of the nineteenth century conceivedof it as an expression of the idea of right 2 But theywould have had to admit that there were other expres-sions of the idea besides laws. Political institutions gen-erally would also be expressions of this idea. Hence,even from their standpoint, laws would be those expres-sions of the idea to which effect is given in the public ad-ministration of justice. But the nineteenth-centuryphilosophical jurist felt this too narrow and would havesaid, "to which effect may be given in tribunals." How-ever, this confusion of what a particular writer thinksought to be and what is has no place in the maturity oflaw and the analytical jurists did a service in ridding usof it. The real point of the metaphysical jurist is thatexpression of the idea of right is philosophically moresignificant than sanction. It is the justification of sanc-tion. As Kant says, his is a theory for making law.3

The lawmaker does well to remember that he is seekingto express an idea of right rather than to express will.

After Kant, philosophical jurists often considered the legalorder, rather than law in the second sense-a condition of recon-ciling wills in action,4 or of life measured by reason,5 or of social

2. Miller, Philosophy of Law (1884) 9.

3. Metaphysische Anfangsgriinde der Rechtslehre (1797) Intr. § A.

4. Id. 27.

5. Krause Abriss des Systemes der Philosophie des Rechtes (1828) 209.

[ 1841]


coexistence,6 or of harmonious coexistence of the individual withthe whole,' or of right (in the ethical sense) realized in andthrough the state.8

When the metaphysical jurists thought of law after the old-er philosophical fashion as an aggregate of precepts, they did notask how the precepts came into existence (as the historical jur-ists did) nor how they got their practical authority (as the ana-lytical jurists did) but instead whence they derived their moralauthority. So Puchta, substituting a Hegelian concrete universalfor a Kantian abstract universal 9 holds that a law is a recogni-tion of liberty.10 To Acollas, it is a rule assuring liberty throughthe force of society.' To Miraglia, it is an ethical principle real-ized by force.'2

So with Kohler's theory of laws as derived from the juralpostulates of the civilization of the time and place.' 3 The law-maker should seek to discover and express these in precepts, notto discover and formulate any one's will. But these postulatesare not themselves laws. It is their logical consequences, recog-nized and applied in tribunals which are laws. The jural postu-lates give us a critique of legal precepts and starting points forlegislation and for creative finding of law by judicial decision.

6. Pulszky, Theory of Law and Civil Society (1888) 312.

7. I Lioy, Philosophy of Right (transl. by Hastie, 1891) 121.

8. Herkless, Jurisprudence (1901) 45-47.

9. James Hutchison Stirling, The Secret of Hegel (1865).

10. 1 Puchta, Cursus der Institutionen (1841) § 6.

II. Introduction A l'6tude du droit (1885) 2.

12. Comparative Legal Philosophy (transl. by Lisle, 1912) § 118-the trans-

lation is from the 3d ed. 1903, but the book speaks from the first ed. 1873.

13. Philosophy of Law (transl. by Albrecht, 1914) 4.

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The Nature of Law

Korkunov's theory of law as the delimitation of interests, i. e.fixing the limits within which they are to be secured, 14 builds onJhering. While still in the historical period of his juristic think-ing, Jhering began to look at legal precepts functionally; to con-sider what they did rather than how they came into existence orwhat was the immediate practical or the ultimate moral sourceof their authority. Thus he came to the idea of the securing ofinterests. 15 The functional point of view was taken up and de-veloped by the sociologists. But one development in the philo-sophical direction deserves mention, namely, the idea of law as asystem of canons of valuing social relations.'6

It is enough to say of these philosophical theoriesthat the philosophical jurist is more concerned with thesources of law-the formulating agencies, the principleswhich should determine the content of legal systems-than with the nature of law. His real field is criticismof the received ideals which are part of the authorita-tively received legal materials. He criticizes them withreference to general ethical and social ideals.

§ 63. THE DOCTRINE OF THE SOCIOLO-GISTS.1 Sociology of law is a matter of the present cen-

14. General Theory of Law (transl. by Hastings, 1909) 52-first ed. of or-iginal in 1887.

15. 3 Geist des rdmischen Rechts (1864) § 60.

16. Perassi, Introduzione alle scienze giuridiche (1922) 23.

I. Gray, Nature and Sources of the Law (1 ed. 1909) §§ 191-247; Gareis,Science of Law (transl. by Kocourek, 1911) § 5; Dicey, Law and Public

Opinion in England (2 ed. 1914) 483-494; Willoughby, The Fundamental Con-

cepts of Public Law (1924) chap. 10; Cardozo, The Growth of the Law (1924)21-55; Ehrlich, Fundamental Principles of the Sociology of Law (transi. by

Moll, 1936) 26-38; Timasheff, Introduction to the Sociology of Law (1939)

[186 ]


tury2 Comte had only vague, lay ideas as to law. Hewrote in the period in which French jurists identifiedlaw with the Code Napoleon.3 At the same time, the his-torical school was propagating disbelief in legislation.Hence Comte's prophecy of the disappearance of lawlooked forward to the disappearance of legislative law,to be replaced by law produced "naturally" by the oper-ation of social forces.' Spencer treated of laws, as whathe called political institutions, rather than of law, think-ing of law as hardened custom "formulating the rule ofthe dead over the living." ' Ward thought only of legis-lation which, much in the manner of the contemporaryhistorical jurists, he took to be attempt to affect the op-eration of the "real law" which the sociologist found be-hind the phenomena of social life.' Durkheim sought to

chap. 11; Gurvitch, Sociology of Law (1942) 50-60; Pound, Sociology of Lawand Sociological Jurisprudence (1943) 5 Univ. of Toronto L.J. 1; Llewellynand Hoebel, The Cheyenne Way (1941) chaps. 1-12.

