Dennis Lloyd The Idea of Law ‘ Penguin Booksengin Boks Ld 27 Wright Lave Londen E99 (Polibieg an Rata; ‘ad Tarmcndswar, Miden, Eglan! (Diatcton and Ware) ‘Viking Pegi ne, go Weed Ste, Now Va, New Yer ote USA, engin Bors Auta Lid, Mego, Vitra, Aue Pengin Boks Can Led oe Fe Suey, Masham Ont, Casa 9810), ‘engin Bnk (NZ Ld e-10 Waa Rel, Alle New Zealand Fi alse Tube n era ete Bp a ped eos oe React Hecht ts Ropar re Ree ease Enel fee a ts Soman wah nee SE Fenined tsi eed wc ty ‘Saag © Deni Len 964.1970, 999519, ‘973,908 Alterac St ote end bea a Gre Bean by Coc Wyma eating Seria Mena Matec ‘eet the Una State of Arey hs hak eld bce ‘ete cmnon tte al oy a ude or then, Be tesa, hired out, or eben cece vont the [ables price omen any fe of bitdig cover ther an {et whichis puted and wie asl canoe subsegsene picker inca his condi egg on Contents Preface 7 1 IsLaw Necessary? 11 ® Law and Force 26 3 Lawand Morals 46 4 Natural Law and Natural Rights 70 15 Legal Positivism 95 6 Law and Justice 116 7 Lawand Freedom 138 8 Law, Sovereignty, and the State 170 9 Law and Society 199 10 Lawand Custom 906 11 The Judicial Process 256 12 Conceptual Thinking in Law 284 13 Some Leading Legal Concepts 300 14 Conclusion: Some Problems for the Future 326 Notes 341 Further Reading List 965 Index 364of contents of this book should be eaongh te indicate wo the reader the great areas of thought an! comet 1 ryed snd continuss wo play a inajor tole fe faimen sits, Lending plalosphery, tere Pato to Mas Sane 1:lin do not however exist in a vacuum, but ae ound sie by Tao With moral cots of greater o¢ les compleaity or dcintneee?, Fae ationship of law to mora rales and standaed fs ebony hgh great and abiding importnes in every human sec wad SSiainly noe least in our oun, ae ea be Sastanced toma mary ce fit contovenial iss, To mention buta few of these thera ability of adult mates to prosecution for hommtaenwaticy eern thee Sarr out in private and by consents the burning qction a? egal rights snd duties Morcoves, he belicfin n Moral Law his hed 2 tremendous iam Pict upon man's thought about the actual law which pecs bb own pasticular society. ‘The notion that bela and eke at ‘he Individual systens of lae which eperate in diferent covet8 Preface ‘there exists @ higher law by which mere man-made Iaw can be Judged, and on occasions found wanting, has produecd signiicant fomsequences at many crucial stages of human history. For the conclusion la been draya that not only does such a higher taw ‘override and mulify the actual rufes of a particular society which fae shown to viola it, but dat it follows frum this couchusion that the indvidval citizen may be relioved from hix duey to comply with the actual law, aud even pomess a lawful buss for revolt fagainat the legitimate authority of the state. Nor must it be thought thac this ort of argument has ceased to be canvassed at the present day of that it lacks practical implications. ‘Those who ga, for instance, that chore are certain basic human righes wich fre guaranteed by Macul Law or Natural Law may and do urge ‘that segregation lava which discriminate agairat sections of a com- ‘munity, om grounds of race or religion, are so contrary to fide ‘mental morality that they are aot entitled to be treated as valid ws at ail aul that refusal to adher= to these 's both legally and ‘morally justified. An astempt is made in this book to explore these fimndaiental ines which are the coucern of cvery citizen in the modern world. Perhaps the mos ital stein the modern state is what we mean by te Seecom ofthe citizen, and what measures must be acecpied in order to preserve this freedom. The relation of law to liberty is obviously 4 very clase one, since law may be used either as an in ftrument of tyranny, as has feqoently occurred in many ages and Societies, or it may be used as a means of giving effect #9 those ‘bese frvodoms which ia 2 democratic society are regarded as 2 cssentel part of te good life. Insuck a aocety itis not enough that the Jaw should merely confer security upon the citizen i his person. and property. On the contrary he most be Sten to express his opin {ous without restraint and to asiodate with his fellow citizens; he ‘ust be free to come and go a he pleases and (0 sock employinent ff ch hind as he will; he must be entitled to enjoy the bonefits of what hes come to be known as the Rute of Laws and he must be relieved of basic iagccurities du to want and misfortune, AMl such ‘questions raise Tegal problems of great complexity within the frmene= fvork of te modern welfare sta, and an attempt ie made in this Took fo discuss some ofthe mote peesing of these fates. ‘In modern times the functioning of the Jaw has been closely associated with the idea of 2 sovereign power Jocated in each pam ‘Seular state and posesing authority co make or una laws at Preface. 9 ‘pleats, ‘Phis theory has had important consequences both insegatd to national legal systems, and ako in the international sphere. If state is sovereiga, how, for instance, can it be argued that such & faovereign state & itself subject to an overriding system of inter national law? And auppoce such a state binds itself by international ‘treaty to accep! the legal authority of woe ovecriding international ‘orgs, as, for instance, bas occured in the case of the Common ‘Marke Treaty. When the notion of the Usited Kinglom joining the Commen Market wat being ventilated recently, seious quet- tions were raised atthe tizae as to the effects of sich 2 course upon the ultimate soverelgny of our ows Parliament. ‘This is only ‘another ilustrution of the ways in which a philosophy of law may benride great questions of state policy. Tin our own day the social sciences, although even now perkaps ‘only in their infaney, have carved out an {mportant place for theme selves in many spheres of buman thooght and activity. Their ime ‘pact upon legal thinking and practice has already proved to be Comiderable, and the legal sociologist ia presented with an ime ‘mense field for research, much of which remains visnully ‘unexplored, Sul, fuere have been important attempts to fink legal thinking with developments aceusting in such fields of study as anthropology, psychology, socielogy, and criminology. ‘The lawyer, ‘4s practical man of the world, has tended, especially in commone Taw coustries, to be somewhat impatient of theory and to adopt the altitude tat his task i to solve practical problems, and that for ‘this purpose he i better equipped by vietue of his legal experience fan thoy who, bowever well versed in other disciplines, lack his ‘gresp of legal esentias, In the lat resort, howewer, the claim of fe oeial sciences to be heard, even in the ateans ofthe Law itself ‘oust depend both om the fight they can be shown to shed upon egal instifutions, and the siiseance they can sender in the sie tie of the actual legal problems of one day and age. "The sole ofthe judiciary in 2 madern legal system is of immense social significance, and an atterpe ie therefoce mace in thi work {fo indicate the nature of the judicial process, and the vital contri= bation that it has to make to the elective fancrioning of the law, Closely finked vith theso questions arc the very characier and structure of legal reasoning, Law is in a constant process of fax land development, and though much of ths development is due to the cuactiments ofthe legislature the judges and the courts have an ‘essential rte to play in developing the law and adapting it fo theto Preface needs of tele society. Not only the general way in which this result {achieved i dusted in these pages, but also a considerable num- ber of detailed ilustrations ace given, to enable the reader to se ‘what is involved in the proces of applying and interpreting legal ‘rules and principles inthe context ofa modern legal system. In condlusioa, the book provides a brief review of some of the more urgent probleze which the Idea of Law will be ealled upon totacklein the more immodiare future, The need is emphasized for a crvative approach to the Idea of Law in our own age, law i to come within measurable distance of performing the social fime- tons which it should subserve. Its surely the tak of al those cone ‘cerned with the exposition of the law, or with its application im Dractice, to anake continual effors to refurbish the image of the sw, so that it may romain in touch withthe social realities of our Finally Thould Hike to express ny gratitude to I. H. Jacob Beqn, ‘Master of the Supreme Court, without whose encouragement this work would never have been undertaken; le has been good enough to read the whole book both in typescript and in proof, and has smado many Valuable sugzeations. Needl=ss to say, he i not respone tible for any errors or opinions i contains. Apel 1964 1 Is Law Necessary? Que ants, man four ani, le fi et ness, ont nbs at indispnscle leet Dane, fa gi et ben et agate (Temes, Vieimes de Desi) “The highest ptton of scy is fend thea of order ead exarcy. (Proudhon.) ‘Temayscem strange that at the very outset ofour inquiry into the Idea of Law the question should be raised whether lawis really nccessary at all. In faet, however, this is a question of ‘Primary significance which we ought not and indeed cannot take for granted, Forit arises out of an uncasy and pezplexing doubt not only whether law may be ‘expendable’ as being ‘mnnecestazy to the exeation of a justsocicty, but also whether law may not perhaps be something positively evil in itself and therefore a dangerous impediment to the fulfilment of Ian's social nature. Fantastic though this viewpoint may seem to the members of well-ordered democratic society ~ ‘whatever its particular shortcomings or imperfections may bbe it is useful to remember that in many less well-regulated societies the operation oflaw may appcar in amore unfavour- able guise. Moreover, the feeling that lav inherently & or Should be necessary for man in a properly otdeted society receives little encouragement from the long succession of Ieading Wester philosophers from Plato to Kar] Marx who, inone way or another, have lent their support tothe rejection of law. Hostility towards law has also played an important Partin many ofthe great religious systems of East and West, and was a crucial element in the ideology of the Christian. ‘Church in its formative period. And, apart from Marais, ‘here are still ro be found other serious supporters of a doc ‘tine of anarchism as an answer to muan’s besetting personal ‘and social problems. Every age—and certainly our own is 2012 The Idea of Law Js Lato Necessary? 13 ‘exception — produces individuals or groups who feela general restlesmess agaiust all authority and who respond to this feeling by giving vent to various acts or demonstrations against the forces ofaw and order. No doubt such people are ‘often sincerely motivated by the vague notion that in some zmysterious way their demonstrations will lead to a better and happier life for mankind, but such sporadic outbursts have sgencrally bad litte influence on the main currents of hwnan ‘thought and feeling.* We must therefore look deeper than the extemal manifestations of social restiveness in trying to explore the ideological foundations of dissatisfaction with the very idea of law in order to find ove what it that has urged s0 many, in civilizations geographically and culturally so far apart, and throughout human history, either to reject law altogether or to regard it at best as a necessary evil suited ‘only to an utterly imperfect state of human society. Later in this book the role af law ax a social phenomenon will engage our attention as well as its function as part of the ‘cement of social control and its relation to a conception of a just society. We shall not here anticipate the discussions of these matters but will concentrate on the Fines of thought which have led, on the one hand, to the total rejection of the need forlaw atall, or, on the other, tothe notion that lawis an evil thing only tobe tolerated as temporary expedientwhile man remains uawiling or unable to achieve a just society. THE NATURE OP KAN When we talk of some idea or concept as being “dealogical* in character, we mean that i forms part of our outlook upon ¢theworld, upon therelation of man tothe worldand tosociety {in ll its manifestations. The idea of law certainly partakes ‘of this ideological character so that our view of it will inevi- tably be coloured by our general thinking about man’s place in the world, the view we may adopt ofthe nature of man, or ‘of the ‘human condition’, as some modern writers prefer to call it, and the aims or purposes which znan may be called ‘pon or required to full. When we assert that law either is or isnot necessary to man, we ate clearly not just tying to state a simple physical fact, such as that man cannot live without food and drink ~ we are engaged in a process of evaluation. What we arc really saying is that man’s uature it such that he can only attain a troly human condition given the existence or non-existence of law. Such a statement con- tains implicit within it an assumption a8 to man's goal ot purposes, as to what is good for man, and what he needs for the attainment of those objectives. Ttisno douibt becanse of man’s perennial and intense pre- occupation with such issues that thinkers of all ages and societies have been dravn into the interminable dispute as to the ethical quality or potentiality of man’s nature. This dis ppute may indeed he thought by many today to be not only, interminable but also senscless, but whether this s s0 oF not, ‘the position taken up has formed themajor premissin leading tothe deduction whether, or to what extent, law is necessary {for man, and so its importance for this purpose remains m= Aleniable, For those who sein man ether the incarnation of evil or at best an amalgam of good and fad impulses con- stantly in conflict, the bad tending repeatedly to prevail over the good, it seems evident that here are dark and dangerous forces implanted in man’s very nature which need to be sternly curbed and which, ifnot curbed, will lead tothe total desteuction of that social order in