Readings in

Legdl Philosophy
and
Theory
(Text and Comments
from Plato to McDougal)

JORGE R. COQUIA
A.B., LL. B., LL. M., S.J.D.

2005 Edition

Published & Distributed by

...:..---.--.--~

I '!'I ~I I ";) 1<>

 Y'0·l
C~~
100';
Philippine Copyright, 2005 PREFACE

by Teaching legal philosophy, legal theory and jurisprudence has

been a difficult and challenging task. This writer, who is teaching
JORGE R. COQUIA the courses in several law schools for over twenty years and six years
in the graduate school has experienced this dauntless task. How to
create the interest in the subjects among students is the first chal-
lenge. Legal philosophy, legal theory or jurisprudence are not bar
ISBN-971-23-4195-X
subjects. They do not have a direct relation with the so-called ''bread
and butter" subjects an aspiring lawyer wants to know in order to
No portion of this book may be copied or repro-
enter a profitable practice of law.
duced in books, pamphlets, outlines or notes, whether
printed, mimeographed, typewritten, copied in dif~ The main problem of teaching the subject is the heavy reading
ferent electronic devices or in any other form, for dis- materials the students are expected to read and comprehend. The
tribution or sale, without the written permission of subjects are composed of the writings of Greek philosophers Plato
the author, except brief passages in books, articles, and Aristotle, Roman jurist Cicero, the medieval philosophers St.
reviews or legal pleadings and in judicial or other Augustine, Thomas Aquinas and modern philosopher Emmanuel
official proceedings with proper citation. Kant, John Austin, Hans Kelsen which may not be fully understood
in one or two readings.
Any copy of this book without the correspond- Even the lighter writings of Oliver Wendel Holmes, Roscoe
ing number and the signature of the author on this Pound, Lasswell and McDougal are not easy readings.
page either proceeds from an illegitimate source
What is more, the original texts and materials are not easily
or is in possession of one who has no authority to
available to most students. With the exception ofCrisolito Pascual's
dispose of the same.~ book Introduction to Legal Philosphy and Leonardo Mercado, s.v.n.,
Legal Philosophy most ofthe materials are found in foreign publica-
tions not easily available. The cost of acquiring these foreign mate-
ALL RIG .8VED
rials is quite excessive.
BY ~ E AUTHOR
This work is an attempt to put together in one book the ex-
.- cerpts of the writings of the major legal philosophers and analysis
t ... . J !...
No. ________
"''''')2
_ and comments of contemporary Philosophers such as of Del Vecchio's,
Philosophy of Law, Paton's Textbook of Jurisprudence, Rommen's
ISBN 971-23-41 9 5-X Natural Law, Cairns' Legal Philosophy from Plato to Hegel and vari-
• 05-LE~-07305 ous legal articles. Included in this book is the Communist theory of
law which is still followed in many Socialist States.
11111111 11 111111111111111111111111111 111111 Added in this book are the modern legal writings of George

I
Readings in Legal Hugh Smith on Natural Law, Herbert Lionel Hart on Legal Positiv-
Phll.-Coqula ism, John Rawls on the Sociological School.
About three of the original writings are not available hence,
Pantedby the secondary source from Cairns' book are reproduced. To aid the
REX pRiNTiNG COMPANY, iNC. student in understanding the school of philosophy guide questions
TYPOGRAphy & CREATivE liThoGRAphy are placed after each chapter in class 9.iscussion with the
84 P. Florentino St., Quezon City professors.
Tel. Nos. 7t2-41 -01 • 712-41-08
iii
 The author expresses his gratitude to Mr. Juanito Fontelera of TABLE OF CONTENTS
the Rex Book Store and Printing Press for publishing this book.
Acknowledgments are due to Christopher A. Pasuquin who metic-q-
lously proofread the text and, Ms. Maricar I. Lavarias for the design PREFACE ........................................................................... , .............. iii
for the art cover of the book. .
Chapter I
INTRODUCTORY CHAPTER

Jorge R. Coquia Definition, Nature and Function ...................................................... 1

Function of Philosophy of Law and Jurisprudence ......................... 2

Chapter II
HISTORY OF PHILOSOPHY OF LAW

Ancient Greek Legal Philosophy ..........: ...................................... ..... 3

Ancient Roman Legal Philosophy .................................................... 4
The Legal Philosophy of the Medieval Era ...................................... 5
The Legal Philosophy in the Renaissance ....................................... 6
Questions in Chapters I and II ......................................................... 7