2. There had been attempts in the last quarter of the nineteenth centuryto connect sociology with philosophy of law. Vadale Papale, La filosofia del

diritto a base sociologica (1885); Ratto, Sociologia e filosofia del diritto (1894);Vaccaro, Le basi del diritto e dello stato (1893) translated as Les bases sociol-ogique du droit et de l'Fitat (1898). Also much had been written in the lastquarter of the century by way of application of the biological sociology to law.Post, Der Ursprung des Rechts (1876); id. Bausteine fir eine allgemeineRechtswissenschaft (1880); id. Die Grundlagen des Rechts und die Grund-ztige seiner Entwickelungsgeschichte (1884); id. Grundriss der ethnologischen

Jurisprudenz (1894-1895); Richard, L'origine de l'idde de droit (1892).

3. See ante, § 53(3).

4. 6 Cours de philosophie positive (1842) 651-652; 1 Systgme de politiquepositive (1854) 361.

5. 2 Principles of Sociology (1882) 514.

6. 1 Dynamic Sociology (1883) 36 ff.

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The Nature of Law

explain law as the expression of a basic social fact, butgot no further than a general differentiation of repres-sive law and restitutive law, the one corresponding tosolidarity through similarity of interest and the otherto solidarity through division of function.7 At the endof the century, in a series of articles published between1896 and 1901 8 and reprinted as a volume in 1901,"Ross gave us the idea of social control and of means ofsocial control, putting law as the "most specialized andhighly finished engine of social control employed by so-ciety." 10 Sociology of law is in this line of development.It proceeds from sociology toward law. The pioneer, andin many ways the most useful work for the lawyer, isEhrlich's Grundlegung der Soziologie des Rechts. n Asuccession of books on sociology of law has followed.'

7. De la division de travail social (1893) bk. I, chap. 1, § 3, Simpson's

transl. as The Division of Labor in Society (1933) 68-69.

8. In American Journal of Sociology, I, 513, 753, II, 96, 255, 433, 547, 823,

III, 64, 236, 328, 502, 649, 809, V, 475, 604, 761, VI, 29, 238, 381 550.

9. Social Control (1901).

10. Ibid. 106.

II. (1913) Transl. by Moll as Fundamental Principles of the Sociology of

Law (1936). See critiques by Kelsen, Eine Grundlegung der Rechtssoziologie

(1915) 39 Archives fiir Sozialwissenschaft und Sozialpolitik, 839-answered

by Ehrlich, 41 id. 844 (1916) with reply by Kelsen, id. 850-and by Vinogradoff,

The Crisis of Modern Jurisprudence (1920) 29 Yale Law Journ. 312; reviews

of Moll's translation by Simpson (1937) 51 Harvard Law Rev. 190, by Tima-

sheff (1937) 2 American Sociological Rev. 120, and by Rheinstein (1938) 48 In-

ternational Journ. of Ethics, 232; and appreciation by Pound, Fifty Years

of Jurisprudence (1938) 51 Harvard Law Rev. 777, 805-809.

12. Cornil, Le droit privd: Essai de sociologie juridique (1924); Jerusa-

lem, Soziologie des Rechts (1925); Burckhardt, Die Organisation der Rechts-

[ 188 ]


Ehrlich used "law" to mean all social control, fol-lowing in this respect the usage of the historical school.For example, the idea of sanction urged by the Englishhistorical jurists,13 is rather a theory of the sanction ofsocial control as a whole than of the sanction of particu-lar laws or legal precepts, which is what Austin is talk-ing of, 4 and Vinogradoff's preliminary discussion is di-rected to social control as a whole, not confined to thathighly institutionalized form of social control which ana-lytical jurists and lawyers think of as law. The respectin which Ehrlich differs from the historical jurists of thelast century is that they, like the jurists of the past, werethinking of the body of authoritative materials in whichtribunals find the grounds of determination. He, on theother hand, was looking functionally at the legal order,at the ordering of relations which makes up the legalorder, and at particular legal precepts. In particular,he stressed the limited function of the norm for decision.In this he is followed by later writers on sociology of law.His method was to grasp the relation of law in the senseof the body of norms of decision to the inner order of theassociations and relations which make up a society. Hesaw that, using "law" in the sense of the legal order, this

gemeinschaft (1927); Querios Lima, Principios de sociologia juridica (1922, 2

ed. 1931); Horvfth, Rechtssoziologie (1934)-review by Wilson (1936) 52 Law

Quart.Rev. 138; Timasheff, Introduction to the Sociology of Law (1939); Gur-

vitch, M1fments de sociologie juridique (1940); id. Sociology of Law (1942).

13. Ante, § 61.


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The Nature of Law

inner order of groups and associations is the original andis still the basic form. The body of legal precepts and thetechnique of the judicial process are logically derivativeforms. But in speaking of this inner order as law, as inspeaking of the legal order of a developed politically or-ganized society as law, there is a confusion of (1) theregime maintained with (2) the processes which main-tain it in a developed society both political and legal andwith (3) the body of authoritative guides and the re-ceived technique by which those processes are carried on.

Jerusalem 1 deals with the inner order of groupsand associations and its phenomena as an ingredient ofsocial life without regard to value.