whose absence man’s state ‘would be no higher than that of the animals, Law then, in this view, is the indispensable restraint upon the forces of evil, and anarchy or the absence of law the supreme horror to be warded off, On the other hang, those who view man’s nature asinherently good seek to find the sources of the lls of ‘man's present condition in situations external to man hi self and hence ook for some fundamental defect in man's social cavironment as the true cause ofthe evils which aflict hhim, And as the most conspicuous features of this environ ‘mentareof course the government ofthe reigning powersand ‘the legal system through which they exert their political ‘authority, itis hardly surprising that criticiams eentre upon these as the true source of human tribulations,14 The Idea of Law Tn an age of social reform, such as the last hundred year inthe West, itmight seem that such crties would have better directed their shaits to the reformn of the existing law rather than toits total climination, but onthe other hand it mast be borne in mind that in many societies the evils of the legal ségime must have seemed to the religious or philosophically iinded to be inescapable, and that to zeplace one régime bated on legal repression by another could only result a comparable series of alictions and oppressions. ‘The only cours, therelore, was to condemn legal resiraint root and branch. ‘THE LAW AND THE FORGES OF EVIL ‘Two very different starting-points were taken by those who looked upon law as.2 means of attaining social harmony by the curbing of the evil passions of man. On the one hand, some postulated that man’s nature was intrinsically evil and that ‘no social progress could be attained without the restraints of penal laws. On the other hand were thove who held that taan ‘was originally ereated good by nature but that due to sin, corruption, or seme other internal weakness, such as avarice, man’s original and true nature had become distorted and ‘hus required for its control the rigours of a punitive system of law. Those who favoured this more optimistic assessment of human failings tended to lock backwards to an earlier Golden Age of primeval innocence when men lived sinple, ‘nappy, and well-ordered lives without the need for any ex- ‘ternal system of legal rules or coercion to restrain their ime pues, which were wholly unselfish and directed to the ‘common good of mankind. Such was the idyllic primitive some as depicted by many writers from Seneca to Rousseau and even in our-own day, and this roseate view of man's emote past has often served as a pattern for a movement sowards a return to nature, in the senss of man’s primitive, ‘unspoiled nature, and therefore opened up a future prospect ‘ofta happier society in which uncorrupted natural impulse will replace a coercive régime of law. Is Law Necessary? 15 Examples of both these ideological views of man’s nature and destiny can be drawn from very widely scattered sources, ‘Only a few nced be mentioned here. In ancient Ghina of the third century 2.6. we find, for instance, the important schoo! ‘of so-called *Legists’, who argued that man's nature was initially evil and that the good waysin which men often acted ‘were duc to the infuence ofthe social environment, particu lacly the teaching of rituals and the restraints of penal laws. ‘Asingle law, enforced by severe penalties, is worth more for ‘the maintenance of order than all the words of all the sages, ‘was one of their governing raxims.* About the same period the shasta waiters in India were asserting that men are by nature passionate and covetous and that if left to themselves the world would resemble a ‘devil's workshop", where the “Iogie ofthe fish? would reign, that i, the big ones would eat ‘up all the litte ones.* Comparable views are not difficult to lecate among some of the seminal writers of modera Western Europe. Thus for Bodin the original state of man was one of disorder, foree, and violence, and Hobbes's description ofthe life of primitive man as a state of perpetual warfare, where individual existence was ‘brutish, nasty, and short” has become classical. For Hume, 100, without law, government, and coercion, huntan society could not exist and so in this sense law was a natural necessity for man. Machiavelli based Ihis celebrated advice to princes to disregard their pledges ‘when these confficted with their own interests on the argue ‘nent that men ‘are naturally bad and will not observe their faith towards you, so you must, in the same way, not obsexve yours to them’.t ‘The hypothesis ofa primitive Golden Age has in ome form, ‘or another also played an important role in the history of ‘Wester idcology. ‘Two of the best-known statements of this hypothesis in classical antiquity are to be found in the pages ‘of Ovid atid of Sencea. Ovid, in the frst book of his Mete- morplass refers to it im these terms: “The Golden Age wat fat; when Maa yet new, No rule but uneoctupted reason knew; ‘And with a native bent, did Good purtue,16 The Idea of Lave ‘Unfore'd by punishment, unawd by fan, His words Were simple, and lis tout sincere: Needles was wetten Lave, where none oppeet; “The Law of Man was writen in his breast No suppliant crowds Before the Judge appeared: ‘No Court erected yet, nor case was heats But all as safes far Conscience was their guard? Seneca’s celebrated account, as befited a philosopher, was roore circumstantial: To thnprmitivestate men ved together pence and hapninet, having all thing i coenman; there was no pvate property. We soy infer tbat there could have beem no slavery, ad there seas fo coercive government. Order there was of the best kind fr en followed uatare without fail and te bet and wisest men were their ruler They guided ancl dizected men for thei good, sad were play obeyed ae they eommaailed wisely and justly AS me pas, the primitive ianoceace disappeared; me became avaricious and disatsted with the common enjoyment of the food thing of tho worl and dested to hold cher in hele pivuse posesion. Avarice reat the fit happy sociery asunder .» + and ‘he kingship ofthe wie gave place to tyranny, 20 that men bad to create laws which should eaoerol thelr ruler Alshough Seneca asters that this primitive innocence was rather the result ofignorance than of virtue, he attributes the Jater social evils and the necessity for the fatrodaction of a régime of law to the corruption of humaa asture fiom its initial state of imocence, and this corruption he explains as due specifcally to the development of the vice of avarice, ‘This idea of vice and corruption 2s the reason forthe estab lishment of coercive institutions became a key feature of Wester thoughfor many centuries, adapted asitwas by the early Church Fathers to the Judaco-Churistian version of the Fall of Man, The Biblical account of paradise was equated ‘with Senece’s primitive state of moccnen, and the nevesity for muman law and all its familiar institutions, such as the coercive state, private property, and slavery, was derived ‘orn man’s sinful nature, which resulted fora the Fall. Lave ‘was a natural necessity after the Fall to mitigate the evil effects of sin Even the family was treated as a consequence Is Law Necessary? 17 of the Fal, for it represented the coercive domination ofthe male as against the freedom and equality of the primitive Paradiso, Slavery, too, was regarded as one of the inevitable consequences of the Fall, for man, though in his uncorrept sate free and equal, asa result of sin was made a ft sibject for enslavement, and thus in a corrupt age slavery was a legitimate instivution, “This theory of law and government attained its dasic restatement in the writings of Augustine. Statelaw and ocrcion were not in themselves sinful but were part of the divine order as a means of restraining, hurman vices due to sin, Hence all the established legal institutions and the state powers were legitimate and enercion could properly be used foenforer thei. Augustine saw the future hope for mankind, not in the sphere of social reform by promoting a juste social régime on earth, but rather by the attainment of a commonwealth of God's elect, a mystical society, which ‘would ultimately, in God’s good time, replace the existing régime dorninated by raan’s sinfil nazire. ‘Augustinc’s asscrtion that law was a natural necessity to ‘curly man's sinful nature held the field for many centuries, Augustine wote at a time when the great aystem of the ‘Roman Empire was on the point of disintegration and there seemed but little prospect ofa rise of an orderly, let alone 2 Just, society by mere human dispensation. But gradually life became more settled and provided scope for social and ‘economic advancement. Moreover, by the thirteenth cen ‘tury, some of the more scientific and philosophic reflections of classical antiquity upon man's social onion, expecially those of Aristotle, had filtered thromgh fo Western Burope. ‘The time was ripe for a change of emphasis. Man’s nature night be corrupt and sinful but he sill posessed a natural virae which was capable of development. Leaning heavily ‘upon Aristotle's conception of the natural development of the state from man’s social impulses, Aquinas held that the state was not a necessary evil but war a natural foundation in the development of human welfare. Aquinas, as pillar of orthodoxy of the medieval Catholic Church, strove to18 The Idsa of Law econcile this poriion with the established theology of his day. Nevertheless, he also provided an importent bass for thelatersecular view oflaw asat least potentially a bencficent ores, not merely for resteaining the evil impulses of man but alo for sexting him upon the path of social harmony and ‘welfaze. Tn this way law eame to be envisaged notasa purely negative foree, for the restraint of evil, but as a positive inatrument for realizing those goals towards which man’s good or social impulses tend to direct him. 1 MAN NATURALLY GOOD? THE ANARCHIST’s VIEWPOINT, “We have sten how the attempt to regard law as a natural necessity divected to seatraining, in the only way possible, the evil instincts of man gave way to a new view of law as 8 ncaa of rationalizing snd dizeeting the social side of man’s nature. Yet in all agts there have been thinkers who have ltterly rejected this approach to the coercive forces of law and order. For such thinkers man’s nature is and remains basically good, but it is the social environment which is responsible for the evils of man’s condition,” and above all the existence ofa régime of law imposed by force from above. ‘A mood of wistial primitiviem, a nostalgia for a primeval Golden Age, las coloured a good deal of what may be termed anarchist thought from anciemt to modem times, Plato, for instance, showed strong leanings towards primitive jam ain illustrated by his assertion that ‘the men of early times were bettzr than we are and nearer to the Gods’. Yet this approach tends to be an altogether more sophisticated cone, concentrating far les on a my tical past than on man’s potentiality in the future for an ideally just society. More~ ‘over, such a society $s not to be one with am ideally cone ceived legal régime but, on the contrary, one free from all Jegal rules in which rariénal harmony will pfevail asa result, cf the good sense ard social impulses ofits members. ‘An idealist picture of a state without law, whose fer harmony derives from human reason earried to its highest Is Law Necessary? 19 ‘potential of development by a succession of philosopher kings chosen for their wisdom and knowledge, ispresented by Plato in his Republic Plato pins his faith upon a system of cclucation which will not only produce adequate rulers but ‘ill also serve to condition the rest of the population to the appropriate state of obedience, Modern experience certainly supports Plato in his belie that edueation or‘ brain-washing? ‘may condition people to subservience but remains divided ‘on the notion that any system of education can provide a royal road to wisclom, or that there is any foolproof manner of sclecting or training persons who are naturally pre- ‘ordained for rulers! Tt may be said that Plato's leanings were not so rauch towards anarchism as towards what we should today term ‘totalitarianism’, as his proposals for an inflexible and rigorously enforced legal system in his late dialogue, The Las, sufficiently demonstrate. Again, though there was stionably an anarchic flavour about certain aspects of primitive Christianity this was manifested in a contempt for, rather than a rejection of, human Jaw, and indeed the injune- tion to render unto Caesar what was Cacsar’s became ac- cepted as conferring a divine legitimacy on the established powers. At the same time the cult of non-violence appeared to many opponents ofthe early Christians asa threat tostate anthority and has afforded abbas for the anarchistie doctrines of some influential later writers, such as Godwin and Tolstoy. ‘The modern period ftom the seventeenth century has been ‘marked by the rse of selence and technology and with this has developed the idealogy ofhuman progress, a world-view which rejects the belief in a primitive paradise and looks forward to an ever brighter future for mankind, For long this doctrine was wedded to the notion that the social evolution ‘of man could be left to the free play of economic forces which, Ff not interfered with, could he assumed to work towards ultimate social harmony. This was the theory of lisse faire, whieh, though applied hy Adam Smith especially to econo. nic affairs, carried with it the broader doctrine that all20. The Idea of Law government and Iaw were in principle evil in so far as they constricted or distorted the natural development of the ‘economy and of society. Far from being anarchist, however, this theory strongly favoured the use of coercive law for the protection of private property, which it regarded as an indispensable feature ofa free market. ‘The nineteenth century represented perhaps the heyday ‘ofthe more sophisticated anarchist writers, though Godvin’s celebrated contribution, Political Juste, frst appeared in 1793, Godwin