Chapter III
THE HISTORICAL SCHOOL

Savigny, Of the Vocation of our Age for Legislation and

Jurisprudence .................................................... .. .. : ...... .8
Comments by Paton : ....................................................................... 10
Questions .............. ,/. ......................................................................... 13

ChapterW
SEMINAL CONCEPTS
(Philosophical Approach)

Plato, The Republic ................................................................... ...... 14

Comments on Plato by Cairns ........................................................ 24
Aristotle, Politics ............................................................................. 26

iv v
Cicero, De Legibus .............. ............................................................. 37
Chapter VII
Comments on Cicero by Cairns ......... ............................................. 39
THE REALIST SCHOOL
Kant, The Philosophy of Law ......................................................... 46
Comments on Kant by Paton ........... ..... .......................................... 51
Holmes, The Path ofthe Law ....................................................... 151
Hegel, The Philosophy of Right ...................................................... 54 Comments by Paton on the Realist School.................................. 155
The Foundations of the Philosophy of Law ................................... 60 CommeRts by Jerome Frank, What Courts Do in Fact .............. 159
Comments on Hegel by Del Ver Vecchio ............ .............. .............. 61 Questions ...................................................................•................... 163
)

Questions ......................................................................................... 65

Chapter VIII
Chapter V
THE COMMUNIST THEORY
THE POSITIVIST SCHOOL
Karl Marx ....................................................................................... 164
Austin, The Province of Jurisprudence Determined ..................... 66
Lenin on Marx .............................................................................. 166
Comments by Paton on John Austin .............................................. 86 Questions ....................................................................................... 173
Kelsen, Pure Theory of Law. ........... ...... ..... .... ...... .......................... 93
Comments by Paton on The Pure Science of Law ......................... 99
Bentham, An Introduction to the Principles of Morals Chapter IX
and Legislation ..................................................................... 104 THE POLICY SCIENCE SCHOOL
Questions ........................................................................................ 114
Lasswell and McDougal, Legal Education and Public Policy: '
Professional Training in the Public Interest ...................... 174
Chapter VI Comments by Crisolito Pascual, The Policy Science School
THE FUNCTIONAL SCHOOL of Jurisprudence .................................................................. . 187
(Socio-Iogical Jurisprudence) : Questions ....................................................................................... 197

Pound, The Scope and Purpose of Socio-Iogical Chapter X

Jurisprudence ............... \ .........................•............................. 115 NATURAL LAW
Comments by Paton on the Functional SchooL .. ....................... 149
I
St. Thomas Aquinas, The Summa Theologica .................. :.......... 198
Questions ............................................ :.......................................... 150
Comments by Maritain on St. Thomas Aquinas ......................... 210
Coquia, For a Revival of Natural Law Doctrine in
Philippine Jurisprudence ..................................................... 238
Questions ....................................................................................... 244
Bibliography ......... ...................................................................... 245

vi
vii
 Chapter I
INTRODUCTORY CHAPTER

Definition, Nature and Function

Philosophy as taken from the Greek words, Philos and Logos,
means love of wisdom. It is the study of the universe that seeks to
know the truth and the rational explanation of anything.
Philosophy oflaw is that branch of philosophy which deals with
law, that is, the wisdom of the law. It studies the nature of law with
particular reference to the origin and end oflaw, and all the principles
that govern its formulation. It is a part of practical philosophy.
The object of philosophy oflaw is the study oflaw in a universal
sense. Law can also be studied as to its particular points in which
the object is Juridical Science or Jurisprudence. Parts of the system
are Public Law and Private Law. Public Law considers the
Constitutional Law, Administrative Law, Penal Law, Procedural Law,
and International Law. Private Law deals with Civil law, Commercial
law and those that govern relationships among individuals or
juridical entities.
Juridical Science can inform the people only of the law a~ong
certain people in a given period. Philosophy of law, however,
transcends the competence of each individual juridical science.
Immanuel Kant has said that Juridical Science does not answer what
is law. It answers the question only of what is established by law of
a certain system (quid juris). Philosophy of Law considers the
essential elements which are common to all juridical systems. It
looks into the universal concept of law.
Giorgio del Vecchio gives a more comprehensive definition of
Philosophy of Law "as the course of study which defined law in its
logical universality, seeks its origins and general characteristics of
its historical development and evaluates it according to the ideal of
justice drawn from pure reason" (Philosophy of Law, Translation by
Thomas Owen, The Catholic University of American Press,
Washington, D.C. 1953).
1
 READINGS IN LEGAL PHILOSOPHY AND THEORY

