Readings in

Legdl Philosophy
and
Theory
(Text and Comments
from Plato to McDougal)
JORGE R. COQUIA
A.B., LL. B., LL. M., S.J.D.
2005 Edition
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ISBN-971-23-4195-X
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PREFACE
Teaching legal philosophy, legal theory and jurisprudence has
been a difficult and challenging task. This writer, who is teaching
the courses in several law schools for over twenty years and six years
in the graduate school has experienced this dauntless task. How to
create the interest in the subjects among students is the first chal-
lenge. Legal philosophy, legal theory or jurisprudence are not bar
subjects. They do not have a direct relation with the so-called ''bread
and butter" subjects an aspiring lawyer wants to know in order to
enter a profitable practice of law.
The main problem of teaching the subject is the heavy reading
materials the students are expected to read and comprehend. The
subjects are composed of the writings of Greek philosophers Plato
and Aristotle, Roman jurist Cicero, the medieval philosophers St.
Augustine, Thomas Aquinas and modern philosopher Emmanuel
Kant, John Austin, Hans Kelsen which may not be fully understood
in one or two readings.
Even the lighter writings of Oliver Wendel Holmes, Roscoe
Pound, Lasswell and McDougal are not easy readings.
What is more, the original texts and materials are not easily
available to most students. With the exception ofCrisolito Pascual's
book Introduction to Legal Philosphy and Leonardo Mercado, s.v.n.,
Legal Philosophy most ofthe materials are found in foreign publica-
tions not easily available. The cost of acquiring these foreign mate-
rials is quite excessive.
This work is an attempt to put together in one book the ex-
cerpts of the writings of the major legal philosophers and analysis
and comments of contemporary Philosophers such as of Del Vecchio's,
Philosophy of Law, Paton's Textbook of Jurisprudence, Rommen's
Natural Law, Cairns' Legal Philosophy from Plato to Hegel and vari-
ous legal articles. Included in this book is the Communist theory of
law which is still followed in many Socialist States.
Added in this book are the modern legal writings of George
Hugh Smith on Natural Law, Herbert Lionel Hart on Legal Positiv-
ism, John Rawls on the Sociological School.
About three of the original writings are not available hence,
the secondary source from Cairns' book are reproduced. To aid the
student in understanding the school of philosophy guide questions
are placed after each chapter in class 9.iscussion with the
professors.
iii
The author expresses his gratitude to Mr. Juanito Fontelera of
the Rex Book Store and Printing Press for publishing this book.
Acknowledgments are due to Christopher A. Pasuquin who metic-q-
lously proofread the text and, Ms. Maricar I. Lavarias for the design
for the art cover of the book. .
Jorge R. Coquia
iv
TABLE OF CONTENTS
PREFACE .................................... ...... ......... .. ......... ......... .... , ........ ...... iii
Chapter I
INTRODUCTORY CHAPTER
Definition, Nature and Function .................................. .. .................. 1
Function of Philosophy of Law and Jurisprudence ........... .............. 2
Chapter II
HISTORY OF PHILOSOPHY OF LAW
Ancient Greek Legal Philosophy .......... : ...................................... ..... 3
Ancient Roman Legal Philosophy .................................................... 4
The Legal Philosophy of the Medieval Era ................................ ...... 5
The Legal Philosophy in the Renaissance ....................................... 6
Questions in Chapters I and II ......................................................... 7
Chapter III
THE HISTORICAL SCHOOL
Savigny, Of the Vocation of our Age for Legislation and
Jurisprudence ................................ .... ................ .. .. : ...... . 8
Comments by Paton : ....................................................................... 10
Questions .............. ,/. ............................................................. ..... ....... 13
ChapterW
SEMINAL CONCEPTS
(Philosophical Approach)
Plato, The Republic ................................................................... .... .. 14
Comments on Plato by Cairns .................................... ...... .............. 24
Aristotle, Politics ................................. ...... ............ .. ....... ........ ......... 26
v
Cicero, De Legibus ... ... ...... .. .... .... ....... ... .... ...... .................. ............... 37
Comments on Cicero by Cairns ......... .... ........ ........... ............ .......... 39
Kant, The Philosophy of Law ............... ................................ .......... 46
Comments on Kant by Paton ....... .... ..... .... ... .... .......... .. ... ................ 51
Hegel, The Philosophy of Right .......... ... ..... ... ................................. 54
The Foundations of the Philosophy of Law ................................... 60
Comments on Hegel by Del Ver Vecchio .. .. .. ... ... ..... ... .... .. .... ...... .... 61
Questions ..... ...... ....... .. .. .... .. ........ ..... ............... ..... ... ..... .. ... ... ..... ....... 65
Chapter V
THE POSITIVIST SCHOOL
Austin, The Province of Jurisprudence Determined ..................... 66
Comments by Paton on John Austin ..................... .......... ............... 86
Kelsen, Pure Theory of Law. ........... ...... ..... .... ...... ................... ....... 93
Comments by Paton on The Pure Science of Law .... ... ............. ..... 99
Bentham, An Introduction to the Principles of Morals
and Legislation .. .... ..... ....................... ............................... .... 104
Questions ............. ................ ... .................................. ...................... 114
Chapter VI
THE FUNCTIONAL SCHOOL
(Socio-Iogical Jurisprudence) :
Pound, The Scope and Purpose of Socio-Iogical
Jurisprudence ............... \ ....... ..................•........................ ..... 115
Comments by Paton on the Functional SchooL .. .. ..... ....... ..... .... 149
I
Questions ............................................ : .............................. ............ 150
vi
Chapter VII
THE REALIST SCHOOL
Holmes, The Path ofthe Law ............ ....... .. ........ .. ....................... . 151
Comments by Paton on the Realist School......... .............. .......... . 155
CommeRts by Jerome Frank, What Courts Do in Fact .............. 159
Questions ............................... .................. ..................•................... 163
)
Chapter VIII
THE COMMUNIST THEORY
Karl Marx ....................... ........ .................. ......................... ............. 164
Lenin on Marx ...................................................... ........................ 166
Questions ............ ........... ..... .......... ........ .......... ....... .... ............ ........ 173
Chapter IX
THE POLICY SCIENCE SCHOOL
Lasswell and McDougal, Legal Education and Public Policy: '
Professional Training in the Public Interest ............. ......... 174
Comments by Crisolito Pascual, The Policy Science School
of Jurisprudence ...................... ......... ......................... ....... ... . 187
Questions ....................................................................................... 197
Chapter X
NATURAL LAW
St. Thomas Aquinas, The Summa Theologica .................. : .. ........ 198
Comments by Maritain on St. Thomas Aquinas ............. ............ 210
Coquia, For a Revival of Natural Law Doctrine in
Philippine Jurisprudence .......................... ................. .......... 238
Questions ..... ....... .. ......... .................. ............... .......... ............ ....... .. 244
Bibliography ......... .............. .......... .. ........ .............. .. ........ ..... ... .... 245
vii
Chapter I
INTRODUCTORY CHAPTER
Definition, Nature and Function
Philosophy as taken from the Greek words, Philos and Logos,
means love of wisdom. It is the study of the universe that seeks to
know the truth and the rational explanation of anything.
Philosophy oflaw is that branch of philosophy which deals with
law, that is, the wisdom of the law. It studies the nature of law with
particular reference to the origin and end oflaw, and all the principles
that govern its formulation. It is a part of practical philosophy.
The object of philosophy oflaw is the study oflaw in a universal
sense. Law can also be studied as to its particular points in which
the object is Juridical Science or Jurisprudence. Parts of the system
are Public Law and Private Law. Public Law considers the
Constitutional Law, Administrative Law, Penal Law, Procedural Law,
and International Law. Private Law deals with Civil law, Commercial
law and those that govern relationships among individuals or
juridical entities.
Juridical Science can inform the people only of the law a ~ o n g
certain people in a given period. Philosophy of law, however,
transcends the competence of each individual juridical science.
Immanuel Kant has said that Juridical Science does not answer what
is law. It answers the question only of what is established by law of
a certain system (quid juris). Philosophy of Law considers the
essential elements which are common to all juridical systems. It
looks into the universal concept of law.
Giorgio del Vecchio gives a more comprehensive definition of
Philosophy of Law "as the course of study which defined law in its
logical universality, seeks its origins and general characteristics of
its historical development and evaluates it according to the ideal of
justice drawn from pure reason" (Philosophy of Law, Translation by
Thomas Owen, The Catholic University of American Press,
Washington, D.C. 1953).
1
READINGS IN LEGAL PHILOSOPHY AND THEORY
Often times philosophy of law is interchangeably termed as
jurisprudence. Philosophy oflaw is one thing in the hands oflawyers
and is quite different in the hands of philosophers. For the lawyer
the starting point is juridical institution, practice or ideal and the
end sought is its establishment on a rational basis. For the
philosopher, the premise lies beyond the domain of law in the realm
of national existence or human nature from which the function of
law in society is deduced and harmonized with man's other activities
(Cairns, Legal Philosophy from Plato to Hegel) .
Function of Philosophy of Law and Jurisprudence
The study of law in a universal sense constitutes the object of
Philosophy of Law. Law is studied as to particular points, in which
case the object is Juridical Science in a narrower sense.
What is the proper law is the quest of philosophy law and
jurisprudence. Often the questions asked are "What is law?", "What
is justice?", "What are the reasons why law must be obeyed?"
Philosophy of law is a quest of law which appeals to reason to
obtain justice. Resort to force usually signifies the failure of the law
to persuade people to whom it is addressed. What the king, emperor
or the prince orders was the law and everyone obeyed it out of fear
of punishment. Force was usually resorted for its eriforcement. One
function of philosophy therefore is to formulate law that is reasonably
acceptable to the people to whom it is addressed. Philosophy oflaw
therefore is opposed to tyranny.
The practical function of philosophy is that it teaches and
prepares for the positive recognition of the juridical ideal. Some
examples are the formulation of guarantees of the freedom of the
individual under a political constitution estahlished by English and
American States, the progress of modern International Law as
influenced by the writings of Alberico Gentiles and Hugo Grotius,
the humanitarian development of penal law as influenced by Becaria,
and, more recently the universal recognition of human rights.
2
Chapter II
HISTORY OF PHILOSOPHY OF LAW
Every branch of knowledge is better understood by knowing
its history. History of Philosophy is a means of study and research
which helps in the acquisition of regarding knowledge philosophies
advocated by different philosophers in the past. "It is a study, of how
philosophers ,meditated upon the problems of law and justice.
Philosophy of Law in the past has been intermingled with Theology,
Morals, and Politics. The religious books in Asia are treated together
with morals, cosmogony and justice. Law was treated in a dogmatic
spirit concei'ved as a command of the divinity and as superior to
human power, consequently, not as 'an object of science but only of
faith. The Hebrews, the Chinese, the Indians and the Arabs made
contribution to philosophical studies with regard to morals.
The Philosophy of Ancient Greece:
The general history of Legal Philosophy started with the
ancient Greek Philosophers Socrates, Platq, and Aristotle.
In the fifth century B.C., t,he Sophists natives of Greece taught
doctrines which denied all objective truth. They denied the existence
of absolute justice. Law to them is relative. Plato in his Dialogue
disputed the Sophists.
Socrates (469-399 B.C.) did not leave any writing but his ·
doctrines are found in the Dialogues of Plato_and in the Memorabilias
of Xenophon.
Socrates believed in a higher justice for the validity of which it
is not necessary that there is a positive sanction or a written:
formulation. Obedience to the law ofthe state is a duty. Socrates in
this way gave the first indication of an idealistic philosophical system
which was constituted in its entirety by Plato. But Socrates was
accused of having introduced new gods and for having corrupted the
youth. He was condemned ,to death for his pretended crimes.
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READING IN LEGAL PHILOSOPHY AND THEORY
Plato (427-347 B.C.), a disciple of Socrates, wrote his teachings
in the form of dialogues and discussed what the Sophists said as
disputed by Socrates. His two Dialogues, The Republic and The Laws,
presented the ideal concept ofthe State. The State, according to Plato,
is the most perfect unit. The State dominates all human activity. The
State must promote good in any form. Justice is achieved through
the harmonious relation between the various parts of the State.
LA. Richards, Fellm of Magdalene College, Cambridge, said that
no book except the Bible has had so much influence on mankind as
The RepubUc.
Aristotle ( 3 8 4 ~ 3 2 2 B.C.), a disciple of Plato, was the teacher of
Alexander the Great, as founder of the school Gymnasium Lyceum in
Athen. He treated almost every branch of knowledge and many
sciences.
His philosophy of Law is mainly found in his works on politics
and ethics. In his Nicomachean Ethics, Aristotle said that all supreme
good is happiness, the product of virtue. The State is a perfect organic
union which has for its purpose virtue and universal happiness.
The State regulates the lives of the citizens by means of laws.
The content of the law is justice as is applied in various ways. The
principle of justice is equality which is applied in various ways.
Distributive justice is applied in giving honors and respects.
The second kind of justice is connective and equalizing or called
rectifying. In a broad sense, this form of justice is applied to voluntary
contractual relationship. It also includes involuntary relationship such
as Tort.
Aristotle was concerned with the difficulty of applying abstract
laws to concrete cases and indicated equity as a criterion of applying
the law.
The Ancient Roman Jurists:
The Romans did not have an original philosophy of law. The
Greeks were concerned with philosophy and the Romans on law. The
Romans excelled in the codification oflaw but the philosophical basis
was derived from the Greeks.
It was Cicero (106-41 B.C.) who created interest in philosophy
in Rome. His works De Republica, De Legibus and De Officis_contained
the influences of the State of Plato. .
4
History of Philosophy of Law
According to Cicero, law is not a product of choice but is given
by nature. There is eternal law which is an expression of universal
reason. Equity and natural law are factors in an ideal law.
The contribution of the Romans to jurisprudence is the
formulation of codes. The Justinian Code is the best example of
putting together in a systematic form the rules and practices, which
are the products oflong years of experience not only of the application
of jus civili to Roman citizens but also of jus gentium that was
applicable to foreigners. Jus gentium was considered -as an
expression of the primordial needs which are common to all people
as a more direct relation of the universal reason.
The Philosophy of the Medieval Era - The Influence
of Christianity
At the beginning, Christian Doctrine was significant only
on moral principles and not on juridical or political matters.
Christianity was considered only in reforming consciences of men.
But men later understood Christianity as an advocate of liberty,
equality and, the unity of the human family. The gospel of the
brotherhood of men through Divine law became a challenge to the
established political order.
Christ's teaching in a spiritual sense said: "I have come not to
be served but to serve. (Mk. 10:45) My Kingdom is not ofthis world.
(John 18:36)" Render to Caesar and things that are Caesar's and to
God, the things that are God's. Taxes are to be paid to the State not
to the Church. (Mt. 22:21-22)
The influence ofChrisWmity later became more profound upon
politics and jurisprudence. Theology taught that Law is founded upon
the will and wisdom of God. The power of the State is derived from
God. This will is known through Revelation.
Modifying the Greek and Latin philosophies that the
individual's supreme mission is to be a good citizens of the State,
Christianity said that the good goal of the individual is not only civil
life but eternal happiness which can be obtained through submission
to the Divine will.
The Church asserts itself as an autonomous authority above
the State. The State is concerned only to earthly'things while the
Church, with those that are eternal.
5
READINGS IN LEGAL PHILOSOPHY AND THEORY
In the Patristic period starting from Charlemagne (724-814),
several Christian writers, after the Apostles, arose such, as Tertullian
and Ambross. The most important writer during this period was St.
Augustine (354-430). As bishop of Hippo, St. Augustine wrote the
work De Civitae Dei. While the Greeks considered the state as
supreme end of men. St. Augustine extols above all the Church and
the communion of souls in God. The state has the purpose of
maintaining the temporal peace but is always subordinate to the
heavenly city. The Church has its purpose the procurement of eternal
peace.
The age of Scholasticism prevailed in the teachings of St.
Thomas Aquinas (1225-1274) with his work The Summa Theologica,
a compendium of Catholic philosophy. (This matter will be dealt in
Chapter X on Natural Law In The Age of Scholasticism.)
The Renaissance
The Renaissance, a rebirth that started in the 14th century, came
abou.t to overcome the long period of excessive dogmatism. In
Renaissance, autonomy and freedom of investigation were awakened.
The discovery ofthe New World and the invention of printing press
permitted the propagation of new ideas. The Religious Reformation
which took place in the Anglo-Saxon countries resulted in the
withdrawal of religious leaders from the authority of the Church.
The liberal writers advocated popular rights and law was no longer
studied on the basis of Theology. Hugo Grotius (1583-1648) who wrote
the famous treatise of De Jure Belli da Pacis. (The Law of War and
Peace) is considered the Father of Modern International Law. He
intended to determine the juridical relations between States whether
in peace or in war. Acceptirtg Aristotle's theory of being good in
political society, law is something that is presented by reason not by
revelation. Natural, moral law world exists even if there is no God.
x x x
6
History of Philosophy of Law
Questions in Chapters I and II
1. Define Philosophy of Law: How is it distinguished from
jurisprudence?
2. What is the-main function of philosophy oflaw?
3. Why is it important for lawyers to know philosophy of law?
4. When, where and how was philosophy of law originated?
5. What were the contributions of Socrates, Plato and Aristotle to
the development of Philosophy of law?
6. What was the principal contribution of ancient Roman jurists
to Philosophy of Law?
7. What was the contribution of the legal philosophers during the
Medieval Era?
8. Who was the foremost legal philosophers during the Medieval
Era? Explain.
9. What were the reasons why philosophy freely developed during
the Renaissance?
10. In what way did Christianity influence Legal Philosophy?
7
Chapter III
HISTORICAL SCHOOr.
SAVIGNY, OF THE VOCATION OF OUR AGE
FOR LEGISLATION AND JURISPRUDENCE*
!riedrich Carl von Savigny (1779-1861) published his first
treatIse, J?as Recht des Besitzes (The Law of Possession) in 1803. In
1810 became Professor of Roman Law at the new University
of Berlm, where he also served as tutor to the Crown Prince and
on. government. His protest against the demand for
m 1814 served as a model for similar protests in other
the movement for codification to which Bentham had
Impetus. In 1815 the first volume ofSavigny's Geschichte
des romlschen Rechts im Mittelalter came out· the final in
1831. Savigny's famous work on the Roman law
System des romischen Rechts (1840-1849, 8 volumes)
III 1853 by a treatise on Contracts (Das
Oblzgatzonrecht). Meanwhile Savigny had served from 1842 to 1848
as head Prussian legal system, which afforded the opportunity
of recastmg the of commercial paper and the divorce statutes.
1848 Savl gny devoted himself entirely to theoretical
JUrIsprudence.
Origin of Positive Law
We inquire of history, how law has actually developed
amongst natIOns of the nobler races; the question - What may be
good, or or, on the contrary, censurable herein, _ will be
not at all prejudICed by this method of proceeding.
the earliest times to which authentic history extends, the
law wIll be found to have already particular faculties and tendencies
' Reprint from Cohen and Cohen, Readings in Jurisprudence and Legal Philoso-
phy. All footnotes were omitted.
8
Historical School
of an individual people, inseparably united in nature, and only
wearing the semblance of distinct attributes to our view. That which
binds them into one whole is the common conviction of the people,
the kindred consciousness of an inward necessity, excluding all notion
of an accidental and arbitrary origin.
In modern times the view has come to prevail that all life was
at first of an'animal character, passing through evolution step by
step to a tolerable existence, until at length the height on which we
now stand has been attained .... .
But this organic connection oflaw with the being and character
of the people, is also manifested in the progress of the times; and
here, again, it may be compared with language. For law, as for
language, there is no moment of absolute rest; it is subject to the
same movement and development as every other popular tendency;
and this very development remains under the same law of inward
necessity, as in its earliest stages. Law grows with the growth, and
strengthens with the strength of the people, and finally dies away
as the nation loses its nationality ....
... With the progress of civilization, national tendencies become
more and more distinct, and what otherwise would have remained
common, becomes appropriated to particular classes. The jurists now
become more and more a distinct class of the kind. Law perfects its
language, takes a scientific direction, and, as formerly it existed in
the consciousness ofthe c<;>mmunity, it now devolves upon the jurists,
who thus, in this respect, represent the community ....
... The sum, therefore, of this view is, that all law is originally
formed in the manner in which, in ordinary but not quite correct
language, customary law is said to have been formed: i.e., that it is
/ first developed by custom and.popular faith, next by jurisprudence,
- everywhere, therefore, by internal silently-operating powers, not
by the arbitrary will of a lawgiver ....
Laws and Law Books
Legislation, properly so called, not infrequently exercises an
influence upon particular portions of the law; but the causes of this
influence vary greatly. In the first place, the legislator, in altering
the existing law, may be influenced by high political purposes. When,
in our time, unprofessional men speak of the necessity of new
9
READING IN LEGAL PHILOSOPHY AND THl!;Olty
legislation, they commonly mean only that of which the settlement
of the rights of land-owners is one of the most striking examples.
The history of the Roman law, also, supplies examples of this kind _
a few in the free times of the republic, - the important Lex Julia 'et
Papia Poppaea, in the time of Augustus, - and a great number since
the Christian emperors. That enactments ofthis ,ijnd easily become
a baneful corruption of the law, and that they should be most
sparingly employed, must strike anyone who consults history ... .
. Putting together what has been said above concerning the
requisites of a really good code, it is clear that very few ages will be
found qualified for it. Young nations, it is true, have the clearest
perception of their law, but their codes are defective in language and
logical skill, and they are generally incapable of expressing what is
best, so that they frequently produce no individual image, whilst
their matter is in the highest degree individual. The laws of the
middle ages, already quoted, are examples of this; and had we the
twelve tables complete before us, we should probably find something
of the sort, only in a less degree. In declining ages, on the other
hand, almost everything is wanting - knowledge of the matter, as
w e ~ l as language. There thus remains only a middle period; that
whIch (as regards the law, although not necessarily in any other
respect,) may be accounted the summit of civilization. But such an
age has no need of a code for itself: it would merely compose one for
a succeeding and less fortunate age, as we lay up provisions for
winter. But an age is seldom disposed to be so provident for children
and grandchildren. .
Comments by Paton on Savigny
The historical school antedates the work of Kelsen, but the
reason for postponing discussion of the historical thesis is that in
opposition to the doctrine of the pure science of law, the historical
school considered law in direct relationship to the life of the
community and thus laid the foundation on which the modern
sociological school has built. The eighteenth century was an age of
rationalism; it was believed possible by arm-chair deliberation to
construct a universal and unchangeable body of laws that would be
applicable to all countries, using as a premiss the reasonable nature
of man. The historical school in part was a result of that surge of
10
Historical School
nat ionalism that arose at the end ofthe eighteenth century. Instead
the individual, writers began to emphasize the spirit of the people,
the Volksgeist. In 1814 a programme for the school was enunciated
by Savigny. The central question was 'how did law come to be?' Law
evolved, as did language, by a slow process and, just as language is
a peculiar product of a nation's genius, so is the law. The source of
law is not the command of the sovereign, not even the habits of a
community, but the instinctive sense of right possessed by every race.
Custom may be evidence oflaw, but its real source lies deeper in the
minds of men. 'The living law' is the secret of its validity. In those
matters with which he is directly concerned every member of the
community has an instinctive sense as to what is right and proper,
although naturally he will have no views on matters which are beyond
his experience. Thus the mercantile community will have an intuitive
appreciation of the rules that should govern bills of exchange, a
peasant ofthe doctrines that should be applied to agriculture. Such
is the approach of the historical school, and it naturally led to a
distrust of any deliberate attempt to reform the law. Legislation can
succeed only if it is in harmony with the internal convictions of the
race to which it is addressed. Ifit goes farther, it is doomed to failure.
The contribution of the historical school to the problem of the
boundaries of jurisprudence is that law cannot be understood without
an appreciation of the social millieu in which it has developed. The
slow evolution oflaw was· stressed and its intimate connexion with
the particular characteristics of a people. Ever since Savigny wrote,
the. value which jurisprudence can gain from a proper use of the
historical method has been well recognized, and in England Maine
and Vinogradoff have kept the interest in these problems alive.
Writers oflegal history such as Pollock a ~ d Maitland or Sir William
Holdsworth have provided surveys whose value for the jurist lies in
the clear demonstration of the close connexion between the common
law and the social and political history of England.
But in Savigny's particular presentation there were
exaggerations of which the historical method must be freed ifit is to
play its true part. Firstly, some customs are not based on an
instinctive sense of right in the community as a whole but on .the
interests of a strong minority, for example slavery. Secondly, while
some rules may develop almost unconsciously, others are the result
of conscious effort - our modern trade-union law was not achieved
11
READINGS IN LEGAL PHILOSOPHY AND THEORY
without much struggle. The flood of legislation in the twentieth
century connected with what has become known as the 'Welfare
State', marks the denial of Savigny's views in practice if not in theory.
Law has been used to plan the future deliberately and not merely to
express and order the results ofthe past growth. Thirdly, the creative
work of the judge and jurist was treated rather too lightly. The life
of a people may supply the rough material, but the judge must hew
the block and make precise the form oflaw. It is possible to exaggerate
the 'great lawyer' interpretation of history, for in a sense all men are
children of the age in which they live, but to regard the judge as a
mere passive representative of the Volksgeist is just dangerous. Both
in equity and in the common law we can still trace the influence of
the masters of the past, and any layman would be surprised if told
that he had an instinctive sense of right concerning the rules of
contingent remainders or the subtle refinements of the doctrines of
equitable waste. Fourthly, imitation plays a greater part than the
historical school would admit. Much Roman law was consciously
borrowed, and when the success of the French' Code was
acknowledged, other nations laid it deeply under debt. When the
East began its rapid assimilation of Western ideas, it borrowed freely
from the codes of Germany and France. Savigny himself could never
quite exorcize the ghost of the reception of Roman law in Germany;
the thesis that the jurist, in weaving Roman rules into the customary
law, were mere representatives of the Volksgeist would have been
ridiculed by the peasants who a<;cused the doctores iuris of depriving
the tenant of his customary rights ilf land by the introduction of
foreign rules. Lastly, Savigny encouraged what Pound has termed
,/juristic pessimism'- legislation must accord with the instinctive
sense of right or it was doomed to failure:4Ience conscious law reform
was to be discouraged. There was sometimes a tendency to think
that on,ce the evolution of a rule had been traced, this description
justified its existence. It is fatally easy to accept abuses in that to
which one is accustomed, for 'nothing binds [sic] the vision so much
as custom and habit. There was a time when the criminal law ofthis
country was in a state which would have been a disgrace to a half-
civilized community and ... judges in high authority and writers . ..
wrote about it that it was the perfection of human wisdom.
x x x
12
Historical School
Questions in Chapter III
The Historical School
1. What do you mean by the Historical School of Legal Philosophy?
How is it distinguished from History of Law?