argued that the evils of society arose not from man's corrupt or sinful’ nature but froin the detrimental ‘effects of oppressive human institutions. Man is inherently ‘capable of unlimited progress and only coercive institutions ‘and ignorance stand in the way. With touching faith in ‘human reason and perfectiility Godwin held thatvolmtary ‘cooperation and education would enable all Iw to be abolished, Such moral and socal norms as were required for maintaining social order and progress would be made effective in that their violation would ineur the moral censure ‘of the fee individuals of which society would consist, This ‘ype of philosophic anarchiom was further expounded by the leaders of the Russian school of anarchists, Bakunin and ‘Rropotkin, for whom the state, law, coercion, and private ‘property were the enemies of human happiness and welfare. "These writers stresed the beneficent role of cooperation in human history and believed that in the inevitable course of evolution the principle of mutual aid would replace the iseries of the coercive community. Tolstoy, on the othiex hand, propounded a form of anarchy based on his conception of the simple Christian God-inspired life led by the early ‘Christian commumitics, Many of his enthusfastic supporters attempted to set up* Tolstoy colonics’ on these lines in various parts of the world, but the results were hardly inspiving. In ‘his very sympathetic Life of Tolsoy, Aylmer Maude relates, some of the strange and comic ways in which these societies ‘speedily collapsed. In one such colony, for instance, a boy stole a waistcoat from a fellow-colonist. This youth had previously been indoctrinated by his companions in the view Is Lane Necessary? av that private property is wrongful, and that the police and the Jnvi-courts are part of an immoral régime of coercion. When ‘the return of the waistcoat was demanded, the youth proved tohave learned his lessons only toowell. Ifproperty is wrong, Ihe inquired, why was it more wrong for a boy to have it than aman? He wanted the waistcoat as sauch as the man did. ‘Fre was quite willing to discus the subject but he would not ‘leer his opinion that he was going to keep the waistcoat and ‘hat it would be very wrong to take it from his. Another such cofony eame to a rather drastic end, The Property ofthe colony was bonght in the name of « meruber ‘who held it for the use of his fellow-members. One day an ceceatric individual appeared on the scene and after some Aiseussion with the colonists suddenly rose and made the following announcement. ‘Gentlemen! I have tofoform you ‘that from today your colony will have neither house nor land, ‘You are astonished? Then T will speak snore plainly. Your farmhouse, with its outbuildings, gardens, and fields, now Ibclongs to me, Lallow you three days to go!” The coloaists were thunderstruck but none of them resisted and they all cleared out af the place. Two days later the legal owner presented the property to the local Commune." A cynic might well chuckle at this vindication of his disbelief in the natural goodness of man, but the outcome of these nalve anarchist exercises undoubtedly points to the fondamental dilemma which must face those who believe that human society can function without the external cement of coercive Jaw. As Maude remarks: ‘Remove the fav, and induce men to believe that no fixed code or seat ofjudginent should exist, and the only people who will be able to get on at all decently will be those who, like the Russian pre- revolutionary peasantry, follow a traditional way of fife... ‘The root evil of Tolstoyism is that it disdains and condesnns the result of the experience gained by our forefathers, who devised a system which, in spite of the many defects that still hamper it, made it parsible for men to cooperate practically tnd to carry om this diverse cecupations with aminimum22 The Idea of Law Perhaps the most remarkable of the theses of the modern, anarchists, and certainly the most influential, is that of Karl Mars. Marx envitged, the overthrow of the capitalist society by a violent revolution of the oppressed proletari Law was nothing but a coercive system devised to maintain ‘the privileges of the property-owning class; by the revelation 2 classless society would be brought into being, and law and ‘the state would “wither away’ as being no longer needed to support an opprosive régime. ‘The Marxist looks forward rather than backward toa Golden Age when social harmony will be attuned to the natural goodness of mnan unimpeded bby such environmental snares as the institution of private property. Such a social paradise cannot, however, arise ‘overnight and therefore we have the paradox that during ‘an interim period — likely to be of indefinite duration ~ there in need for a vast increase of state activity supported by all the apparatus of legal coercion so abhorrent to the anarchist, “More will be said of the Marxist theory of lave later om in ‘this work,” but it sorms incontestable that the introduction ‘of Marxist socialism has so far entailed more and more law and legal repression rather than its abolition, INNATE GOODNESS AND THE PRICE OF CIVILIZATION Despite these discouraging experiences there still remain distinguished exponents ofthe view that man at the primitive level is innately good and that itis the social and political ‘organization of civilized life which has introduced the seeds ‘of violence and disorder and which in their tum have led to systems of legal coercion. One of the main theses af Elliot ‘Smith’s"© book on Human History, frst published in. 190, is the innate goodness and mess of mankind. ‘The evidence isso definite and abundant that t becomes a prob Jem of prychological interest to discuss why men persist in denying the fat of Man's innate peacefulness. Hach of us mows from his own experience that his fellows are, on the ‘whole, kindly and well-intentioned. Most of the friction and, Is Lave Necessary? 23 discord of our lives are obviously the result of such exaspera tions and conflicts as civilization itseW'creates. Envy, malice, and all uncharitableness usually have for te object of their ‘expression some artificial aim, from the pursuit of which Primizive Mam is exerapt."#5 eve will deny that merous ills from which we suffer ae the direct result of the stresies, tensions, and conflicts characteristic of a civilized and therefore complex mode of exitence. All the same Biliot Smith’s contrast between natural and civilized man seems one-sided and oversimpli= fied, Readers of Mary Shelley's Frankenstzn will veeall how Frankensicin creates a monster in human form, which, ‘though possessed of human feelings, eventually tutns upon and slays its creator. ‘The romance seems symbolic of the lnality of hurnan mature. Man may well possess imate « tendencies towatds what we call ‘gooduess’, namely, those relationships which arise owt of sympathy and cooperation, for without these all social life ~ the distinctive character of ‘man — would be impossible. But there is also a dynamic side ‘to human nature, which may he directed to either creative ‘or destructive ends. ‘The well-meaning philosophic anarchist, even when be is ‘ost concerned to give secpe to raan’s ercative impultes, is apt to gloss over or ignare the dacker side of the nature of | man, Sir Herbert Read, for instance, argues that human ‘groups have always spontaneously associated themselves into ‘groups for matual aid and to satisfy their needs, and so can be relied upon voluntarily to organize a social economy which will ensure the satisfaction of their needs. The anarchist, he tells us conceives socicty as a balance or ‘hatmony of groups. The only difficulty i their harmonious interrelation. But i not the promotion of such harmony a funetion which must be conferred on some state orgeniza~ tion? Sir Herbert Read's answer is two-fold. In the first place, le believes that this function would largely disappear ‘with the elimination of economic motivation from society. ‘Grime, for example, is largely a reaction to the institution of private property. And seconslly, matters such as infant24 The Idea of Law ‘education and public morality are matters of Gommon sense, to be solved by reference to the innate good will ofthe cox= ‘munity, With the universal decentralization of authority and the simplification of life, including the disappearance of Sjnhuman entities” like the modern city, any disputes can be resolved on a local basis, ‘Local associations may form their courts and these courts are sufficient to administer a coramon law based on common sense.’ It will be noted that [Read differs from some anarchists in recognizing the necd for some kind of general law and insists only on rejecting all the coercive apparatus of centralized control. ‘Anarchism,’ be explains, ‘means literally a society without an arkfios, that 4s to say without a ruler. It does not mean a society without law and therefore it does not mean a society without order. ‘The anarchist accepts the social contract, but he interprets that contract in a particular way, which he helieves to be the ‘way most justified by reason." ‘Tue recognition that even in the simplest form of society some system of rules is necemary seems almost inevitable. Im ‘aay society, whether primitive or coraplex, it will be neces- sary t0 have rules which Iay down the conditions under which men and women may mate and live together; rules governing, family relationships; conditions wader which economic and food-gathering or hunting activities are to be organized; and the exclusion of acts which are regarded as inimuical to the welfare ofthe family, or of larger groups such asthe tribe or the whole community. Moreover, ina complex civilized coumunity, even if simplified to the degree dear ‘to the heart of an anarchist like Read, there will bave still to be a large apparatus of rules governing family, sociel, and cconomic life. The idea that human society, om whatever Tevel, could ever concrivably exist on the basis that each man shonld siaply do whatever he thinks right in the particular circumstances is too fanciful to deserve serious consideration. Such a society would not be merely, as Read pots i, ‘a society without order’, but the very negation of society itself, ‘At this point then, the discussion can move over from the Is Law Necessary? 05, necessity of law in human society to the closely related duesiion: whether the idea of law ean be divorced from a régime of coercion. This isthe issue which will engage our attention in the ensuing chepter.a Law and Force Ia the pantheon of ancient Mesopotamia two deities were singled out for special reverence. These were Anu, the god ‘of the sky, and Enlil, the god of the storm. The universe was regarded as a state in which the gods ruled, but a crucial distinction emerged between the tole of the two principal deities in the hierarchy. On the one hand the sky god issued dectees which commanded obedience by the very fact of having cmanated feem the supreme divinity, Obedience was thus an ineluctable necessity, a categorical imperative which admitted of no questioning, Anu was the very eymbol of authority in the cosmic order. Vet even s0 these ancient worshippers of divine authority, absolute and unqualified as it might be, recognized that there was no guarantee of automatic compliance with the orders ffom on high. Thus provision mut be made for chastening the recalciteant, whether gods or mortals. Hence the pawer of the storm was invoked, the power of compulsion, the god of coercion, who ‘exceutes the sentences of the gods and leads them in war. Tfwe penetrate below the surface we may fad in mytho- Jogy much that is fundamental in human attitudes and ‘purposes. The myths of Anu and Enlil reveal the deeply felt byman need for order and the concomitant belief that such order, whether ona cosmic or a tervestriallevel,dcmands the combination of two essential elements, authority and coercion. Without the recognition af some authority whose dectees and senteners determine the structure of order in the world there ean be no organized society and therefore the authority of divine rule anakes possible the fimctioning of the universe as a social whole. But without the element of force to ensure obedience to the divine decree the mmiverse could never attain the role of statehood, So on the broad Law and Force 27 ‘canvas of the whole universe the ancient Mesopotamian saw refleeted the essential preconditions of heir own man society and sought. io provide a cosmological foundation for the linking of legitimate authority with farce here om earth, ‘The idea that even the gods themselves need to invoke force to impose their authority isa familiar enough pheno- ‘menon in the earlier and less sophisticated stages of religion. Zeus, a8 readers of Homer will recollect, is not sparing of his thunderbolts against either his fellow Olympians or lowly mortals who dixegard bis injunetions or otherwise incur his displeasure, Buc we have chosen here to emphasize this feature of human thought in the less familiar guise of casly Mesopotamian mythology because it seems to bring bout, with exceptional clarity, the two elements of authority and foree without which no order, divine or human, can survive. It is now necessary to say something more of each of these conceptions in the context of legal theory. AUTHORITY ‘There is much more involved in the idea of law ean simple obedience, but the factor of obedience is nevertheless a crucial one. We must, however, distinguish the Kind of ‘obedience whieh is characteristic of legal relationsbips. The victims ofa bank robbery may respond speedily enough tothe ‘commands of gangsters armed with revolvers but such cont ‘pliaice has litle connexion with the obedicace of a vassal ‘tohis feudal overiord, ofa citizen to the directions ofa police ‘offices, or of an unsuccessful litigant to the order ofthe court ‘which tried his case. This contrast is not just between willing and unwilling compliance, forthe vassal, the tizen, and the defeated litigant. may all be as reluctant to yield to the superior authority, either in the