Often times philosophy of law is interchangeably termed as

jurisprudence. Philosophy oflaw is one thing in the hands oflawyers
and is quite different in the hands of philosophers. For the lawyer
the starting point is juridical institution, practice or ideal and the Chapter II
end sought is its establishment on a rational basis. For the
philosopher, the premise lies beyond the domain of law in the realm HISTORY OF PHILOSOPHY OF LAW
of national existence or human nature from which the function of
law in society is deduced and harmonized with man's other activities Every branch of knowledge is better understood by knowing
(Cairns, Legal Philosophy from Plato to Hegel) . its history. History of Philosophy is a means of study and research
which helps in the acquisition of regarding knowledge philosophies
Function of Philosophy of Law and Jurisprudence advocated by different philosophers in the past. "It is a study , of how
philosophers ,meditated upon the problems of law and justice.
The study of law in a universal sense constitutes the object of Philosophy of Law in the past has been intermingled with Theology,
Philosophy of Law. Law is studied as to particular points, in which Morals, and Politics. The religious books in Asia are treated together
case the object is Juridical Science in a narrower sense. with morals, cosmogony and justice. Law was treated in a dogmatic
What is the proper law is the quest of philosophy law and spirit concei'v ed as a command of the divinity and as superior to
jurisprudence. Often the questions asked are "What is law?", "What human power, consequently, not as 'a n object of science but only of
is justice?", "What are the reasons why law must be obeyed?" faith. The Hebrews, the Chinese, the Indians and the Arabs made
Philosophy of law is a quest of law which appeals to reason to contribution to philosophical studies with regard to morals.
obtain justice. Resort to force usually signifies the failure of the law
to persuade people to whom it is addressed. What the king, emperor The Philosophy of Ancient Greece:
or the prince orders was the law and everyone obeyed it out of fear
of punishment. Force was usually resorted for its eriforcement. One The general history of Legal Philosophy started with the
function of philosophy therefore is to formulate law that is reasonably ancient Greek Philosophers Socrates, Platq, and Aristotle.
acceptable to the people to whom it is addressed. Philosophy oflaw In the fifth century B.C., t,h e Sophists natives of Greece taught
therefore is opposed to tyranny. doctrines which denied all objective truth. They denied the existence
The practical function of philosophy is that it teaches and of absolute justice. Law to them is relative. Plato in his Dialogue
prepares for the positive recognition of the juridical ideal. Some disputed the Sophists.
examples are the formulation of guarantees of the freedom of the Socrates (469-399 B.C.) did not leave any writing but his ·
individual under a political constitution estahlished by English and doctrines are found in the Dialogues ofPlato_and in the Memorabilias
American States, the progress of modern International Law as of Xenophon.
influenced by the writings of Alberico Gentiles and Hugo Grotius, Socrates believed in a higher justice for the validity of which it
the humanitarian development of penal law as influenced by Becaria, is not necessary that there is a positive sanction or a written:
and, more recently the universal recognition of human rights. formulation. Obedience to the law ofthe state is a duty. Socrates in
this way gave the first indication of an idealistic philosophical system
which was constituted in its entirety by Plato. But Socrates was
accused of having introduced new gods and for having corrupted the
youth. He was condemned ,t o death for his pretended crimes.