2. Who was the foremost advocate of the Historical School? Where
and how was it advocated? #
3. What is the main thesis of the Historical School?
4. What is meant by the phrase "Law is found and not made"?
5. How is law determined under this school of legal philosophy?
6. What are the advantages and disadvantages of the Historical
School?
13
Chapter IV
SEMINAL CONCEPTS
(Philosophical Approach)
THE REPUBLlC*
By Plato
Classical Natural Law
a dialogue remarkable for its anticipation of subsequent
Plato the law seeks to be the discovery of reality.
He arrIves at thIS posItIon by the following argument. Sorcates asks
abruptly: "What is law?" "What kind of laws do you mean?" his
asks: Socrates makes short work of this question by inquiring
If IS any between law and law in the very point of being
law, or if gold differs from gold in being gold. His companion then defines
law as that which is accepted as legal. To this the objection is made that
is not the thing that is spoken, nor is vision merely the visible
things nor hearing the audible things. Law must therefore be distinct
from that which is accepted legal. Suppose it is assumed that it is by
"law" that "the laws" are accepted, how would the "law" whereby they
are thus accepted be defined? Socrates is here raising what we are
ac.customed think of in modem terms as the problem of "authority."
HIS compamon answers that, · in this sense, law is the decrees and
pronouncements of the community, or, to state it generally, law is the
opinion of the state. That is to say, as Plato expresses it elsewhere
when a judgement of society takes the form of a public decision of
state, it has the name law. Socrates observes that perhaps this is right,
but he does not believe that the conversation has reached the essence
of the matter. Law is a good thing, and public opinion is true opinion
and true opinion is discovery of reality. Socrates therefore
that law seeks to be the discovery of reality, or more precisely, it is the
true reality with respect to the administration of a state.
. Nevertheless, it is common knowledge that the laws of the
different communities differ on the same subject matter. Perhaps,
Socrates suggests, law may not always achieve its ideal of discovering
' Reprint from Cairns, Legal Philosophy from Plato to Hegel, p. 33. All footnotes
were omitted.
14
Seminal Concepts
true reality. Still, he adds, no society, not even the Persians, believes
that the just can really be unjust. It is thus a universal rule that
realities, and not unrealities, are accepted. as real; whoever fails then
to reach reality, fails it find law. However, answers the companion,
we are continually changing our laws in all sort of ways. Perhaps it
is because you do not reflect that when we change our pieces at
draughts 'they are the same pieces, replies Socrates. Those who know
always accept the same views, whether Greeks or foreigners; they
will not write differently at different times on the same matters, nor
will they ever change one set of accepted rules of another in respect
of thhe same matters. If we see some persons anYwhere doing this,
we can say that they have no knowledge; and ifthey are mistaken in
what they describe law, then that law is mere appearance and ought
not to be accepted to be asserting a distinction between principles
and rules, e.g., the difference between the principles of mechanics
which are everywhere the same and the specific instruction followed
by the bridge builder which vary with every work of construction.
In holding law seeks to be the discovery of true reality, Plato
was defining its proper sphere in his philosophical view ofthe world.
It represents part of his effort towards a constructive metaphysics
and through it, as with any other thread we pick up in Plato, we
.reach the core of the entire Platonic system - the general theory of
Forms or Ideas. Elsewhere, in an aside, Plato offers another definition
of law as the opportionment of reason; but inasmuch as reason is
apprehension of reality' we are brought to the same point as in the
first definition. What did Plato mean by reality? He once tentatively
defined it power, by which he meant that anything has real
existence if it has inherent in it the power of being affected or of
affecting others, no matter how small the Plato remarks, however,
that "the easy use of words and phrases and the avoidance of strict
precisions is in general a sign of good breeding; indeed, the opposite
is hardly worthy of a gentleman." Although Plato nowhere sums up
his doctrine in final form, if the pieces are put together they make
an intelligible picture. When he asserted that law'was the discovery
of true reality he appeared to mean that the moral value of law
increases as it approximates the ideal law which exists in the world
is reality. The philosopher in the Platonic system is one who knows
true reality and who therefore knows what the ideal thing to do is. If
. the philosopher is a king he will prescribe laws for the state based
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READINGS IN LEGAL PHILOSOPHY AND THEORY
upon ideal laws which he has perceived in the world of reality.
They wIll therefore be the best possible laws, and by following them,
members of the community will be directed to the way of good
hfe. Thus the laws of a city, if they are to be of moral worth, must be
the laws of reality so that they are the objective
expressIOn m the state structure of the system ideas which alone
represents the real.
There are obsecurities in Plato's views on the nature of law
and gaps in his reasoning. In a handful of pages, however, he raised
many problems which have been the staple of juristic thought
from thIS day down to the present time. His first question, literally
the first sentence of the dialogue, still remains the first questiori
asked of itself by every school oflegal thought: What is law? He did
not distinguish between society and the state nor between ethics
politics. was only one place for the realization of the good
lIfe was m the community. Mter twenty-four hundred years
durmg whIch the notion of good life was kept distinct from that of
the the state philosophies of the twentieth century are
P.lato.nic thesis in one form or another. By insisting
upon a rIgId tiIstmctIOn between the idea of law and the positive
of the state, Plato prepared the way for natural law
speculatIOn and the perception of the ideal element in law-making.
the commonplace distinction, offifth and fourth-century
dIscussIOn, between nature and convention by setting in opposition
theory ofldeas which leads him to the conclusion that the law is
and not invented. He puts forward the theory that law is
an mstrument of social control and thus suggests the problem of the
end By assenting in part to the notion that laws are the public
of the community, he raises for later speculation the
questIOn of the relation between the state and law. The connection
law and morals is never absent from his thought. By
suggestmg (though rejecting the idea) that law might be defined as
of he anticipated th position which was taken by
the majorIty of JUrIst from the Middle Ages to the analytical jurists
and He made clear the function of principle in the
constructIOn oflegal system. So far as the extant evidence shows he
was.in this, when coupled with the tremendous
of hIS phIlosophIcal methods, the first to exhibit the possibility of a
general science oflaw. . ,
16
Seminal Concepts
---------- - --------
The Function of Law
Three hypotheses are assumed as the basis of Plato's thinking
about law. They have been championed by influential schools of
thought since his day; they have also been the source of much anguish
in admirers whose political beliefs are of a different complexion than
Plato's. He held that the end of law was to produce men who were
"completely good"; this could be done because, as the institutional
idealists of.the nineteenth century also asserted, human nature was
capable of almost unlimited modification; the method be was
a benevolent dictatorship: philosophers must be kmgs or kmgs,
philosophers. Those hypotheses have received as much attention as
anything else in Plato, and it is necessary only that they be properly
understood.
As a philosopher, Plato could not accept anything less
complete goodness in men; he therefore rejected all laws. th:t dId
not incline to the end. "Keep watch on my present says
the Athenian, " in case I should enact any law either not tending to
goodness at all, or tending only to a part.ofiU' This is not the place
to examine the role of ideas in legal thought, except to observe that
the conception men have of a better condition of affairs has
been a potent element in lawmaking; nor is it necessary to examme
Plato's views on the relation of law and morals; his legal and moral
views are so intertwined a1'1 to be inseparable, and lead him upon
occasion as we have already seen from the Minos, even to assert
that a law is no law. He was as aware as Hobbes and Austin of
the distinction between law and morals, of the idea of law as a
command, but he would have none of it. Although, if men would
listen to him, his goals were possible of achievement, he understood
fully that his proposal was visionary, an old man's game of
jurisprudence, and he had no expectation that his ideal be
realized in practice. He was merely insisting upon the neceSSIty of
abstraction or hypotheses as control in societal inquiry.
He was wedded to his belief in the malleability of human nature,
and he had no doubt that the children would accept the new laws
even if the parents would not. That is a common pres-qpposition of
reform movements' it was given one of its most rigid tests, and with
complete success, two centuries of the Ottoman Empire (circa
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READINGS IN LEGAL PHILOSOPHY AND THEORY
A.D.1365-1564) which witnessed in practice the closest
approximation to his proposal that the world has perhaps ever known.
What is possibly the best defense by Platonists for the doctrine
of the philosopher-king argues that it represents the principle that
the government is an art or science as opposed to the politicians'
idea of government by oratory under law; that this doctrine is merely
a further expr ession of his theory of ideal postulates and the
combination of intellectual and moral perfection it envisages has
never been known on this earth and is priori fictional; that it is a
recognition of the demand that the state be ruled by the highest
available intelligence, and represents only the autocratic dis·cretion
of the true shepherd, pilot, or physician; and finally that cthough
Plato always insisted upon the proposition that it is better for the
unwise, whether they consent or not, to be ruled by the wise) in
practice to everywhere yields to the reign of law and the consent of
the governed. A marked feature of Plato's writings is the
extraordinary care he takes to limit his proposals by explicit
qualification or an ironical turn of phrase. The defense offered for
him, therefore, is not an impossible one.
Was Plato hostile to law? That is a necessary question in any
account of Plato's jurisprudence. There is no doubt that as a seeker
after an ideal the Plato of the Republic preferred the adaptable
intelligence of the all-wise autocrat to the impersonality of the rule
of law. As it appeared on this earth, it was the despot of mankind
and often forced men to do many things which were opposed to nature.
It was the lord of the state. In the nature of things moreover law
, ,
aimed at the impossible. Through the medium of the fixed, inflexible
general rule laws sought to direct men and actions which were
constantly changing and always different. In such system it was
to avoid the "hard case." He knew well the simple truth,
as the tnal of Socrates had shown him, that the debating method of
the courtroom, as distinguish from cross-examination, was perhaps
the least likely to lead to the discovery of truth. Against this the
Plato of the Laws and Statesman had come to realize that on this
earth benevolent dictatorship was a counsel of perfection and that
he would better propose a solution which had a possibility of
realization. In the arts we trust the experts absolutely; but in the
realm of government the expert is than any other art. In the
human hive no king-bee was produced so pre-eminently fitted in
18
Seminal Concepts
body and mind to rule as an expert that he might ignore the
instructions of law. Plato therefore believed that society should fall
back upon law as a second-best, perhaps even as something in the
nature of a pis aZZer, the supremacy of the rigid rule adapted to the
"average" man and the general situation and incapable of dispensing
equity in the particular case. He had no doubt whatever that fixed
laws are to be preferred to the personal administration of the
unscientific ruler which is the type society usually receives.
Plato thus came to this final view on the necessity of law. He
insisted that it was indispensable; without it we were
indistinguishable from animals. It was the instructor of youth. Its
noblest work was to make men hate injustice and love justice. The
laws are intended to make those who uSe them happy; and they
confer every sort of good. It was hard, Plato pointed out, for men to
perceive that the preoccupation of social science was with the
community and not with the indiVidual; loyalty to the community's
interest bound a state together; the pursuit of the individual's interest
tore it asunder. Plato stated that it was hard for men to see also that
the interests of both alike were better served by the community's
prosperity than by that ofthe individuaL There was not a man among
us whose natural equipment enabled him both to see what was good
for men as members of a community, and, on seeing it, always to be
both able and willing to act for the best. Irresponsible power for
mortal men always led to grasping and self-interested action, or, as
Acton was to rephrase it later, "all power corrupts and absolute power
corrupts absolutely." If ever a man were providentially endowed with
a native capacity to apprehend the true power and position of the
irresponsible autocrat he would need no laws to govern him; for no
law had the right to dictate to true knowledge. But, as things were,
such insight nowhere existed, except in small amounts; that was
why we had to take the second best - law the generality of which
could not always do justice to particular cases.
The works of the great discipline of Socrates, Plato (427-347
B.C.), written in dialogue form, present his teacher in the act of
discussing with his disciples and with the Sophists his adversaries,
so that the whole system of Plato is apparently expressed by Socrates.
He, however, is not its constructor. Socrates put people on the way
to philosophical speculation, but he did not himself produce a
complete system. The Socrates is not, therefore, the Socrates
of History, but is in the great part of Plato.
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READINGS IN LEGAL PHILOSOPHY AND THEORY
Of the teachings of the latter we cannot treat insofar as they
pertain more particularly to our . cour se of study. We shall make
mention of the two Dialogues, or Republic - it would be better
translated as State - and, or Laws. To these could be added, as a
third, intermediate between the two, the one entitled -, Political
Man. The most important is the first , in which Plato represents
completely his ideal concept ofthe State. He wants to consider Justice
in the State, since, as he says, there Justice is read more clearly,
being written in large characters, whereas in each individual man it
is written in small characters. .
The State, for Plato, is man on large scale. It is a perfect
organism, indeed the most perfect unit. It is a whole form of various
individuals and solidly built, as a b<1dy is formed of several organs,
which together make its life possible. Both in the individual and in
the State, there must reign that harmony which is obtained through
virtue. Justice is the virtue par excellence, insofar as it consists in a
harmonic relation between the various parts of a whole. Justice
requires that each one do his part, in relation to the common purpose.
Plato traces carefully the par allel between the State and the
individual and even goes irito particular s, giving to his conception a
psychological basis. Three parts or faculties exist in the soul of the
individual: reason which dominates, courage which acts, sense which
obeys. Similarly, in the State three classes are distinguished: that of
the wise, destined to dominate; that of the warriors, who must depend
the social organism; that ofthe artisans and farmers, who must feed
it. As the individual dominated by reason, so is the State by the
class which represents precisely wisdom, by the philosophers.
The cause of participation in and the submission of the
individual to the State is the lack of autarchy, the imperfection of
the individual, his insuffiCient by himself. The perfect being which
is sufficient unto itself, which absorbs and dominates ali, is the State.
The purpose of the State is universal. It includes in its attributes
the entire life of the single individuals. The State has for its purpose
the happiness of all through the medium of the virtue of all. It is to
be noted that, the classical Greek philosophy, happiness and virtue
are not antithetical terms, rather they coincide, because happiness
is the activity of the soul according to virtue, according to its true
nature.
20
Seminal Concepts
The State, therefore, according to Plato, dominates human
activity in all its manifestations. Upon its rest the duty to promot e
good in its every form. The power of the State is limitless. Nothing
is reserved exclusively to the will of the citizens. All comes under
the competence and the intervention of the State. This absolutistic
conception is opposed to that which was later sustained by other
philosophers, for whom there are limits on the action
of the State - Kant's Legal State. The Platonic concept is, for that
matter, the one with dominated in the hellenic world. the State,
for the Greeks, has above all the function of educator. In the Dialogue
Republic we find long discourses upon this argument. The means of
education, for Plato, are above all Music, which includes also the
first instruction in Letters, and Gymnastics. Music begets a
disposition of mind adapted to the reception of all the good and the
beautiful. Next comes Mathematics, including Astronomy. After this
there follows, for those most capable, the teaching of other sciences
and of Philosophy. Plato is especially preoccupied with the
preparation of the citizens for public life. The better individuals
should come to the government of the republic through a gradual
selection, an opposite education, and only after their fiftieth year of
age. They should dedicate themselves exclusively to this function,
which is the highest among those of the citizen.
In this conception the individual element is completely
sacrificed to the social and the political. The idea that every individual
has certain fundamental rights of his own is entirely lacking. The
State dominates in absolute fashion. To render stronger and closer-
knit the political organization, Plato suppresses social entities which
are intermediate between the individual and the State. Thus, he
reaches the point of sustaining the abolition of property and of the
family, a holding in common of women and of possessions, in such a
manner as to form one sole family, so therefrom will result an organic
unity and a harmony of the State which is complete and perfect.
This, however, is true only for the two higher classes, those which
participate more directly in public life. We are, ther efore, very far
. from modern communistic conceptions. By Plato, at any rate, the
personality of man is not adequately recognized. In vain would one
seek in Plato a condemnation of slavery. Slaves are not even included
in the three classes he postulates is to exercise the functions of the
State. From this we see how much they err who are wont to consider
21
READINGS IN LEGAL PHILOSOPHY AND THEORY
the platonic theory as similar to those of modern socialism. Plato
was moved only by ethical and political preoccupations to construct
his ideal State, not by the economic.
These, briefly, are the principal concepts formulated by Plato
in the Dialogue, Republic. The Dialogue, Laws, composed later, when
Plato was over seventy, has a character different from the preceding
one, because it does not trace out a pure ideal, but considers instead
historical reality in its contingent characteristics, and there appears
often an admirable sense of practical experience. In the Dialogue,
Republic, Plato had expressed the postulate that the wise should
govern, according to their wisdom. In truth, if we suppose that
wisdom dominates the world, laws are superfluous. If, however, we
consider practicalities and human nature in the concrete, we see the
necessity for them. The Dialogue, Laws, expressed precisely this
passage from what ideally should be to what happens in life, and
treats at length the problem of legislation. The fundamental
principles of Republic remain, nonetheless, the same even in the
Dialogue, Laws. Plato gives to the State an educative function, wants
the laws accompanied by exhortations and discussions to explain
their purposes. In penal laws, there is essentially a curative purpose.
Plato considers delinquents as sick persons, because, according to
. the teaching of Socrates, no man is wilfully unjust. Law is the means
to cure them, the penalty is the medicine. Through the effects of
crime, however, the State, too, is in a certain way sick, so the health
thereof demands, when it is a question of an incorrigible delinquent,
that he be eliminated or suppressed for the common welfare. It is
worthwhile, in this connection, to note the difference between the
conception of Plato and that of the modern school of Criminal
Anthropology. The latter considers delinquency as a product of
physical degeneration, while for Plato the delinquent is intellectually
lacking, and his sickness is aberration, ignorance of the truth, lack
of virtue which is knowledge of truth.
In the Dialogue, Laws, Plato shows a greater respect for
individual personality, always, however, that of free men only, slaves
excluded. Family and property are conserved, no longer sacrificed to
a sort of Statism, as in Republic. The authority, however, of the State
remains nevertheless very great and overpowering, for example in
regard to the division of property, and, consequently, the division of
citizens into various classes according to their income; the
22
Seminal Concepts
formulation of marriages and conjugal life, subject always to a most
rigorous vigilance; musical and poetic activity, precisely regulated,
too, for educative purposes; religion and worship, etc. As to political
forms, Plato criticizes both monarchy and democracy, wherein one
part of the citizens commands and the other serves. He proposes a
sort of synthesis, a mixed government, having in view especially th((
r ~ g i m e in Sparta, where, in addition to two kings, there were the
Senate and the Ephors.
23
READINGS IN LEGAL PHILOSOPHY AND THEORY
Comments on Plato by Cairns, The Republic*
Plato took the widest possible view of law. He held that it was
a product of reason and he identified it with Nature itself. Law was
a subject which he kept constantly before him, and there is scarcely
a dialogue in which some aspects of it is not treated explicitly. His
theor y of law is a fundamental part of his general philosophy and it
illumines and is illumined by the entire Platonic corpus. Like the
law of the Greeks, his legal thought was never systematized as we
have become accustomed to regard system in law since the last
century of the Roman Republic; yet it was remarkably coherent in
relation t o his major philosophical ideas. He was a layman in the
field, as were all the Greeks, in the sense that there were no
professional lawyers as we conceive their function today. But, in his
juristic thinking, he isolated a range of legal ideas among the most
impor tant in the history of law and which have been the basis of
much subsequent speculation. His influence on the law has been
large in both its theoretic and its practical aspects. The Romanjurists
"have taken many ideas from Plato," said the learned Cujas; and his
influence upon Hellenistic law, and through its practices upon Roman
law, and thus directly and indirectly upon much of the law of modern
times, has even yet not been fully appreciated.
How much Plato owed to his predecessors in legal speculation
is not clear, since their works survive only in fragments and are
sometimes unintelligible. Many attempts have been made to
determine the meaning of the fragments and for some of them it is
still anyone's guess. We owe their preservation to the fact that they
were quoted by later writers who apparently regarded them as stating
doctrines of importance. If we cannot in some cases make much of
their meaning we are nonetheless affected by their note of passion.
From Solon, Plato undoubtedly inherited a tradition that the
happiness of the state depended upon the faithful observance of sound
laws, and that it was the duty of the good citizen to see that such
laws were made. In his poetry, Solon took the view that the law
should be impartial, assigning proper spheres to the rich and the
' Reprint from Cairns, Legal Philosophy from Plato to Hegel, p. 29. All footnotes
were omitted.
24
Seminal Concepts
poor, " protecting both with a strong shield, and. to
preveil unjustly." Herodotus and Pindar had a sImIlar opmlOn of the
importance of law. To Herodotus it was the "Master."
t he exiled King of Sparta who was marching with Xerxes
Hellas told him that the Lacedaemonians were the best warnors on
earth.': Free they are," he said, "yet not wholly free; for law is
master, whom they fear much more than your men fear you. ThIs. IS
my proof - what their law bids them to do, that they do; and ItS
bidding is ever the same, that they must never flee from the
whatsoever odds but abide at their posts and there conquer or dIe.
To Pindar it was ':Lord of all:,,'''Law, lord of all, mortals and
carrieth everything with a high hand, justifying the extreme. of
violence." Anaximander declared that" the beginning of WhICh
is is the boundless; but whence that which is arises, thither must it
again of necessity; for the things
reparation to one another for their injustice, as is accordmg
to the ordering of time." Among many interpretatIons of thIS sentence
it has been suggested that it depicts a lawsuit before
seat of Time were things present their rival claims of a nght to eXIst.
Pythagoras, in a statement which belongs to that of
. speculation which has for its subject matter Import of
numbers asserted in a much vexed sentence that JustIce was a square
number. 'Aristotle seemingly knew the assertion meant since he
denied that it was true. Modern commentators differ with Aristotle
profess to find great wisdom in the remark. The poignant saying of
Heraclitus do not always speak for themselves:" Men would not have
known the name of Justice were it not for things [i.e., justice is known
only through injustice]"; The people must fight for its law as for its
wall"; " It is law, too, to obey the counsel of one." Some of this
utterances might be interpreted as demanding an
description of what happens in fact in society as a necessary baSIS
for speculative political thought. In this aspects he may be the
forerunner of modern juristic realism.
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READINGS IN LEGAL PHILOSOPHY AND THEORY
ARISTOTLE's POLITICS
Classical Natural Law
In the Platonic Minos we fortunately possess an inquiry into
the nature oflaw undertaken in the full panoply ofthe dialectic. No
comparable writing of Aristotle has come down to us. We are without
any analysis of his conducted for the express purpose of stating a
general and ultim;3.te theory oflaw. His definiiionsofhtw are partial
and are thus an anticipation ofthe practices of modern science. They
are 'always relative to the problem before him, and the aspect oflaw
which they emphasize constantly shifts in order to permit different
consequences to be drawn.
In the Rhetoric to Alexander it is pointed out that in a democracy
the final appeal is to reason. A self-governing community is directed
along the best path by its public law, and so as a king, as the embodied
of reason, guides along the path of their advantage those who are
subject to this rule. In a clumsy attempt to bring the two ideas
together, law is then stated to be tke reason defined the common
consent of the community, regulating action of every kind. Later, in
the same treatise, which is a handbook on how to persuade audiences,
another aspects emerges. Advice is offered on how to speak in favor
of a law (show that it affects all equally, that it is beneficial to the
city, etc.) or §lgainst a law (show that it does not apply equally to all
citizens, etc.). For this purpose law is defined as the common
agreement of the state enjoining in writing how men are to act in
various matters. Aristotle argued that the nurture and occupations
of the young should be fixed by the law so that they would become
customary. :He agreed with Plato that legislation should teach virtue.
Goodness, in men, he thought, could be secured if their lives were
regulated by a certain intelligence, and by a right system, invested
with adequate sanctions. Paternal authority does not have the
required force to accomplish this end. But law has this compulsive
power and it is the same time a rule emanating from a certain
practical wisdom and reasons. Thus, while people hate men who
oppose their impulses, even ifthey are right in so doing, they do not
regard the law as invidious if it enjoins virtuous conduct. Similarly,
in an action involving a contract, if the contract's existence is
admitted and if that is a fact favoring the side of the speaker, that
26
Seminal Concepts
circumst ances ought to be "magnified" or strengthened. That can be
done by calling it a "law" because a contract may really be considered
as a private or special and partial law; and it is not of course the
contr acts which make the law binding, but it is the law which gives
force to legal contracts. Aristotle therefore suggests that, in a general
sense, the law itself is a kind of contract, so that whoever disregards
or respudiates a contract is repudiating the law itself. However,
Aristotle believed that law was much more than a contract. He
pointed out that if the state did not pay attention to virtue, the
community became merely an alliance; "the law would be a contract,
and, as Lycophron the Sophist says, a .pledge of lawful dealing
between man and man." Again, in arguing that it is difficult and
perhaps impossible for a state with too large a population to have
good legal government, he observes that law is a form of order, and
good law must necessarily mean good order, but an excessively large
number cannot be orderly. Again, in considering whether the best
men or the law should be supreme he observes that he who bids the
law rule may be deemed to bid God and reason alone to rule, but he
who bids man rule adds an element of the beast; for desire is a wild
beast, and passion perverts the minds of rulers, even when they are
the best of men. Hence, law is reason without appetite. As he observed
elsewhere, intellect is always right, but appetency may be right or
wrong. Appetency aims at the practical good which may not be good
under all circumstances. Finally, Plato had divided state organization
into two parts, one the appointment of individuals to office, the other
the assignment oflaws to the offices. Both divisions came under the
general topic of the "constitution". Aristotle developed a distinction
between "constitution" and "laws". As a general principle he insisted
that the laws should be laid down to suit the constitutions - the
constitution must not be made to suit the laws. A constitution is the
organization of offices in a state, and determines what is to be the
governing body, and what is the end of each community. But laws
are not to be confounded with the principles ofthe constitution. They
are the rules according to which the magistrates should be administer
the state, and proceed the offenders. Cicero observed the distinction
and differentiated the "optimus rei publicae status" from "leges" and
thereafter it became firmly fixed in Western political thought.