particular fnstance or even ‘more generally, as are the bank offcials to hand over the valuables to their assailants. The distinction rust therefore ‘be looked for n some deeper kind of motivation. ‘What is entailed in the notion of authority is that some person is enied to require the obedience of thers regardless28 The Idea of Law of whether those other persons are prepared to find the particular onder or rule enjoined upon diem as acceptable ‘or desirable or not. Of cowrse the person s0 entitled to obedience need not bea simple individual human being, as in the case of'an absolute monarch, but may in some orders of society be conceived as 2 supernatural entity or as some collective fmuman organization, such as the Queen in Parliament in Englond, or Congress in the United States. However, for the cotwenience of the present discusion we vill confixe ourselves to the case of the single individual vebo Ss entitled to obedience.” tis obvious when we consider the instances given above ‘that the vassal regards his overlord as entitled to his obedi- ‘ence, and the same assumption can also be made regarding the citizen and the police officer, and the litigant and the Judge. In other words there is something which we may call ‘peculiar aura ormystique investing the lord, the policeman, (or the judge which arouses 2 certain response on the part of the other party, namely that he {eels that superior party (for so we may call him for this purpose) can legitimately agive orders which he, the inferior party, feels in some sense obliged, willingly or unwillingly, to obey. This feeling of legitimate subordination is clearly one of great significance in law and cails for further explanation, ‘Why should one person in some cusious way fee! hinsel? bound to acknowledge the authority of another person and. 0 constrained to obcy the orders of that person? Or, to putt it another way, what is the source of the obligation which is apparently imposed or assured to be imposed on the subject party (the obtigee) ? One pteliminary answer which may be suggested is that fundamentally the obligation is a moral one, in the sense that what the obliges really eels is that he is under a moral duty to obey the behests of the lord, the policeman, of the Judge as the case may be, The concept of morality and its relation to law involve many difficulties which will call for consideration at a later stage. What needs to be pointed out heres that clearly there isa very definite connexion between Law end Force 29 the idea of legitimate authority, which has to be obeyed because of it very legitimacy, and moral obligation, which Jinposes a rule which calls for voluntary adherence by virtue ‘of ts intrinsic rightness. Both are trented as binding because ‘of something in them which without any force or physical necessity seems to require obedience. Hence the feeling that there is a moral duty to obey the law because the law represents legitimate authority, ‘Thereare however considerable dangers in seeking to carry this argument too far, as it may lead to the erroneous belief that legitimacy and morality ean in some way be equated. Insome societies indeed this conclusion has been fully drawn, and the divine right of kings has been held co entail the anccessary corollary that the king can do no wrong. When we ‘come 1 examine Jates, and in detail, the relation of law to ‘morality we shall see that there are compelling reasons for rejecting this monolithic view and for acknowledging that ‘the (wo spheres of lawful authority and morality, while closely interconnected, are none the Tess separable and distinguishable, All we are emphasizing here, therefore, is that the notion of authority which is acknowledged as legitimate derives much of its sirength from its link with ‘moral obligation. So muuch is this so that’ rebellions against established authority the rebels have usually sought to reinforce theft case by proving that the authority is mn fact illegitimate for some reason, so divesting the rulers of either legal or moral claim to obedience. Such arguments were _ particularly common and effective in the sixteenth and seventeenth centuries, when goverament was regarded as ‘established by a social contract and where a Amdamental breach of that contract by the ruler, at in the case of James the Socond, could be represented as releasing his sub- Jects from thefr obligations to yield to his authority. Charisma ‘The most ithuminating analysis into the ways in which authority establishes itself human society has come fiom30 The Idea of Low ‘he leading German sociologist, Max Weber, who died in 2920. Authori’y, or legitimate domination, as Weber Aescribes it, may take one of three forms, namely, chasis ‘matic, traditional, or legal! The word ‘charismatic’ is formed from the Greek word clarisma, meaning ‘grace’, and ‘is wed by Weber to refer to that peculiar form of personal ascendancy which an individual may acquire in a particular society, and which confers an indisputable aura of legitimacy over all his acts. Such a position is frequently asvociated with 2 milltary conqueror, of whom Alexander the Great, Julius Gacsar, and Napoleon may be regarded aa the prototypes. Tn our own day we have seen enough of this form of chatis- matic rulein theshape of dictators such as Hitler, Mussolini, and Stalin to have little doubt both as to its reality and at to the character which itis likely t0 take in the modern technological age. No more striking illustration ean be given ‘of the hypnotic effect that this charismatic feature poseased by certain individuals ean exert, not only on their immediate followers but on whole nations, than the extraordinary tale revealed in Professor Trevor-Roper's account of the last days ‘of Adolf Hiller, virtually impotentin the depths of his bunker and yet still giving insane orders which none dared to question let alone disobey.® Traditional Domination Ina sense the idea of personal charisma is really he key to understanding the conception of legitimacy because it ceraphasizes in an extreme form the peychological forces ‘which underlic this conception. The important paint, how- ‘ever is that while charisma may create authority by the cheer personal ascendancy ofa new leader, and though there may bbe a natural tendency for this to be extinguished on his death, it by no means follows that such charisma will attach io his person alone, 4s Weber points out, authority derived in the first instance from the personality of the leader may ‘pass, iin an attennated form, to his successors. This pheno- ‘enon isto be observed in the case of new monarchies where the descendants of the charismatic founder of the dynasty Law and Force 93x Tegitimate authority from their descent, even though they may lack all or most of the qualities of thefr ancestor. The same situation may be observed inn spheres other than the political. Founders of religions generally possess a charismatic quality which causes their words to ‘be treated as authoritative and on their death their disciples may be able to retain and even enlarge the scope of this authority, though partaking of very lite of the personal charisma which enabled their founder to dominate’ bis followers. If this situation continues for any fength of time ‘the original charisma will become “institutionalized’, that is to say, it will become embodied in certain permanent institutions which will be formed largely by traditional ‘A clear instanceof tht kind of iaitationalicaion isan established monarchy in a feudal order of society. The charisma sill exists but it attaches not so much to the individual king as to the kingship itself, or the ‘Growa', as wwe slill say in English constitutional practice. Rule still remains personal in the sense that the king retains a large field of arbitrary power which he may exercise legitimately, Dutat the same time the institutional character of the king ship has created a mass of traditional customs which are regarded as binding, thus restricting the freedom of action of the actual incumbent of the kingly olfice. This eonception ‘was given its most well-Laown expression by the medicval juris Bracton in his dictum that ‘the king ought to be under - God and the Law’. Legal Domination Such a form of domination, which Weber describes as ‘eraditional’, and which is « complex of personal and institutional clemoats, may gradually merge into the more developed form which Weber calls ‘legal? domination. This terminology is misleading in that it suggests that law in the strict sense only arises inthe latter type of authority. This is zot so, and the implication is not intended by Weber him- self, Bven under a reign of a purely charismatic kind there is‘no reason why there should not be rules which we could reasonably regard as Iegal though they may depend wholly ‘on the will of the charismatic leader. In this connexion it may be recalled that the codification of Roman Law by Justinian, which has been of such vast influence in the ‘development of modern European law, occurred under a régime of which the basic constitutional maxim was that “what the Emperor willed was law’. A traditional system of domination will not lack legal rules either, though those rules may be customary rather than legislative. What Weber desires to emphasize by applying the word “legal” specifically ‘only to the third type of domination is that under thisaystem legitimate dotaination has become impersonal and legalistic, so that th iustitational character of authority has largely if not wholly displaced the personal one. For instance, the smadern democratic stato has largely abandoned chars ‘atic authority in favoue of an institutionalized legislature, bureaucracy, and judiciary which operate impersonally under a legal ordet to which is attacked a monopoly of the legitimate use of foree.* Jn such a state of affairs legal domination can dispense ‘with personal charisma but it still resis on a belief in. its Jegitimacy. For without such a helief, so widely disseminated a5 to be largely unchallenged or unchallengeable, the automatic and impersonal operation of legal authority would cease to function and would be replaced by anarchy and disorder. Tewill be appreciated that this belicfin legitimacy, which is as fundamental to the working of the modern state as it ‘was to the empire of Chaelemagne, isnot realy a logical ome in the sense that it can be justified in logical terms, This may be sufficiently demonstrated by bearing in mind that the Delief in the legitimacy of legal domination involves a circular argument: laws, we are told, are legitimate if they are enacted; and an enactment is legitimate if it conforms 10 those rales which prescribe the procacures to be followed. ‘We need not perhaps go 80 far as Weber when he says that this circularity is intentional in order wo allow for a belief Law and Force 33 in legitimacy divorced ffom any particular ideals or value Jaden “What seems more pertinent is the fact chat human society rests on belicfs which may be rational or irrational but which need to be undersea clos in thelr fimctioning. Much thought has been given by Juris to whether some ultimate formula ean be devised or ‘demonstrated as the Iogical or necessary foundation of legal domination ina given socicty, or indeed on the international, level, and we shall consider this fondamental problem in its_* ‘due place. For the present it is enough to say that authority, ‘both in its broadest and in ts specifically legal eontext, rests ‘ona firm belief in its legitimacy. Lest it be thought that Weber's analysis is 190 neat to be applicable to the historical situation of any actual societies, it should be emphasized that Weber himself was not here engaged in historical evaluation but rather in establishing rin be called ‘ideal types! sepesnting 20 to spel the full development of possibilitics inherent in certain Ki social organizations. Such types are not ‘ideal’ in any moral fo Platonic sense but are simplifications which provide an analytical structure within which sociological research may be conducted, The analyais is therefore typological, not developmental, for, in Weber's view sociology is only com ‘cerned with general tendencies; how, for instance, Western society has developed. historically is a task not for the sociologist but for the historian, Weber fly acknowledges that his ideal types do not occur in history ax wach but always in combinations of varying degrees of complexity. Thus, to take onc instance, the German Nazi state combined to a remarkable degree features of personal charisma with those features of modern bureaucracy which are associated with legal domination. Such an analysis does however eonteibute to an understanding ofthe various strands which go to Form ‘he legal structure of any society and ofthe general nature ‘of that authority which must inevitably form one of its ‘principal pillars.34 The Idea of Law a FORGE We have now discussed in general terms the clement of legitimate authority, which isso esscutial to the functl of law im any community — the role of Anu in the Mesoe Botanian legend. We have wl 9 sty comething of his ‘counterpart, force, symbolized in that legen i storm god. ms nL And fist, we may bring out the relation of force to auth grity by drawing attention to societies where fully effective ‘domination’ oceurs but without any belie, on the part of the subjects a say rate in ts leptimacy/ This doce wot necessarily apply t0 all societies composed to a lange extent ofrubjector lave population a for instance, ancient Sparta and ils helots or the Roman Empire with its enormous slave population. Far even in such a society, despite all the ‘iscries that it entailed, the legitimacy of the authority wielded by the state may stil have been widely believed in by the popalace as « whole. Societies may, however, exist which, without being in a state of anarchic disruption, still lack, so far as the bulk of their population is concerned, a belie? in the legitimacy of the authority that controls then. For instance, during the ‘eceupation by Nazi forces of many European countries during the Second World War, it is