2
3
 READING IN LEGAL PHILOSOPHY AND THEORY History of Philosophy of Law

Plato (427-347 B.C.), a disciple of Socrates, wrote his teachings According to Cicero, law is not a product of choice but is given
in the form of dialogues and discussed what the Sophists said as by nature. There is eternal law which is an expression of universal
disputed by Socrates. His two Dialogues, The Republic and The Laws, reason. Equity and natural law are factors in an ideal law.
presented the ideal concept ofthe State. The State, according to Plato, The contribution of the Romans to jurisprudence is the
is the most perfect unit. The State dominates all human activity. The formulation of codes. The Justinian Code is the best example of
State must promote good in any form. Justice is achieved through putting together in a systematic form the rules and practices, which
the harmonious relation between the various parts of the State. are the products oflong years of experience not only of the application
LA. Richards, Fellm of Magdalene College, Cambridge, said that of jus civili to Roman citizens but also of jus gentium that was
no book except the Bible has had so much influence on mankind as applicable to foreigners. Jus gentium was considered -as an
The RepubUc. expression of the primordial needs which are common to all people
Aristotle (384~322 B.C.), a disciple of Plato, was the teacher of as a more direct relation of the universal reason.
Alexander the Great, as founder of the school Gymnasium Lyceum in
Athen. He treated almost every branch of knowledge and many The Philosophy of the Medieval Era - The Influence
sciences. of Christianity
His philosophy of Law is mainly found in his works on politics At the beginning, Christian Doctrine was significant only
and ethics. In his Nicomachean Ethics, Aristotle said that all supreme on moral principles and not on juridical or political matters.
good is happiness, the product of virtue. The State is a perfect organic Christianity was considered only in reforming consciences of men.
union which has for its purpose virtue and universal happiness. But men later understood Christianity as an advocate of liberty,
The State regulates the lives of the citizens by means of laws. equality and, the unity of the human family. The gospel of the
The content of the law is justice as is applied in various ways. The brotherhood of men through Divine law became a challenge to the
principle of justice is equality which is applied in various ways. established political order.
Distributive justice is applied in giving honors and respects. Christ's teaching in a spiritual sense said: "I have come not to
The second kind of justice is connective and equalizing or called be served but to serve. (Mk. 10:45) My Kingdom is not ofthis world.
rectifying. In a broad sense, this form ofjustice is applied to voluntary (John 18:36)" Render to Caesar and things that are Caesar's and to
contractual relationship. It also includes involuntary relationship such God, the things that are God's. Taxes are to be paid to the State not
as Tort. to the Church. (Mt. 22:21-22)
Aristotle was concerned with the difficulty of applying abstract The influence ofChrisWmity later became more profound upon
laws to concrete cases and indicated equity as a criterion of applying politics and jurisprudence. Theology taught that Law is founded upon
the law. the will and wisdom of God. The power of the State is derived from
God. This will is known through Revelation.
The Ancient Roman Jurists: Modifying the Greek and Latin philosophies that the
individual's supreme mission is to be a good citizens of the State,
The Romans did not have an original philosophy of law. The
Christianity said that the good goal of the individual is not only civil
Greeks were concerned with philosophy and the Romans on law. The
life but eternal happiness which can be obtained through submission
Romans excelled in the codification oflaw but the philosophical basis
to the Divine will.
was derived from the Greeks.
The Church asserts itself as an autonomous authority above
It was Cicero (106-41 B.C.) who created interest in philosophy
the State. The State is concerned only to earthly 'things while the
in Rome. His works De Republica, De Legibus and De Officis_contained
Church, with those that are eternal.
the influences of the State of Plato. .
4
5
 History of Philosophy of Law
READINGS IN LEGAL PHILOSOPHY AND THEORY

In the Patristic period starting from Charlemagne (724-814),

several Christian writers, after the Apostles, arose such, as Tertullian Questions in Chapters I and II
and Ambross. The most important writer during this period was St.
Augustine (354-430). As bishop of Hippo, St. Augustine wrote the 1. Define Philosophy of Law: How is it distinguished from
work De Civitae Dei. While the Greeks considered the state as jurisprudence?
supreme end of men. St. Augustine extols above all the Church and 2. What is the-main function of philosophy oflaw?
the communion of souls in God. The state has the purpose of
maintaining the temporal peace but is always subordinate to the 3. Why is it important for lawyers to know philosophy of law?
heavenly city. The Church has its purpose the procurement of eternal 4. When, where and how was philosophy of law originated?
peace. 5. What were the contributions of Socrates, Plato and Aristotle to
The age of Scholasticism prevailed in the teachings of St. the development of Philosophy of law?
Thomas Aquinas (1225-1274) with his work The Summa Theologica, 6. What was the principal contribution of ancient Roman jurists
a compendium of Catholic philosophy. (This matter will be dealt in to Philosophy of Law?
Chapter X on Natural Law In The Age of Scholasticism.) 7. What was the contribution of the legal philosophers during the
Medieval Era?
The Renaissance 8. Who was the foremost legal philosophers during the Medieval
The Renaissance, a rebirth that started in the 14th century, came Era? Explain.
abou.t to overcome the long period of excessive dogmatism. In 9. What were the reasons why philosophy freely developed during
Renaissance, autonomy and freedom of investigation were awakened. the Renaissance?
The discovery ofthe New World and the invention of printing press 10. In what way did Christianity influence Legal Philosophy?
permitted the propagation of new ideas. The Religious Reformation
which took place in the Anglo-Saxon countries resulted in the
withdrawal of religious leaders from the authority of the Church.
The liberal writers advocated popular rights and law was no longer
studied on the basis of Theology. Hugo Grotius (1583-1648) who wrote
the famous treatise of De Jure Belli da Pacis. (The Law of War and
Peace) is considered the Father of Modern International Law. He
intended to determine the juridical relations between States whether
in peace or in war. Acceptirtg Aristotle's theory of being good in
political society, law is something that is presented by reason not by
revelation. Natural, moral law world exists even if there is no God.
x x x