To the extent his works have survived, it is clear that Aristotle
did not reach any final definition oflaw comparable, say, to his idea
of substance or of justice; he reveals no general or leading conception
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of it from the point of view of its nature. This failure to state explicitly
the meaning of a vital idea is not an anomaly. At the heart of
Aristotle's theory of the State is the idea of; but nowhere are we told
,plainly what the conception stands for, and it is also in analyzing
his incidental remarks when the term is emphasized that we are
able to ascertain the idea behind it. If what has come down to us
represents his true view of the nature of law then he attained a
position which was not reached in jurisprudence again in the
twentieth century. That is to say, he saw the inherent complexity of
legal phenomena, and he found no single description of it could
embrace its manifold aspects. The identification of any aspects may
have significance for the task in hand; and he therefore, so far as we
can judge, allowed room for them all and did not insist upon the
exclusively validity of any single one. In this approach he was on
much sounder ground than Plato who saw law as a simple unitary
phenomenon. All the elements which Aristotle emphasized have been
taken separately as the single bases of subsequent systems, and most
of them are factors in current legal analysis. He thought oflaw as a
rule of conduct for the individual, perhaps the most discussed
conception in jurisprudence; he stressed the ideal reason, the doctrine
that legal precepts should have some basis in intelligibility and not
be the mere expression of arbitrariness, force or custom; the idea of
law as a contract was adopted by Epicurus Lucretius, and appears
in present day opinion in the theory that its naked function is to
prevent attacks by individuals on each other; when he distinguished
law from the constitution and defined as the rules in accordance
with which court determine cases - which reappeared again in the
later development of analytical jurisprudence; when he pointed out
that law was a form of order he put his finger on an aspects that
since Kant has been dominant in continental legal thought.
,Law itself, like everything in the Aristotelian system, has its
end and to Aristotle it was very clear that its task was to make men
good. This was deduced from premise that the state does not exist
for the sake oflife only, but for the sake ofthe good life. But what is
goodness? Everyone agrees, Aristotle says, that the highest good is
happiness' or but that is merely a label and the main
inquiry is to find out what the word means. Aristotle's general
definition is that happiness is an exercise of the powers of life in
accordance with virtue throughout the whole life-time. He endeavors
to show that this definition sums up and improves upon all that has
28
Seminal Concepts
been said in the subject. If it is asserted that happiness is virtue he
claims to make an advance on this by insisting that happiness is an
exercise and not a mere possession of virtue; if happiness is pleasure
he says that happiness is necessarily accompanied by an inherent
pleasu'te; if it is good fortune or external prosperity he says that the
functions of h.appiness 'cannot be performed without it. Thus
happiness takes its origin in virtue, it issues in pleasure, and material
good-fortune is its ordinary equipment.
That this position is largely Platonic scarcely needs to be stated.
Plato had held that a task of law was to produce happiness in the
state as a whole and that through its instrumentality men could be
taught virtue. However, while Aristotle's definitions satisfies the
Platonic conditions for a happy life - that the goal is important on
its own account and not as a means to other things, that its
satisfaction appeal to us, and that it would be the final choice of the
wise - as a juristic formula it has several defects. In his attitude
towards the nature of law, Aristotle admitted a plurality of
viewpoints. Here only one position has significance; no doubt this
view is a product of his teleological method which has as its object
the discovery of the final end. Now it is plain that the tasks oflaw
can no more can be caught within the net of a single formula than
its numerous and contradictory aspects can be confined within the
limits of one definition. Ifwe look at the police functions ofthe legal
order, the task oflaw is to keep the peace; if we look at law as one of
the instruments of control in a complex society its task is also the
harmonization of disparate claims. The task is a function of the
problem; and since the problems are numerous, the task are alike
multitudinous and are equally valid. Law may also be a means in
the inculcation of established ethical ideals and the promotion of
new ones. The maxims of the Institute that the precepts of law are
to live honorably" not to hurt another, to give each man his due,
gives expression to ideals which ifinsisted upon applicable situations,
such as those involving the issue of good faith in undertakings, may
raise the entire moral tone of a people. Another defect in Aristotle's
idea of the end oflaw is that it breaks down as soon as it is put into
practice. However, as we have seen above, it shares this weakpess
with /ill other ideals that have 'been proposed. They do not contain
enough elements to meet all concrete situfltions.Thus, Aristotle
excludes the man of pre-eminent virtue from the operation of the
law. His principle is that the law is necessarily concerned only with
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those who are equal in birth and power. He maintained that anyone
is ridiculous who attempts to make laws exceptional men, for
probably they would say what the lions said when the hares made
speeches in the assembly and demanded that all should have
equality: "where are your claws and teeth?" This position when stated
conversely will also provide a justification of slavery. Some idea of
the concrete model Aristotle probably had before him depicting the
actual realization of the end of the law may be derived from the
following summary: ''Aristotle's political ideal is that of a small but
leisured and highly cultivated aristocracy, without large fortunes
or any remarkable differences in material wealth, free from the spirit
of adventure and enterprise, pursuing the arts and sciences quietly
while its material needs are supplied by the labor of a class excluded
from citizenship, kindly treated but without prospects. Weimar, in
the days when Thackeray knew it as a lad, would apparently
reproduced the· ideal better than any other modern State one can
think of." Goethe found Weimar the most satisfactory place in the
world in which to live; nevertheless it seems possible to devise other
ideals which would have a wider appeal.
Aristotle held that the law has no power to command obedience
except of that habit, which can only given by time. This assertion,
like many others, reveals the clear unity of his thought. If obedience
to law is based on habit, then, as he says, a readiness to change from
old to new laws enfeebles the power of the law. Inasmuch as law has
a psychological basis, education also has a major role in Aristotle's
theory. It assists in making obedience to law second nature to the
)
citizens. He believed that the best means to secure the stability of
constitutions is a system of education suited to the constitutions; for
there is no merit in the most valuable laws, ratified by the unanimous
judgement of the whole citizens, if the citizens are not trained and
educated in the constitution. The state must begin the education
early, for if a man is to lead the good life he must practice it a long
time. Aristotle's aphorism "It is hard to be good" is often quoted. But
he also said: "A life of virtue ceases to be painful when you get used
to it."
. . There is apparent paradox here which should be noted in
passing. If the citizen is to be educated in the spirit ofthe constitution,
what happens if the constitution is a bad one? Will the citizen be
able to live the good life" Aristotle's answer, and it is not clear whether .
30
Seminal Concepts
it is given normatively or descriptively, is that the citizen should be
educated in the aims ofthe constitution, whether good or bad. Thus
the citizen may be taught to an evil man. During the Reformation
the question took on practical importance and became sharply focused
in the test issue" It is lawful to kill tyrants? Melanchthon thought
that Caesar was unjustly killed; but Luther apparently took a
different stand. In view of the rise of authoritarian government it
may once again cease be an abstract matter.
In the doctrine of the categories, conduct comes under the
heading of Quality. Virtue is a Quality and Aristotle assumes t.hat
the category has four divisions: habits, or tendencies to do a thmg;
capacities for doing a thing; feelings passions and em?tions
us to do a thing; and external form or shape. In whIch classIficatIOn
does conduct fall? Aristotle does not trouble to mention form or shape,
which is used in describing a man's appearance, since character is
here alone in question. Conduct is not to be classified under feeling
_ e.g. ·, desire, anger, fear, confidence, envy, joy, love, hate,
emulation, pity - becau·se no one is praised or blamed for
feelings, but for the manner in which we actually do so. If
conduct is neither a feeling nor a capacity, it must be a habIt or
settled tendency to act in a 'certain way. Good conduct is not acquired
from nature; if it were it not be changed and moral training
would be impossible; however, we owe nature something, for . she
gives us the capacity for good conduct. Nor it does not come from
teaching. Character depends on what you do and not on what you
are told to do. Most people; instead of acting, take refuge in theorizing;
they imagine that they are philosophers and that philosophy wilL
make them virtuous; in fact, they behave like people who
to their doctors but never do anything their doctors tell
them. People who doctor themselves that way will never get well.
Habituation therefore is the only method of acquiring that settled
tendency to do acts of a certain kind. It is by doing acts of a given
kind and as a consequence of these acts that we become good or bad,
as the case may be, just as in the arts; by playing well you come to be
a good player; and by playing badly, a bad one. This truth is attested
by the experience of the states: lawgivers make the citizens good by
training them in habits of right action - this is the aim of all
legislation, and. if it fails to do this, it is a failure;that is what
distinguishes a good form of constitution from a bad one.
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Theory of Legislation
Aristotle's normative view of the law is clearly apparent in his
theory of legislation. That law prescribes certain conduct; that
conduct of a brave man (e.g. not to desert or run away or to throw
away his weapons), that of a template man (e.g. not to commit
adultery or outrage), that of a gentle man (e.g. not to assault or abuse),
and so with all the other virtues and vices, prescribing some actions
and prohibiting others - rightly ifthe law has been rightly enacted,
not so well if it has been at random. The science of legislation must
be learned like any other science. No doubt it is possible for a
particular individual to be successful treated by some one who is not
a trained physicians, but hoW has an knowledge based on
careful observation of the effects of various forms treatment upon
the person in question; just as some people appear to be their own
best doctors, though they could not do any good to someone else.
Nevertheless, it would doubtless be agreed that anyone who wishes
to make himself a professional and a man of science must advance
to general principles, and acquaint himself with them by the proper
method: for science deals with the universal. So presumably a man
who wishes to make other people better by discipline, must endeavor
to acquire the science oflegislation - assuming that it is possible to
make us good by laws. For to mold aright the character of any and
every person that represent himself is not a task that can be done by
anybody, but only (if at all) by the man with scientific knowledge,
just as is the case in medicine and the other professions involving a
of treatment and the exercise of prudence. This is an
enlargement of the Socratic theory that the virtue is knowledge; since
our passions and emotions are not good or bad but are ethically
neutral, they must be trained to make us desire what is right; mere
knowledge is not sufficient to make us do right.
Plato had held that legislation should be so framed that it could
be incorporated in a manual of instruction for the young. Aristotle
does not take exception to this view but he indulges in a severe
criticism of the Sophists for attempting to teach legislation from
existing codes of law.
From whom then or how, Aristotle asks, can the science of
legislation be learned? He answers: Perhaps like other subjects, from
the experts, namely, the politicians, for legislation is apparently a
32
Seminal Concepts
branch of polit ical science. But there is this difference between
political science and all other sciences. In who
teach t he science are the same as those who practice It, for mstance,
physicians and painters: but in the politics the Sophists,
t o t each science, never practice it. It is practices by the polItiCIans,
who apparently rely more upon a kind of empirical skill the
exercise of abl2tract intelligence; for we do not see them wrItmg or
lecturing about political principles (though might "?e a more
honorable employment than composing forenSIC and ,Parhamentary
speeches) nor have they ever made their sons or friends into
Yet we should expect them to have done so. if it were in
their power; they could not have bequeathed any "?etter legacy to
their country. Still it must be admitted that experIence does much
good; for we see that those who live in political environment become
politicians.
It follows those who aspire to a scientific knowledge of politics
acquire practical experience as well as theory.
However, those Sophists who profess to teach politics are found
to be very far from doing so successfully. In fact they do not know
what it is or what it is concerned with; otherwise, they would not
class it as 'identical with, or even inferior to, the art of rhetoric. They
would not have thought it easy to legislate by merely collecting such
laws as are held in high repute, and selecting the best ofthem -,- as
if the selection did not demand intelligence - as if all did not depend
on deciding rightly! Who, we would ask, is the
of the product of any art - of the musical compOSItion or pamtmg.
The experienced musician or painter. Now laws are the so
to speak, of the art of politics. How then can a mere of
laws teach a man the science of legislation, or make hIm able to
judge which of them is the best. We do not see men
physicians from a study of medical handbooks. Yet medIcal wrIters
attempt to describe not only general courses of treatment, but also
methods of cure and modes of treatment for particular sorts
patients classified according to their various habits of body; and theIr
treatise appear to be of value for men who have had practical
experience though they are useless to the novice. Very
therefore collections of laws and constitutions may be senTlceable
to capable of studying them critically and judging what
measures are valuable or the reverse, and what kip.d of institutions
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are suited to what national characteristics. But those who examine
such compilation without possessing a t r ained faculty cannot be
capable of judging them correctly, unless, indeed, by accident, though
they may very likely sharpen their political intelligence.
Aristotle includes that as his predecessors had left the subject
of legislation unexamined he will proceed to state its general
postulates, a statement exceedingly unfair to Plato who had worked
out an elaborate legislative theory.
Accordingly, Aristotle laid down a series of principles to control
and guide the legislative process: The best legislators, he believed,
were from the middle class, giving as instances Solon and Lycurgus
and remarking that in fact almost the greatest number of the other
lawgivers had that status. In the Laws Plato had said that the
legislators ought to have his eyes directed to two points - the people
and the country. As an example Plato cited the Cretan lawgiver who
chose for the Cretans bows and arrows which were the most suitable
arms for swift runners in a hilly country like Crete. Aristotle accepts
this principle but adds to it the corrollary that neighboring states
must not be forgotten by the legislator if the state for which he
legislates is to have a political life, that is to say, a life of intercourse
with other states. A nation's ar ms should be such as to enable it to
meet its foes in its own territory and in theirs, something bows and
arrows would not enable it to do. For this reason there must be a
fleet, the must be organized with a view to military
strength, and the legislator must pay attention to the foreign
relations of the state. Still, the legislator should not make conquest
the aim of his state; it is the province of the legislative art, if the
state/ has neighbors to consider what the practices should be in
relation to each sort of neighbor. It was a mistake for the
Lacedaemonians legislators to lay down one indiscriminating rule;
the rule ought to vary in acJordance with the character of the
neighboring state. Socrates had maintained that laws affect only
the internal organization of states, and not their mutual relations.
Cicero does not, properly speaking, belong to any school, but
he felt the influence of many, beginning with the Stoic to which
belonged his teacher, Poseidonius. He was eclectic. The titles and
the form of some of his works, for example, De Republica, De Legibus,
were platonic; the content is also Atistotelian and stoic. We find, in
other words, repeated there the basic concepts of the best Greek
34
Seminal Concepts
philosophy expressed in elegant and clear form so that they are
rendered easily accessible to the Roman people. Cicero lies frequently
on natural good sense, on the common persuasion of men, and so
gives to his discourse a popular character. His principal thesis is
that Law is not a product of choice, but is given by nature: "Natura
j uris ab hominis repetenda est natura." There is, as the Stoics had
taught, an eterDJil law which is an expression of universal reason.
He, therefore, refutes the Skeptics who, having affirmed the
impossibility of knowledge and the changeableness and relativity of
all things, had deduced the impossibility of an absolute Justice.
Carneades, especially, had asserted this and by his skeptic preaching
had created in Rome a certain amount of disturbance as he shook
common opinions and maintained that the criterion of what was
just was not founded on nature.
Cicero opposes these arguments and observes that not
everything which is put down as Law is just, for in such a case even
the laws of tyrants would be Law. ,Law is note based upon arbitrary
opinion, but there is a natural, immutable and necessary ''just,'' as
is proved by testimony taken from the very conscience of man. This
concept is developed by Cicero with great eloquence:
"Est quidem vera lex recta ratio, naturae congruens, diffusa in
omnes, constans,sempiterna ... neque est quaerendus explanator, aut
interpres eius alius. Nec erit alia lex Romae, alia Athenis, alia nunc,
alia post hac, sed et omnes gentes et omni tempore una lex, et
sempiterna, et immutabilis continebit .. . cui qui non parebit, ipse se
{ugiet, ac nuturam hom in is aspernatus hoc ipso luet maxirrias poenas,
etiamsi cetera supplicia, quae putantur, effugerit."
Besides this jus naturale and in intimate connection therewith
there exists ajus gentium observed by all peoples which serves as a
basis for their mutual relations because it is based upon their common
needs, though with the modifications which various circumstances
make necessary. Finally, there isjus civile, that which is in force for
each people in particular. Between the termini of this trichotomy,
jus naturale, gentium and civile, there is, however, no contradiction,
since they are rather determinations of one same principle which
vary only in degree.
The Roman Jurists had, in general, a philosophical culture.
Stoicis:p1 was, among all the systems of Greek philosophy, that which
in Rome had the greatest success because it corresponded better to
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the austere nature, the strongly temperate character, of the Roman
citizen. Likewise, the cosmopolitan ideal of the Stoics had a certain
positive echo in the growing aominance of Rome. The concept of a
natural law, common to all men, became a familiar one to the Roman
Jurists, a belief, as it were; which was implicit, was to be understood,
in their very notion of positive law. The foundation thereof is precisely
the naturalis ratio which means not mere subjective, individual,
reason but that rationally which is innate in the order of things and
is therefore, superior to the human will. There is, therefore a law of
nature, immutable, not artificially made but already existing, inborn.
It is a uniform law, not subject to change by the action of men. Natural
law is defined, in this sense, by Paulus as "id quod semper bonum et
aequum est."
Ulpian gives a formulation of mit ural law which is not found in
other writers. Natural law, says he, is "quod natura omnia animalia
docuit." He thus extends the force of natural law even to animals in
general. In substance, however, he merely gives definite expression
to what was for all a solid principle, namely that the basis of Law
lies in the very nature of things, in those driving forces which, though
more developed in man, are nonetheless present in embryonic form
even among the lower animals.
The concept of jus naturale is connected with that of aequitas.
Aequitas, properly speaking, indicates an equalizing, an equal
treatment ofthings and relationship which are equal. It is a criterion
which obliges us to recognize that which-is identical in the substratum
of things, beyond the changeable and the accidental.
) The idea of equity and that of natural law thus become factors
of progress in Law. Positive law is a modification of natural law,
with elements of the accidental and ofthe arbitrary. The conditions
of places and of times change, utilitas suggests particular norms,
and this the Roman Jurists recognize fully; but nevertheless there
is in them a constant tendency to bring Law back to its more basic
ideas; to compare the norm with its natural foundation, removing
discor'ds' and inequalities, comparing and equalizing, in such wise
as to correct that which is inequitable or unreasonable.
36
Seminal Concepts
THE ROMAN JURISTS
CICERO - DE LEGIBUS
Translated by C. W. Keyes
The -Leob, Classical Library, New York. G. P.
Putnam's Sons, 1928.
[Marcus.] Well then, the must learned men have determined to
beg in with Law, and it would seem that they were right, if, according
to their definition, Law is the highest reason, impla,nted in Nature,
which commands what oug:Q.t to be done and forbids the opposite.
This reason, whenffirmly fixed and fully developed in the human
mind, is Law. And so they believe that Law is intelligence, whose
natural function it .is to command right conduct and forbid
wrongdoing: They think that this quality has derived its name in
Greek from the idea of granting to every man his o:wn, and in our
language I believe it has been named from the idea of choosing. For
as they have attribute the idea of fairness to the word law, so we
have given it that of selection, though both ideas belong to Law.
Now ifthis correct, as I think it to be in general, then the origin of
Justice is to be found in Law, for Law is a natural force; it is the
mind and reason of the intelligent man, the standard by which Justice
and Injustice are measured. But since our whole discussion has to
do with the reasoning of the populace., it will sometimes be necessary
to speak in the popular manner, and give the name of law to that
which in written form decrees whatever it wishes, either by command
or prohibition. For such is the crowd's definition of law. But in
determining what Justice i s ~ let us begin With the supreme Law which
had its origin ages before any written law existed or any State had
been established. (Book I, vi, pp. 317- 319.)
[M.] I will not make the argument long. Your admission leads
us to this: that animal which we call man, endowed with foresight
and quick intelligence, complex, keen, possessing memory, full of
reason and prudence, has given a certain distinguished status by
the supreme God who created him; for he is the only one among so
many different kinds and varieties of living beings who has a share
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READINGS IN LEGAL PHILOSOPHY AND'
in reason and thought, while all the rest deprived of it. But what is
more divine. I will not say in man only, but in all heaven and earth,
than reason? And reason, when it is full grown and perfected is
rightly called wisdom. Therefore, since there is nothing better than
reason, and since it exists both in man and God, the first common
possession of man and God is reason. (Book I, VII, p. 321.)
[M.J Morever, virtue exist in man and God alike, but in no other
creature besides; virtue, however, is nothing else than Nature
perfected and developed in its highest point; therefore there is a
likeness between man and God. (Book I, VIII, p. 325.)
[M.J The next point, then, is that we are so constituted by Nature
as to share the sense of Justice with one another and to pass it on to
all men. And in this whole discussion I want it understood that what
I shall call Nature is [that which is implanted in us by NatureJ;
that, however, the corruption caused by bad habits is so great that
the sparks of fire, so to speak, which Nature has kindled in us are
extinguished by this corruption, and the vices which are their
opposites spring up, and are established. But if the judgements of
men were in agreement with Nature, so that, as the poet say, they
considered "nothing alien to them which concerns mankind" then
Justice will be equally observed by all. For those creatures w'ho has
received the gift of reason from Nature have also received right
reasons, and therefore they have also received the gift of Law which
is right reason applied to command and prohibition. And have
received Law, they have received Justice also. Now all men have
received reason; therefore all men received Justice. Co:o.sequently
Socrates was right when he cursed, as he often did, the man who
first utility from Justice; for this separation, he
complained, is the source of all mischief. (Book I, XII, pp. 333-335.)
[M.] But if Justice is conformity to written and national customs
and if, as the same person claim, everything is to be tested by
standard of utility, then anyone who thinks it will be profitable to
him will, ifhe is able, disregard and violate the laws. It follows that
Justice does not exist at all, ifit does not exist in Nature, and if that
form of it which is based on utility can be overthrown by that every
utility itself. (Book I, xv, p. 345.)
[M.J .. . Or, if a law can make Justice out of Injustice, can it not
also make good out of bad? But in fact we can perceive the different
between good laws and bad by referring them to no other standard
38
Seminal Concepts
than Nature; indeed, it is not merely Justice and Injustice which
are honourable and dishonourable. For since an intelligence common
to us all makes things known to us formulates them in our minds,
honourable actions are ascribed by us to virtue, and dishonourable
actions to vice; and only a mad man would conclude that these
judgments ?re matters of opinion, and not fixed by Nature. For virtue
is reason completely developed; and this certainly is natural;
therefore everything honourable is likewise natural. ... (Book I, XVI,
p.347.)
[M.J To close now our discussion of this whole subje,ct, the
conclusion, which stands clearly before our eyes from what has
already been said is this: Justice and all things honourable are to be
sought for their own sake. And indeed all good men love fairness in
itself and Justice in itself, and it is unnatural for a good man to
make such mistake as to love what does not deserve love for itself.
Therefore Justice must be sought and cultivated for their own sake;
and if this is true of Justice, it is also true of equity; and if this is the
case with equity, then all the other virtues are also to be cherished
fortheir own sake. (Book I, XVIII, p. 351.)
Comments on Cicero by Cairns
Cicero knew many kinds oflaw but his legal theory, under the
influence of a commonplace Stoic idea, was dominated by the
conception of a "true law" (vera lex). He knew lex as the written law,
and ius not only as denoting what is right and fair, but as law in the
most general sense of the word and also as referring to a particular
system of law. In its plural form iura the ordinances, rules,
rules of law, decision on points of law; iura were also the separate
provisions, lex the whole enactment containing them. He knew also
the divine law ({as). One of Cicero's contributions to philosophy was
the invention of a Latin philosophical vocabulary which reappeared
in modern European languages. Thus we find him using as
importations from Aristotle ius or lex naturae in the sense of an
ideal law which mayor may not have an existence in universal
practice, but which ought to have. Similarly, the ius civile, the law
governing citizens, has its Aristotelian counterpart. As a collorary
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to the ius naturae Cicero employed the phrase gentium, which he
stated had been used by his predecessors; by the phrase he apparently
meant, when he wanted to distinguish it from the ins naturae, legal
usage actually existing everywhere as distinguished from the ideal
law (ius naturae) which might not exist. Ius gentium was a world
common law, the principles applicable to cases in which the parties
were not both Roman citizens and in which, therefore, no appeal
could be made to the ius civile. He used the phrase ius communis to
mean the law which he and the person whom he is addressing
acknowledge. He thought of customary law (consuetudo) as that
which has been approved by common consent of long standing and
which may not have been ratified by statute. He drew a sharp
distinction between public law and private law. He had many more
phrases and combinations of phrases to denote further kinds of law.
Plainly, we are in the presence of a man to whom legal distinctions
were important and who was fortunate enough to have before him a
body of material which would permit the making of distinctions.
Cicero perceived three kinds oflaw operating in the world and
this classification apparently embraced all the forms with which he
was familiar. There is first the heavenly law (lex caelestis). He
observes it has been the opinion of the wisest men that law is not a
product of human thought, nor is it any enactment of peoples, but
something eternal which rules the whole universe by its wisdom in
command and prohibition. Thus they have been accustomed to say
that law is the primal and ultimate mind of God, whose reason directs
all things either by compulsion or restraint. Therefore, that law which
the gods have given to the human race has been justly praised; for it
is the reason and mind of a wise lawgiver applied to command and
prohibition.
Plato's playful account of the origin of law may have been in
the back of Cicero's mind as he set forth this idea, although as he
develops its main foundations, it is obviously Stoic. In the old days
Plato pointed out Cronos ruled us through his daemons. Today there
is in man a divine part - his - mind - and this divine element
must do as Cronos did and appoint subordinate ministers for our
government. These ministers we may call not JaiMovas butiLavoMas
''the arrangements" or "appointments made by the intellect" and to
which we give the name of "laws." Elsewhere Cicero refers to the
contention that nothing is more divine than reason and quotes
40
Seminal Concepts
Chrysippus as identifying Jupiter with the mighty law, everlasting
and eternal which is our guide of life and instructress in duty, and
he Necessity or Fate, and the Everlasting Truth of
future events. That he has in mind a kind oflaw distinct from natural
law is clear from his discussion. of wrongly gains as being contrary
to the law of nature (in this case ius gentium), the statutes of
particular'communities, and the "Reason which is in Nature, which
is the law of gods and men" (ipsa naturae ratio, quae est lex divina et
humana).
At the point in the dialogue of De Legibus at which Cicero first
develops the idea of law as the ultimate mind of God his brother
Quintus interrupts him and demands a fuller explanation. He
remarks that Cicero has, on more than one occasion, already touched
on this topic. But before Cicero comes to treat ofthe laws of peoples,
Quintus would be grateful if he would make the character of this
heavenly law clear to him, so that the waves of habit may not carry
him away and sweep him into the common mode of speech on such
subjects.
Cicero agrees that there should be a true understanding of the
matter. He quotes a rule from the Twelve Tables and observe that it,
together with other rules of the same kind, is called "law." These
commands and prohibitions of nations have the power to summon to
rectitude and away from wrongdoing. However, this power is not
merely older than the existence of nations and states, it is coeval
with that God who guards and rules heaven and earth. For the divine
mind cannot exist in a' state devoid of reason; and divine reason
must necessarily have this power to establish right and wrong. Prior
to written law reason existed, derived from the nature of the universe,
urging men to right conduct and diverting tliem from wrongdoing;
and this reason did not first become law when it was written down,
but when it first came into existence; and it came into existence
simultaneously with the divine mind. Therefore, the true and
supreme law, whose coriunands and· prohibitions are equally
authoritative, is the right reason of the Sovereign Jupiter.