clear that the Nazis Posesed the power to enforce their will on the population ‘even when the oceupied peoples entirely rejected the legitie macy of the domination of their Nazi oppressors It is true that this was a temporary situation and that given victory the Nazis might eventually have induced a belief in the legitimacy of theit rule as did the Notinan conquerors of Anglo-Saxon England, Tt is indeed questionable hovw far domination may be maintained by sheer brute force and fear alone without the clement of legitimacy; that, in certain circumstances and for limited periods, it may be acti os periods, it anay be achieved is Does this therefore imnply that in the last resort law can be Law and Force 35 explained in terms of force alone and thet, as Thrasymachus argued in Plato's Republic concerning justice, it is simply ‘the rule of the stronger’? Isit true that law isnothing more than ‘those rules which coercion ean impose? ‘There are many objections to such a view but perhaps the ‘most cogent is that to rest such a view upon the case of the ‘Nazi occupation forces sto try and force law into the pattern of a marginal and altogether exceptional situation rather ‘than comprehend it in its typical and characteristic pattern, Indeed some have argued that rules enforced under the conditions of the Nazi occupation, lacking as they did any foundation of morality or legitimacy, were not entitled to ranks lawsatall, but were more equivalent torules imposed bby gangsters or terrorist organizations such as the Mafia in Sicily. But be this as it may —and we shall return later to this form of argument ~it is enough at this stage to point out that, the fact that, in exceptional petiods of war or revolution, a society can temporarily be dominated by sheer force oF ‘terror is not a reason, certainly not a compelling reason, for treating law asin the last analysis nothing but force incarnate. ‘Yet, on the other hand, is law really conceivable, or at least possible in any practical sense, when itis not ultimately ‘backed by effective force? Certainly the force of aw is and. seems always to have deen linked with rules which are capable of being enforced by coercion; the hangman, the gnoler, the bailif, and the policeman are all part of the seemingly familiar apparatus ofa legal system. This popular view is well embodied inthe dictum of an Bnglish judge that ‘the best test of whether a person alleged to be insane was legally responsiblefor hisact was whether he would havedone what he did ifa policeman had been standing at his elbow. One argument against the essentially coercive character of law deserves consideration heres it is affirmed by people of undoubted sincerity that any foree ot violence is wrong in itvelf and that law which rests ultimately on violence must therefore offend the principles of true morality. Such people are apt to aaert that force is the very negation or breakdown ‘flaw and that secourse to violence therefore Hes outside the36 The Idea of Law Jaw itself a5 an extrancous element which is invoked when she rule of law has broken down. It is evident, however, that this sort of approach, however well-meaning, involves cone fisions which, far tora contributing to our understanding oF ‘the functioning of law, merely serve to blur important dis ‘tinctions without which the operation of aw in human society ‘ean hardly be grasped. {Tn the first place what some of the proponents of this view- ‘point may be urging is that the only law which they recog nize as being relly law at allis the moral lave, and that for ‘hem such moral law is one which eschews all coercion. and appeals-only to the conscience of humanity. Such an ape proach may be merely a semantic one in the seuse that all this may come down to a refusal tp accept any definition of law other than one which extends only to the moral law, understood asa rule based not on force but on canacience, ot whatever clic is appealed to as the mainspring of morality. ‘More fiandamental is the view that no system of rules is en- {ded to qualify aslaw unless it cofnciles with, or can atleast ‘be subsumed under, the rule of morality. Those who wish to argue that force is the antithesis of law still need to go a step farther than this and establish that the rule of morality ‘excludes coercion. ‘The fact remains that this type of argue ‘ment is clearly directed to establishing 2 particular kind of relationship between law and morality; and the question of the role of force in a legal system thus becomes a subsidiary isnue in that main question, Subsidiary, chat is, not in the sense of being relatively unimportant, but technically sub sidiaty, For what has frst to be shown is that law necessarily entails a certain relation to morality, and only if this hurdle can be overcome will che further question ace as to what is the content of morality as affecting law, and whether that ‘content extends to the use or non-use of violence. This aspect can thus be reserved until the later discussion of the relatfon ‘of law to morals, when it will be seen that very gceat diffe celtics lie fn the path of those who seek to establish a nooessary link between these two and that even ifit can be established, pethaps even greater difficulties confront any attempt to Law and Fore 37 Gstablish a necenary content of morality, whether as to a rule of non-violence or anything else. ‘Not all the opposition to the coereive approach to law comes from the moralist, Another relevant attitude is to assert that any emphasis on coercion in the operation of law is entirely to misonderstand its functioning. For, itisargued, people obey the law not because they are constrained to do 40 by force but because they consent or at least acquiesce in its operation and itis this consent rather than any threat of force which causes the legal system to work. Such a view was in the past particularly associated with theidea of tociety and its law being based on a social eonteact underlying the con- sent of free men in a state of nature who thereby agreed to submit to law and government. In this form the ‘consent? ‘was very largely, if not entirely, a legal fiction and at the present day, since the fiction of a social contract has been ‘abandoned, # it has heen replaced in democratic societies by the idea that universal suffrage and majority rule i the means by which the individual can, from time to time, manifest his adhesion to the operative system of it Leaving aside the question whether this latter position in its ‘way does not involve as much fiction as the older social con- tract theory, it will be con thet what this mode of thought is seaking to achieve is not to eliminate force in the legal process, but rather to move the emphasis from coercive sub= ordination to voluntary consent or acquiescence. More par ticularly, what is aimed at isa demonstration that law, far from depending upon the suecessful and regular applications of force to subjects who defy or disregard its dictates, in the Jas analysis exists in its own right regardless of whether foree can or cannot be brought fo bear upon offenders against its rules, Thus the existence of legal cocrcion is relegated to a mere matter ofineidental procedure, not in any way essential to its existence, Force in International Law In the modern world this viewpoint is regarded as of par- ticular significance in the international rather than in the98 The Idea of Law purely national sphere, In the latter sphere few would ENC actual lof orion nthe gl proces: hough eed ‘here (as we shall see later) it s said that undue emphasis on. force involves imposing the pattern of eriminal law on the whole of national law and thus distorts its true navure. Tn the realm of international relations, however, there ‘has developed in modern times a system of rules, admictedly not always clearly ascertained, which all civilized countries acknowledge to be binding upon them, and which are not ‘enforceable by coercion since there are no regular inter- _national forces cmpowered to perform the role of the police- ‘man and bailiff in a system of national iaw. ‘Fhese rules are nevertheless treated as a system of international lam and uch of the foregoing argument is directed towards justi fing this treatment notwithstanding the absence of any regular system of international coercion. It is indeed some ‘what iconic that the occasional and very tentative eilorts at international coercive enforcement, which represent the fist groping: towards making international law truly effective, Ihave been greeted in some quarters as a repudiation of law ia favour of fore by the United Nations. This criticism has, ‘for instance, heen made of the employment of international the United Nations to deal with the crises of Suez and of the Belgian Congo. ‘Ae will be seen that the anti-ooereionists are really seeking. ‘to describe the legal process excleively in terms of authority to the neglect, ifnot the rejection, of the element of foree, “while the coercive view of law aims at putting force in the forefront to the neglect of authority. In fact both these ele- ments need to be taken into account if we are to obtain a comprehensive conception of law, though this does not imply that we must tie ourselves to 2 seorantic postion where nothing can be treated as law which does not possess these ‘wo elements to the fallest degree. Law, ike morality, is a highly flexible conception and there ate, as we shall see, ‘matiy marginal situations where it may be fally justifiable and desirable to employ the conceptual apparatus of law even though some features of law viewed, in Weber's termi Law and Force 39 nology, as an ‘ideal type’, are absent, or at least present in nly an attenuated form. Thos for fastance we tay have reason 10 coercion as a feature of law ax an ideal type? while still recognizing, for other reasons, that international law is properly so-called despite the small ‘measure of organized coercion which that system has so far attained. Again, we shall see that in less developed societies ‘coercion tends to take the form not of the centralized forces ofthe state but rather ofeach man helping himself with the aid ofhis kinsfolk to enforce his rights. From the point of view of the moralist the blood-feud may well seem the antithesis of law, while to the jurist there may yet be decisive reasons for classifying this seemingly anarchic proces within the terminology of law, however remote it may appear from the ideal type” of law which is the theoretical subject-matter of legal science.” ‘The legal theorist, Uke thore engaged in other socal studies, is concerned to expound the general structure of his field of inquiry; for this purpose he necds a conceptual ‘apparatus which will provide him with a limiting scheme within which he can expound and correlate the various phenomena which he encounters in human societies. Tt is ‘this sort of categorization which Weber described as an. ‘ideal type’. This is no more than ‘a unified analyical con- struct. In its conceptual purity, this mental construct cannot be found empirically anywhere in reality. It is a Uipia Ithas the significance of « purely fimiting concept with which the real situation or action is compare ‘That legal science needs to be viewed as a continuing proces is sufficiently illustrated by considering the place of coercion in international law. For just as there are infrnite gradations of force, from the blood-feud to proceedings for contempt for failing to comply with a injunction issued by ‘a modlern court, som the intemational system there is Hkely to develop a wide range of differing processes in which some form of coercion may be operated. Yer coereion between nations can never be identical with the pattern which emer= ges in state law where cocreion is applied to individuals. The40. The Idea of Low Law and Force 41 ‘very nature ofthe problem is different where whole nations Ihave to be cocroed into conformity, for the ultimate we of force could here entail destruction of lift and property on vvastscale. Itis true that even on the level of national law, the law is obliged in modern conditions to apply legal coorcion, to whole groups as well as toindividuals where, far example, criminal proceedings are taken against huge corporations owning property af great as that of some independent countries. The fact remains that national law can always in the last resort enforce its decrees against individuals = for instance, the directors or officers of the corporation ~ and can soquestrate the corporate property in much the same way at that of individuals That comparable processes, though differing in character and extent, may gradually be evolved. {n international spheres seems reasonably probable, though, ‘thc evolution may be long and difficult and not alwaysin one direction’ It will be the task of legal science to accommodate these re-formulations, and it can better achieve this not by insisting on a definition of law, which does or does not stipu- late the need for coercion, but rather by continually re- asvessing the forms of coercion and the role that coercive processes play in legal relations. Such astudy, taking account of evolving human relationships, may call for continual ro- assessment of the models or concepts in the light of which Juman law is analysed and classified. In other words modern legal theory calls for a dynamic rather than a staticapproach, Gan We Dispense with Force? ‘The question remains as to what justification there may be at the present day for insisting on the inclusion of the clement of coercion in our model of the law. In the inter- national sphere coercion, as we have seen, plays a small part, and even in national law it i generally recognized that people usually obey the law because it is the lew, and not Just because they ae afraid of being punished ifthey disobey. ‘Why then all thisemphesis on force, which seems to many to, ‘be a feature of tyranny rather than law, and which may be regarded as liable to undermine the moral authority of the law self? Here its important to bear in mind that while our ‘model, o “ideal” pattern of law, may not exactly