Horvith discusses law (Recht) as a substitute for strife 16

(which is what law in the lawyer's sense was historically in itsbeginnings), as limitation of power,17 and as organization of pow-er.18 Limitation of power is the idea of Anglo-American publiclaw. Organization of power is the Continental idea. He uses theterm "law" partly in the sense of the legal order and partly in thesense of the judicial and administrative processes.

Timasheff defines law as ethico-imperative coordination. 9

This is not exactly the Roman idea of what is right backed bythe authority of the state; so that law is the ethical backed by

15. 1 Soziologie des Reehts (1925). The book was not completed.

16. Rechtssoziologie (1934) §§ 51-53.

17. Id. § 63.

18. Id. § 64.

19. Introduction to the Sociology of Law (1939) 17.

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the political, as in natural-law thinking. He uses the term "le-gal," quite differently from the way it is used by English andAmerican writers, using it to refer to precepts as to what is doneand what is not done, which we should be likely to call ethical-customary. Using the word "legal" in this sense, he holds thata system of legal rules "recognized and supported by the activecenter" corresponds to every "power structure"-e. g. to a pio-neer mining district, or a trade union, or a bar association, or astate. Hence, the hierarchy of power structures is paralleled bya hierarchy of what he calls legal orders, that is, regimes of con-trol, those recognized by structures lower in the hierarchy giv-ing way before what he calls the "legal rules"-i. e. precepts ofsocial control-supported by structures of higher degree. Heputs the state as the highest of these power structures, and soholds that the "upper layer of law" is to be found in "legal rulesemanating directly from the state or directly recognized by it."But, he adds, other social groups have their "legal rules" also,and these are the lower level of law. He proposes to call theupper level "state law," and the lower level "social law." 20 Here"law" and "legal" refer to the inner order of groups and associ-ations of every kind. But "law" is used to refer also to the bodyof precepts and technique and even to the internal authoritativeprocess, or in the "upper layer" the judicial and administrativeprocesses by which the inner order is maintained. All social con-trol and all its agencies are included. Does it help understand ei-ther law in the lawyer's sense or the lower levels of social controlto use a word, already of many meanings, to include so muchmore? The use of the word "legal" is unusual in English. More-over, the matter is not wholly one of terminology. It would bedesirable to find a word for the lower level, using "social control"for the whole, using "law," as jurists do, for his "state law," andfinding a new adjective in place of "legal" for the order or ordersand precepts of Timasheff's "social law."

20. Id. 302-303.

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The Nature of Law

With Gurvitch, this use of "law" for all social control andall its agencies, as forming one idea to be expressed in one word,is behind the whole system of sociology of law. At the outset hetells us that jurists are concerned only with quid iuris-what ofright and law-but sociologists with quid facti in the sense of re-ducing social facts to the relations of forces.2 ' But the Englishand American lawyer may well feel that the first part of theproposition, at least to the extent of the word "solely", comesfrom thinking of law in terms of droit. What is right in the ad-justment of relations is suggested more by the words used in thelanguages of Continental Europe than by our word "law," whichsuggests primarily what is backed by the force or bears theguinea stamp of a politically organized society. That this is sois illustrated by the dominance of natural law in different formson the Continent, while the idea of the English analytical schoolhas been no less accepted in the English-speaking world. Bothsociology and sociological jurisprudence have sought to over-come the separation of the two ideas. But it may be doubtedwhether the way to overcome it is to add to the multiplicity ofmeanings of the lawyer's term "law."

Gurvitch conceives of a need of objectifying the spiritualvalues and ideas which set the standard of what is good for so-ciety, and that this need brings about a symbolizing. That is, if Iunderstand aright, my personal ideas of what is done and what isnot done, as I hold them, are subjective. For example, I maythink I ought to be free to make my own contracts. To objectifyan idea of this sort we must get my purely subjective personalpicture out of it and reach one applicable generally. But, heholds, the symbols-i. e. such words as liberty or security-do notclearly reflect the nature of the values. We have to understandthem, that is, to know them intuitively. Law has the function ofregulating the shaping of human conduct so that organized col-

21. Sociology of Law (1942) 1-2.

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lective action and individual behavior harmonize with the spiritu-al values of the "noetic mind." This is a term taken from phe-nomenology. We are told that "concepts which are non-sensu-ous and non-empirical but are conceived by reason alone are no-etic." 22 1 take it he means that law is to make organized collec-tive action and individual behavior harmonize with the values rec-ognized by the generalized group mind; so that collective actionand individual behavior accord with a generalized picture ofwhat all of us think ought to be. He tells us that justice is theeffective harmonizing of them. Law has to do more. It mustreconcile the conflicting spiritual values of the collective mind insuch a way as to bring about an orderly system of conduct73 Hesays that law is not synonymous with social control because juralprecepts (i. e. precepts of right-and-law) are multilateral andare of determined and limited character, based on claims and du-ties. But social control is multilateral, too. In substance, he alsois using the term "law" for all kinds of social pressure involved inthe existence of groups and associations.

Malinowski makes a distinction between "what might becalled valid, sanctioned customs, with a strong pull of the par-ties concerned towards evasion, breach, circumvention, and, onthe other hand, customs which are neutral or indifferent." Theformer, in a primitive society, "must not only be made safe bysubsequent punishment of breach but, so to speak, temptationproof at every juncture. The very possibility of a breach is pre-vented by elaborate arrangements and constant vigilance." Onthe other hand, the "rules of ordinary or neutral custom are never

22. This idea of group mind as something conceived by reason alone dis-appeared from the social sciences in America a generation ago. As appliedin jurisprudence, it reminds one of Savigny's Volksiiberzeugung (see 1 Bierling,Kritik der juristischen Grundbegriffe, 23) and its turning up in this connec-tion is one of many indications that a type of philosophical school on theContinent is the successor of historical jurisprudence.