Lactantius has preserved for us an eloquent passage by Cicero
describing the lex caelestis iat greater length: There is in fact a true
law, right reason, agreeing with nature, diffused among all men,
unchanging and eternal; it summons to duty by its commands, and
deters from wrong by its prohibitions. Its commands and prohibitions
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READINGS IN LEGAL PHILOSOPHY AND TI-H:OlW
are not laid upon good men in vain, but are without effect on the
bad. It is a sin to try to alter this law, nor is it allowable to attempt
to repeal any part of it, and to annul it wholly is impossible. We
cannot be freed from its obligations by senate or people, and we need
not look outside ourselves for an expounder or interpreter of it. It
will not lay down one rule at Rome and another at Athens, or different
laws now and in the future; but there will be one law, eternal and
unchangeable, binding at all times upon all peoples. There will be,
as it were, one common master and ruler of men, namely God, who
is the author of this law, its interpreter, and its sponsor. The man
who will not obey it will abandon his better self, and in denying the
true nature of a man, will therepy suffer the severest of penalties,
although he has escaped all the other consequences which men call
punishment.
That is a clear statement of the Stoic doctrine of the Logos
carried over explicitly into jurisprudence. Heraclitus had laid it down
that "all things happen in accordance with the Word" and that men
must "hold fast to that which is common to all, as a city holds fast to
its law, and much more strongly still; for all human laws are
nourished by the one divine law." Assertions such as these were
transformed by the Stoics into the. doctrine of a which r uled the
universe. An early work of Zeno, the Republic, was an attempt to
answer the argument of Plato's Republic and to show that the perfect
state must include the entire world. A man would not say "1 am an
Athenian," but would follow Socrates and regard himself as a native
and citizen of the world. At the basis of this speculation was the
belief, taken over from physics, that the universe is governed by
law, which ess,entially is the law ofrea$on. Morality as an expression
of reason represents the commands and prohibitions of the divine
law. "Act according to nature" summed up the general ethical
teaching. In its legal sense the Logos becomes the Platonic rule of
Right Reason (vera ratio) which per-vades all things and which
commands what ought to be done and forbids the opposite. Cicero
could never understand how Zeno convinced himself that this law
was alive. Eventmilly the conception took its place in the Digest in
Chrysippus' definition oflaw as the Queen of all things, human and
divip.e, a paraphrase qf Pindar.
Although the Roman jurists were able to work the Logos out in
practice by means ofthe doctrine of the law of nature, the imagination
42
Seminal Concepts
of the Stoics was too idealistic to foresee the possibility of its use
in the positive law. Zeno wanted to abolish law courts altogether.
He also argued that the practice of permitting both sides to be
heard in an action at law ended in a dilemma. If the plaintiff has
plainly' proved his case, there is no need to hear the defendant,
for the question is at an end; ifhe has not proved it, it is the same
case as if the· plaintiff had not appeared to prosecute his cause
when the case was called, or had appeared and offered no evidence;
so that, whether the plaintiff has proved .or flot proved his case,
the defendant should not be heard. To this Plutarch replied that
Plato had either proved or not proved those things which he set
forth in the Republic; but in neither case- was it necessary for
Zeno to write against him.
Cicero as a practical lawyer attempted to give concrete
meaning to the idea of a lex caelestis. As an instance he cited the
case of Cocleswho took his stand on a bridge alone, against the
full force of the enemy, and ordered the bridge broken down behind
him. He was obeying the "law of bravery," an illustration of the
positive or command aspect of the lex caelestis. For its negative
or prohibitory side Cicero cites the case of Sextus Tarquinius who
broke the "eternal law" against rape by violating Lucretia. It is a
weakness of Cicero that in his efforts at concreteness he is not
able to rise above the level of the wall motto in his moral precepts.
Cocles' conduct was a noble act of bravery. But should the law
command such conduct in all similar circumstances with penalties.
Therefore, Cicero says, law is the distinction between things just
and unjust, made in agreement with that primal and most ancient
of all things, nature; and in conformity to nature's standard are
framed those human laws which inflict punishment upon the
wicked but protect the good. This is his formal definition of natural
law (lex naturae).
I
Plato had argued that law is a good and that what is not
beneficial to the state is not a good, and hence a bad law is no law.
Cicero's analysis reproduces this argument, but adds the idea of
nature as the standard by which to test the goodness or badness
of a law. However, it is far from clear what Cicero meant by
"nature." Chrysippus had defined the highest good "as life in
accordance with nature, or, in other words, in accordance with
our own human nature as well as that of the universe." Apparently
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READINGS IN LEGAL PHILOSOPHY AND THE J{y
I
there was an order of: nature which was rational throughout and
man was to conform. to it. Animals were able to preserve their
lives because nature had given them impulse. In their case
nature's rule was to follow the direction of impulse. To man nature
had added reason, and for · him life according to reason rightly
becomes the natur al life. By "reason" Cicero understood that which
teaches and explains what should be done and what should be
left undone. Cicero regarded a life in accor dance with nature as
the highest good. That meant the enjoyment of a life of due
measure based upon virtue, or, in other words, following nature
and living according to her law; that is to say, to spare no effort,
so far as in us lies, to accomplish what .nature demancls, among
those demands being her wish that we live by virtue as our law.
For his third kind of law, Cicero turns to the naked idea of
law as that which decrees in written form whatever it wishes,
either by command or prohibition. Such, he observes with
contempt, is the crowd's definition of law. With those words he
dismisses the subject. Nevertheless, t he idea was a necessary one
in order to make his system philosophically complete. For one
thing, it would serve as a catch-all for the specimens oflaw which
could not be fitted into the categories of the lex caelestis or the ius
naturae. It could contain even those bad laws which were no laws
at all.
What is extr aordinary in t his analysis of the nature oflaw is
that Cicero, although the most learned lawyer of his time, does
not.reason from legal materials. His lex caelestis is pure Stoicism;
his ius naturae appears to be a Greek imJortation. Only the lex
vulgus refers direct'ly to 'positive law. In this respect Cicero is much
closer to Plato than to Aristotle, his idea of law is
completely different from either of theirs. Plato, in working out
his theory that law seeks to be the discovery of reality, paid no
more attention to legal materials than did Cicero. Aristotle,
however, in putting forward his numerous ideas on the nature of
law plainly kept . positive law and legal procedure before him.
Cicero's conceptions, nevertheless, were to be as influential as
those of his illustrious predecessors and ar e even today the basis
of a revival in juristic thought.
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Seminal Concepts
There was no inclination on Cicero's part to under estimate
law even in its opprobrious sense. In his hands the theory of the
state assumes a legalistic form unknown to the Greeks. He
maintains that nothing can be nobler than the law of a state. It
was originally made for the securi ty of the people, for the
preservation of the state, for the peace and happiness of human
life. Law is bond of civil society, and the state may be defined
as an association or partner ship in law. If a state has no law, it cannot
be considered a state at all. Law is evJn superior to philosophy. An
art, even if unused, can stil.1 be retained in the form of theoretical
knowledge; but virtue depends entirely upon its use,; and its noblest
use is the government of the state, and the realization in fact, not in
words, of those deeds which philosophers r ehearse in their secluded
retreats. For, even when philosophers express just and sincere
sentiments about these matters, they merely state in words what
has been actually realized and put into effect by those statesmen
who have given states their laws. From whom comes our sense of
moral obligation and our reverence t owards the gods? From whom
do we derive that law which is common to all peoples (ius gentium),
or that to which we apply the term civil (ius civile)? Whencejustice,
honor, fair-dealing? Whence decency, self-restraint, fear of disgrace,
eagerness for praise and honor? Whence comes endurance, toils and
dangers? Assuredly, from those statement who have developed these
qualities by education and have embedded some of them in customs
and have enforced others by statutes. Xenocrates, one of the most
distinguished of philosophers, was once asked, so the story goes,
what his pupils gained from his instructions. He replied that of their
own free will they would perform the duties they would be enforced
to do by the laws. A statesman, therefore, who by his authority and
by the punishments which his laws impose obliges all men to adopt
that course which only a mere handful can be persuaded to adopt by
the arguments of philosophers, should be held in even greater esteem
than the teachers who make these virtues the subject of their
discussioris. For what speech of theirs is excellent enough to be
preferred to a state well pr ovided with law and customs?
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READINGS IN LEGAL PHILOSOPHY AND THEORY
KANT's, TI:iE PHILOSOPHY OF LAW*
PROLEGOMENA
LAW AND ETHICS
General Introduction to the Metaphysic of Morals
II. . The Idea and Necessity of a Metaphysic of Morals
.... [Moral Law] in contradistinction to Natural Laws, are only
vahd as Laws, in so far as they can be rationally established a priori
and cOI?prehended as necessary. In fact, conceptions and judgmentt3
regardmg ourselves and our conduct have no moral significance, if
they contain only what may be learned from experience; and when
anyone is, so'to speak, misled into making a Moral Principle out of
anything derived from this latter source, he is already in danger of
falling into the coarsest and most fatal errors.
If the Philosophy of Morals were nothing more than a Theory
of Happiness (Eudoemonism), it would be absurb to search after
Principles a prio!,"i as a foundation for it. For however plausible it
may sound to say that Reason, even prior to can
comprehend by what means we may attaip. to a lasting enjoyment of
the real pleasures of life, yet all that is taught on this subject a
priori is either tautological, or is assumed wholly without foundation.
It is. only Experience that can show what will bring us
The natural impulses directed towards nourishment the
or the tendency to rest and motion, as well the higher
desIres of honour, the acquisition of knowledge, and such like" as
developed with our natural capacities, are alone capable of showing
iIi what those e?joyments are to be found. And, further, the knowledge
thus acquired, is available for each individual merely in his own
way; and it is only thus he can learn the means by he has to seek
those enjoyments. All specious rationalizing a priori, in this
connection, is nothing at bottom but carrying facts of Experience up
to generalizations by induction (secundum principia generalia non
universalia); and the generality thus attained is still so limited that
numberless exceptions must be allowed to every individual in order
that he may adapt the choice of his mode oflife to his own particular
. "Reprint from Cohen and Cohen, Reading in Jurisprudence and Legal
All footnotes were omitted.
46
Seminal Concepts
inclinations and his capacity for pleasure. And, after all, the
individual has really to acquire his Prudence at the cost of his own
suffering or that of his neighbours.
But it is quite otherwise with the Principles of Morality. They
lay down Commands for everyone without regard to his particular
inclinations, and merely because and so far as he is free, and has a
practical Reason. Instruction in the Laws of Morality is not drawn
from observation of oneself or of our animal nature, nor from
perception of the course of the world in regard to what happens, or
how men act. But Reason commands how we ought to act, even
although no example of such action were to be found; nor does Reason
give any regard to the Advantage which may accrue to us by so acting,
and which Experience could alone actually show ....
General Divisions of the Metaphysic of Morals
IV. General Preliminary Conceptions Defined and
Explained
... Natural and Positive Laws. - Obligatory Laws for which an
external Legislation is possible, are called generally External Laws.
Those External Laws, the obligatoriness of which can be recognized
by Reason a priori even without an external Legislation, are called
Natural Laws. Those Laws, again, which are not obligatory without
actual External Legislation, are called Positive Laws. An External
Legislation, containing pure Natural Laws, is therefore conceivable;
. but in that case a previous Natural Law must be presupposed to
establish the authority ofthe Lawgiver by the Right to subject others
to Obligation through his own act of Will.
Maxims. - The Principle which makes a certain action a Duty,
is a Practical Law. The Rule of the Agent or Actor, which he forms as
a . Principle for himself on subjective grounds, is called his Maxim.
Hence, even when the is one and invariable, the Maxims of the
Agent may yet be very different.
The Categorical Imperative. - The Categorical Imperative only
expresses generally what constitutes Obligation. It may be rendered
by the following Formula: "Act according to a Maxim which can be
adopted at the same time as a Universal Law." Actions must therefore
be considered, in the first place, according to their subjective
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READINGS IN LEGAL PHILOSOPHY AND THBORY
Principle; but whether this principle is also valid objectively, can
only be known by the criterion of the Categorical Imperative. For
Reason brings the principle or maxim of any action to the test, by
calling upon the Agent to think of himself in connection with it as at
the same time laying down a Universal Law, and to consider whether
his action is so qualified as to be fit for entering into such a Universal
Legislation ....
INTRODUCTION TO THE SCIENCE OF RIGHT
General Definitions and Divisions
A. What the Science of Right Is?
The Science of Right has for its object the principles of all the
Laws which it is possible to promulgate by external legislation ....
R What Is Right?
This question may be said to be about as embarrassing to the
Jurist as the well-known question, "What is Truth?" is to Logician.
It is all the more so, if, on reflection, he strives to avoid tautology in
his reply, and recognise the fact that :a reference to what holds true
merely of the laws of some one country at a particular time, is not a
solution ofthe general problem thus opposed. It is quite easy to state
what may be right in particular cases (quid sit juris), as being what
the laws of a certain place and of a certain time say or may have
said; but it is much more difficult to determine whether what they
have enacted is right in itself, and to lay down a universal Criterion
by which Right and Wrong in general, and what is just and unjust,
may be recognized. All this may remain entirely hidden even from
the practical Jurist until he abandon his empirical principles for a
time, and search in the pure Reason for the sources of such
judgments, in order to lay a real foundation for actual positive
Legislation. In this search his empirical Laws may, indeed, furnish
him with excellent guidance; but a merely empirical system that is
void of rational principles is, like the wooden head in the fable of
Phaedrus, fine enough in appearance, but unfortunately it wants
brain. .
48
eminal Concepts
1. The conception of Right .- as referring to a corresponding
Obligation which is t he Moral aspect of it - in the first place,
has regard only to the external and practical relation of one
Person to another, in so far as they can have influence upon
each other, immediately or mediately, by their Actions as facts.
In the second place, the conception of Right does not indicate
the of the action of an individual to the wish or the
mere desire of another, as in acts of benevolence or of
unkiindness, but only the relation of his free action to the
freedom of action of the other. And, in the third place, in this
reciprocal relation of voluntary actions, the conception of Right
does not take into consideration the matter of act of Will in so
far as the end which anyone may have in view in willing it, is
concerned. In other words, it is not asked in a question of Right
whether anyone on buying goods for his own business realizes
, a profit by the transaction or not; but only the form of the
transaction is taken into account, in considering the relation of
the mutual acts of Will. Acts of Will or voluntary Choice are
thus regarded only in so far as they are free, and as to whether
the action of one can harmonize with the Freedom of another,
according to a universal Law.
Right, therefore, comprehends the whole of the conditions under
which the voluntary actions of anyone Person can be harmonized in
reality with the voluntary actions ' of every other Person, according
to a universal Law of Freedom.
c. Universal Principle of Right
"Every Action is right which in itself, or in the maxim on which
it proceeds, is such that it can co-exist along with the Freedom of
the Will of each and all in action, according to a universal Law."
(If, then, my action or my condition generally can co-exist with
the freedom of every other, according to a universal Law, anyone
does me a wrong who hinders me in the performance of this action,
or in the maintenance of this condition.) For such a or
obstruction cannot co-exist with Freedom according to universal
Laws.
It follows also that it cannot be demanded as a matter of Right,
that this universal Principle of all maxims shall itself be adopted as
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READINGS IN LEGAL PHILOSOPHY AND THE Y
my maxim, that is, that I shall make it the maxim of my actions. For
anyone may be free, although his Freedom is entirely indifferent to
me, or even if I wished in my heart to infringe it, so long as I do not
actually violate that freedom by my external actions. Ethics, however,
as distinguished from Jurisprudence, imposes upon me the obligation
to make the fulfillment of Right a maxim of my conduct.
The universal Law of Right may then be expressed, thus: "Act
externally in such a manner that the free exercise of thy Will may be
able to co-exist with the Freedom of all others, according to a
universal Law." This is undoubtedly a Law which imposes obligation
upon me; but it does not at all imply and still less command that I
ought, merely on account of this obligation, to limit my freedom to
these very conditions. Reason in this connectio"n says only that it is
restricted thus far by its Idea, and may be likewise thus limited in
fact by others; and it lays this down as a Postulate which is not
capable of further proof. As the object in view is not to teach Virtue,
but explain what Right is, thus far the Law of Right, as thus laid
down, may not and should not be represented as a motive-principle
of action. "
D. Right is Conjoined with the Title or Authority to Compel
The resistance which is opposed to any hindrance of an effect,
is in reality a furtherance of this effect, and is in accordance with its
accomplishment. Now, everything that is wrong is a hindrance of
the freedom, according to universal Laws; and Compulsion or
Constraint of any kind is a hindrance or resistance made to Freedom.
Consequently, if a certain exercise of Freedom is itself a hindrance
ofthe Freedom that is according to universal Laws, it is wrong; and
the compulsion or constraint which is opposed to it is right, as being
a hindering of a hindrance of Freedom, and as being in accord with
the Freedom which exists in accordance with universal Laws. Hence,
according to the logical principle of Contradiction, all Right is
accompanied with an implied Title or warrant to bring compulsion
to bear on anyone who may violate it in fact ....
50
eminal Concepts
Comments by Paton on Kant
Since the time of the ancient Greek philosophers, many writers
have emphasized the relativity of law - there is scarcely a rule of
today which may not be matched by its opposite of yesterday. A study
of actual systems makes many despair of finding universal elements
on which a definition of law can build. Kant attacked this problem
by the application of his 'critical method'. It is not possible in a short
section to expound one of the inost difficult systems of philosophy
ever conceived. All that can be achieved is to point out the bearing of
Kant's method on the problem of defining law. To Kant the world of
sensible experience is full of diversity and can of itself produce no
principles which are universally valid. To define law we must
distinguish between form and matter; the first being the complex of
universally valid principles presupposed in any legal judgment, and
the latter the changing world of social experience which those
principles construe legally'. To define law we should not study actual
legal systems, but rather retire to the world of pure thought and
discover those elements without which it is logically impossible to
conceive of law at all.
The method may be illustrated by turning to the work of Rudolf
Stammler. He regards the philosophy of law 'as the theory of those
propositions about law which have universal validity'. The natural
world shows us the working of cause and effect: law belongs to the
realm which chooses ends and determines means. His first emphasis,
therefore, is that law is a type of volition; or, to put it in other words,
that inherent in law is the notion of purpose. Law exists to bind
together the community; it is sovereign, and cannot be violated with
impunity. Since by definition law exists to harmonize the purposes
of individuals, law itself strives towards justice. The fundamental
basis of law and of just law are, therefore, the same. The form of
human society is external regulation, as social co-operation cannot
be thought of in the absence of control - since law exists to co-
ordinate, it can operate only by unifying all possible acts of men.
This analysis does not depend on any particular theory of ethics or
on postulates drawn from actual legal systems. When Stammler
works out his theory he does not examine an actual society but
postulates an ideal community in which everyone accepts as his own
all those purposes of others which can be objectively justified. These
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READINGS IN LEGAL PHILOSOPHY AND THEORY
principles of just law are based on the doctrines of respect (one must
not treat another arbitrarily) and of participation (all must be allowed
to shared in the legal community). This picture of society is regarded
as a determining form which will condition the rules in any particular
group of men.
It is unfair to attempt to describe a great system of learning in
a few lines. But despite all the skill and vigour of Stammler's work,
it is hard to resist the conclusion of Geny that his conclusions do not
really depend on his premisses - they are suggested by his particular
prejudices and social views. Jurisprudence, in the hands ofthe formal
theorist, is always faced with a if it is true to the premisses
on which it is built, it remains in the pure heaven oflogical concepts;
if it attempts to descend to earth, these concepts are explained
according to the social picture of the writer. Thus Stammler has not
really solved the relationship of just law and law. Does he mean that
just law effectively dominates law in every society? If so, the
conclusion is demonstrably faise. The abstractl formulae produced
are very subtle, but after all they are merely affirmed without being
proved. The unity of the ideal community is merely a formal one in
which there is logically no contradiction between the ends of each
legal subject.
Whether we adopt the Kantian theory or not, there are points
in Stammler's theory which any discussion of law must note. He
rightly emphasizes that the notion of community is inherent in the
nature of law: law could exist as ', a theory if Adam were the sole
inhabitant of the globe, but law can exist only in fact if an actual
society exists. Secondly, the realm of law' and of the natural world
are distinct. A natural law cannot be broken since it is merely a
description of what invariably happens, whereas law is essentially
normative,in that it sets up a standard which men ought to follow.
But while the dictates of law may be disobeyed, they cannot be
disobeyed without risk. It is true that a wrongdoer may escape
punishment, but the very notion of law is that it imposes itself on
the will of the, individual. In this sense law is autonomous and
inviolable, for while man may be free to' break the law, he is not free
to evade its penalties. Thirdly, most systems do assume that law is a
complete and exclusive system in itself. This raises the issue of non
liquet - no judge is free to refuse'to decide a case on the ground that
legal authority provides no precise answer. The theory of the common
52
Seminal Concepts
law is that implicit in its legal principles is the answer to every
conceivable legal problem.
But we do not find that the legal systems of the world follow
any a priori logic. The striving for justice may be the mark of ideal
law, but it is not always the characteristic of actual systems.
Stammler correctly emphasizes that inherent in law is the notion of
purpose - bht this purpose is determined, not by the logical
principles of the academic jurist, but by the actual struggles of flesh
and blood. The purpose of law is hardly a conditioning form which
determines the rules of every community.
Del Vecchio follows the same Kantian method, but his writings
are easier to follow. He defines law as the objective co-ordination of
possible acts among men, according to an ethical principle which
determines them and prevents their interference.
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READINGS IN LEGAL PHILOSOPHY AND THEORY
HEGEL's, THE PHILOSOPHY OF RIGHT*
We are told by Hegel that philosophy was accessible to the
ordinary knowledge of the cultured public until Kant. ,Beginning with
Kant's intricate idealism it passed beyond their understanding, and
its subtleties are now open only to the grasp of the professional. If
Hegel's remark is an accurate description of a difficulty of modern
philosophi cal thought, his own system, notwithstanding his
insistence that it is the duty of all individuals to occupy themselves
with philosophy, did nothing to overcome it. The intricacy of his
thought is the theme of the and the e;perience of the
student. But Hegel also brings a speCial burden to the student who
wishes to understand him. We are assured that Hegel during the
course of the exposition of a particular point not only had his entire
system present 'to his mind, but that he kept equally before him all
the philosophy of the past.
An introduction to Hegel's thought is thus likely to begin with
a preliminary sketch of philosophical ideas to the first years of the
nineteenth century. An exposition of a particular aspect of Hegel's
system is usually preceded by an account of the major ideas upon
which it rests. In all this there is much merit. When we are concerned
with a thinker of Hegel's stature we cannot know too much about
the interccmnections of his thought. What he has to say on other
topics, and especially the process by which he arrives at the specific
conclusion he is expounding, are valuable in our efforts to reach,the
essence of his thought. This would seem to be the case with Hegel's
theory of jurisprudence. It was first put forward as an integral part
ofthe volume which he regarded as the methodical summary of his
system. It was later reconsidered and expanded as a separate volume.
Further, the latter part of the jurisprudence was itself additionally
developed in the form of the lectures, published after his death, on
the philosophy of history. Finally, Hegel himself apparently
presupposed on the part of the reader some knowledge of his general
system, particularly the exposition of his philosophic method in the
Science of Logic.
' Reprint from Cairns, Legal Philosophy from Plato to Hegel, p. 503. All footnotes
were omitted.
54
Seminal Concepts
Nevertheless, it appears possible to compr ehend Hegel's
philosophy of law without a preliminary excursus on his gene:al
system or on the systems of his predecessors. Indeed the first Enghsh
expositor of the system thought that "we may take down the volume
of Hegel's works containing the Philosophy of Right, and although
we have never opened any of the other volumes, we shall not find
what we reaa unintelligible .... We need not travel beyond the limits
of this particular sphere in order to apprehend it s true character."
Hegel himself took pains in the Introduction to the Philosophy of
Right to sketch the elements of his general theory; but it may be
doubted that his full meaning will be understood in the absence of a
knowledge o{his more elaborate statements. Nevertheless his legal
theory, and the ethical theory of which it forms a part"can stated
without difficulty. There is no likelihood that legal thought will adopt
either the philosophical basis or the technical apparatus of Hegel's
jurisprudence. We have a vital interest in understanding as fully as
may be the meaning and the grounds of the conclusions he
reached in jurisprudence. But it is the conclusions themselves WhICh
are our primary concern,since it is possible tO' deduce them from
premises other than those which Hegel employed. Many of those
conclusions have passed over into jurisprudence, and are part of the
stock of ideas of legal theory today. Our task is to ascertain the
meaning of those conclusions as they were expounded by Heg;el, and
to understand, so far as necessary for the purposes of the lnquiry,
the presuppositions which led him to ' reach them. That is an
undertaking which appears possible although accompanied by a
minimum of explanatory exegesis.
Hegel's purpose in publishing a treatment of the philosophy
of right in a separate volume is made abundantly clear from his
preface. He felt that the audience which attended his lectures on
the subject needed the guidance of a manual in fully to
understand the import of his remarks; he felt also that the lectures
stood in need of clarification and amplification, and that writing
them out in the form of a manual provided the opportunity to
accomplish those ends. His manual was thus to He a compendium,
with its subject-matter circumscribed by the limits of the science.