correspond to the law actually found in any given society, it must never- theless be constricted out of clements which do correspond ‘to human experience, for otherwise the model would be as ‘weles as it would be irrelevant. Whén then does expericace show? Surely that at all levels of society human lave has depended for its ultimate efficacy on the degree to which itis backed by organized coercion. Primitive society may seem 10 repudiate this, but this belief, once firsaly held, is now, as we shall sce later in our study of customary law, generally rejected by modem anthropology, which has carefully exe plained and elucidated the role of sanctions in many print ‘tive communities of the past and the present. © Agein, when ‘we compare the relative anarchy of a feudal society, depen- dent for its law enforcement largely ox Kinship groups supplcmented by the strong arm of fendal barons, with the centralized machinery of a modern staic, we can sec how such the authority of the lav gains by the availability of machinery of regular enforcement. ut the explanation of the role of coercion in human Taw lies perhaps at a deeper level. Psycho-analysis has taught us) ‘of the unconscious factors in mans peychological make-up, ‘Among these unconscious factors are to be reckoned, not ‘only forces which make for social cooperation and which ‘exemplify Aristotle's famous dictum that man is a political animal, but also powerfill aggressive drives whieh require to be effectively repressed in order to subject man to the needs of social discipline. Hence the need, as Frend himself fully recognized, for coercion, Freud believed that these aggres- sive urges could be represied and sublimated but not elimi- nated, 20 that civilization would always involve a struggle bberween the socfal impulses and the basic drives towards aggresion, Referring to the postbility of eliminating the Jatter altogether, Freud wrote: “That would be the Golden ‘Age, butt i questionable ifsuch a state ofaMfairscan ever be realized, It seems more probable that every culture mmust be Duilt up on coercion and instinctual renunciation.” And| 42 The Tiea of Law iater he writes as follows: ‘Men ae not gentle, friendly creatures «.. who simply defend themselves if” they are attacked... 5 a powerful measure of desire for aggression hhas to be veckoned with as part of their instinctual endow~ ment.” Moreover the very process of represiing the anti= social urges itselfscts up frustrations which are an important ‘causal factor in many of the familiar malaises of a developed Civilization. A recent commentator referring to the role of ethical rules in human society summarizes Freud's atsiade in these words: ‘here ethical precepts had been indispen- sable ~ without them civilization could never have Been ‘built ~ but at the same time they bad grievously thwarted ‘man’s deepest urges. It was for this reason that Freud insisted s0 strongly on the necessary comexion between. civilized society and coercive social order.”? Tt may be added that recent history has so emphasized the existence and the power of those aggresive urges as well as the fundamental frus- ‘ations which heset our civilization that Freud's diagnosis, gloomy though it may be, earnot be brushed aside, though it cannot be said to be established ina fully scieniicsense.!* Teis true that its always open to us to hope that human nature may change and that a new and more harmonious social order raay eventually prove practicable. ‘Even if de ‘Maistre were right and the structure of civil society had always been founded on the hangrnan, itwas alway possible ‘toreply thatit need not beso, that it woulduot alwaysbe so." ‘Things being as they are, and from what we imow of human, history, a model of aw as an operative factor ofsocial control which ignored or discounted the element af coerelon would have butlittlerelevance to present-day society. Of couse if wwe believe that a new order of society will ultimately dawn ‘which will banish the need for repression then our model ‘aay call for radical revision. For the present, however, a strong measure of scepticism scems justified. RULES ABOUT FORCE ‘An important section of our ‘model! legal system will thus Law and Force 43 ‘comprise rules governing the use of violence as a mode of enforcing other sections ofthe system, in which are laid down rules governing the conduct of those subject to that syateza, ‘This section may be said to contain the rules about force and ‘may vary from a primitive order, where they may contain Tittle more than rules for regulating a blood-feud; an inter« ‘national order, where they may contain no more than rather rudimentary provisions empowering some body such as the United Nations to raise an international force ad for to try and controt a situation which involves a threat to peace, as for instance the disonters ip Beirut and the Middle East; 0 ‘a highly developed state system with all its regulated appara- ‘tus of courts, officials, policemen, bailiffs, and s0 on. Tthas beca a characteristic of developed state Iave that a8 the use of fore has become more closely regulated and more ‘flicicntly brought to bear upon the recalcitrant it bas boom ‘pushed farther and farther into the background. And so the Dureaucratized state tends to resemble, in this respect, the ‘onder from which it theoretically differs most, namely the charismatic personal rule, where the element of authority ‘overshadows the need for force. This in time leads to the view, which we have already discussed, that force never was cor at Least has ceased to be an estential featuce of law. This hhas been described, by a modem jurist, as ‘a fatal illusion’, in a passage which deserves citation here: ‘Actual vilence is, however, kept very much in the background. ‘The more this is done, the smoother and more undisturbed is the ‘working of the legal machinery. Tn this reapeet many modera staics have been aucacmfl to an extent which in something of ‘miracle, considering the nature of man. Unsier matable conditions ‘the we of vielence inthe proper sens is 30 muck reduced that it ‘passes almost unnoticed. Such a state of things is apt to create the belie that vielence it alien to the law or of secondary importance. This is, however, a fatal illusion, One eental condition for reducing the application of violence to this extent is that there is to hand an organized free ‘of overwhelming strength in comparison to that of any posible ‘opponents. This i generally the aim in every state organized on ‘modern lines. Resistance is therefore known to be useless. Those44 The Hea of Law ‘who are engaged in applying force in criminal and evil mavers Shroghy nfand and Uy aren ac tu Sons nized and they are in each eave con i anya sng individual, ora ow individual? ‘Two final points need to be made hefore leaving the sub= Jectof this chapter. The first i tht, in the case ofa de legal system, what we have designated rules about the use of force may be properly broadened to caver all the procedural pparatus ofthe law, For the rules whieh govern the wltimate use of violence in the state, sueh as imprisonment or the inflietion of the death penalty, represent purely the final stage —and one which in many cases, and in civil matters in practically all cases, is hardly ever reached ~ of a lang pro- ‘cedural process whereby proceedings are instituted, regu- Jated, and adjuclicated upon, and orders are made in respect ‘of which the forces ofthe state may he brought to beat upon designated individuals.4¥ Such procedures are not seces- surly judicial or purely judicial, for under state law coercion say resule from the executive or ashministrative process, for instance, in England when the Home Secretary orders an sllegal immigrant to be detained and deported." The rules ‘about force may thus be regarded as forming merely a chap- ter, though a very vital chapter, in the laxger book of rules setting out the procedural apparatus through which primary rights and duties are translated into effective action. This is ‘not to say that legal system in fact are to be found with their rules neatly categorized in this way, but such distinctions are of value for the purpose of forming an effective view of that “ideal type’ of law to which actual systems correspond, (0 a greater or less degree. ‘The second point is that the importance of the element of coercion in law has sometimes been misunderstood or stretched so as to imply that no cule whose breach cannot entail the application of state force (or a ‘sanction’, to use {the word generally employed by lawyers) ean be regarded as a rule oflaw. This is a view particularly associated with the so-called “command theory of law’, expounded by the jurist John Austin, which has tad much influence in common-law Law and Force 45 ‘countries, and expecially in England, That theory ean be eft to be dealt within its proper place; here it suffices to observe that though coercion may be an indispensable part of an effective system of law, there scems to be no reason why we should insist that this necessarily entails annexing penal ‘consequences to every individual rale comprised in a legal system, On the contrary, the increasing tendency of modera systems, as weshall sce ito define important duties to which no sanetions are annexed; it would be strange if we were forend to treat these obligations as non-legal.3 Law and Morals ‘We have scen in the foregoing chapter that much of the aura of legitimacy which surrounds the authority of the Taw is associated with a belief in a moral obligation to obey the law, Dbutat the saune time the warning was added that the relation of la to morals is fr from being simple. ‘The object ofthis chapter is to explore this relationship more felly in general terms, The succeeding four chapters will then take up more specific features of the problem, namely, first, the natural law approach, embodying the main conception ofa higher Jaw regulating and controlling mananacle positive laws second, the positivist theory which regards positive Inw a enjoying an autonomous sphere within which its validity ‘cannot be impugned by any other law, natural or otherwise third the problem of law and justice; and lastly the relation ‘of aw to freedom. Within the ambit of these five chapters ‘weshall discass, in its various aspects, che abiding problem of how mansmade law (which jurists usually descsibe ax ‘positive law’, and which will be so designated here) is related to the value-systems which eonfer on human life its meaning and purpose and give it its distinetively human quality. LAW AND RELIGION We have become accustomed in modern times to the purely secular conception oflaw as made by man for man and to be Judged accordingly in purely human terms. Very different ‘was the attitude of cerlicr ages when law was regarded as hhaving a sanctity which bespoke a celestial or divine otigin. Lav, morality, and religion were treated as inevitably inter- related. Some laws, indeed, might be traced directly to a Lew and Morals 47 ivine lawgiver, as in the case of the Ten Commandments; others, while clearly owing their direct origin to human sources, would be given an aura of divine sanctity by attrie brutinga measure of divine inspiration to thehuman lawgiver, ‘Morcover, lawgivers in ancient times tended to be treated ‘as mythical, semi-divine, or heroie Sgures, A characteristic vview of the ancient Greek approach to law-giving occurs in the opening passage of Plato's Laws, where the Athenian puts this question to the Cretan: ‘To whom is the merit of instituting your laws ascribed? To a god, oF to some min?” ‘Tothis the man of Crete replies: ‘Why, to a god, indubitably toa god." “This elementary feeling that Iaw is in some way rooted in religion, and can appeal to a divine or semi for its validity, clearly accounts to a considerable degree for that aura of authority which law is able to command and ‘more particularly for the belief to which we have referred, in the moral duty to obey the lav. No one who is persuaded that the gods on high have themstives directly, or indirectly ‘through human agency, deerced the very content of the laws in imperishableletters offire would be much imprested by the view of a modern jurist such as Austin that the law depends for its validity on having some legal penalty or sanction duly annexed to it, Not that human penalties were lacking in importance in the early stages of law; quite the contrary, for ancient systems displayed a rich ingenuity in devising and inflicting penalties of the most appalling kind, from various forms of torture and dismemberment to such curious inven tions as the Roman penalty of launching parricides into the sea bound in a sack and accompanied io their doom by & dog, a cock, a viper, and an ape, And even ifthe offender ‘were 0 escape the vigilanes of human penalties the gods could be relied upon to inflict punishment in their own way and in their own time. The familiar story of Orestes, 30 dramatically expounded in the works of the ancient Greck ramatiss, sufficiently lustcates the belief in divine inter~ vention for offences against the laws. Orestes, to avenge his ‘murdered father, kills his mother and her lover, ‘The divine4B The Tdee of Law Furies thon appear and relentlesly pursue Orestes for the murder, though finally they allow themselves to be appeased by the intervention of Athene, Such a story also emphasizes the degree of flexibility in the administration of divine Justice which might result from a system of polytheism, where one god might he set off against another and so mitigate the fall vigour ofthe law. With the development of the Hebrew notion of monotheism the stem inflexible will of God presented far lest scope for the easy moral compromizes of other faiths based on a belief in a pantheon of squabbling deities. ‘Although religion thus played a key role in investing the Jay with its peculiar sanctity it must not be thought that the whole of the law governing a particular state would be necessarily regarded as either dircetly or indizectly God- given. A distinction would normally be made between those © parts of the Iaw which were regarded