23. Sociology of Law (1942) 52-59.

2 Pound Jurisprudence-[13 [ 193 ]

The Nature of Law

sanctioned in the sense that their breach provokes dissatisfactionin any one." 24 He holds, therefore, that law runs back into themost primitive society and that "our own law [i. e. in a developedpolitically organized society] is nothing but intrinsically validcustom safeguarding the smooth working of our institutions;custom obeyed not so much through fear of penalties but formuch deeper reasons which the sociologist and psychologist haveto discover." Hence, he concludes, "there is no fundamentalbreach of continuity between our own society and that of primi-tive peoples." 25 This, it will be seen, is a sociological version ofthe doctrine of the historical school. On another side, it recallsJellinek's view of law as the indispensable ethical minimum indistinction from the "ethical luxury." 26 But it is strictly socio-logical, holding that the binding force of law is derived fromthe structure of institutions in a given society.

As Ehrlich had done before him, Malinowski points out thatthe relationships within families, in business, between physicianand patient, are not products of legislation or adjudication andthat but a very small part of all breaches of legal precepts whichmight come before tribunals are actually taken there. But onehas only to compare what took place when the machinery ofexecution was relatively feeble with what has followed the work-ing out of effective sanctions, such as execution in natura, manda-tory injunctions, and doing for a defendant, by agencies ap-pointed by the court and at his expense, what he refuses to do, inorder to perceive that the circumstance that conflicts of interestmay be taken to court, and knowledge of what will be done there

24. Introduction to Hogbin, Law and Order in Polynesia (1934) xxv-xxviii.But qu. A man may be disliked generally for breaches of the neutral customs.Is it not a matter of degree?

25. Ibid. xxx.

26. Die suzialethische Bedeutung von Recht, Unrecht, und Strafe (1878, 2ed. 1908) chap. 2.

[194 ]


if they are, play a role in social control which is increasingly sig-nificant with the development of legal institutions and legal sys-tems. It is a mistake to assume that legal precepts are notbrought into play except in case of breach. The counseling proc-ess brings them into play continually to adjust relations and or-der conduct. Such proceedings as the actio negatoria, suits forinstructions to trustees, and suits to obtain declaratory judg-ments are of continually increasing importance and do not in-volve or depend on any breach of any precept. Malinowski isthinking of the provisions of a penal code, e. g. against arson,burglary, or robbery. These must be broken to come before thecourts. On the other hand, on the civil side of the law one maygo to a court in order to get an authoritative pronouncementas to what his rights are so as to forestall breach. Comparealso what happens when the sanctioning agencies are tempo-rarily in abeyance, as in a police strike, in a riot, in a revolution,or in time of flood, or conflagration, or earthquake. Violence andlooting break out spontaneously. It is the layman's idea that lawis a body of prohibitory rules enforced by penalties in criminalprosecutions. In the same way, Malinowski thinks only of onetype of rule, namely, precepts attaching definite detailed legalconsequences of penalty to a definite detailed state of facts. De-veloped law gets far beyond this. But this type of precept ischaracteristic of the societies with which anthropologists have todeal and even of societies much farther advanced. If the anthro-pologist can see nothing more in the politically organized societiesof today, the jurist may, for his purposes, see no law in primitivesocieties, where political organization is little advanced, and maysay of even more advanced societies that they have laws, if youwill, but not law.

From a juristic sociological standpoint the outstand-ing recent contributions are those of Llewellyn." After

27. K. N. Llewellyn, The Normative, the Legal, and the Law-Jobs: TheProblem of Juristic Method (1940) 49 Yale Law Journ. 1355; Llewellyn and

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The Nature of Law

a notable beginning in skeptical realism he turned to thesociological approach. In his paper on the problem ofjuristic method he gives us much the best outline of thetask of a sociology of law and of the way of going aboutperformance of it which has appeared. His strikingterminology has, at any rate, the merit of not using oldterms in new meanings and of conveying a vivid impres-sion of the meaning sought to be conveyed. "Law-job,""law-ways," ".law-stuff," the "trouble-case," and the"cleaning up of messes" all but explain themselves.

He begins with the entirety or group. Next we seethat "divergent urges or desires" arise among membersof a group which "tend to friction and disunity." Here isa "constituent of law-life as fundamental as the grouporder which it may disturb." Third, there is the "claimmade by some member or members upon or against oth-ers and the relation of those claims to the order of thewhole." Claims are generated either by expectation orby wish, but there is an "inveterate drive" for them tobe asserted in title of the whole, as involved in the work-ing of the whole and so justified and rightful. Thehandling of the claims goes to the very heart of groupexistence. Unless the resulting "law-jobs" get done, thegroup breaks up, dwindles away, or dies. This funda-

Hoebel, The Cheyenne Way: Conflict and Case Law in Primitive Jurispru-dence (1941) pt. I, chap. 3 (Primitive Law and Modern) and part III (TheLaw-Jobs and Juristic Method-chap. 10, Claims and Law-Ways, chap. 11,The Law-Jobs).