But it was to be a compendium with a difference. Hegel believed
that philosophy possessed a logic or method of its own, one that
was peculiar to itself, and which constituted philosophy's own kind
of scientific proof. This was the dialectical method, which proceeds
55
READINGS IN LEGAL PHILOSOPHY AND THEORY
through the development ofthe concept. It is the process by which
from the first member of a triad, say Being, a second element,
Nothing, is deduced. This is possible because Being in its
completely abstract form, devoid of all qualities, is Nothing. But
we are able at this point to perceive the presence of the member
of the triad, Becoming. In fact, we are forced to take this step
according to Hegel because, unless we do so, we are asserting the
paradoxical proposition that Being and Nothing are the same -
that a thing both is in and is not. We must therefore search for
what Hegel calls the unity of opposites. In the present case it is
found in Becoming; a thing both is and is not when it becomes. It
is on this basis, says Hegel, that "the system of concepts has
broadly to be constructed; and go on to completion in a resistless
course." Hegel explicitly rejects two other methods of procedure,
that which he terms raisonnement and the mathematical method
of Spinoza. Raisonnement in Hegel's view was the method of the
Sophists. It consists of the finding of reasons which justify the
conclusions the individual wishes to uphold. These reasons, or
grounds, have therefore no objective or essential principles of their
own, and it is as easy to discover grounds for what is wrong as for
what is right. It is the method especially adapted by the Sop4ists
to the consideration of questions of law; it is still followed in the
legal profession and its products are known as "lawyer's
arguments." To the mathematical method he objects that it
necessarily involves presuppositions and that it is the method of
the understanding. By presuppositions he means that Spinoza's
method of beginning with definitions and axioms, notwithstanding
the fact that they are a great storehouse of speculative truth, is
basically the method of dogmatic assertion. Hegel held that his
own method made no assumptions of this character. By the method
of the understanding Hegel means the type of reasoning which is
based upon the law of identity A=A. In jurisprudence, he pointed
out, since we argue from a specific law or precedent to another,
advances are primarily regulated by identity. But when we pass
to the speculative method we are at the level of the concept and
have passed beyond identity to the unity of opposites. In the
Hegelian system methodology occupied a preeminent place, and
it was from the point of view of the application of his own
philosophical method to the problems of law that Hegel wished
his jurisprudence primarily to be judged. He took the view that
56
Seminal Concepts
.i u riFlprudence at bottom was a philosophical science <W.issenschaft)
und in such a subject, he held, form ,and content are Inseparable.
At this point we come to one of Hegel's most controversial
ideas and, at the same time, one of the most important in his
philosophy. This is his assertion that the is actual and
the actual is rational. Perhaps the best course, In order to grasp
the ofthis proposition, is to follow the steps which led to
its assertion.
We can assume that the task of the philosopher is to state
the truth about the subjects with which he is concerned.
Philosophers in their books k eep serving up hashes which purport
to set forth these truths, but they' are ' merely rewarmed dishes
which are supplanted by 'each new serving. Through the
philosophical method we can really arrive at the truth. So far as
jurisprudence is concerned the truth is nothing. new. It was
embodied long lago in the va.rious systems of law whIch the world
has known. Philosophy's problem is to isolate those truths and to
exhibit their logical necessity. This does not mean, as
critics have asserted, that the legal institutions or rules are
immune from criticism, or, in other words, that is, is
right. Hegel makes this perfectly clear in the distinction he draws
between the laws of nature and positive law. The laws of nature
are given and their measure is outside man. No matter
we know them we can add nothing to them nor can we assIst In
their operation. Our ideas about ' them, however, can ?e false.
Positive law on the contrary, is posited, it originates wIth man.
For the posited, however, man ,insists that the measure is within
him. When we are confronted with nature we do not go beyond
the truth that there is a law; but we cannot accept positive law
simply because it exists. There is thus the possibility of a conflict
between the ought and the is. It is the assignment of the
philosophy of law to establish the r ationality of law or and
in this r espect it stands in contrast with the study of posItIve law
which is mainly occupied with the revelation of contradictions.
Thought is now seen to be the essential form of thin?,s, and
philosophy must therefore attempt to law or :rIght as
thought. Again, this does not mean that rIght must YIeld to a
supposed supremacy of thought, or that random opinions are
entitled to weight . Thought .which is valid must take the form,
not of a mere opinion, but of a concept about the thing. We arrive
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READINGS IN LEGAL PHILOSOPHY AND THEORY
at this position only through the employment of the philosophic
methodology. Above all we cannot know the truth through the
method of either intuitionalism or subjectivism.
Philosophy's concern is with the rational. This means that it
is an effort to apprehend the actual. For the world that the
philosopher contemplates is a world of appearance and essence,
the outward and the inward, the unity of which constitutes
actuality. Now the mere existent is not the actual, since ifit were
it would include caprices of fancy and evil, which are not rational.
Caprices of fancy and evil represent the fortuitous, something of
no greater value than the possible, something which may as well
be as not be. It is the actual alone which is rational, which can be
grasped in thought. But when rationality is actualized it assumes
a multitude of forms, and it is not the business of philosophy to
concern itself with such an infinite variety of affairs'
l
Thus Plato
should not have urged that nurses with children in their arms
should continually rock them; nor should Fichte have insisted that
passports should be signed and have the portraits of their owners
painted upon them. Attempts to pass judgment upon' of
this sort are a form of supererudition in which philosophy loses
its way. At bottom Hegel's book has as its aim the effort to
understand the state as an inherently rational institution. It is
not an endeavor to construct the state as it ought to be, but only
to reveal how the state, which is the world of the ethical, is to be
understood.
We can approach Hegel's position from another point of view.
His system, like Kant's, is based upon a principle of knowledge,
reason', which acts universally. But reason in Kant's hands is a
formal principle. The ethical rules which are to guide individuals
must be given a universal form, otherwise the individual could,
in his behavior, indulge in self-contradictions. Kant puts the case
of the person who adopts the maxim: "I may increase my fortune
by every safe means." That person has in his hands a deposit the
owner of which is dead; but there is no proof of the deposit. Is it
possible, in accordance with the maxim, to permit the law:
Everyone may deny a deposit of which no one can produce a proof?
Kant answers "No," because such a law would annihilate itself
since there would be no deposits. But as Hegel observes, suppose
there are no deposits, where is the contradiction? Kant's system
58
Seminal Concepts
can tell us whet her the action is self consistent or not, but we
want t o know whether the practice deposits is morally valid. An
evil man can be perfectly consistent and can thus meet the test of
universality. Hegel's theory of the concrete universal, the concept,
attempts t o meet exactly this point. It gives a material content to
t he universal. Hegel shows also that the Kantian morality itself
is We can take as a universal maxim the rule:
"Help the poor." But the best way to help the poor is to abolish
poverty. But this would mean the abolition of a moral duty, since
our duty to help the poor would vanish with the poor themselves.
We must therefore keep poverty so that we can perform our duty.
But in that case we are not really doing our duty, which is to give
the most effective assistance possible to the poor.
Hegel was careful to warn his readers not to expect too much
from philosophy. It always comes too late to teach the world
it ought ,to be. Philosophy, as the thought of t he world, appears
only when the for mative pr ocess of actuality has been completed.
Only when actuality is mature can the ideal be contrasted with
the real; it is only then th.at the ideal apprehends the substance
of the real world and shapes it into an intellectual realm. "The
owl of Minerva," Hegel observes in his greatest Delphic utterance,
"takes its flight only with the falling of the dusk." If this is an
impractical philosophy, as critics of Hegel allege, it is nevertheless
not without its justification. The impulse to understand the world
is justified by the fact that it gratifies legitimate curiosity. It needs
no further support in the hope or desire that practical results
will issue from it. In fact, that some philosophies may have no
practical consequences is at present perceived to be a virtue, now
that the wave of utilitarianism is receding. "This subject," Hardy
wrote of pure mathematics, "has no practical use; that is to say, it
cannot be used for promoting directly the destruction of human
life or for accentuating the present inequalities, in the distribution
of wealth." That Hegel himself was not always a consistent
Hegelian in the non-utilitarian view he took of his philosophy need
not concern us her e.
59
READINGS IN LEGAL PHILOSOPHY AND THEORY
The Foundations of the Philosophy of Law
Hegel's philosophy oflaw takes as its subject-matter the Idea
of right, that is, the concept of right and the actualization of that
concept. Law itself, we are thus told at the outset, is to be explored
from the point of view from which Hegel customarily regarded
the world. Hegel held that mathematics, formal logic, and related
subjects operated at the level of the understanding; they are
concerned with "thoughts" or "universals" (the form) and with
"particulars" (the content). But at the level of reason we encounter
the "concept," the principle of which is the identity of opposites.
When opposites such as form and content, universal and
particular, are synthesized at the level of reason, they become
concrete thought, the concept. By concreteness Hegel m.eans that
the concept has a content which it has given to itself through the
process of synthesis. But this process can also be applied to the
concept itself and, in turn, it yields the Idea. When we see the
concept in its development, that is, when the concept itself has
become concrete through its own self-determination, it is the Idea.
The concept and its existence are two sides of the same thing;
they. are distinct, yet, like body and soul, to use Hegel's own
example, they are united. .
60
Seminal Concepts
Comments by Del Ver Vecchio on
Hegel's of Law '
. Georg Hegel lived from 1770 to 1831. Less precocious than
Schelling, he published his works after those of the former had
appeared. His Phanomenologie des Geistes appeared, in fact, in 1807,
his Encyklopadie der philosophischen Wissenschaften in 1817, and
his Grundlinien der Philosophie des Rechts in 1821. The fundamental
thought of Hegel is absolute idealism in the objective sense. He denies
dogmatically any limit to knowledge. Even the absolute is knowable.
For Kant this idea was absurd and contradictory, because if the
absolute should become known, by that very fact it would no longer
be such, but would be relative. With, however, the analytical, careful,
prudent work of Kant to seek the limits of knowledge, he does not
bother. Indeed, he has for it a certain disdain. Consequently, one of
the first characteristics of hegelian philosophy is dogmatism. Another
characteristic, which could be indicated by the name of intellectualism
or likewise of panlogism, is afforded by the identification of thought
and of being. All is thought and there is nothing outside ofthought.
Things are what they are thought to be. The subjective forms of
knowledge are also the objective forms of reality. Thus, for example,
the laws of astronomy are also the laws of mathematicl:J.I thought.
They are objective reason. All that takes place is a movement of the
idea, or the idea which moves itself. A famous passage from the
preface to his Grundlinien says: "All that is real is rational, and all
that is rational is real," From this it would follow that discord between
being and what should be is impossible, whereas the consciousness
of this contrast had been the torment and at the same time the
greatest of previous thinkers, and had promoted so many noble efforts
toward the amelioration of human affairs.
For Hegel the fact is divine, is worthy of adoration, because it
is identified with the idea. From this comes likewise the political
significance of the Philosophy of Hegel, The significance is strictly
optimistic, because no injustice, no violation of law, is, absolutely
speaking, possible. As by his character and dogmatic tendency Hegel
is opposed to Kant and to Fichte, so also by his optimism he is to be
distinguished from the critical idealists, among whom is
Schopenhauer, who generally inclined to pessimism.
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READINGS IN LEGAL PHILOSOPHY AND THE H.Y
Another characteristic of the Philosophy of Hegel is evolution.
"Nothing is, all · becomes." Struggle is the law of all things. This
thought had already been expressed by Heraclitus in Greek antiquity
who said "all flows ," and, ''War is the mother and queen of all things."
For Hegel the 'absolute, the idea, becomes through
contradictions, contrast, the fluctuations of battle. The absolute is
knowable only by means of a system of concepts, not by means of
one concept which is necessarily unilateral, partial. As reality is
essentially development, movement, so also the system of concepts
must be mobile, composed of thoughts in movement. This is the
dialectic method which is characteristic ofhegelianism. Every concept
is unilateral because it lays down its contrary, it raises a
contradiction. From a thesis proceeds an antithesis. From this follows
the necessity of a new concept, which will fuse the two preceding
concepts, surpass them, and eliminate the contradiction. This higher
concept, however, i.n its turn, falls into its contrary. Consequently
there appear again thesis, antithesis, synthesis. So it goes. This
dialectic method Hegel wanted to apply to all reality, proceeding
always by way of contradictions and of surpassing the contradictions.
Every successive concept is richer than the preceding ones, because
it contains them in itself. The higher degree is the "truth" of the
inferior. The first concept is the most empty, the most abstract. It is
the concept of pure being. The last is the fullest, the most complete.
It is the idea which thinks itself, or the thought of the absolute.
Once we have thus set forth the general characteristics of
hegelian speculation, it will be profitable also to observe more closely
the structure of the system. The subject of the world process is called
Idea. The idea, says Hegel with a terminology which is very much
his own, is first of all in itself, that is, it represent a realm of abstract
truths. In a second stage the idea is outside of itself, it externalizes
itself in the forms of space and of time, as nature. In a third stage
the idea is in itself and for itself, that is, it reenters into itself. It
becomes spirit. It then begins a new process, distinguishing itself
into subjective spirit, objective spirit, and absolute spirit. Everyone
of these has in its turn three degrees, or forms. The subjective spirit
is distinguished into soul, knowledge and reason. The objective spirit
presents itself in the three forms of law, morality, and custom. These
terms, too, as we shall soon see, have a special significance. Finally,
the spirit touches the greatest heights of the absolute in three other
62
Seminal Concepts
forms: art, religion, and philosophy, in which supreme forms the spirit
becomes reconciled with'itself, and there is perfect identity between
subject and object. Art and religion are, however, but forerunners of
philosophy. They are philosophy in the stage of The
relationship which exists between these three terms IS analogous to
that between intuition, representation, and concept.
We should now add some clarification as to the portion of the
system which more closely concerns are course of study, that is, as
to the portion on the objective spirit. This appears first of all, as we
said, in Law. Law is, according to Hegel, "the existence of free will/'
in other words it is liberty which establishes itself externally. It IS
the external of liberty. The will of man is essentially free.
It is free insofar as it is will. In this manner the problem of freedom
of will which has bothered so many philosophers, is, as it were,
skipped by Hegel, or eliminated by simple I.Iegel,
however continues saying that the lIberty whIch IS realIzed m the
external forms of law is defective. Consequently, liberty withdraws
upon itself, and one has morality, moral conscienc.e, or
stage of duty. This, however, is in its turn and
Following always the dialectic method, upon thIS must
follow the synthesis, and this, indeed, is custom, the objectIve
This, in the language of Hegel, signifies the effective, concrete, ethIcal
life, as a synthesis of the abstract categories of law and of
Here in custom are found three forms of organization: famlly, cWll
socie;y, State. one prior to Hegel had distinguished so precisely
between society and State, portraying the former as a form of
spontaneous organization and the latter as a juridical
of organization. Hegel, however, erroneously attnbuted to SOCIety
many juridical characteristics.
. Hegel, too, like Schelling, gives a panegyric of State.
State is the highest degree of the objective spirit. It IS the spmt
which awakens, while in nature it appears to sleep. It is the supreme
manifestation of liberty. Above the State there is but the absolute.
From this comes the important consequence that all States are in a
condition of equality, nor can there be a human jurisdiction supe.rior
to them. Thus one arrives at a systematic justification of war, smce
conflicts between States, being incapable of being smoothed out or .
decided by a superior jurisdiction, will have to be in final
analysis by war which is a sort of divine judgment. In thIS regard
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READINGS IN LEGAL PHILOSOPHY AND THEORY
Hegel makes his own, perhaps exaggerating the meaning somewhat,
, a maxim ofthe,poet Schiller, "The history of the world is the tribunal
ofthe world." That is, peoples receive in history their just sentence.
Hegel, therefore, does not admit the possibility of an unjust invasion,
or of an illicit conquest. In war he wins who must win, and every
people has the lot, just as it has the government, which it deserves.
The spirit ofthe world is superior to the spirit of the individual States,
and pronounces irrevocably upon them its sentences.
The spirit of the world develops through the individual States,
causing itself to be represented now by one people, now by another.
The State which at a particular moment of history represents the
spirit of the world is the one which dominates that epoch. Hegel
enumerates four types of the State, which he supposes to have
represented successively, like steps, the progressive development of
the world spirit: the Oriental, the Greek, the Roman, and the German,
or Prussian. Thus, for Hegel, the ultimate ideal of the State would
be found concretely in the German State, and more particularly in
the monarchical Prussian State. He does not, however, recognized
any universal historical mission of Italy, England, or France.
The optimistic and consequently, in practice, conservative
character of hegelian philosophy gained for it much favor. For a
certain time it was the official philosophy of the Prussian State. The
philosopher, after various vicissitudes, gained a chair at the
University of Berlin, and from there pontificated as supreme arbiter
of Philosophy amid almost general admiration until 1831, the year
of his death. The official character itself of his philosophy, which
was momentarily a factor in its success, caused it later, however,
especially after 1848, the year of revolutions and political crises,
and not without reason, a certain discredit.
We should not, finally, that the hegelian system is presented,
indeed, under the guise of idealism, but, in effect, by identifying the
real with the ideal, it is at the same time realism. Consequently, it is
not surprising that out of the hegelian philosophy there came also
materialistic systems. From it, for example, Marx drew the concept
of historical necessity, understanding this, in a restricted sense, as
economic determinism (historical materialism).
64
1.
2.
3.
4.
, 5.
6.
7.
8.
9.
10.
Seminal Concepts
Questions in Chapter IV
Teleological Perspective
How do you distinguish the concept of justice of Plato from
that of Aristotle?
What was the Platonic concept of natural law?
What was the contribution of Roman jurist Cicero to legal
Philosophy?
A
. ?
What was the concept oflaw of St. Thomas qumas.
What was the difference between the natural law conceived
by Plato and Aristotle with that of St. Thomas Aquinas?
Explain what is meant by Immanuel Kant's system of
"transcendental philosophy"?
What is meant by Kant's theory of the term "categorical
imperative"? Give examples;
What was the theory of Law and the State of Hegel?
What is meant by the dialectical theory of Hegel?
Hegel impliedly justified war. Explain.
65
Chapter V
THE POSITIVIST SCHOOL .
AUSTIN, THE PROVINCE OF JURISPRUDENCE
DETERMINED
Laws proper, or properly so called, are commands; laws which
are not commands, are laws improper or improperly so called. Laws
properly so called, with laws improper by so, called, may be aptly
divided into the four following kinds.
1. The divine laws, or the laws of God: . that IS to say, the
laws which are set by God to his human creatures.
2. Positive laws: that is to say, laws which are simply and
strictly so called, and which for m the appropriate matter
of general and particular jurisprudence.
3. Positive morality, rules of positive morality, or positive
moral rules.
4. Laws metaphorical or figurative, or merely metaphorical
or figur ative.
The divine laws and positive laws are laws properly so called.
- Of positive moral rules, some are laws properly so called, but
others are improper. The posit ive moral rules which are laws
improperly so called, may be styled laws or r ules set or imposed by
opinion: for they are, merely opinions or sentiments held or felt by
men in regard to human conduct. A law set by opinion and a law
imperative and proper are allied by analogy merely; although the
analogy by which theY"are allied is str ong or close. - Laws
or figurative, or merely metaphorical or figurative, are
laws Improperly so called. A law metaphorical or figurative and a
law imperative and proper are allied by analogy merely; and the
analogy by which they are allied is slender or remote.
Consequently, positive laws (the appropriate matter of
jurisprudence) are related in the way of resemblance, or by close or
remote analogies, to the following objects. In the way of resemblance,
they are related to the laws of God. In the way of resemblance, they
are related to those rules of positive which are laws properly
so called: And by a close or strong analogy, they are related to those
rules of positive morality which are laws set by opinion. By a remote
66
The Positivist School
or slender analogy, t hey are related to laws metaphorical, or laws
merely met aphorical.
The principal purpose or scope of the six ensuing lectures, is to
dist inguished positive laws (the appropriate matter of jurisprudence)
from the objects now enumerated: objects with which they are
connected by ties of resemblance and analogy;with which they are
further by the common name of "laws"; and with which,
t herefore, they often are blended and confounded. And, since such is
t he principal purpose of the six ensuing lectures, I style them,
considered as a whoie, "the province of jurisprudence determined."
For, since such is their principal purpose, they affect to describe the
boundary which severs the provi:ht:e ofjurisprudi:mce from the regions
lying oil its confines.
The way which I take in or der to the accomplishment of the
purpose, may be stated shortly thus.
I. I determi,ne the essence or common to all laws
that are laws properly so called: In other words, I determine
the essence or nature of a law imperative and proper.
II. I determine the respective characters of the four several kinds
,into which laws may be aptly divided: Or (changing the phrase)
I determine the appropriate marks by which laws of each kind
are distinguished from laws of the others.
And here I remark, by the by, that examining the respective
characters of those four several kinds, I found the following the order
wherein I could explain them best: First, the characters or
distinguishing marks ofthe laws of God; secondly, the characters or
distinguishing marks of positive moral rules; thirdly, the characters
or distinguishing marks oflaws metaphorical or figurative; fourthly
and lastly, the characters or distinguishing marks of positive law, or
laws simply and strictly so called. .
By determining the essence or nature of a law imperative and
proper, and by determining the respective characters of those four
several kinds, I determine positively and negatively the appropriate
matter of jurisprudence, I determine positively what that matter is;
and I distinguish it from various objects which are variously related
to it, and with which it not unfrequently is blended
I show more over its affinities with those various related objects:
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READINGS IN LEGAL PHILOSOPHY AND THE RY
affinities that ought to be conceived as precisely and clearly as may
be, inasmuch as there are numerous portions of the rationale of
positive law to which they are the only or principal key.
Having suggested the principal purpose of the following treatise,
I now will indicate the with which it is chiefly concerned, and
also the order wherein it presents them to the reader.
I. In the first ofthe six lectures which immediately follow, I state
the essentials of a law or rule (taken with the largest
signification that can be given to the term properly). In other
words, I determine the essence or nature which is common to
all laws that are laws properly so called.
Determining the essence or nature of a law imperative and
proper, I determine implicitly the essence or nature of a command;
and I distinguish such commands as are laws or nlles from such
commands as are merely occasional or particular. Determining the
nature of a command, I fix the meaning of the terms which the
"comman,d" implies: namely "sanction" or "enforcement of obedience";
"duty" or "obligation"; "superior and inferior."
II. (a) In the beginning of the second lecture, I briefly determine
the characters or marks by which the laws of God are
distinguished from other laws.
In the beginning of the same lecture, I briefly divide the laws,
and the other commands of the Deity, into two kinds: the revealed or
express, and the unrevealed or tacit.
Having briefly distinguished his revealed from his unrevealed
commands, I pass to the nature of the signs or index through which
the latter are manifested to Man. Now, concerning the nature of the
index to the tacit commands of the Deity, there are three theories or
three hypotheses: First, the pure hypotheses or theory of general
utility; secondly, the pure hypothesis or theory of a moral sense;
thirdly, a or theory mixed or compounded of the others.
And with a statement and explanation of the three hypothesis or
theories, the greater portion of the, second lecture, and the whole of
the third and fourth lectures, are exclusively or chiefly occupied.
That exposition of the three hypotheses or theories may seem
somewhat impertinent to the subject and scope of my Course. But in
.68
The Positivist School
Ii chain of systematical lectures concerned with the rationale of
j urisprudence, such an exposition is a necessary link.
Of the principles and distinctions involved the rationale of
jurisprudence, or of the principles and distinctions occuring in the
writings of jurists, there are many which could not be expounded
correctly and clearly, if the three hypotheses or theories had not been
expounded previously. For example: Positive law and morality are
distinguished by modern jurists into law natural and law positive:
that is to say, into positive law and morality fashioned on the law of
God, and positive law and morality of purely human origin.
[T]he divine law is the measure or test of positive law and
morality: or (changing the phrase) law and morality, in so far as
they are what they ought to be, conform, or are not repugnant, to the
law of God. Consequently, an all-important object of science of ethics
(or, borrowing the language of Bentham, "the science of deontology")
is to determine the nature of the index to the tacit commands of the
Deity, or the nature of the signs or proofs through which those
commands may be known, - I mean by "the science of ethics" (or by
"the science of deontology"). the science of law and morality as they
respectively ought to be: or (changing the phrase), the science oflaw
and morality as they respectively must be if they conform to their
measure or test. That department of the science of ethics, which is
concerned especially with positive law as it ought to be, is styled the
science oflegislation: that department of the science of ethics, which
is concerned especially with positive morality as it ought to be,
hardly gotten a name perfectly appropriate and distinctive. - Now,
though the science oflegislation (or of positive Joaw as it ought to be)
is not the science of jurisprudence (or of positive law as it is), still
the sciences are connected by numerous and indissoluble ties. Since,
then, the nature of the index to the tacit command of the Deity is an
all-important object of the science of legislation, it is a fit and
important object of the kindred science of jurisprudence.
There are certain current and important of the
theory of general utility: There are certain objections resting on those
misconceptions, which frequently are urged against it: There are
also considerable difficulties with which it really is embarrassed.
Labouring to rectify those misconceptions, to answer those objections,
and to solve or extenuate those difficulties, I probably dwell upon
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the theory somewhat longer than I ought. Deeply convinced of its
truth and importance, and therefore earnestly intent on commending
it to the minds of others, I probably wander into ethical disquisitions
which are not precisely in keeping with the subject and scope of my
Course. If! am guilty of this departure from the subject and scope of
my Course, the absorbing interest of the purpose which leads me
from my proper path, will excuse, to indulgent readers, my. offense
against rigorous logic.
II. (b) At the beginning of the lilth lecture, I distribute laws or
rules under two classes: First, laws properly so called, with such
improper laws as are closely analogous to the secondly, those
impr?per laws which are remotely analogous to the proper, and which
I style, therefore, laws'metaphorical or figurative. - I also distribute
laws proper with much improper laws as are closely analagous to
the proper under three classes: namely, the laws properly so called
which I style the laws Of God; the laws properly so called which I
style positive laws; and the laws properly so called, with the laws .
improperly so called, which I style positive morality or positive moral
rules. - I assign moreover my reasons for marking those several
with those respective names.
Having determined, in preceding lectures, the characters or
distinguishing marks of the divine laws, I determine, in the fifth
lecture, the characters or distinguishing marks of positive moral
rules:' that is to say, such of the laws or rules set by men to men as
are not armed with legal sanctions; or such of those laws or rules as
are not positive laws, or are not appropriate matter for general or
particular jurisprudence.- Having determined the distinguishing
marks of positive moral rules, I determine the respective characters
of their two dissimilar kinds: namely, the positive moral rules which
are laws imperative and proper, and the positive moral rules which
are laws set by opinion.
.The divine law, positive law, and positive morality, are mutually
related in various ways. To illustrate their mutual relations, I advert,
in the fifth lecture, to the cases wherein they agree, wherein they
disagree without conflicting, and wherein they disagree and conflict.
, . I show, in the same lecture, that my distribution oflaws proper,
and of such improper laws as are closely analogous to the proper,
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tallies, in the main, with a division oflaws which is given incidentally
by Locke in his Essay on Human Understanding.
II. (c) At the end of the sam:e lecture, I determine the characters
or distinguishing marks oflaws metaphorical or figurative. And .
I show that laws which are merely laws through metaphors,
are blended and confounded, by writers of celebrity, with laws
imperative and proper.
II. (d) In the-sixth and last lecture, I determine the characters of
laws positive: that is to say, laws which are simply and strictly
. so called, and which form the appropriate matter of general
and particular jurisprudence. '
Determining the characters of positive laws, I determine
implicitly the notion of sovereignty, with the implied or correlative
notion of independent political society. Fqr the essential difference
of a positive law (or the difference that severs it from a law which is
I),ot a positive law) may be stated generally in the following manner.