as fimdamental and virtually unchangeable sinee they embodied the very struc= ‘are of society and the relation ofits members toitsrulers and the universe at Targe, as compared with other Jaws which ‘were clearly man-made in character and lacking in cosmic significance. No doubt in a society such as that of ancient Bgypt where the rating pharaoh was regarded as the incar= nation of God on earth, this distinction would not easily emerge, for every decree of the reigning monarch, however trivial its subject matter, would carry divine authority. For the most part however, ancient societies did not identify their rulers with the gods and so there was a clear-cut distinction between the divine and the merely human in the sphere of | kw. HEDREW AND ORBEK INFLUENCES OF the peoples of the ancient! world the Hebrews and the Greeks in particular ean besaid to have brought this contrast between divine and human lif into prominence in ways which have influenced the Western concept of law ever since, ‘The Hebrews rejected all systems of polytheism and of divine j ; | Law and Morals 49 rulers and set up in their place an unswerving monotheism in which God's will dictaéed the moral pattern for all man- kind, and obedience to that will was secured by the divine punishment of offenders, whether individuals or whole peoples, The Hebrew prophets, in language of unsurpassed sublimity, tielesly reiterated the imperative character of God!’s law; the obligatory chasacter of that law upou rulers ‘and people alike; and the condign punishment that God ‘would inflict upon those who disregarded his decrees, Human rralers there might be — and the Hebrews recognized kings who were regarded as lawfully ancinted of the Lord and ‘therefore enjoying divine sanctity — and these kings could and did impose laws upon their people by virtue of their ingship. But what if those laws were in conflict with God's will? Antl how in any event was God’s will to be ascertained? ‘During the great prophetie period of the Hebrew religion, as recorded in the later books of the Old Testament, there is litde doubt as to the anewer to these questions. Kings might propose but God disposed; no mere kingly dectee could prevail against the will of Almighty God as embodied in the Laws of Motes, and the Old Testament is full of stories of the ‘condign punishment meted out to kings and people alike who repudiated those laws in favour of other gods oralien mades of life. Axain, God’s will, when it was not to be detected directly in the divine scriptures thernsolves, was declared by the prophets —asremarkable a body of men as any that have emerged in human history. These men, entirety lacking in any official standing either in the hicrarchy ofthe state or the priesthood, by the sheer force of their personal charisma ‘and their buming sense of religious communion with the will of God, were able, ultimately, to establish the idea of a divine order of moral law in the umiverae, whose scope and decrees rested not on the atfirraations of rulczsand priests but ‘on the inspiration or intuition of God-intoxicated individuals ‘whom God had chosen as humble instruments to convey his ‘messages to mankind. That the moral law had to be revealed in this way showed plainly enough that the laws laid down ‘by hnman rulers could and frequently did conflict with the50 The Idea of Law divine decrees that God had laid down for the governance of ‘mankind. It also showed that any mevely man-made laws ‘eould not stand or possess any validity whatever in the face ‘of divine laws which the rulers themselves were not compe+ tent-to reveal or to interpret. “The possibility of the laws of man, even where emanating fro rulers ordained of God, conflicting with God's own laws brought to a head the moral dilemma in which men finds bimself, Law on the one band and morality and religion on the other may speak with divided voiees, and for all the aura that man-made aw may enjoy and for all the moral authority that iemay wield, itmay yet be opposed tothe very morality upon which much of its own authority rests. Te is jmpossible to over-estimate the value ofthis Hebraic eontri- bution to the human spicitin thusrejectingghamman law as the necessary embodiment of morality, but two observations need to be made on the position thus arrived at. in the ficst place the Hebraic view of divine law really remulved in equating law with morality. For the only true law ‘was that which embodied the decrees of God's will and any. ‘other man-made decrees were not enritled to ranks law at all. Law thercfore really means simply the moral or religious Jaw which is laid down by God or developed by divinely inspired human beings, and the way is thus opened for chat theocratic form of rule which is found in the post-prophetic Jewish state and in the early stages of Calvinism, where lav ‘and morality are one and no recognition can be granted to any laws which are lacking in divine inspiration. Hence the possibility of confict between human and moral laws i resolved dracomically by treating all valid huraan laws as fothing but expressions of the moral law. The dangers in- herent inthis ituntion may be stressed by refering to our second observation on the Hebraic conception, This is that the soure af the oat Tae, save ins far asi contained directly in divinely inspired seriptures, rests on the authority ‘of those who can persuade themselves and others of heir al inspiration. Moreover, even the established sccip {ures will be fll of doubts and obscurities of language, and Law and Morals 51 ‘these will need to be authoritatively interpreted W they are to ‘be treated as legislative in character. Hence there is limitless scope for personal interpretations as faith or Faaticinn come ‘pete to impose their wall upon their followers and denotmee {and punish if they can) those whore inspiration or incli= nations favour other interpeetations of the law. Further, as every rejection of an approved construction of the law is to bbe regarded as a renunciation of the will of God, its clear that differences of opinion on disputed points will assume a gravity of offence which no dispuce on mere man-made law is likely o achieve. Such an approach is likely toesult either in the triumph ofa rigid orthedoxy imposing ts moral tenets conevery aspect ofthe life of the community, asin the Geneva ‘of Calvin, or in a virtual anarchy of individuals each inter- ppreting the law according to his own moral inspiration. This latter situation, indeod, was of frequent occurrence in many places in Germany in the early days ofthe Reformation when fanatical leaders of such sects as the Anabaptsts attempted to impose their passionate convictions upon whole communi= ties, seized by the religions ferments of the period. ‘The Hebraic approach to the moral law, with its appeal to personal inspiration and the divine afflatus, inevitably stressed the irrational and mystical elements of fith. God's ‘ways were mysicrions and not fully understandable by man, as the Book of Job demonstrates, but man must submit ovingly to the divine will even if it passes understanding. “Though he say me, yet will I trust in him.'t Such an acta from prnupposing a aso] morsowdeine ible to human reason, rather appeals to the very incompre- Fensiilsy ofthe niverse a a atfcation for resort to th alone. ‘Grado quia absurdum’is aptto be the maxim ofthis kind of rationality. eis at this point that the Greek form of faith in a rational order of the universe, governed by inteligible laws ascer- tainable by rational investigation, provided ¢o important a countervailing force to that of moral mysticism. Certainly ‘there were strong mystical and irrational elements in both Greck religion and philosophy, as evidenoed by the secretg2 The lea of Lew Orphie rites and Pythagoreaniam, Alo, Fate played a auysterious role in oosmicand human affairs, deciding human destiny in an inscrutable fashion (witness, for instance, the (Oedipus legend), and it was beyond even the power of the gods to alter it. But in contrast to these factors in Greck thought there developed a very powerful attachment to rationalism, a belief that both the physical and the moral order of the world were based on rational principles, and that ‘man's reason shared in this rational nature of the waiverse and was thus capable of understanding it. To this approach 4s owed much of the modern belief in scientific laws and in the posibility of a rational philosophy which ean elucidate the wltimate principles of the physical structure of the world and of the moral order governing human conduct, and also. the relation of human beings to one another and to the universe. Such a belief'in human reason in the moral sphere clearly entails the idea of a moral Taw of a rational kind ‘whose imperative character derives feom the fact that man’s reason must necessarily accept the rational solution as the moral or true one. For the universe being itself ordered rationally, reason requires the acceptance of rales which stand the test of rationality. _he Greek pilleropher, were aware that human las which actually operated in different societies differed great from one another and that many of tes laws were either against reason or certainly not fully justifable on rational grounds, Necessaty identity on the Hebrew pattern could not be asserted between the Iavs of God and of man, there- fore, nor did the Greeks affirm that the validity orexistence of man-made law was directly controlled or affected in sone way by a higher law of reason, We shall have more to say in a later chapter of the development of natural-law ideas in Greek speculative thought; here it sullices to point out that the tendency of Greek thought was to recognize that human Jaw, whether ar not jt might owe its origin in part to divine or semi-divine sources, postesed an autonomous position in. hhuman society. It diel not depend for its validity on any: divine origin, though where this existed it naturally would Taw and Morals 58 ive the law a peculiar sanctity. At the same dime human aw, autonomous though it might be, could be subjected to ‘moral scrutiny, and such scrutiny meant, in the last resort, ‘comparing it with the touchstone offdeal rationality believed to be inherent in the universe as a whole, ‘Ths Moral Daly to Obey the Laio ‘The Hebraic and the Greek conceptions of law had this important feature in common, that they underlined in their different ways the need toface a possible conflict between the obligation imposed by mere man-made law and that ro- «quired by the moral lav. In the Hebraic view nothing could Be clearer than that a human law dictating what is contrary to divine law (for instance permitting incest) would be utterly lacking in validity and must be iguored whatever the cost, for no mere human penalties or sanctions could prevail against God's law, and God's justice could be relied upon to manifest itself (though possibly in an inscrutable way) in the final balance of accounts between ruler and subject and their ‘Maker. ‘Leas simple was the Greek position, for here there was obviously a very intensely felt sense of the moral obligation ‘of man to obcy the law of the state even when he believed it to be wrong or immoral. Morcover this view was not ‘weakened, as with the Hebrew prophetic faith, by a beliefin thenecessary identity oflaw and morality, nor by any clearly felt assurance that human aw, even ifcontrary toreason, was any the less operative on that account. This is well brought ‘out in that familiar passage of Plato's Crit where Socratcs explains tohis companion why, thoughhiseondemnationmay hhave been unjust, he must abide still by the state’s decision ‘and would be acting wrongly by trying to escapethe penalty: soonamas: ... Ought «imam to perform is just agreements or ‘may he shufie out of them? cenrro: He ought to perform them. sooratzs: Thin consider, IT escape without the state's consent, shall Tbe injuring those whom T ought least to injure, or not? Shall I be abiding by my just agreements oF not?54 The Idea of Law outro: T cannot wswer your queitoa, Sommtes 1 do not ‘understand i socnares: Consider it in this way. Suppose the laws and the commonwealth were (o come and appear t me st 1 wat preparing to ran away and wore Wo ask, “Tell us, Socrates, what have you in your mind to do? What do you mesa by trying to scape, but fo destroy us the laws, and the whe city, x0 far ‘nin you les? Do you think that 4 state ean exist and ot be ‘verthtown in which the decisions ola are of feree and are Giseegarded en set at nove by private individuals?” How shall we answer questions lke that, rito® Mich might be said, espeeally by an orator, in defence of the law which makes judicial Geckions supreme. Shall T reply, “Tht the slate has fyuted me: Iw deed my case wrongly?” Sal we ey conto: Certainly we will, Socrates HooHATES: And suppose the lows were to reply, “Was that out ‘agreement? or wes it that you would subiait 19 whatever Judgment the state should pronomee? ... Since you were ‘brought into the world and educated by ts, how ean you deny at you are our child and our slave, as your Suthers were before you? And i this be so, do you think that your rights are on 8 level with ours? .