[196]


mental sociological exposition goes to the root of suchquestions as the nature of law, the basis of legal recog-nition and securing of interest, the end of law, and wheth-er "rights" have some reality behind them or are merelyinferences from threats and are asserted only because alegal order has taught men to do so. Any group or anysociety is "subject occasionally or insistently to the an-noyance or even disruption of members at odds or outswith one another over expectations and demands disap-pointed or resisted." There is need of some kind of set-tlement unless the group is ultimately to be dissolved.There is, therefore, a continuing strong pressure forinstances of settlement and settlement procedure to be-come institutional.

This leads him to make a sound distinction in com-parison with Timasheff as to the term "legal." Thelegal in the order of a group or culture is, he tells us,"more than mere norm, more than mere normative stand-ard. The legal has teeth." It is true, he points out, thatthe legal has normative aspects. There is a more or lessnormative purpose, but the "heart of the legal lies in thischaracter of being imperative rather than merely norma-tive." There is more than a model-a model one iscoerced to follow. Taken in connection with Radcliffe-Brown's distinction between "diffuse" and "organized"sanctions, 8 we get a use of the term "legal" more satis-

28. Social Sanction (1934) 13 Encyc. of the Social Sciences, 531-534.

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The Nature of Law

factory to the Anglo-American (to whom "legal" doesnot have the double meaning involved in droit, Recht,ius), than Gurvitch's use of it. The legal is not merelysuccessful force. The legal is part of an order. Violenceoutside of the order is extra-legal or contra-legal. In oth-er words, there is an institutional social control backedby organized sanctions. The case for regarding law associal control through the systematic application of forceby an organized society could not be put better. His dis-cussion of authority and regularity as involved in the"legal" 9 clears up an old subject of debate in jurispru-dence. Also Llewellyn has taken the right course inshowing how the judicial process and case-law operatefrom the beginning. Despite Malinowski's criticism,"the lawyer will feel that The Cheyenne Way bears outSir Henry Maine's teaching that the judge precedes thelaw; that judgments precede "customary law." 31 Therewas no mistake in the "almost exclusive stress" put byLlewellyn and Hoebel on "the specific mechanism whichis brought into existence when a conflict of claims arises,"and in their finding law in the "cleaning up of messes"and experience of how they may be cleaned up with theleast friction and waste. The way in which the term

29. The Cheyenne Way (1941) 283-289.

30. A New Instrument for the Interpretation of Law (1942) 2 LawyersGuild Rev. 1, 4-7.

31. Ancient Law (1861) chap. 1.

[198]


"custom" has befogged the discussion is well broughtout."2

§ 64. PUBLIC LAW, INTERNATIONAL LAW,AND THE ANALOGY OF "LAW" IN THE PHYSI-CAL AND OTHER SCIENCES. Thus far the subjecthas been discussed as if all that has to be considered isthe so-called "municipal" law of each state. The term"municipal" here is not a good one. But it is in settledusage and is the only term in general use which seemsavailable. It goes back to the legislation of the city-states of medieval Italy in contrast with the universallaw of the "empire," that is, the Roman law taught inthe universities as the "civil" law of Christendom. Wecannot well say "civil" law in English because that termhas too many meanings in settled usage already. Thuswe use "civil law" for the modern Roman law in contrastwith the "common law" or the general system of lawwhich obtains in the English-speaking world, just as theFrench or the Germans, for example, speak of the modernRoman law as the "common law." Again, we speak of"civil law" in contrast with "criminal law" because thelatter was not governed by Justinian's books which werecalled the "civil law." "Civil law" is also used in con-trast with the canon law. It has been felt that we mustapply theories of law to not only municipal private law

32. The Cheyenne Way (1941) 274 ff.

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The Nature of Law

but also public law (including constitutional law and ad-ministrative law) and international law.

Difficulties arise from constitutional law and inter-national law. In the United States, it is true, constitu-tional law makes no trouble for the analytical jurist.There it is enforced or applied in the courts the same asany other part of the body of authoritative grounds of de-cision. But in countries without a written constitutionor where, although there is a written constitution, thereis no judicial power of interpretation and application ofits provisions, there is difficulty in adjusting theories oflaw to what is called constitutional law. In such coun-tries at most it is made up of two quite distinct bodies ofprecepts. Dicey called attention to this, distinguishing(1) constitutional law truly so-called-that which is en-forceable and enforced, that which can be and is ad-ministered by the courts, e. g. in Great Britain, rules asto the powers of the Crown and the relations of the Crownand the subject-and (2) constitutional convention orusage-that which rests only in usage and public opinion

and habit of obedience.' Here would be put, for example,

the traditions of the United States Senate as to debate,as to places on committees, seniority, and the like. In

this country we should not think of calling these constitu-

tional laws. But in Continental Europe, where the

I. Law of the Constitution (8 ed. 1915) 1-34, 413-434, 435-468. The firstedition was published in 1885.

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courts have no power to enforce their interpretations ofconstitutions, and each department of government is thejudge of its own powers, where the legal unaccountabilityof sovereignty has devolved upon each, the written pro-visions have no greater force, so far as practical efficacygoes, than the unwritten customs and precedents, andhence Continental writers have not distinguished consti-tutional law from constitutional usage.' A sort of work-ing understanding between the departments of govern-ment has developed which jurists have referred to natur-al law. It is a body of understandings of how the depart-ments of government are to work in harmony, in part de-rived from experience, in part worked out rationally byteachers and doctrinal writers, and given form by jurists.But occasional coups d'gtat, where we should use quowarranto or injunction show the difference between thistype of constitutional law and that known to the Eng-lish-speaking world.