Every positive law or every law simply and strictly so called, is set
by a sovereign person, or sovereign body of persons, to a member
or members ofthe independent political society wherein that person
or body is sovereign supreme. Or (changing the phrase) it is set by a
monarch, or sovereign number, to a person or persons in a state of
. subjection to its author.
To elucidate the nature of sovereignty, and of the independent
political society that sovereignty implies, I examine various topics
which I arrange under the following heads. First, the possible forms
or shapes of supreme political government; secondly, the limits, real
or imaginary, of supreme political power; thirdly, the origin or causes
of political government and society. Examining those various topics,
I complete my description ofthe limit or boundary by which positive
law is ' severed from positive morality. For I distinguish them at
certain points whereat they seemingly blend, or whereat the line
which divides them is not easily perceptible.
The essential difference of a positive law (or the difference that
severs it from a law which is not a positive law) may be stated
generally as I have stated it above. But the foregoing general
statement of the essential difference is open to certain correctives.
And with a brief allusion to those correctives, I close the sixth and
last lecture.
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Lecture 1.
The matter of jurisprudence is positive law: law, simply, and
strictly so called: or law set by politicat superiors to political inferiors.
, But positive law (or law, simply and strictly so called) is often
confounded with objects to which it is related by resemblance, and
with objects to which it is related in the way of analogy: with objects
which are also signified, properly and improperly, by the large and
vague expression law. To obviate the difficulties springing from that
confusion, I begin my projected Course with determining the province
of jurisprudence, or with distinguishing the matter of jurisprudence
from those various ' related objects: trying to define the subject of
which I intend to treat, before I endeavour to analyse its numerous
and complicated parts.
A law, in the most general and comprehensive acceptation in
which the term, in its literal meaning, is employed, may be said to
be a rule laid down for the guidance of an intelligent being by an
intelligent being having power over him. Under this definition are
included, and without impropriety, several species.' It is necessary
to define accurately the line of demarcation which separates these
species from one anotlier; as much mistiness and intricacy has been
infused into the science of jurisprudence by their being confounded
or not clearly distinguished. In the comprehensive sense above
indicated; or in the largest meaning which it 'has, without extension
by metaphor or analogy, the term law embraces the following objects:
Laws set by God to his human creatures, and laws set by men to
men.
The whole or a portion of the laws set by God to men is
frequently styled the law of nature, or natural law: being, in truth
the only natural law of which it is possible to speak without a
metaphor, or without a blending of objects ,which ought to be
distinguished broadly. But, rejecting the appellation Law of Nature
as ambiguous and misleading, I name those laws or rules, as
considered collectively or in a mass, the Divine Law, or the law 'of
God.
Laws set by men to men are of two leading or principal classes:
classes which are often blended, although, they differ extremely; and
which, for that reason, should be severed precisely, and opposed
distinctly and conspicuously.
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Political
Of the laws or rules set by men to men, some are established
by superiors, sovereign and by persons exercising supreme
and subordinate govern'!1ent, in irldepen'dent nations, or independent
political societies. 'The aggregate: 'of the rules thus established or
some aggregate forming a 'portio'n of that aggregate, is the appropriate
matter of jurisprudence, general or particular. To the aggregate of
the rules thus established, or to some aggregate forming a portion of
that aggregate,the term law, as used simply and strictly, is
exclusively applied. But, 'as contradistinguished to natural law, or
to the law of nature (meaning, by those expressions, the law of God),
the aggregate of the rules, established by political superiors, is
frequently styled positive law, or law existing by positiQn. As
contradistinguished to the rules which I style positive morality, and
on which I shall touch immediately, the aggregate of the r,ules,
established by political superiors, may also be marked commodiously
with the name of positive law. For the sake, then, of getting a name
brief and distinctive at once, and agreeably to frequent usage, I style
that aggregate of rules,. or any portion of aggregate, positive
law: though rules, which are not established by political superiors,
are also positive, or by position, ,ifthey be rules or laws, in the proper
signification of the term.
Though some of the laws or rules, which are set by men to men,
are established by political superiors, others are not established by
political superiors, or are not established by political superiors, in
that capacity or character.
Closely 'analogous to human law's of this second class, are a set
of objects frequently but improperly,termed laws, being rules set
and enforced by mere opinion, that is, by the opinions or sentiments
held or felt by an indeterminate body of men in regard to human
conduct. Instances of such a use ofthe term law are the'expressions
- "The law of honour", "The law set by fashion"; and rules of this
species constitute much is usually termed "International
,
The aggregate of human laws properly so called ,belonging to
the second of the classes above mentioned" with the aggregate of
objects improperly but by close analogy termed laws, I place together
in a common class, and denote them by the term positive morality,
The name morality severs them from positive law, while the epithet
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them from the law of God. And to the end of obviating
confusIOn, It IS necessary or expedient that they should be disjoined
from the latter by that distinguishing epithet. For the name morality
(or morals), when standing unqualified or alone, denotes indifferently
either of the following objects: namely, positive morality as it is, or
without regard to its merits; and positive morality as it would be if
it conformed to the law of God, and were, therefore, deserving' of
approbation.
Besides the various sorts of rules which are included in the
literal acceptation of the term law, and those which are by a close
and striking analogy, though improperly, termed laws, there are
numerous applications of the term law, which rest upon a slender
analogy and are merely metaphorical or figurative. Such is the case
when we talk of laws observed by the lower animals ' of laws
regulating the growth or decay of vegetables; of laws
the movements of inanimate bodies or masses. For where intelligence
is not, or where it is too bounded to take the name of reason and
. therefore, is too bounded to conceive the purpose of a law, there
not the will which law can work on, or which duty can incite or
restrain. Yet through these misapplications of a name, flagrant as
the metaphor is, has the field of jurisprudence and morals been
deluged with muddy speculation.
Having suggested the purpose of my attempt to determine the
province of jurisprudence: to distinguish positive law, the appropriate
matter of jurisprudence, from the various objects to which it is related
by resemblance, and to which it is related, nearly or remotely, by a
strong or slender analogy: I shall now state the essentials of a law
or rule (taken with the largest signification which can be given to
the term properly). .
Every law or rule (taken with the largest signification which
can be given to the term properly) is a command. Or rather,'laws or
rules, properly so called are a species of commands.
. Now, since the term command comprices the term law' the first
is simpler as well as the larger of the two. But simple it is, it
admIts of explanations. And, since it is the key to the sciences of
jurisprudence and morals, its meaning should be analysed with
precision.
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Accordingly, I shall endeavour, in the first instance, to analysfl
the meaning of "command": an analysis which, I fear, will task the
patience of my hearers, but which they will bear with cheerfulness,
or, at least, with resignation, if they consider the difficulty in
performing it. The elements of a science are precisely the parts of it
which are explained least easily. Terms that are the largest, and,
therefore, the simplest of a series, are without equivalent expressions
into which we can resolve them concisely. And when we endeavour
to define them, or to translate them into terms which we suppose
are better understood, we are forced upon awkward and tedious
circumlocutions.
If you express or intimate a wish that I shall do or forbear from
some act, and if you will visit me with an evil in case I comply not
with your wish, the expression or intimation of your wish is a
command. A command is distinguished from other significations of
desire, not by the style in which the desire is signified, but by the
power and the purpose of the party commanding to inflict an evil or
pain in case the desire be disregarded. If you cannot or will not harm
me in case I comply not with your wish, the expression of your wish
is not a command, although you utter your wish in imperative phrase.
If you are able and willing to harm me in case I comply not with
your wish, the expression of your wish amounts to a command,
although you are prompted by a spirit of courtesy to utter it in the
shape of a request.
A command, then, is a signification of desire. But a command
is distinguished from other significations of desire by this peculiarity:
that the party to whom it is directed is liable to evil from the other,
in case he comply not with the desire.
Being liable to evil from if I comply not with a wish which you
signifY, I am bound or obliged by your command, or I lie under a
duty to obey it. If, in spite of that evil in prospect, I comply not with
the wish which you signify, I am said to disobey your command, or to
violate the duty which it imposes.
Command and duty are, therefore, correlative terms: the
meaning denoted by each being implied or supposed by the other. Or
(changing the expression) wherever a duty lies, a command has been
signified; and whenever a command is signified, a duty is imposed.
Concisely expressed, the meaning ofthe correlative expressions
is this, He who will inflict an evil in case his desire be disregarded,
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READINGS IN LEGAL PHILOSOPHY AND '1'1 J ICO lty
utters a command by expressing or intimating his desire: He who is
liable to the evil in case he disregard the desire, is bound or obliged
by the command.
The evil which will probably be incurred in case a command be
disobeyed or (to use an equivalent expression) in case a duty be'
broken, is frequently called a sanction, or an enforcement of obedience.
Or (varying the phrase) the command or the duty is said to be
sanctioned or enforced by the chance of incurring the evil.
Considered as thus abstracted from the command and the duty
which it enforces, the evil to be incurred by disobedience is frequently
styled a punishment. But, as punishments, strictly so called, are '
only a class of sanctions, the term is too narrow to express the ·
meaning adequately.
I observe that Dr. Paley, in his analysis of the term obligation,
lays much stress upon the violence ofthe motive to compliance. In so
far as I can gather a meaning from his loose and inconsistent
statement, his meaning appears to be this: that, unless the motive
to compliance be violent or intense, the expression or intimation of a
wish is not a command, nor does the party to whom it is directed lie ·
under a duty to regard it.
If he means, by a violent motive, a motive operating with
certainty, his proposition is manifestly false. The greater the evil to
be incurred in case the wish be disregarded, and the greater the
chance of incurring it on that same event, the greater, no doubt, is
the chance that the wish will not be disregarded. But no conceivable
motive will certainly determirie to compliance, or no conceivable
motive will render obedience inevitable. If Paley's proposition be true,
in the sense which I have now ascribed to it, commands and duties
are simply impossible. Or, reducing his proposition to absurdity by
a consequence as manifestly false, commands and duties are simply
possible, but are never disobeyed or broken.
Ifhe means by a violent motive, an evil which inspires fear, his
meaning is simply this: that the party bound by a command is bound
by the prospect of an evil. For that which is not feared is not
apprehended as an evil; or (changing the shape of the expression) is
not an evil in prospect.
The truth is, that the magnitude of the evil, and the
magnitude of the chance of incurring it, are foreign to the matter in
question. The greater the eventual evil, and the greater the chance
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of incurring it, the greater is the efficacy of the command, and the
greater is the strength of the obligation: Or, (substituting expressions
exactly equivalent) the greater is the chance that the command will
be obeyed, and that the duty will not be broken. But where there is
the smallest chance of incurring the smallest evil, the expression of
a wish amounts to a command, and therefore, imposes a duty. The
sanction, if you will, is feeble or insufficient; but still there is a
sanction, and therefore, a duty and a command.
By some celebrated writers (by Locke, Bentham, and I think,
Paley), the term sanction, or enforcement of obedience, is applied to
conditional ' goo<J as well as to conditional evil: to reward as well as
to punishment. But, with all my habitual veneration for the names
of Locke and Bentham, I think that this extension of the term is
pregnant with confusion and perplexity.
Rewards are, indisputably, motives to comply with the wishes
of others. But to talk of commands and duties as sancti@ned or
enforced by rewards, or to talk of rewards as obliging or constraining
to obedience, is surely a wide departure from the established meaning
of the terms.
If you expressed a desir e that I should render a service, and if
you proffered a reward as the motive or inducement to render it, you
would scarcely be said to command the service, nor should I, in
ordinary language, be obliged to render it. In ordinary language,
you would promise me a reward, on condition of my rendering the
service, whilst I might be incited or persuaded to render it by the
hope of obtaining the reward.
Again: If a law hold out a reward as an inducement to do some
act, an eventual right is conferred, and not an obligation imposed,
upon those who shall act accordingly: The imperative part of the law
being addressed or directed to the party whom it requires to render
the reward.
In short, I am determined or inclined to comply with the wish
of another, by the fear of disadvantage or evil. I am also determined
or inclined to comply with the wish of another, by the hope of
advantage or good. But it is only by the chance of incurring evil, that
I am bound or obliged to compliance. It is only by conditional evil,
that duties are sanctioned or enforced. It is the power and the purpose
of eventual evil, and not the power and the purpose of
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imparting eventual good, which gives to the expression of a wish the
name of a command.
Ifwe put reward into the import of the term sanction, we must
engage in a toilsome struggle with the current of ordinary speech;
and shall often slide unconsciously, notwithstanding our efforts to
the contrary, into the narrower and customary meaning.
It appears then, from what has been premised, that the ideas
or notions comprehended by the term command: are the following.
1. A wish or desire conceived by a rational being, that another rational
being shall do or forbear. 2. An evil to proceed from the former, and
to be incurred by the latter, in case the latter comply not with the
wish. 3. An expression or intimation of the wish by words or other
signs.
It also appears from what has been premised, that command,
duty, and sanction are inseparably connected terms: that each
embraces the same ideas as the others, though each denotes those
ideas in a peculiar order or series.
"A wish conceived by one, and expressed or intimated to another,
with an evil to be inflicted and incurred in case the wish be
. disregarded," are signified directly and indirectly by each of the three
expressions. Each is the name of the same complex notion.
But when I am talking directly of the expression or intimation
of the wish, I employ the term command: The expression or
intimation of the wish being presented prominently to my hearer;
whilst the evil to be incurred, with the chance of incurring it, are
kept (if I may so express myself) in the background of my picture.
When I am talking directly of the chance of incurring the evil,
or (changing the expression) of the liability or obnoxiousness to the
evil, I employ the term duty, or the term obligation: The liability or
obnoxiousness to the evil being put foremost, and the rest of the
complex notion being signified implicitly.
When I am talking immediately of the evil itself, I employ the
term sanction, or a term of the like import: The evil to be incurred
being signified directly; whilst the obnoxiousness to that evil, with
the expression or intimation of the wish, are indicated indirectly or
obliquely.
To those who are familiar with the language of logicians
(language unrivalled for brevity, distinctness, and precisions), I can
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express my meaning accurately in a breath. - Each ?f the three
terms - signifies the same notion; but each denotes a dIfferent part
of that notion, and connotes the residue.
Commands are of two species. Some are laws or rules. The others
have not acquired an appropriate name, nor does language afford
an expression which will mark them briefly and precisely. I must,
therefore, note them as well as I can by the ambiguous name of
"occasional or particular commands."
The term laws or rules being not unfrequently applied to
occasional or particular commands, it is hardly possible to
a line of separation which shall consist in every respect WIth
established forms of speech. But the distinction between laws and
particular commands may, I thi,nk, be stated in the following manner.
By every command, the party to whom it is directed is obliged
to do or to forbear.
Now where it obliges generally to acts or forbearances of a class?
a command is a law or rule. But where it obliges to a specific act or
forbearance or to acts or forbearances which it determines
specifically individually a command is occasional particular.
In other words a class or description of acts is determmed by a law
or rule and ofthat class or description are enjoined or forbidden
gener;lly. But where a command is occasional or the act
or acts, which the command enjoins or forbids, are aSSIgned or
determined by their specific or individual natures as well as by the
class or description to which they belong.
The statement which I have given in abstract expressions I
will now endeavour to illustrate by apt examples.
If you command your servant to go on a given errand, or not to
leave your house on a given evening, or to rise at such an hour on
such a morning, or to rise at that hour during the next week or
the command is occasional or particular. For the act or acts enJomed
or forbidden are specially determined or assigned.
. But if you command him simply to rise at that hour, or rise
at that hour always, or to rise at that hour till further It may
be said, with propriety, that you lay down a rule for the guIdance of
your servant's conduct. For no specific act is assigned by the
but the command obliges him generally to acts of a
determined class.
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If a regiment be ordered to attack or defend a post, or to quell a
riot, or to march from their present quarters, the command is
occasional or particular. But an order to exercise daily till further
orders shall be given would be called a general order, and might be
called a rule.
If Parliament prohibited simply the exportation of corn, either
for a given period or indefinitely, it would establish a law or rule: a
kind or sort of acts being determined by the command, and the acts
of that kind or sort being generally forbidden. But an order issued
by Parliament to meet an impending scarcity, and stopping the
exportation of corn then shipped and in port, would not be a law or
rule, though issued by the sovereign legislature. The order regarding
exclusively a specified quantity of corn, the negative acts or
forbearances, enjoined by the command, would be · determined
specifically or individually by the determinate nature of their subject.
As issued by a sovereign legislature, and as wearing the form
of a law, the order which I have now imagined would probably be
called a law. And hence the difficulty of drawing a distinct boundary
between laws and occasional commands.
Again: An act which is not an offence, according to the existing
law, moves the sovereign to displeasure: and, though the authors of
the act are legally innocent or unoffending, the sovereign commands
that they shall be punished. As enjoining a specific punishment in
that specific case, and as not enjoining generally acts or forbearances
of a class, the order uttered by the sovereign is not a law or rule.
Whether such an order would be called a law, seems to depend
upon circumstances which are purely immaterial: immaterial, that
is, with reference to the present purpose, though material with
reference to others. If made by a sovereign assembly, deliberately,
and with the forms of legislation, it would probably be called a law.
If uttered by an absolute monarch, without deliberation or ceremony,
it would scarcely be confounded with acts of legislation, and would
be styled an arbitrary command. Yet, on either of these suppositions,
its nature would be the same. It would not be a.law or rule, but an
occasional or particular command of the sovereign One or Number.
To conclude with an example which best illustrates the
distinction, and which shows the importance of the distinction most
conspicuously, judicial commands are commonly occasional or
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particular, although the commands which they are calculated t o
enforce are commonly laws or r ules.
For instance, the lawgiver commands that be
hanged. A specific theft and a specified thief being gIVen, the Judge
commands that the thief shall be hanged, agreeably to the command
of the lawgiver. .
Now· the lawgiver determines a class or description of acts;
prohibits ofthe class generally and indefinitely; and
with the like generality, that punishment shall follow transgressIOn.
The command of the lawgiver is, therefore, a law or rule. But the
command of the judge is or particular: For he orders a
specific punishment, as the consequence of a specIfic offence.
According to the line of separation which I attempted
to describe a law and a particular command are dIstmgmshed thus.-
Acts or forbearances of a class are by the former.
Acts determined specifically, are enjoined or forbIdden by the latter.
, A different line of separation has been drawn by Black.stone
and others. According to Blackstone and others, a law and a partIc,:lar
command are distinguished in the following - A law
generally the members of the given c0In:mumty, or a law o?lIges
generally persons of a given class. A oblIges a
single person, or persons whom it determmes .
That laws and particular commands are not to be distmguished
thus, will appear on a moment's reflection.
For first commands which oblige generally the members of
the or commands which oblige generally persons
. of given classes, are not always laws or rules. .
Thus, in the case already supposed; that in the sovereIgn
commands that all corn actually shipped for exportatIOn be
and detained; the command is obligatory upon the whole
but as it obliges them only to a set of acts individually assIgned, It IS
not a law. Again, suppose the sovereign to issue an order
penalties, for a general mourning, on of a publIc calamIt!.
Now though it is addressed to the commumty at large, the order
a rule, in the usual acceptation of the term .. tho.ugh It
obliges generally the members of the entire It oblIges to
acts which it assigns specifically, instead of oblIgmg generally to
acts ' or forbearances of a class. If the sovereign commanded that
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black should be the dress of his subjects, his command would amount
to a law. But ifhe commanded them to wear it on a specified occasion,
his command would be merely particular.
And, secondly, a command which obliges exclusively persons
individually determined, may amount, notwithstanding, to a law or
rule.
For example, A father may set a rule to his child or children: a
guardian, to his ward: a master, to his slave or servant. And certain
of God's laws were as binding on the first man, as they are binding
at this hour on the millions who have sprung form his loins.
Most, indeed, of the laws which are established by political
superiors, or most of the laws which are simply and strictly so called,
oblige generally the members of the political community, or oblige
generallypersons of a class. To frame a system of duties for every
individual of the community, were simply impossible: and ifit were
possible, it were utterly useless. Most of the laws established by
political superiors are, therefore, general in a twofold manner: as
enjoining or forbidding generally acts of kinds or sorts; and as binding
the whole community, or, at least, whole classes of its members.
But if we suppose that Parliament creates and grants an office,
and that Parliament binds the grantee to services of a given
description, we suppose a law established by political superiors, and
yet exclusively binding a specified or determinate person.
Laws established by political superiors, and exclusively binding
specified or determinate persons are styled, in the language of the
Romanjurists,priuilegia. Though that, indeed, is a name which will
hardly denote them distinctly: for, like most of the leading terms in
actual systems oflaw, it is not the name of a definite class of objects,
but of a heap of heterogeneous objects. '
It appears from what has been premised, that a law, properly
so called, may be defined in the following manner.
A law is a command which obliges a person or persons.
But, as contradistinguished or opposed to an occasional or
particular command, a law is a command which obliges a person or
persons, and obliges generally to acts or forbearances of a class.
In language more popular, but less distinct and precise, a law
is a command which obliges a person or persons to a course of conduct.
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Laws and other commands are said to proceed from superiors,
and to bind or oblige inferiors. I will, therefore, analyse the meaning
of those correlative expressions; and will try to strip them of a certain
mystery, by which that simple meaning appears to be obscured.
Superiority is often synonymous with precedence or excellence.
We talk of superiors in rank; of superiors in wealth; of superiors in
virtue: com:paring certain persons with certain other persons; and
meaning that the former precede or excel the latter in rank, in wealth,
or in virtue.
But taken with the meaning wherein I understand it, the term
superiority signifies might: the power of affecting others with evil or
pain, and of forcing them, through. fear of that evil, to fashion their
conduct to one's wishes.
For example, God is emphatically the superior of Man. For his
power of affecting us with pain, and offorcing us to comply with his
will, is unbounded and resistless.
To a limited extent, the sovereign One or Number is the superior
of the subject or citizen: the master, of his slave or servant: the father,
of the child.
In short, whoever can oblige another to comply with his. wishes,
is the superior of that other, so far as the ability reaches: The party
who is obnoxious to the impending evil, being, to that same extent,
the inferior.
The might or superiority of God, is simple and absolute. But in
all or most cases of human superiority, the relation of superior anp
inferior, and the relation of inferior and superior are reciprocaL Or
(changing the expression) the party who is the superior as viewed
from one aspect, is the inferior as viewed from another.
For example, To an indefinite, though limited extent, the
monarch is the superior of the governed: his power being commonly
sufficient to enforce compliance with his will. But the governed,
collectively or in mass, are also the superior of the monarch: who is
checked in the abuse of his might by his fear of exciting their anger;
and of rousing to active resistance the might which slumbers in the
multitude.
. A member of a sovereign assembly is the superior of the judge:
the judge being bound by the law which proceeds from that sovereign
!lody. But, in his character of citizen or subject, he is the inferior of
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READINGS IN LEGAL PHILOSOPHY AND THEORY
the judge: ,the judge being the minister of the law, and armed with
the power of enforcing it.
It appears, then, that the term superiority (like the terms duty
and sanction) is implied by the term command. For superiority is
the power of enforcing compliance with a wish: and the expression
or intimation of a wish, with the power and the purpose of enforcing
it, are the constituent elements of a command.
"That laws emanate from superiors" is, therefore, an identical
proposition. For the meaning which it affects to impart is contained
in its subject . .
If I mark the peculiar source of a given law, or if I ' mark the
peculiar source oflaws of a given class, it is possible that I am saying
something which may instruct the hearer. ' But to affirm Of laws
universally "that they flow from superiors," or to affirm of laws
universally "that inferiors are bound to obey them," is the merest
tautology and trifling.
Like most of the leading terms in the sciences of jurisprudence
and morals, the term laws is extremely ambiguous. Taken with the
largest signification which can be given to the term properly, laws
are a species of commands. But the term ,is improperly applied to
various objects which have nothing of the imperative character: to
objects which are not commands; and which, therefore, are not
properly so called.
Accordingly, the proposition "that laws. are commands" must
be taken with limitations. Or, rather, we must distinguish the various
meanings of the laws; and must restrict the proposition to that
class of objects which is embraced by the largest ' signification that
can be given to the term properly.
I have already indicated, and shall hereafter more fully describe,
the objects improperly termed laws, which are not within the province
of jurisprudence (being either rules enforced by opinion and closely
analogous to laws properly so called, or being laws so called by a
metaphorical application of the term Th'ere are other,objects
improperly termed laws (not being commands) which yet may
properly be included within the province of jurisprudence. These I
shall endeavour to particularise: - ,
1. Acts onthe part oflegislatures to - explain positive law, can
scarcely be called laws, in the,proper signification of the term.
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The Positivist School
Working no change in the actual duties of the governed, but
simply declaring what those duties are, they properly are acts
of interpretation by legislative authority. Or, to borrow an
expression from the writers on the Roman Law, they are acts of
authentic interpretation.
this notwithstanding, they are frequently styled laws;
declaratory laws, or declaratory must, therefore,
be noted as forming an exception to the proposition "that laws
are species of cpmmands."
It often, indeed, happens (as I shall show in the proper
place), that laws, declaratory in name are imperative in effect:
Legislative, like judicial interpretation, being frequently
deceptive; and establishing new law, under guise of expounding
the old.
2. Laws to repeal laws, and to release from existing duties, must
also be excepted from the proposition" that laws are a species
of commands." In so far as they release from duties imposed by
existing laws, they are not commands, but revocations of
commands. They authorize or permit the parties to whom the
repeal extends, to do or to forbear from acts which they were
commanded to forbear from or to do. And, considered with
regard to this, their immediate or direct purpose, they are often
named permissive laws, or; more briefly and more properly,
permissions.
Remotely and indirectly, indeed, permissive laws are often
or always imperative. For the parties released from duties are
restored to liberties or rights: and duties answering those rights
are, therefore, created or revived.
But this is a matter which I shall examine with exactness,
when I analyze the expressions "legal right," "permission by
the sovereign or state," and "civil or political liberty."
3. Imperfect laws, or laws of imperfect obligation, must also be
excepted from the proposition "that laws are a species of
commands."
An imperfect law (with the sense wherein the term is used
by the Roman jurists) is a law which wants a sanction, and
which, therefore, is not binding. A law declaring that certain
acts are crimes, but annexing no punishment to the commission
of acts of the class, is the simplest and most obvious example.