-. Bo you think that you may retaliate on « your country and iis law? IF we try to Gertoy you, bees ‘we think i ight, will you in return do al you can to destroy 1 the laws, and your country, and say that a so doing you sre ding sight, you, the man, who in uth thinks wo stach of virtuc? Or are you to wise 1 ce that your county faworthic, sad sore august and moce sacred and holier then Your father snl movie and all your other ancestors; and tat iis your bounden duty to receive it and to subaat wo St. and fither to do whatever it ids you to do or to persuade it 19 eco you; and to obey in silence if it orders you to endure Stspes ot imprisonment? That is what i your duty » «In Was, and in the course of jstice, and everyorbere yos mit do Wiaiever your tity and your eotntey bil you do, or at convince them Ghat thee com or tat Bt ‘gelust the la of Ged to uae violence to your father or to mother; and much more ao sit against the low of God to we violence to your county.” What amr shall we make, Crito? Shall we say that th lex speak truly, oF not? centro: think tha they doe Law and Morals 55 ‘Such was the painful dilemma presented to the citizen of Sourth-century Athens by the idea that to live according to the laws was the highest unveitten law, for this might, as Plato hitnself showed in the case of Socrates, result in those laws requiring the justest man to die. ‘To this dilemma Plato himself later propounded his own solution, that only when the state itself embodied the idea of the good could the life of the individual property be saccificed to the state. In other ‘words Plato argued for an identity of law and morality, but an identity based not on blind faith but on fruman wisdom and reason. Of this more will be said later,¢ bat forthe present ‘those poinis in the Greck position which emerge from the Grita deserve emphasis. The fire is that it is recognized that ‘obedience to the law of the state is itelf a principle of the highest morality; and for this purpose its not very material that Socrates bases his argument largely on a kind of agreo= ‘eat (an early form of the social contract} between the citi- zens and the state to observe these laws whatever may be the ‘consequences to a particular individual, At the same time, thesecond point arses that there isa moral law, independent ‘of state law, by which a particular decree ofthe state may be shoven to be immoral or unjust. Thirdly, however, this moral nw in no way overrides the law of the state far as the indie vvidual citizen is concerned, for bis duty is confined to trying topersuade the state ofits moral error, and if he fails then his inexorable duty is to obey the law of the state, For the Taw of God itself requires obedience even to an unjust law. Nothing could indicate more vividly the contrast with the Hebraic dea that not only must the law ofthe state yield to the law of God, but that God's decrees, however inscrutable, cannot “uphold injustice against justice. "The Hebrew view then insists that human law is to be ‘obeyed only when it corresponds with divine Inw; the Greek ‘view, on the other hand, i that human law may eonfict with ‘moral law but the citizen must still obey the law of his state though he may and indeed should labour to persuade the state to change its law to conform with morality.56 The Idea of Law THE RELATION OF LAW TO MORALS Of these two views, the Greck seoms nearcr to the prevailing opinion of the modern world, with certain modifications, Goriainly there are those who argue that the duty t0 obey the state isin all circumstances overriding. Ta the philosophy ‘of Hegel (which has proved so influential in relation to later totalitarian doctrines) the individual is treated as submerged in the higher reality of the state, whose superior wisdom could hardly be expected {as Socrates thought) to be open to the persuasion of an individual itizen that it was in exror, ot that its courts were unjust or Smmoral, since the state itielf represents the very embodiment of morality. Bue among democrats and antisotalitarians generally, while they might {gosome part of the way with Socrates in recognizing a moral duty to obey the law, greater emphasis would be placed on the litnitations of this doctrine in those cases where morality ‘was in conflict with the provisions of pesitive lavw.* For al= thovgh even in many such conflicts the overriding moral duty might be to obey the law (as Socrates thought) until persuasion is effective to bring about legislative changes, ‘there may still be extreme situations where the law dictates acts of such patent immorality (as in the case of Nazi laws, ‘under which death and the mest appalling tortures were inflicted upon millions of innocent people) that, whatever the position in positive law, the maoral duty is that of rejection ‘of rather than obedience to the law. ‘The distinctive feature of this approach is the recognition that while law and morality may, and normally do, occupy much ground in common there is no necessary eaincidence between the dictates of law and morality. And though there is a moral duty to obey the law, whether its specifi cemtent 4s or is not in accardance with morality, in the cass of an. acuteand fimdamental conflictof principle between the two, ‘morality both requires and justifies disobedience. The impli- ‘cations of this approach, which raises issues of the fist importance, not only for Iawyers and moralists but for La and Morals 57 ordinary citizens everywhere, will be discuwed in the next ‘chapter. For the present it will be in place to say a litle more about the sespects in which law and morals may be expected to coincide and the reasons why modern jurists are justified in rejecting the idea of a tolal identity Between these (wo spheres. The relation of law to morals is sometimes described as two intersecting circles, the part inside the intersections representing the common ground between the two spheres and the parts outside representing the distinctive realins in which each holds exclusive sway. This picture however is misleading insofar asitsuggests that where there is common. round between the two, there is a kind of identity. This i rot generally the case. The law of murder may be said, for instance, to concern prohibitions rooted in common mnorality ‘but none the fess there may be considerable divergences hhetween what the law and morality would regard as amount~ ing to murder. In English law if death supervenes more than. ayearand a day after the act which eauses the killing there is xno murder, yet morally it may be said there is no velid dis- ‘tinction between acts resulting in death in 966 and 367 days ter. Yet legal systemns may be justified in drawing distinc ‘ons, and even in some cases arbitrary lines, on grounds of, practical expediency whatever may be the precise dictate of ‘morality to the contrary. Bull the reason why there remains abroad territory come ‘mon to law and morality is nat far to seek. For both are con ‘cerned to impose certain standards of conduct without which human society would hardly survive and, in many of these fundamental standards, law and morality reinforce and supplement each other as part ofthe fabric of social ie. Ifwe 0 not reftain fom physical assault on others and from misappropriating what belongs to others there can be no security of life or of the transactions which further life and ‘well-being in human society. Moral codes, by recognizing that we ought generally torefrain from such acts, supplement ‘the force of the law which equally forbids them. And the ‘moral reprobation which sich acts inspire is reinforced by38 The Idea of Law the crlininal and other sanctions imposed by the law. The moral code itself largely presupposes the existence of a legal system underlying its precepts, for a moral rule requiring respect for the property of others necessarily assumes that there are rules of law which define im what eixcumstances ‘Property exists (for ‘property’ isa Jegal conception implying. rules as to whats capable of ownership; how one becomes oF ‘ceases to be owner; how ownership 4s transferred; and 20 forth).” And because itis a presupposition of legal systeas that they exist, broadly speaking, to uphold the moral standards ofthe communities to which they apply, the moral duty to obey the law is generally accepted, and plays an important role in establishing the authority of the law and ensuring obedience to it, in the majority of eases without actual recourse to coercive measures. ‘The close parallelism between codes of morals and of law is suficiently brought out by the similasity of normative Janguage that each employs. Both are concerned tolay down roles or ‘norms? of conduct for human beings and this is expressed both in moral and legal language in terms of obligations, duties, or of whatisrightor wrong. Both laws and. morals lay down that itis my duty to do this or that, or that T ought to do so and s0, or refrain from doing something else, and that I have a right to act in a certain way, or that iis wrong to do so, Tis correspondence of language, though it ‘brings out the interrelation of the two spheres, is also danger- cousin that it tends to trap the unwary into thinking that law mus? necessarily connote moral obligation (there seems something ofthis confusion in Socrates’ speech quoted above) ‘or that moral obligation needs must be translated into law. WHERE LAW AND MORALS DIVERGE ‘This leads us natucally, therefore, iato a consideration of the divergences between law and morals andthe reasons fr sich divergences, Let us start with one of two simple examples ‘which may indicate how law and morals, even where starting from similar premises, may yet develop along different and Lao and Morals 59 indeed contrary paths. The law may condemn and even ‘punish sexual irumorality in various forms, but it may refeain from attaching legal consequences to some kinds of imunor~ ality such ae prostitution, the keeping of a mistress, fornie cation lacking in any element of violence between adults of | ‘opposite sex, and so forth. Again the moral duty to save oF fe may in many instances not give rive to an equivar ent legal duty. A parcat may be under a legal duty to care for and prosect his infant child, bucunder no legal duty to go to the rescue of another person who is drowning even though ‘this might be done without risk to himself, And a person who thas borrowed a knife ftom a friend may not have the ‘right? in Jaw to refuse to return it on request, even though he has good reason to suspect that his fricnd intends to use it later to make a violent assault upon a third person. In all such cease, the law shrinks, for one reason or another, from pur suing what may nevertheless be recognized as the authentic path of morality. "The reasons for sich discrepancies are various and not all may be of equal validity. There arc many instances where the higher ethical attitade may not be sufficiently embodied in popular seatiment to be productive of legal action in cone formity with it. Here law may reflect popular morality though the latter is slowly being made to yield to a more fefined or humanitarian approach, Much of the activity of the early criminal law, with its savage penalties for trivial offences and the gradual move (still far from complete) to- wards a more humane penal systema, reflects this kind of relation of law to popular feeling and the gradual improves ‘ment of both moral and legal standards, each reflecting and interacting upon the other. In such cases the impulse to reform the law generally depends upon a relatively small section of determined individuals who have the moral force ‘to produce a sufficient change in popular sentiment to bring about changes in the law. The development in this country ‘of the law relating to the protection of children and aniraals against cruelty has been almost entirely-due to this kind of Pressure, and illustrates how new moral duties may come to60. The Idea of Law Law and Morals 61 be recognized and in due course translated into legal duties, and how such legal duties may themselves be productive of the spread of mote hucnane moral sentiments and stan (On the other hand there may be fields of human acti where the ar dete preler to sin fom mpporting ‘the moral rule because it is felt that the machinery is too ‘cumbersome to engage upon the particular task and that ‘more social evil may be ereated than prevented by it inter- vention, Examples in modern times are the sefusal to penal= ie fornication or drunkenness in private, In fact in some places (as in certain sintes ofthe United Statcs) wiiere adule tery is treated as acriminal offence the law is virtually a dead Jeter and so tends to do hats by bringing the lave generally Snto disrepute. Much of the argument propounded in 1957 by the Wolfenden Committe: unging that the offence of ‘homosexual relations between consenting male adults in ‘private should be removed from the statute book! was based ‘onthe belief that such a law isexceedingty dificult to enforce, ‘and when enforced is likely to do more harm than good by ‘encouraging other evilssuch as blackmail. Reliance was also placed on a farther and more abstract argument in fayour of the non-intervention of the law in such cases: namely the bertarian proposition, traceable to John Stuart Mill, that the law should not intervene in matters of private moral conduct more than necessary to preserve public order and to protect citizens against what is injurious and offensive. In other words there sa sphere of morality which is best lef to the individual conscience, as for instance in the case of liberty of thought or beet, ‘This libertarian view has been strongly eriticized on the that the criminal law depends for its effectiveness on incorporating the moral standards ofthe commmnity and thar fathuretogive expression o these standards must weaken ‘the moral authority of the law and the society it exists to uphold. Failure to recognize this compelling need is thus stigmatized as ‘the error of jurisprudence? in the Wolfenden Report. Yet when one pauses to ask how these moral stand ardsare tobeascertained thereply given, thatwe must appeal to what the law calls the ‘ordinary reasonable man’, the man (or women) in the fury-box, oras he has been facetiously described, the ‘man on the Clapham omnibus’, seems a good deal less than aiequate. For this fictitious paragon, if he cxists at all, may be & bundle of prejudices, ignorances, and unresolved ‘conflicts, though the plain man’s view on some ‘questions of simple morality (if morality is ever simple) may Provide as good a touchstone as any. ‘The fact remains that ‘many such questions require a degree of detailed knowledge, painstaking investigation, and sophisticated reasoning which can hardly be expected of the common joryman. An Example from Divurce Law ‘Modern divorce law provides a useful illustration. Until 1969 this was generally based on proving some matrimonial offence, particularly adultery, cruclty or desertion. As to

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