Administrative law is a term used to mean (1) thesystem of adjustment of relations and ordering of con-duct by administrative agencies instead of through the

2. E. g. Hatschek, Englisches Staatsrecht (2 vols. 1905-1906). See the re-view of vol. I in 21 Law Quart.Rev. 211-213. Hatschek denied the validityof Dicey's view as to conventions of the constitution and, because he consid-ered them or some of them to be rules of law, and saw that the House ofCommons changed items of its procedure by resolution, concluded that theHouse of Commons committed usurpations of law. Naturally the English re-viewer could not agree. The English "law" did not translate the GermanRecht and vice versa. The author and the reviewer had radically differentideas of what constituted law.

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courts, (2) the body of administrative usages which hasdeveloped in the work of these agencies, and (3) the ad-ministrative as distinguished from the judicial process.In all of these senses administrative law has grown outof conflict and overlapping of interests and the need ofadjusting conflicting claims, has the authority of po-litically organized society behind it, and has organizedsanctions. At one time it seemed that certain adminis-trative tribunals were turning into something very likeordinary courts.3 In common-law jurisdictions what iscalled administrative law is largely a part of the munic-ipal private law which has to do with securing individ-ual rights by judicial review of administrative action.In America, the usage of administrative agencies (as ad-ministrative law) is thus far chiefly the usage of eachparticular agency. There is little systematic, authorita-tive, binding usage because there is no general adminis-trative appellate tribunal (as in the countries of Con-tinental Europe) to require this, and the powers of re-view by the ordinary courts have come to be much limit-ed. But some American administrative agencies havebeen developing a systematic usage and legislation pre-

3. E. g. the Interstate Commerce Commission Reports, the Reports of theRailway Commission of Wisconsin, the Bulletin of the Ohio Industrial Com-mission read very like ordinary law reports. Some of our older administrativeagencies seemed to be becoming courts on their "quasi-judicial" side untilmore recently the idea of law as whatever is done officially began to affect ad-ministrative action.

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scribes procedure to some extent. Administrative lawhas good title to be called "law."'

What we call international law is made up of twotypes of precepts: (1) Precepts which are sanctioned bya politically organized society, which courts can and dorecognize and apply as grounds of decisions-a commonelement in the municipal law of modern states; (2) pre-cepts which have only a moral force behind them, withwhich courts have nothing to do, which are not appliedby any one and so far as they obtain are recognized inconduct, not in decision. The latter are matters for for-eign offices and departments of state rather than forcourts. Between the two types of precept in internation-al law there is a body of precepts which have been recog-nized and applied in international arbitrations or recog-nized and applied in the Permanent Court of Interna-tional Justice or are to be applied in the World Court.These are authoritative grounds of decision and wouldseem to come within the proper scope of the term "law."But the analytical jurist would be troubled about lack ofsanction and hence would admit no more than that theywere on the way to become law.

4. See Dicey, Law of the Constitution (8 ed. 1915) 324-401; Frankfurter,The Task of Administrative Law (1927) 74 Univ. of Pa. Law Rev. 614; Frank-furter and Others, A Symposium on Administrative Law (1933) 18 Iowa LawRev. 129; Berth~emy, Trait4 6l mentaire de droit administratif (13 ed. 1933)1-8; Hauriou, Prdcis de droit administratif (10 ed. 1921) 1-12; 1 Jcze, Leaprincipes g~ndraux du droit administratif (3 ed. 1925) 1-2.

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The Nature of Law

Thus the four bodies of precepts we have been consideringfall into two classes. In the municipal law of each state, in consti-tutional law strictly so-called, in administrative law, and in thatpart of international law which is administered by tribunals, wefind today (a) recognized organs of lawmaking, (b) recognizedcourts or tribunals of a permanent character, (c) a definite andrecognized mode of enforcing the decisions of the tribunals.5

Constitutional usage and that part of international law which isnot a part of the municipal law of each state lack the three sig-nificant characteristics. That part of international law whichcomes within the jurisdiction of international tribunals lacks oneof them. The dual character of international law is insisted onby analytical jurists. Thus the rule that matters of discipline ona foreign merchant ship while in port and other things affectingonly the vessel or the ship's company, and not involving the peaceof the port or dignity of the country of the port, will be left by thelocal authorities to be dealt with by the authorities of the nationof the ship's flag according to the laws of that nation, is part ofthe municipal law of each state. Courts recognize and apply it.That it is part of the law of each state is shown by the circum-stance that states differ as to its scope and application.6 On theother hand, the doctrines of international law as to recognitionof belligerancy, recognition of independence, or as to mediation,are not part of the law of any state. No tribunals recognize orenforce them, nor can they do so. Hence, analytical jurists havealways contended that a great part of international law is not lawin the sense in which that term is used for the law of a modernstate. Hall calls it "authoritative international usage." 7 Hol-

5. Clark, Roman Private Law: I Jurisprudence (1914) 423.

6. Wildenhus's Case, 120 U.S. 1, 7 S.Ct. 385, 30 L.Ed. 565 (1887); Cunardsteamship Co. v. Mellon, 262 U.S. 100, 43 S.Ct. 504, 67 L.Ed. 894, 27 A.L.R. 1306(1923); Case of Antoni (Supreme Court of Justice of Mexico, 1878) Hudson,Cases and Other Materials on International Law (2 ed. 1936) 601.