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Comments by Paton on
John Austin's Imperative School'
"
In 1832 John Austin, after a course oflectures at the University
of London, published a work which he entitled The J!rovince of
Jurisprudence Determined - and determined it was with great rigour
of analysis. After his death he achieved greater fame and became
the founder of what was popularly called the analytical school. This
title is rather misleading as it suggests that analysis is the exclusive
property of this school instead of being (as it is) a method used
throughout jurisprudence. Hence Allen prefers to speak of. the
imperative school, for this emphasizes Austin's particular conception
oflaw. Austin does not fit exactly into any of the broad divisions we
have laid down. In some ways he was a precursor of the pure science
of law, for he drew the boundaries of jurisprudence somewhat
narrowly. Austin was not unmindful of the part played by ethics in
the evolution oflaw; indeed, he devoted several lectures to the theory
of utility. But, finding works on jurisprudence full of confusion, Austin
decided to confine jurisprudence to a study of law as it is, leaving
the study of the ideal forms oflaw to the 'science of legislation', or
philosophic jurisprudence as we should term it today. Austin's
followers were even more rigorous than their 'master in confining
jurisprudence to an analysis of the rules in force. We will discuss
Austin's views under three heads": (a) the basis of jurisprudence, (b)
the method of jurisprudence, (c) the relation of laws and ethics.
(a) The Basis of Jurisprudence
Austin's broad approach to law was to regard it as the command
of the sovereign. Positive law is a general rule of conduct laid down
by a political superior to a political inferior. The notion of command
requires that there must be a determinate person to issue the
command, and that there is an implied threat of a sanction if the
command is not obeyed. Austin's aim was to separate positive law
sharply from such social rules as those of custom and morality. The
emphasis on command achieved this end, for the rules of etiquette
'Reprint from Paton, A Textbook in Jurisprudence, p. 3, All footnotes
were omitted.
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The Positivist School
are not laid down by a definite person. Jurisprudence was the general
science of positive law in the rigid sense in which Austin defined it.
But if the law of each country is based on the commands of the
sovereign person (or body of persons) in that country, on what is
jurisprudence to be based? As each sovereign may command what
he wishes, will not there be the utmost diversity between the legal
systems? Is there any element of identity on which a general science
can be based? If we take the legal systems of the world from China
to Peru, we find the utmost conflict as to the content of the rules, the
classification of the law, and the technical language in which it is
expressed. Must not jurisprudence, therefore, be confined to a study
of a particular system so that we will have English jurisprudence,
French jurisprudence, and so on? '
Austin did not deal clearly with this problem. He assumed,
without any real investigation, that certain principles, notions, and
distinctions were common to all systems of law. Some notions were
universal because it was impossible coherently to construct a legal
system without using them, e.g. the terms 'duty', 'right', 'injury',
'punishment', and 'redress'. Some principles were common to all
refined or mature systems because they depended on general
principles of utility which modern nations accepted. If it were
suggested that primitive nations often accepted views the opposite
of those accepted today, Austin would have had no hesitation in
confining jurisprudence to the more advanced systems.
Analysis reveals Austin's foundation to be rather unstable.
Firstly, it is clear that there are no universal rules of law - 'hardly
a rule of today but may be matched by its opposite of yesterday'.
'The moment we have disengaged some principle of which we think
to say, with a sigh of relief, "Well, that at least is an indispensable
element of all law", some patient investigator into the legal systems
of the Houyhnhnms in the mists of antiquity will discover a fragment
of stone or pottery which disturbs all our conclusions.' Secondly, there
are few concepts which are common to all legal systems, and if we
confine our analysis to such as we think are universal, we run two
dangers: firstly, iffurther research shows that there are no concepts
which are common to all systems, then there is no basis for general
jurisprudence at all; secondly, even if a few notions are proved to be
universal, they form a somewhat narrow basis for a science of law.
Much of what the Romans considered universal is today considered
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READINGS IN LEGAL PHILOSOPHY AND THEORY
a mere accident of the particular conditions in which Roman law
was developed. In the nineteenth century writers frequently deduced
certain universal legal principles, but twentieth-century insight
shows that these principles are not universal but were based only
on the necessities of a capitalist economy that still emphasized
laissez-faire. Rules of property that were considered axiomatic in
1850 do n?t apply in Russia nor in many other countries today. Hence,
have been expressed whether it is possible to construct any
basis for jurisprudence that will not be upset by changes in economic
. and social conditions.
The solution of the pr oblem is that, although there are few (if
any) rules of law that are universal, yet there may be universal
principles of jurisprudence. The assumptions of jurisprudence are
simple. In all communities which reach a certain stage of
development there springs up a social machinery which we call law.
Jurisprudence is not primarily interested in cataloguing uniformities,
nor in discovering rules which all nations accept. Its task is to study
the nature of law, the nature of legal institutions, the development
of both law and legal institutions and their relationship to society.
In each society there is an inter-action between the abstract rules
the institutional machinery existing for their application, and
life of the people. Even ifthere were no common element discoverable
in the legal systems of the world, jurisprudence would still have the
function of t racing the relationship between law, legal institutions,
and the life of the people. systems seem to have develop.ed for
the settlement of disputes and to secure an ordered existence for the
community. They still exist for those purpose but in addition they
are part of the social machinery used to enable planned changes and
improvements in the organization of society to take place in an
ordered fashion. In order to achieve these ends each legal system
develops a certain method, an apparatus of technical words and
concepts, and an institutional" system which follows those methods
and uses that apparatus. The pressure of social needs which the law
must satisfy will vary from one community to another, but
jurisprudence studies the methods by which these problems are
solved rather than the particular solutions. Jurisprudence is founded
on the attempt, not to find universal principles oflaw, but to construct
a science which will explain the relationship between law, its
concepts, and the life of society.
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The Positivist School
Austin did not analyse this problem acutely, for both he and
many of his followers fell into the error of thinking that what was
common to certain nations in the nineteenth century was a universal
element of all mature systems. The emergence of the Soviet Russia
(with its legal system based on a social philosophy that rejects
capitalism) saves us from the mistake of considering that what is
suitable for one· particular economy is a universal rule. Jurisprudence
must widen its scope, for if it is concerned with universal rules of
law, it will perish for want of material.
(b) The Method of Jurisprudence
Austin believed that the chief tool of jurisprudence was analysis.
The emphasis on law as the command of the sovereign led to
concentration on mature (or what he sometimes called 'civilized')
systems, since it is clear that a sovereign with effective machinery
for enforcing law can exist only when the State has reached a fairly
high degree of development. Today, however, it is increasingly
recognized that, useful as analysis may be, it will not suffice to answer
all the problems of jurisprudence. An analysis of the judicial method
shows that law is not a static body of rules, but is rather an organic
body of principles with an inherent power of growth. The law that
is, of which some of Austin's followers so proudly boast, cannot be to
sharply divided from the law that ought to be, because where there
is no authority, the judge is perpetually clothing with the robe of
positive law the rule that he thinks ought to exist. Whence is the
judge to draw his material? Some of the imperative school seem to .
proceed on the tacit assumption that all legal problems can be
answered by analysis of the rules that exist and by deductions from
them. This is too narrow a view. The principles of the common law
did not descend from the clouds complete and ft).lly developed: nor
can we say that the creative period is yet over. Exaggerated positivism
ignores the fact that law develops not by logic alone, but by drawing
new values from the life of the community and by gradually reshaping
the rules so that they accord with the standards of today. We cannot
always convict a dissenting minority in the House of Lords of an
error in logic - what is frequently decisive is the judge's view of the
purpose that law should achieve.
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READINGS IN LEGAL PHILOSOPHY AND THEORY
It cannot be suggested that such elementary truths were beyond
the understanding of the imperative school, and one of the besetting
vices of jurisprudence is to exaggerate the views of an opponent in
order to show how ridiculous they are and how much
wiser the writer is. What is here stressed is only that the analytic
system based on Austin's teaching did not make sufficient allowance
for the creative element in law and tended to magnify the static
character of legal rules. It is considered possible to solve all legal
problems by deduction from the actual rules of .English law, eked
out perhaps by careful borrowing from the Roman jurists.
. (c) Law and Ethics
Austin, as we have said, distinguished jurisprudence, the
science of the law that is (without reference to its goodness or
badness), from the science of legislati(i)n which he based on the
principle of utility. Many of his followers ignored entirely the latter
study and proudly boasted that they studied the facts, keeping their
feet on the ground instead of soaring into the clouds of misty
speculation. When Austin wrote it was very necessary to delimit the
sphere of jurisprudence because of the 'prevailing confusion. But we
can see today that even the most positive member of the analytical
school did ' not succeed in separating the law that .is from ideal
elements. The analyst did not discover his principles and
classifications ready made but evolved them after long and patient
study, and they depended not on the law of anyone particular country,
but on an idealized picture of English and Roman law. Unconsciously,
the analysts laid down as the supreme end oflaw an ideal oflogical
harmony. Law was treated as a coherent system based on certain
fundamental principles from which the particular rules may be
deduced. Naturally, no system oflawis perfectly self-consistent, but
any rule that could not be fitted into the analyst's framework was
dubbed an historical accident or a logical anomaly which (it was
predicted) would soon disappear. Internal consistency is a desirable
attribute of a legal system, for if it is logically interrelated it can be
better understood, applied, and extended than if it is a mere chaos
of particular rules. But the. analyst assumed that logical self-
consistency was the sole end of law. This was not stated in so many
words, or its fallacy would have been apparent, but it was the
underlying assumption on which the analytical school based their
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The Positivist School
work. Clearly, law does not exist for the sake of consistency, fDr many
a rule that is theoretically anomalous is based on sound views of
public policy. The English law of tort would be more consistent if
liability never arose in the absence of fault, but strong reasons of
justice have led the law to create some instances of stri,ct liability.
One ofthe great virtues of the Roman jurist was that he was unwilling
to push a principle to its logical extreme if injustice would result.
Thus, criticism of the analytical school emphasizes two very
significant truths for jurisprudence. Firstly, the law that is does not
exist as a perfectly proportioned body of rules deduced from a few
leading principles. The social pressures of the past have led to many
convenient anomalies being adopted. HencG any attempt to reconcile
the rules on logical grounds easily develops into a study not of the
law that is but of the law that should be, iflogic were to prevail. It is
not suggested that it is wrong to attempt to render the rules as
logically harmonious as possible. All that is stressed is that the
analytical school, while proudly boasting that it treated only of the
facts, set up an ideal oflogical self-consistency by means of which it
developed the law. Thus, the second point is that it is extraordinarily
difficult for any school to resist setting up an ideal which can be
made the basis for constructive criticism of the law. The analytical
school boasted that they were treating only of the law that actually
existed, but, unconscious as their ideal was, it was the real driving
force of their work. The influence of their work was such, however,
that their insistence that lawyers should be concerned with the law
that is, combined with the dogma that judges do not make law, led to
a wasteful argument about whether or not judges do make law, and
to the exclusion from legal studies in England for many years of
many matters which are relevant when judges in fact do make law.
Perhaps the most significant recent development in England,
following the imperative school with its origins in Austin's work, is
the application to legal thinking of the methods of the linguistic
positivists among the philosophers. The influence of Ludwig
Wittgenstein at Cambridge is accepted as having been the most
significant in the development of those methods; but it is at Oxford
that those methods are now most directly influencing juristic thinking
_ particularly since the appointment ofH. L. A. Hart to the Oxford
Chair of Jurisprudence in 1952.
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READINGS IN LEGAL PHILOSOPHY AND THEORY
The analytical positivists influenced by those methods still
affirm the Austinian belief that law can and ought to be made the
subject of study separately from morals; that it can be seen as a
system of rules with a logic of its own capable of more satisfactory
elucidation than heretofqre; and that the methods of linguistic
?n?lysis pursued by the philosophers can be employed in
to clear up many puzzles which have troubled legal
theOrIsts, and to produce clearer thinking for lawyers generally.
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The Positivist School
KELSEN's, PURE THEORY OF LAW*
Law and Nature
Law as a Part of Morals
Once law and morals are recognized as different kinds of
normative systems, the question of the relationship oflaw and morals
arises. This question has two meanings: One, What is the relationship
between the two? The other, What ought it be? Ifboth questions are
intermingled, misunderstandings result. The first question is
sometimes answered by saying that law by its very nature is moral,
which means that the behavior commanded or prohibited by legal
norms is also commanded or prohibited by the moral norms.
Furthermore, that if a social order commands a behavior prohibited
by morals or prohibits a behavior commanded by morals, this order
is not law, because it is not just. The question is also answered,
however, by stating that the law may, but need not, be moral - in
the mentioned sense, that is, "just"; that a social order that is not
moral (which means: just) may nevertheless be law, although the
postulate is admitted that the law ought to be moral, which means:
just.
If the question of the relationship between law and morals is
understood as a question concerning the content oflaw and not as a
question concerning its form; if it is said that law according to its
nature has a moral content or constitutes a moral value; then one
asserts by these statements that law is valid within the sphere of
morals, that the legal order is a part of the moral order, that law is
moral and therefore by its nature just. So far as such an assertion
aims at a justification of law - and this is its true meaning - it
must be that only one moral order is valid constituting
an absolute moral value; and that only norms that conform with
this moral order and therefore constitute an absolute moral value,
can be regarded as "law." This means: one-proceeds from a definition
-Reprint from Cohen and Cohen, Readings in Jurisprudence and Legal
Philosophy, p. 316. All footnotes were omitted.
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READINGS IN LEGAL PHILOSOPHY AND THEORY
of law, which determines law as a part of morals which identifies
law and justice. '
Relativity of Moral Value
. But if an absolute value in general and an absolute moral value
m particular is rejected from the point of view of scientific cognition
because an absolute value can be assumed only on the basis of
faith ir: the absolute and transcendent authority of a deity;
If one admIt that, from this viewpoint, an absolute moral order
excludmg the possibility of the validity of another moral order does
not exist; if denies that what is good or just according to that
moral.order IS good under all circumstances, and what is evil
accordmg to that order is evil under all circumstances· if further
one admits that at different times and with different and
even within the same nation, depending on various classes and
very different and contradictory moral systems are valid;
If one grants that under different circumstances different behavior
may ?e considered good or evil, just or unjust, and nothing has to be
c?nsIdered go?d. or evil, just or unjust, under all possible
cIrcumstances; If, m short, one acknowledges that moral values are
only relative: then, the assertion that social norms must have a moral
content, must be just in order to qualify as law, can only mean that
these norms must contain something common to all possible moral
systems, systems of justice. In view of the extraordinary
of what men in fact have considered as good
or eVIl, Just or unJust, at different times and in different places, no
element common to the contents of the various moral orders is
detectable .. .. But even if one could detect an element common to all
moral systems valid so far, there would not be sufficient reason to
regard as not "moral" or not "just" and therefore not as "law" a
coercive order that does not contain this element that commands a
that so far in no community has been to be good
or Just and prohibits a behavior that so far in no community
has been consIdered to be evil or unjust. For if one does not
presuppose an a-priori, that is, absolute, moral value one is unable
to what must be considered good and unjust,
under all CIrcumstances. And then, undeniably, also that which the
coercive order commands may be considered as good and
Just, and that which it prohibits as evil and unjust; so that this order
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'J. 'he Positivist School
too is - r elatively - moral or just. All moral or ders have only one
t hing in common: namely, that they are social norms, t hat is, norm
that order a certain behavior of men - directly or indirectly - toward
other men. All possible moral systems have in common their form,
the "ought": they prescribe something, they have normative character.
Morally good is that which conforms with the social nor m that
prescribes· a certain human behaviour; morally evil that which is
opposed to such a norm. The relative moral value is established by a
social norm that men ought to behave in a certain way. Norm and
value are correlative concepts.
Under these presuppositions the statement "law is moral by
nature" does not mean that law has a certain content, but that it is
norm _ namely a social norm that men ought to behave in a certain
way. Then, in this relative sense, every law is moral; every law
constitutes a - relative - moral value. And this means: The question
about the relationship between law and morals is not a question
about the content of the law, but one about its form. Then one cannot
say, as is sometimes said, that the law is not only norm (or command)
but also constitutes or realizes a value - such an assertion is
meaningful only if an absolute, divine value is presupposed. For the
law constitutes a value precisely by the fact that it is a norm; it
constitutes the legal value which, at the same time, is a (relative)
moral value; which merely means that the law is norm.
The theory, however, that the law in its essence represents a
moral minimum - that a coercive order, to be regarded as law, must
fulfill a minimum moral postulate - is not thereby accepted. For to
assume the existence of this postulate presupposes an absolute
morality, determined by its content, or at least a content common to
all positive moral systems - usually the ideal of peace. From what
has been said it follows that the legal value, as used here, does not
represent moral minimum in this sense - that, specifically, the
peace value is not an element essential for the concept of law.
Separation of Legal and Moral Orders
lfit is assumed that law is moral by nature, then, presupposing
an absolute moral value, it is meaningless to demand that the law
ought to be moral. Such a postulate is meaningful only (and the
presupposed morality represents a yardstick for the law only), if the
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READINGS IN LEGAL PHILOSOPHY AND '1'H I';OHY
possibility of the existence of an immoral law is admitted - if in
other words, the definition of law does not include , the element of
moral content. If a theory of positive law demands a distinction
law and in general, and between law and justice in
partIcular, then thIS theory is directed against the traditional view
regarded as obvious by most jurists, which presupposes that onl;
?ne valid moral order and therefore only one absolute
JustIce eXIsts. The demand for a separation between law and morals
and justice, means that the validity of a positive legal order
of the validity of this one, solely valid, absolute moral
order, the moral order, the moral order par excellence. If only relative
moral values are presupposed, then the postulate that the law ought
to be moral, that is,just, can only mean that the formation of positive
law to conform. to one specific moral system among the many
possIble systems. ThIs, however, does not exclude the possibility of
postulate that the formation of positive law ought to conform
wIth moral system - and actually perhaps conform with it
- It does not conform with a moral system that is different
from It. If, presupposing only relative values, the demand is made to
separate law and morals in general, and law and justice in particular
then this does not mean that law and morals, law and justice:
are unrelated; It does not mean that the concept oflaw is outside the
concept of the Good. For the concept ofthe "good" cannot be defined
than as that which ought to be: that which conforms to a
SOCIal norm; and if law is defined as norm, then this implies that
what is lawful is "good." The postulate, made under the supposition
of a relativistic theory of value, to separate law and morals and
law and justice, merely means this: (1) If a legal order is
Judged to be moral or immoral, just or unjust, these evaluations
express the relation of legal order to one of many possible moral
but not to "the" moral system and therefore constitute only
a not an absolute, value judgment; and (2) the validity of a
pOSItIve legal order does not depend on its conformity with some
moral system.
A relativistic theory of value is often misunderstood to mean
that there are no values and, particularly, that there is no justice. It
rather that values are relative, not absolute, that justice is
relatI.ve not absolute; that the values as established by our norm-
creatmg acts cannot claim to exclude the possibility of opposite
values.
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'1'he Positivist choal
It is obvious that merely relative morals cannot render the function
_ consciously or unconsciously demanded - to provide an absolute
st andard for the evaluation of a positive legal order. Such a standard of
evaluation simply cannot be found by scientific cognition. But this does
not mean that there is no such standard - every moral system can
serve as such. But one must be aware, in judging a positive legal order
from a mora.l point of view (as good or bad, as just or unjust) that the
standard of evaluation is relative and that an evaluation based on a
different moral system is not excluded; further, that a legal order
evaluated on the basis of one moral system as unjust may well be
evaluated as just on the basis of another moral system.
Justification of Law through Morals
A justification of positive law through morals is possible only if a
contrast can exist between the moral and the legal norms - if there
can be a morally good and a morally bad law. If a moral order, like the
one proclaimed by Paul in his Letter to the Romans prescribes to observe
under all circumstances the norms enacted by the legal authority and
thereby excludes any discrepancy between it and positive law,' then it is
not possible to legitimize the positive law by the moral order. For if all
positive law, as willed by God, is just (like everything else that exists is
good insofar as it is willed by God); and if no positive law is unjust,
because nothing that exists can be evil; iflaw is identified with justice;
and if that which is is identified with that which ought to be) then the
concept of justice as well as the concept of the Good have lost their
meanings. It nothing bad (unjust) exists, then nothing good (just) can
exist. The postulate to differentiate law and morals, jurisprudence and
ethics, means this: from the standpoint of scientific cognition of positive
law, its justification by a moral order different from the legal order, is
irrelevant, because the task of the science of law is not to approve or
disapprove its subject, but to know and describe it. True, legal norms,
as prescriptions of what ought to be, constitute values; yet the function
of the science of law is not the evaluation of its subject but its free
description. The legal scientist does not identify himself with any value,
not even with the legal value he describes.
If the moral order does not prescribe to obey the positive legal
order under all circumstances, if, in other words, a discrepancy between
a moral and a legal order is possible, then the postulate to separate law
and morals, science oflaw and ethics means that the validity of positive
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READINGS IN LEGAL PHILOSOPHY AND THEORY
legal nDrms dDes nDt depend Dn their CDnfDrmity with the mDral Drder;
it means, that frDm the standpDint Df a cDgnitiDn directed toward pDsitive
law a legal nDrm may be cDnsidered valid, even if it is at variance with
the mDral Drder.
It is paramount and cannDt be emphasized enDugh to. understand
that nDt Dnly Dne mDral Drder exists, but many different and even
cDnflicting Dnes; that a pDsitive legal Drder may Dn the whDle cDnfDrm
with the mDral views Df a certain grDUp Df the pDpulatiDn (especially
the ruling Dne), yet may cDnflict with the mDral views Df anDther grDUp;
and that abDve all, the judgment Dfwhat is mDrally gDDd Dr evil, mDrally
justifiable Dr unjustifiable, is subject to' cDntinuDUS change, as is the
law, and that a legal Drder (Dr sDme Dfits nDrms) that at the time Dfits
validity may have cDnfDrmed with the pDstulates Df the mDral Drder
then prevalent, may still be judged to' be immDral tDday. The thesis,
widely accepted by traditiDnal science Df law but rejected by the Pure
TheDry Df Law, that the law by its nature must be mDral and that an
immDral sDcial Drder is nDt a legal Drder, presuppDses an absDlute mDral
Drder, that is, Dne valid at all times and places. Otherwise it wDuld nDt
be pDssible to. evaluate a pDsitive social Drder by a fixed standard Df
right and wrDng, independent Df time and place.
The thesis that law is mDral by nature - in the sense that Dnly a
mDral sDcial Drder is law - is rejected by the Pure TheDry Df Law nDt
Dnly because this thesis presuppDses an absDlute mDral Drder, but alSo.
because in its actual applicatiDn by the science Df law prevailing in a
certain legal cDmmunity, this thesis amDunts to an uncriticaljustificatiDn
Dfthe natiDnal cDercive Drder that cDnstitutes this cDmmunity. FDr it is
taken fDr granted that Dne's Dwn natiDnal cDercive Drder is a legal Drder.
The dubiDus standard Df an absDlute mDrality is applied Dnly to the
cDercive Drder Df Dther natiDns. Only they are disqualified as immDral
and therefDre as nDnlaw, when they do. nDt cDnfDrm with certain
pDstulates with which Dne's Dwn cDercive Drder cDnfDrms- fDr example,
when they recDgnize Dr do. nDt recDgnize private prDperty, Dr when they
are demDcratic Dr nDt demDcratic. But since Dne's Dwn cDercive Drder is
law, then, accDrding to the abDve-mentiDned thesis, it must alSo. be mDral.
SuchjustificatiDn Df the pDsitive law may pDlitically be cDnvenient, even
thDugh IDgically inadmissible. FrDm the pDint Dfview of a science Dflaw
it must be rejected, because it is nDt the task Df this science to' justify
the law by absDlute Dr relative mDrals; but to' knDW and to' describe it.
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The Positi vist School
Comments by Paton on The Pure Science of Law*
Nearly a century separates the wDrk DfHans that Df
Austin. If Austin was driven to. make his jurisprudence ngld because Df
the cDnfusiDn Df previDus writers, Kelsen represents a reactiDn
the mDdern schDDls which have so. far widened the Df
jurisprudence that they seem almDst with thDse Df .the
sDcial sciences. But while Austin did nDt cDnsCIDusly fDrmulate a detailed
philDsDphy, Kelsen admittedly builds Dn the dDctrine Df
philDsDphers emphasize that jurisprudence must study the relatIDnship
between law and justice, but Kelsen wishes to free 'the law frD.m the
metaphysical mist with which it has been cDvered at aU by the
speculatiDns Dn justice Dr by the doctrine Df ius He IS thus a
philDsDpher in revDlt frDm the tendencies to philDsDphy.has led
so. many writers. He desires to. create a pure SCIence Dflaw, stnpped.Df
all irrelevant material and to separate jurisprudence fDrm the sDcIal
sciences as rigDrDusly' as did the analysts. The mathematical is nDt
interested in the way in which men think nDr is he directly cDncerned
whether his wDrk is to. be used to. build a bridge Dr to. wDrk DUt a new
system to. break the bank at MDnte Carlo.: so. the jurist, if he is to be
scientific must study the legal rules abstracted from all social cDnditions.
Kelsen to define law as a cOJ;nmand, fDr that intrDduces subjective
and pDlitical cDnsideratiDns and he wishes his science to. be truly
Dbjective.
First, Kelsen wishes to. separate the realm Df jurisprudence frDm
that Df natural sciences. The latter deals with cause and effect: fDr
NewtDn attempted to. fDrmulate a general principle which
wDuld what actual dDes happen to. the apple when its stalk Dr
IDDsened frDm the tree. Law, Dn the Dther hand, dDes nDt attempt to
describe what occurs but rather to. prescribe certain rules, to lay dDwn
standards Df actiDn which men Dught to. fDllDw. If X breaks the
criminal law, then he Dught to. be punished. The sDle Dbject Df
fDr jurisprudence is the nature Df the nDrms (Dr.
are set up by law. A legal system exists in Drder to. ImpDse DblIgatIOns
on certain individuals; to. knDw whether in a particular case an
DbligatiDn exists, we ask whether the individual, if he a
rule, wDuld suffer a sanctiDn. But Kelsen dDes nDt take AUStIll s step
-Reprint frDm PatDn, A Textbook in Jurisprudence. All fODtnDtes were
omitted
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READINGS IN LEGAL PHILOSOPHY AND THEORY
of defining law as a command of the sovereign. Law and the State
are really the same thing envisaged from different aspects. A legal
order becomes a state when it has developed organs for the creation,
declaration, and enforcement of law. When we look at the abstract
rules we think of the legal order; when we examine the institutions
by which law is put into effect to thihk of the State. But this is merely
looking at the same thing from two angles.
If, howeve; , we cannot adopt the 'easy method of law
in terms of the State, by what we can distinguished a rule of
Rules of law cannot be tested but their content, the actual subject-
matter with which they deal, may cover any topic. The
modern tendency to regulate so many pf the' affairs of t,he private
,citizen means that the sphere oflaw is daily increasing. Nor we can
define law in terms of justice, for many may be unjust, but
they do not therefore cease to be law. 'Justice,is an irrational ideal'
- that is, it cannot be clearly defined by reason, and hence it is not
a satisfactory concept for a science of pure law.
Kelsen finds the criterion in the way in which the rule is created.
Ajudge in a mock trial may pass the same sentence as the judge of a
properly constituted court, but the latter sentence has legal validity
because the prescribed conditions of the legal order have been
fulfilled. Hence we must trace every legal act back to a norm which
imputes legal validity to certain human behaviour. The imprisonment
of Jones is justified because of the sentence of a criminal court: the
court has this power because ofthe criminal code: the criminal code
has legal effect because it was enacted by the appropriate legislative
body, which is granted' the power t9 legislate by the ,constitution.
But how can we explain the legal force of the constitution? What is
the legal basis ,of the power of the King in Parliament to change the
law? Constitutions ultimately have an origin. Even if
the whole community unanimously agrees to accept a particular
constitution, that agreem,ent has no legal force, for until a constitution
is adopted the methods by which law is to be created are not laid
down. A revolution may destroy an old constitution and create a new
one, bl,lt such matters are beyond the sphere of jurisprudence which
must posit an initial hypothesis: or Grur-dnorm beyond which it
cannot go. Once it has been accepted as a basis that the will of the
King in Parliament ought to be obeyed, we may trace the validity of
any particular legal rule; but to determine what is to b initial

' I.
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The Positivist School
hypothesis for any country we must go beyond jurisprudence,
examine the world of reality, and discover an hypothesis that has
some measure of the correspondence with the facts. It would be futile
to state as the initial hypothesis for the U.S.S.R. that the will of the
Tsar ought to De obeyed. But it should be noted that the hypothesis
need not absolutely correspondence with the facts. In England the
will of the King in ParliameJ;lt ought to be obeyed, but no one supposes
that every member of the community actually does obey the law on
every occasion. This emphasizes again that law does not state what
actually does happen, but lays down what ought to happen; yet if
the legal order is to be effective, it must secure a certain measure of
acceptance. . ,
The sphere of jurisprudence, then, is a study of the nature of
this hierarchy of norms, the validity of each norm depending on its
being laid down in accordance with a superior norm until we reach
the final norm which imposes an obligation, an a particular individual,
e.g. either by the judgment of a court, the order of an administrative
officer, or the making of a contract between two citizens. In essence
these three operations merely carry out a superior norm and impose
constraint on individuals.
It is difficult to appreciate the significance of Kelsen's work
until the application ofthe theory is understood, but for the present
we are concerned only with the bearing of his theory on the problem
of the boundaries of jurisprudence. The subject-matter for
jurisprudence is the legal norm emptied of all practical content, all
questions of ethics or social philosophy being beyond the jurist's ken.
His claim that he has created an impartial and universal science is
justified, but we are not left with the dry bones of the law deprived
of the flesh and blood which give them life? The great value of his
work is its critical force, since he ably shows that many writers have
clothed with the glory of first principles of jurisprudence what are
only their own prejudices. Kelsen is not alone in his disgust at 'politics
masquerading as jurisprudence',! at those who object to state
regulation oflabour conditions because it interferes with the onward
march of the neo-Hegelian Idea that law must give increasing
freedom to the individual will. Kelsen is correct in showing that law
is a weapon that may be used to effect many ends - indeed, it is
curious to see that his impartiality in the conflicting social problems
of today has led conservatives to call him a dangerous radical and
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READINGS IN LEGAL PHILOSOPHY AND THEORY
the revolutionaries to dub him a reactionary. Kelsen's work is also
valuable in its emphasis that in executing the norms oflaw the judge
has much discretion - it is impossible for any general rule to provide
for all contingencies, and the general rules must be made precise by
those who have the duty of applying them. But, in order to maintain
the air of impartiality, Kelsen regards as outside the scope of
jurisprudence all discussion of natural law, and all the examination
of the sources whence the' judge draws his rules when there is no
authority in point. This leaves the science of law very 'pure:, but
deprives it of all interesting contact with life itself. Indeed, what we
obtain from this method is not a theory of legal development but
simply the formal principles of juristic thought. To exclude the whole
of sociology and of ethics leaves jurisprudence but a mental exercise
in abstract notions. The objection to Kelsen's pure science of law is
that if the premisses are rigidly followed, the result is too formalto
be of service to jurisprudence; if the jurist goes beyond his premisses,
the method is destroyed. Kelsen would be very impatient if any
argument that jurisprudence should serve the needs of life - its
aim in his eyes should be enable us to understand the nature oflaw
and the State. But the point made here is that Kelsen's methods
does not even give us a true picture oflaw, for jurisprudence must go
beyond the formal hierarchy of norms to study the social forces that
create law. The doctrine of natural law has certainly been abused,
but is jurisprudence, therefore, to ignore the whole question of ethics?
Indeed, Kelsen himself goes beyond the limits of his method in
discussing the nature of international law and really bases his view
on the ideal of the legal unity of the world. Nor can we understand
the real nature of the StB;te by regarding it in purely formal light.
The philosophic difficulties involved in Kelsen's clear separation of
the legal world of norms from the world of reality cannot be here
discussed, but it may be pointed out that, however pure his science
is kept, the initial premisses for any legal order can be discovered
only by a study of the facts in that particular community.
Noone can doubt that Kelsen has made an origin and striking
contribution to jurisprudence. In 1832 Austin cleared away much
dead wood, and a century later Kelsen with critical acumen exposed
many fallacies. But the aim of the pure science oflaw is narrow one,
and it must be complemented by other and broader approaches.
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The Positivist School
Jeremy Bentham (1743-1832) can be said to be the founder
of English Utilitarianism. He wrote numerous works, among
which we might mention: Introduction to the Principles of Morals
and Legislation (1789), Traite de la Legislation civile et penale
(1802), Theorie des peines et des recompenses (1811), The Book
of Fallacies (1824). His Deontology or the Science of Morality
was published in 1834, two years after his death.
Bentham was a liberal and courageous soul who promoted ardently
various legislative reforms, for example, in the field of penal law. The
bases, however, of his system are somewhat defective. The utilitarian
principle appears therein in a form which is, as it were, rough and
primitive. Pleasure, understood in a materialistic sense, as sense
satisfaction and personal advantage, is, for Bentham, the sole purpose
of life. Good, therefore, is that which procures pleasure. Morality is
nothing but the calculation of pleasures. From this springs the so-called
"moral arithmetic." It is necessary to avoid vice only insofar as it leads
to unhappiness, or represents an error of calculation in the search for
happiness. Virtue, always according to Bentham, would be egoism
properly understood. It demands, indeed, some renunciations, but only
for a utilitarian purpose. Thus, for example it requires the sacrifice of a
lesser pleasure for a greater one, the renunciation of a present pleasure
in view of a future one. Thus, clearly, one would come to a denial of any
true morality, since it would always be a question of individual pleasure,
without any regard for the good of others. Bentham, nevertheless, like
the other utilitarians, recognized the need of some correction in his
crude principle. He had recourse, consequently, to the coefficient of
sympathy. He recognized the need we feel to participate in some way in
the sentiments of our neighbor. He admitted, in substance, that one
cannot be happy in the midst of a multitude who are unhappy. To this
consideration is joined another, namely, that acting according to the
pure egoistic principle we should provoke an equal attitude on the part
of others toward ourselves, and we should consequently, in the final
analysis, create an injury to ourselves. From all this there arises a certain
mitigation of the original doctrine. For the concept of individual utility
there tends to be substituted a higher and broader concept. The final
purpose is no longer the pleasure of the individual, but the "greatest
happiness of the greatest number." In this consists the so-called
maximization of pleasure. Bentham adds this rule: "in the division of
pleasures no man must be excluded, and each one must count for one."
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THE UTILITARIAN PRINCIPLE
BENTHAM, AN INTRODUCTION TO THE PRINCIPLES
OF MORALS AND LEGISLATION'
Chapter I. Of the Principle of Utility
1. (N ature has placed mankind under the governance of two
sovereign masters, pain and pleasures. It is for them alone to
point out what we ought to do, as well as to determine what we
shall do. On the one hand the standard of right and wrong, on
the other the chain of causes and effects, are fastened to their
throne. They govern us in all we do, in all we say, in all we
think: every effort we can make to throw off our subjection,
will serve but to demonstrate and confirm it.) In words a man
may pretend to abjure their empire: but in reality he will remain
subject to it all the while. The principle of utility recognises
this subjection, and assumes it for the foundation ofthat system,
the object of which is to rear the fabric of felicity by the hands
of reason and of law. Systems which attempt to question it,
deal in sounds instead of sense, in caprice instead of reason, in
darkness instead of light.
But enough of metaphor and declamation: it is not by such
means that moral science is to be improved.
2. The principle of utility is the foundation of the present work: it
will be proper therefore at the outset to give an explicit and
determinate account of what is meant by it. (By the principle
of utility is meant that principle that which approves or
disapproves of every action whatsoever, according to the
tendency which it appears to have to augment or diminish the
happiness of the party whose interest is in question: or, what is
the same thing in other words, to promote or to oppose that
happiness). I say of every action whatsoever; and therefore not
only of every action of a private individual, but of every measure
of government.
"Reprint from Cohen and Cohen, Readings in Jurisprudence and Legal
Philosophy, p. 494. All footnotes were omitted.
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'I'he Positivist School
3. (By utility is meant that property in any object, whereby it t ends
to produce benefit, advantage, pleasure, good, or happiness,
(all this in the present case comes to the same thing) or (what
comes again to the same thing) to prevent the happening of
mischief, pain, evil, or unhappiness to the party whose interest
is considered: if that party be the community in general, then
the happiness of the community: if a particular individual, then
the happiness of that individual).
4. (The interest of the community is one of the most general
expressions that can occur in the phraseology of morals:) no
wonder that the meaning of I it is often lost. When it has a
meaning, it is this. The community is a fictitious body, composed
of the individual persons who are considered as constituting as
it were its members. The interest of the community then is,
what? - .the sum of the interests of the several members who
compose it.
5. It is in vain to talk of the interest of the community, without
understanding what is the interest ofthe individual. A thing is .
said to promote the interest, or to be - for the interest, of an
individual, when it tends to add to the sum total of his pleasures:
or, what comes to the same thing, to diminish the sum total of
his pains.
6. An action then may be said to be conformable to the principle
of utility, or for shortness sake, to utility, (meaning with respect
to the community at large) when the tendency it has to augment
the happiness of the community is greater than any it has to
diminish it.
7. A measure of government (which is but a particular kind of
action, performed by a particular person or persons) may be
said to be conformable to or dictate by the principle of utility,
when in like manner the tendency which it has to augment the
happiness of the community is greater than 'any which it has to
diminish it.
8. When an action, or in particular a measure of government, is
supposed by a miln to be conformable to the principle of utility,
it may be for the purposes of discourse, to imagine
a kind oflaw or to dictate, called a law or dictate of utility: and
to speak ofthe action in question, as being conformable to such
law or dictate.
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REAOINGS IN LEGAL PHILOSOPHY AND THEORY
9. A man may be said to be a partisan of the principle of utility,
when the approbation or disapprobation he annexes to any
action, or to any measure, is deter mined by, and proportioned
to the tendency which he conceives it to have to augment or to
diminish the happiness ofthe community: or in other words, to
its conformity or unconformity to the laws or dictates of utility.
10. Of an action that is conformable to the principle of utility, one
may always say either that it is one that ought to be done, or at
least that it is not one that ought not to be done. One may say
also, that it is right it should be done; at least that it is not
wrong it should be done: that it is a right action; at least that it
is not a wrong action. When thus interpreted, the words ought,
and right and wrong, and others of that stamp, have a meaning:
when otherwise, they have none.
11. Has the rectitude ofthis principle been ever formally contested?
It should seem that it had, by those who have not known what
they have been meaning. Is it susceptible of any direct proof? it
should seem not: for that which is used to prove every thing
else, cannot itself be proved: a chain of proofs must have their
commencement somewhere. To give such proofis as impossible
as it is needless.
12. Not that there is or ever has been that human creature
breathing, however stupid or perverse, who has not on many,
perhaps on most occasions of his life, deferred to it. By the
natural constitution of the human frame on most occasions of
their lives men in general embrace this principle, without
thinking of it: if not for the ordering of their own actions, yet
for the trying of their own actions, as well as of those of other
men. There have been, at the same time, not many, perhaps,
even of the most intelligent, who have been disposed to embrace
it purely and without reserve. There are even few who have
not taken some occasion or other to quarrel with it, either on
account of their not understanding always how to app'ly it, or
on account of some prejudice or other which they were afraid to
examine into, or could not bear to part with it. For such is the
stuff that man is made of: in principle and in practice, in a
right track and in a wrong one, the rarest of all human qualities
is consistency. '
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The Positivist School
13. When a man attempts to combat the principle of utility, it is
with reasons drawn, without his being aware of it, from that
very principle itself. His arguments, if they prove any thing,
. prove not that the principle is wrong, but that, according to the
applications he supposes to be made of it, it is misapplied. Is it
possible for a man to move the earth? Yes; but he must first
find out another earth to stand upon. .
14. To disapprove the propriety of it by arguments is impossible;
but, from the causes that have been mentioned, or from some
confused or partial view of it, a man may happen to be disposed
not to relish it. Where this is the case, if he thinks the settling
of his o p i n i o ~ s on such a subject worth the trouble, let him
take the following steps, and at length, perhaps, he may come
to reconcile himself to it.
1. Let him settle with himself, whether he would wish to
discard this principle altogether; if so, let him consider
what -it is that all his reasonings (in matters of politics
especially) can amount to?
2. Ifhe would, let him settle with himself, whether he would
judge and act without any principle, or whether there is
any other he would judge and act by?
3. If there be, let him examine and satisfy himself whether
the principle he thinks he has found is really any separate
intelligible principle; or whether it be not a mere principle
in words, a kind of phrase, which at bottom expresses
neither more nor less than the mere averment of his own
unfounded sentiments; that is, what in another person he
might be apt to call caprice?
4. If he is inclined to think that his own approbation or
disapprobation, annexed to the idea of an act, without any
regard to its consequences, is a sufficient foundation for
him to judge and act upon, let him ask himself whether
his sentiment is to be a standard of right and wrong, with
respect to every other man, or whether every man's
sentiment has the same privilege of being a standard to
itself? .
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READINGS IN LEGAL PHILOSOPHY AND THEORY
5. In the first case, let him ask himself whether his principle
is not despotical, and hostile to all the rest of human race?
6. In the second case, whether it is not anarchical; and
whether at this rate there are not as many different
standards of right and wrong as there are men? and
whether even to the same man, the same thing, which is
right today, may not (without the least change in its
nature) be wrong tomorrow? and whether the same thing
is not right and wrong in the same place at the same time?
and in either case, whether all argument is not an end?
and whether, when two men have said, "I like this," and
"I don't like it," they can (upon such a principle) have any
thing more to say?
7. Ifhe should have said to himself, No: for that the sentiment
which he proposes as a standard must be grounded on
reflection, let him say on what particulars the reflection
is to turn? if on particulars having relation to the utility
of the act, then let him say whether this is not deserting
his own principle, and borrowing assistance from that very
one in opposition to which he sets it up: or if not on those
particulars, on what other particulars?
8. Ifhe should be for compounding the matter, and adopting
his own principle in part, and the principle of utility in
part, let him say how far he will adopt it?
9. When he has settled with himself where he will stop, then
let him ask himself how he justifies to himself the adopting
it so far? and why he will not adopt it any farther?
10. Admitting any other principle than the principle of utility
to be a right principle, a principle that it is right for a
man to pursue; admitting (what is not true) that the word
right can have a meaning without reference to utility, let
him say whether there is any such thing as a motive that
a man can have to pursue the dictates of it: if there is, let
him say what that motive is , and how it is to be
distinguished from those which enforce the dictates of
utility: if not, then lastly let him say what it is this other
principle can be good for?
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The Positivist School
Chapter II. Of Principles Adverse to that of Utility
1. (If the principle of utility be a right principle to be governed by,
and that in all cases, it follows from what h as been just observed,
that whatever principle differ s from it in any case must
necessarily be a wrong one). To pr ove any other principle,
therefore, to be a wrong one, there needs no more than just to
show it to be what it is, a principle of which the dictates are in
some point or other different from those of the principle of
utility: to state it is to confute it ....
3. By the principle of asceticism I mean that principle, which,
like the principle of utility, approves or disapproves of any
action, according to the tendency which it appears to have to
augment or diminish the happiness ofthe party whose interest
is in question; but in an inverse manner: approving of actions
in as far as they tend to diminish his happiness; disapproving
of them in as far as they tend to augment it ...
9. The principle of asceticism seems originally to have been the
reverie of certain hasty speculators, who having perceived, or
fancied, that certain pleasures, when reaped in certain
circumstances, have, at the long run, been attended with pains
more than equivalent to them, took occasion to quarrel with
every thing that offered itself under the name of pleasure.
Having then got thus far, and having forgot the point which
they set out from, they pushed on, and went so much further as
to think it meritorious to fall in love with pain. Even this, we
see, is a ~ bottom but the principle of utility misapplied.
10. The principle of utility is capable of being consistently pursued;
and it is but tautology to say, that the more consistently it is
pursued, the better it must ever be for human-kind. The
principle of asceticism never was, nor ever can be, consistently
pursued by any living creature. Let but one tenth part of the
inhabitants of this earth pursue it consistently, and in a day's
time they will have t urned it into a hell.
11. Among principles adverse to that of utility, that which at this
day seems to have most influence in matters of government, is
what may be called the principle of sympathy and antipathy.
(By the principle of sympathy and antipathy, I mean that
principle which approves or disapproves of certain actions, not
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14.
READINGS IN LEGAL PHILOSOPHY AND THEORY
on account of tending to augment the happiness, nor yet
on account of theIr tending to diminish the happiness of the
party whose interest is in question, but merely because a man
finds himself disposed to approve or disapprove ofthem: holding
up that approbation or disapprobation as a sufficient reason
for and disclaiming the necessity of looking out for any
ground). Thus far in the general department of morals:
and In the particular department of politics, measuring out the
quantum (as well as determining the ground) of punishment
by the degree of the disapprobation... . '
In catalogue of human actions (says a partisan
of thIs prmclple) m order to determine which of them are to
marked with the seal of disapprobation, you need but to take
counsel ?f your own feelings: whatever you find in yourself a
propensIty to condemn, is wrong for that very reason. For the
reason it is also meet for punishment: in what proportion
It adverse to utility, or whenever it be adverse to utility at
all, a.matter that makes no difference. In that same proportion
IS It meet for punishment: if you hate much, punish much:
If you hate punish little: punish as you hate. If you hate
not at all, pUnIsh not at all: the fine feelings of the soul are not
to be overborne and tyrannized by the harsh and rugged dictates
of political utility.
The various systems that have been formed concerning the
standard of right and wrong, may all be reduced to the principle
of sympathy and antipathy. One account may serve for all of
them. They consist all of them in so many contrivances for
avoiding the obligation of appealing to any external standard
and for prevailing upon the reader to accept of
sentiment or opinion as a reason and that a sufficient one for
itself. The phrase different, but the principle the same ... .
Chapter Iv.. Value of a Lot of Pleasure or Pain, How to be
Measured
1. Pleasures then, and the avoidance of pains, are the ends which
the legislator has in view: it behoves him therefore to
understand their value. Pleasures and pains are the instruments
he has to work with: it behoves him therefore to understand
their force, which is again, in another point of view, their value.
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2.
4.
The Positivist School
To a person considered by himself, the value of a pleasure or
pain considered by itself, will be greater ·or less, according to
the four following circumstances.
1. Its intensity.
2. Its duration.
3. Its certainty or uncertainty.
4. Its propinquity or remoteness.
3. These are the circumstances which are to considered in
estimating a pleasure or a pain considered each of them
by itself. But when the value of any pleasure or pain is
considered for the purpose of estimating the tendency of
any act by which it is produced, there are two other
circumstances to be taken into the account; these are,
5. Its fecundity, or' the chance it has of being followed by
sensations of the same kind: that is, pleasures, if it be a
pleasure: pains, if it be a pain.
6. Its purity, or the chance it has of not being followed by
sensations of the opposite kind: that is, pains, if it be a
pleasure: pleasures, if it be a pain.
These two last, however, are in strictness scarcely to be
deemed properties of the pleasure or the pain itself; they are
not, therefore, in strictness to be taken into the account of the
value of that pleasure or that pain. They are in strictness to be
deemed properties only of the act, or other event, by which such
pleasure or pain has been produced; and accordingly are only
to be taken into the account of the tendency of such act or such
event.
To a number of persons, with reference to each of whom the
value of a pleasure or a pain is considered, it will be greater or
less, according to seven circumstances: to vvit, the six preceding
ones; viz.
1. Its intensity.
2. Its duration.
3. Its certainty or uncertainty.
4. Its propinquity or remoteness.
5. Its fecundity.
6. Itspurity.
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READINGS IN LEGAL PHILOSOPHY AND 'l'HEOHY
And one other; to wit :
5.
7.
Its extent; that is, the number of persons to whom it
extends; or (in other words) who are affected by it.
To take an then of the general tendency of
any act, by whIch the mterests of a community are affected
as follows. Begin with anyone person of
mterests seem most immediately to be affected by
It; and take an account ,
1. Of the value of each distinguishable pleasure which
appears to be produced by it in the first instance.
2. Of the value of each pain which appears to be
produced by it in the first instance.
3. Of the value of each pleasure which appears to be
produced by it after the first. This constitutes the
fecundity of the first pleasure and the impurity of
the first pain.
4. Of the value of each which appears to be
produced by it after the first . This constitutes the
fecundity of the first pain, and the impurity of the
first pleasure.
5. Sum up all the values of all the pleasures on the one
side, and those of all the pains on the other. The
balance, ifit be on the side of pleasure, will give the
good te.ndency of the act upon the whole, with respect
to the mterests of that individual person· if on the
side of pain, the bad tendency of it upon the whole.
6. !ake an account of the number of persons whose
mterest appear to be concerned; and repeat the above
process with respect to each. Sum up the numbers
of the degrees of good tendency, which the
act has, wIth respect to each individual, in regard to
whom the tendency of it is good upon the whole: do
this again with respect to each individual, in regard
to whom the tendency of it is good upon the whole:
do this again with respect to each individual, in
regard to whom the tendency of it is bad upon the
whole. Take the balance; which, if on the side of
pleasure, will give the general good tendency of the
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The Positivist School
act, with respect to the total number or community of
individuals concerned; if on the side of pain, the general
evil tendency, with respect to the same community.
6. It is not to be expected that this process should be strictly
pursued previously to every moral judgment, or to every
legislative or judicial operation. It may, however, be always
kept in view: and as near as the process actually pursued on
these occasions approaches to it, so near will such process
approach to the character of an exact one.
7. The same process is alike applicable to pleasure and pain, in
whatever shape they appear: and by whatever denomination
they are distinguished: to pleasure, whether it be called good
(which is properly the cause or instrument of pleasure) or
profit (which is distant pleasure, or the cause or instrument
of distant pleasure,) or convenience, or advantage, benefit,
emolument, happiness, and so forth: to pain, whether it be
called evil, (which cor responds to good) or mischief, or
inconvenience, or disadvantage, or loss, or unhappiness;and
so forth.
8. Nor is this a novel and unwarranted, any more than it is a
useless theory. In all this there is nothing but what the
practice of mankind, wheresoever they have a clear view of
their own interest, is perfectly conformable to. An article of
property, an estate in land, for instance, is valuable, on what
account? On account of the pleasures of all kinds which it
enables a man to produce, and what comes to the same thing
the pains of all kinds which enables him to avert. But the
value of a such an 'article of property is universally understood
to rise or fall according to the length or shortness of the time
which a man has in it: the certainty or uncertainty of its
coming into possession: and the nearness or remoteness of
the time at which, if at all, it is to come into possession. Ai; to
the intensity of the pleasures which a man may derive from
it, this is never thought of, because it depends upon the use
which each particular person may come to make of it; which
cannot be estimated till the particular pleasures he may come
to derive from it, or the particular pains he may come to
exclude by means of it, are brought to view. For the same
reason, neither does he think of the fecundity or purity of
those pleasures ....
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READINGS IN LEGAL PHILOSOPHY AND THEORY
Questions in Chapter V
The Positivist School
1. What is the meaning of the Positivist School of Legal
Philosophy? .
2. Who was the main advocate of Positivist School? What book
did he publish advocating the said school of Philosophy.?
3. How is law determined in this school?
4. Why is this theory also called the imperative school?
5. What are the advantages of the positivist school?
6.. What do you mean by the Pure Science of Law?
7. Who was the foremost advocate of the Pure Science or Pure
Theory of Law?
8. What is the main thesis of the Pure Science or Pure Theory of
Law?
9. What are the advantages and disadvantages ofthe Pure Science
Theory?
10. What is meant by the Utilitarian Theory of Law?
11. What are the measures to achieve the principle of utility?
114
Ch apter VI
THE FUNCTIONAL SCHOOL
THE SCOPE AND PURPOSE OF SOCIO·
LOGICAL JURISPRUDENCE
by Roscoe Pound'
Schools of Jurists and Methods of Jurispru<J.ence
Until recently, it has been possible to divide the jurists into
three principal groups, according to theIr views ofthe nature oflaw
and of the standpoint from which the science of law should be
approached. We may call these groups the Philosophical School, the
,Historical School, and the Analytical School. On closer analysis, the
Philosophical School falls into three: an Eighteenth-Century Law-
of-Nature School, perhaps still represented by a Rousseauist School
in France,and not without representatives in juristic
thought, a Metaphysical School, dominant in philosophical
jurisprudence during the first half of the nineteenth century, and a
Social-Philosophical School, of which there are several varieties, but
in which the·Neo-Hegelians seem to have the most fruitful program.
The historical jurists may be distinguished into a German Historical
School, whose method is philosphical (indeed often metaphysical)
and historical, and an English Historical School, whose method is
comparative and historical. The Analytical School, likewise, has an
older and a newer phase. The older type, which adhered to the
analytical method exclusively, may be distinguished from a later
English school, whose method is historical as well as analytical. Thus
it will be noted that there is a marked tendency to abandon the
exclusive use of anyone method, and to bring these formerly
divergent schools into something like accord. In this movement,
however, propinquity hitherto has played a curious part. The German
Historical School arose in a country dominated by philosophical
methods and at a time when the Metaphysical School was at its
' Reprint from Harvard Law Review. All footnotes were omitted.
115

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