7. International Law (1915) introductory chapter.

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land calls it "law by courtesy only." 8 Austin calls it "positiveinternational morality." 9 Savigny saw there was a distinctionand spoke of this part of international law as "imperfect positivelaw." 10 Lundstedt lays it down vigorously that "universally rec-ognized international rules" do not have the character of "genu-ine law." 11 It got its name of "law" in the seventeenth and eight-eenth centuries, in the confusion of law and morals in the stageof equity and natural law, when all distinction between rules thatought to govern and those that can or do govern was sought to beeliminated. Whatever rules of conduct were shown by reason tobe morally binding on rulers were held to be for that reason onthe same plane with rules of conduct legally binding on men, sinceboth were regarded as getting their real authority from their in-trinsic moral force. This was reinforced by the mode of thoughtof the historical jurists, who thought of social control and lawas synonymous.

However much we may wish that those parts of internationallaw which are not cognizable by tribunals may gain the supportof some stronger force than the "sanction of human displeasure"and a more or less constant and general "habit of obedience" onthe part of nations, we must perforce recognize that it has notyet acquired such support or has at most begun to develop some-thing of the sort through the evolution of international adjudi-cation out of occasional arbitration. In truth, as has often beenremarked, international law is in many ways analogous to the be-ginnings of law. It is "analogous . . . to those customs andobservances in an imperfectly organized society which have notfully acquired the character of law, but are on the way to become


9. 1 Jurisprudence (5 ed. 1885) 173.

10. 1 System des heutigen rdmischen Rechts (1840) § 11.

II. Superstition or Rationality in Action for Peace (1925) 182-188.

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The Nature of Law

law." 12 Law only does part of the task of social control of in-ternational relations. In the beginnings of Roman law /us onlydid part and a relatively small part of the adjustment of relationsand ordering of conduct. In like manner fas and boni mores andself-help do the most part of adjusting international relations andordering national conduct. International law is on the way to be-come law, in the same sense as the positive law of the state, rath-er than strictly law if we compare it with the developed law ofthe modern state.

Historical jurists in the last century felt no difficulty aboutinternational law nor about constitutional usage. They found anelement common to these and to the municipal law of each stateand to constitutional law in the Anglo-American sense in the sanc-tion of human displeasure or the habit of obedience, or the socialstandard of justice, which they regarded as the ultimate sourceof authority in each case. If all social control is thought of aslaw, the body of precepts on which international social control isachieved can be called law equally with the body of those onwhich internal social control is achieved in any given society.But the difference between the diffuse sanctions in the one caseand the organized sanction in the other is fundamental.

From a sociological standpoint, if, with Ehrlich,we think of law as the inner order of groups and asso-ciations and relations, how far is there any developed in-ner order of international associations or relations?There is something of the sort, and functionally looked atthis might be called law. Ehrlich says that internation-al law is denied the name of law because of an idea that

12. Pollock, First Book of Jurisprudence (6 ed. 1929) 14.

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"all law is state law".13 He vouches ecclesiastical law,the inner order of a church organization. If by that ismeant the law of the Roman Catholic church, this body ofprecepts has organized sanction behind it but exercises itin subordination to the law of the state where it is ex-ercised. If he means the canon law as a universal bodyof doctrine received on the Continent for certain subjectsas the civil law is for most, or as the common law is withus, it must be said that these get the authority of thestates in which they are received and enforced. Thereis no such reception of more than a part of internationallaw.

Gurvitch argues in much the same way as Ehrlichand he, too, vouches the canon law, adding constitutionallaw in the sense of constitutional usage. He thinks ofthe unorganized "communion of civilized nations" as acommunity "superior" to each state. In this way, ethicalvaluations and ethical convictions are arrived at. Thisview is affected by the word droit and requires distinc-tion of "external and precise constraint from the moregeneral phenomenon of sanction and [of] sanction fromsocial guaranty." 1 One might compare the exhortationof the Anglo-Saxon kings, addressed to the people asChristians rather than as subjects.

13. Fundamental Principles of the Sociology of Law (1936--the originalpublished 1913) 162-163.

14. Sociology of Law (1942) 58. See also id. 248-249.

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The Nature of Law

Timasheff argues that each state, as a "power struc-ture" limits itself. It declares it will act in certain waysand not in certain other ways.15 This should be looked atin the light of Llewellyn's remark that "the legal hasteeth." 1 It suggests Jellinek's doctrine of a constitu-tion as the auto-limitation of a sovereign." Timasheff'sargument seems to go back to natural law. It is thesame as the argument as to constitutional usage.

One might refer here, also, to the doctrine that rulesprovided by treaties and conventions are internationallegislation.'8 This suggests the teaching of the meta-physical jurists as to "private legislation" by conveyancesand settlement of trusts and contracts." The Romansdid use lex in that way-e. g. lex commissoria for thestrict foreclosure clause in a pledge. ' But this way ofthinking depends upon the natural-law theory of the in-herent absolute binding force of a promise.

If we adopt Sorokin's idea of types of integratedculture and his idea (after Max Weber) of a culture as"the sum total of everything which is created or modi-fied by the conscious or unconscious activity of two or

15. Introduction to the Sociology of Law (1939) 260-261.

16. The Cheyenne Way (1941) 284.

17. Allgemeine Staatslehre (3 ed. 1929) 386, 476.

18. See I Hudson, International Legislation (1931) xiii-xix.

19. Miller, Lectures on the Philosophy of Law (1884) 71.

20. Cod. 8, 34(35) 3.

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more individuals interacting with one another or condi-tioning one another's behavior," 21 we can reach a so-ciological theory of an international culture on whichto found a theory of international law. It will be nec-essary, however, to assume that all social control is law.When it is said, as the books on sociology do today, thata state is not necessary to law, it is meant that socialcontrol does not require a state. No one denies this.But it has no bearing on the proposition that the highly

specialized regime of social control, which in the English-speaking world has gone by the name of law, does pre-suppose a politically organized society and depend uponit. Theories of droit and theories of "law" will not re-duce to one.'

Those who do not accept the lawyer's view as to the natureof law have been wont to refer to what the analytical jurist re-gards as analogous uses of the term, e. g. laws of physical nature

21. 1 Sorokin, Social and Cultural Dynamics (1937) 3.

22. As to the nature of international law from the standpoint of writerson that subject, see Oppenheim, The Future of International Law (1921);Lauterpacht, The Function of Law in the International Community (1933) 3,51, 60, 111-127, 245-248, 385-398, 407-439; Wright, The Enforcement of In-

ternational Law Through Municipal Law in the United States (1916) introduc-tion; 1 Hyde, International Law (1922) 1-13; 1 Mrignhac, Droit public in-

ternational (1905) 18-26; Bonfils, Droit international public (7 ed. 1914) §§26-31; Mirkine-Guetz6vitch, Droit international et droit constitutionnel (1931)35 Acad.mie de droit international, 307, chaps. 1, 2, 6 (also reprinted sep-arately, 1931); Zorn, V6lkerrecht (2 ed. 1903) § 2; Liszt, V61kerrecht (10 ed.1915) 8-10; Triepel, Vt6lkerrecht und Landesrecht (1899) 1-10 (French transl.Droit international et droit interne (1920) 1-10); Wenzel, Der Begriff des Ge-setzes, in Juristische Grundprobleme (1920) 344-46& See also Kelsen, ReineRechtslehre (1934) § 49.


The Nature of Law

or laws of science, laws of grammar, laws of fashion, laws ofgames. We have here two sets of phenomena. In laws of science,laws of phonetics or linguistics, and the like, the matter is quiteindependent of human volition. In laws of fashion, laws ofgames, and the like, the matter is subject to the control of the hu-man will. Law in the lawyer's sense is more like the second type.Indeed, they had a common origin historically. Law in the law-yer's sense gradually differentiated from the custom of decisionas to conduct which in an archaic polity stood with morals, so-cial conventions, ethical customs, religious rites and laws as anundifferentiated social control.

As used in the physical sciences, and indeed in the sciencesgenerally, "law" is used to mean generalized prediction from ex-periment and from human experience of the course of events.Thus, the "law of gravitation" is a formulation of human obser-vation and experience of the manner in which bodies move towardor are attracted by one another. If one holds that by observationand experience we have discovered certain rules authoritativelyimposed upon the universe by the Creator, he will say these arelaws in the same sense as the rules of conduct or rules of decisionauthoritatively imposed by the organs of the state. Such wasthe eighteenth-century way of putting it, which goes back to thejuristic theory of the universe set forth by the scholastic philoso-phers, the lex aeterna of Thomas Aquinas.

What do law in the lawyer's sense and the two types of rulesabove referred to have in common? Behind each of them is anidea of order or regularity; of rules or principles underlying se-quences of events, physical, or linguistic, or economic, or moral, orsocial, or in a course of adjusting human relations in a political-ly ordered society. Today it is unusual to insist upon the lawsof science as furnishing any significant analogy. The theologicalscience which knew of laws imposed on the universe by an exter-nal personal sovereign, and knew exactly what those laws were,as we know the statutes of the state in which we live, the concep-

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tion of the medieval philosophers, who thought of a Roman prin-ceps on a large scale enacting constitutiones for the universe, nolonger finds much place in the books. Our "laws" of science haveproved to need so much and such continual revision that we havecome to recognize them as only human attempts to formulate ob-servation and experience.

Historical jurists have urged the analogy of the rules or lawsof games. Carter made this the basis of attack upon jurists whowould limit law to social control through politically organized so-ciety.2 3 But at the very time he was writing the actual facts ofthe rules of games had come to refute him. He speaks of "thestandard of justice founded on the rules and habits of the game."This standard and these unformulated habits, however, soon be-come inadequate to meet the exigencies of conflicting interests.Just as when men disagreed on the standard of justice accordingto the usage of the community the sanction of human displeasurecould not keep the peace and the officials of politically organizedsociety had to step in, so in games partisanship interfered withthe workings of the so-called sanction of the standard of justicefounded on the habits of the game and made it ineffectual. Um-pires and referees were required, and as judges are given lawsby which to administer justice, so in order to preclude arbitraryaction by umpires or referees, the usage of games came to be codi-fied. Baseball is a notable example. First, the usage of thegame was put in authoritative form in Spaulding's Guide. Sec-ond, interpretations by particular umpires at particular gameswere added in later editions. Third, representative gatherings ofclubs introduced amendments. Finally, fourth, there came tobe conventions and congresses and national commissions, rule-making bodies, consciously laying down authoritative rules. Thesame story can be told of football and of any game in which large

23. Carter, The Ideal and the Actual in the Law (1890) 13 Rep.Am.BarAss'n 217, 225-227.

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numbers take part or are interested and in which competition andpartisanship become serious. The jurist is not concerned withwhat went on in the pre-umpire stage. Carter and others whohave used this illustration of the rules of games wrote with ref-erence to things as they were in their boyhood, before the devel-opment toward what might be called a "positive law" of baseballor football had set in. No one writing in these days of authorita-tive rule-making and codified rules governing all important sportswould be likely to take this illustration for a test. There is noneed of using "law" for the rules of games and no advantage indoing so. The word "rule" will do well enough.

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