7
6
 Historical School

Chapter III of an individual people, inseparably united in nature, and only

HISTORICAL SCHOOr. wearing the semblance of distinct attributes to our view. That which
binds them into one whole is the common conviction of the people,
the kindred consciousness of an inward necessity, excluding all notion
SAVIGNY, OF THE VOCATION OF OUR AGE of an accidental and arbitrary origin.
In modern times the view has come to prevail that all life was
FOR LEGISLATION AND JURISPRUDENCE*
at first of an'animal character, passing through evolution step by
step to a tolerable existence, until at length the height on which we
!riedrich Carl von Savigny (1779-1861) published his first now stand has been attained .... .
treatIse, J?as Recht des Besitzes (The Law of Possession) in 1803. In But this organic connection oflaw with the being and character
1810 S~VIgny became Professor of Roman Law at the new University of the people, is also manifested in the progress of the times; and
of Berlm, where he also served as tutor to the Crown Prince and here, again, it may be compared with language. For law, as for
lec~ure~ on. government. His protest against the demand for language, there is no moment of absolute rest; it is subject to the
codlficatI~n m 1814 served as a model for similar protests in other same movement and development as every other popular tendency;
l~nds agam~t the movement for codification to which Bentham had and this very development remains under the same law of inward
gIve~.gr~at Impetus. In 1815 the first volume ofSavigny's Geschichte necessity, as in its earliest stages. Law grows with the growth, and
des romlschen Rechts im Mittelalter came out· the final volu~e in strengthens with the strength of the people, and finally dies away
1831. Savigny's famous work on the conte~porary Roman law as the nation loses its nationality....
System des heuti~en romischen Rechts (1840-1849, 8 volumes) wa~ ... With the progress of civilization, national tendencies become
sup?le~ented III 1853 by a treatise on Contracts (Das more and more distinct, and what otherwise would have remained
Oblzgatzonrecht). Meanwhile Savigny had served from 1842 to 1848 common, becomes appropriated to particular classes. The jurists now
as head ~fthe Prussian legal system, which afforded the opportunity become more and more a distinct class of the kind. Law perfects its
of recastmg the l~w of commercial paper and the divorce statutes. language, takes a scientific direction, and, as formerly it existed in
~f~er 1848 Savlgny devoted himself entirely to theoretical the consciousness ofthe c<;>mmunity, it now devolves upon the jurists,
JUrIsprudence.
who thus, in this respect, represent the community....
... The sum, therefore, of this view is, that all law is originally
Origin of Positive Law formed in the manner in which, in ordinary but not quite correct
We firs~ inquire of history, how law has actually developed language, customary law is said to have been formed: i.e., that it is
amongst natIOns of the nobler races; the question - What may be / first developed by custom and .popular faith, next by jurisprudence,
good, or nece~sa:y, or, on the contrary, censurable herein, _ will be - everywhere, therefore, by internal silently-operating powers, not
not at all prejudICed by this method of proceeding. by the arbitrary will of a lawgiver....
~n the earliest times to which authentic history extends, the
law wIll be found to have already particular faculties and tendencies Laws and Law Books
Legislation, properly so called, not infrequently exercises an
influence upon particular portions of the law; but the causes of this
influence vary greatly. In the first place, the legislator, in altering
' Reprint from Cohen and Cohen, Readings in Jurisprudence and Legal Philoso- the existing law, may be influenced by high political purposes. When,
phy. All footnotes were omitted. in our time, unprofessional men speak of the necessity of new
8
9
 READING IN LEGAL PHILOSOPHY AND THl!;Olty Historical School

legislation, they commonly mean only that of which the settlement nationalism that arose at the end ofthe eighteenth century. Instead
of the rights of land-owners is one of the most striking examples. the individual, writers began to emphasize the spirit of the people,
The history of the Roman law, also, supplies examples of this kind _ the Volksgeist. In 1814 a programme for the school was enunciated
a few in the free times of the republic, - the important Lex Julia 'et by Savigny. The central question was 'how did law come to be?' Law
Papia Poppaea, in the time of Augustus, - and a great number since evolved, as did language, by a slow process and, just as language is
the Christian emperors. That enactments ofthis ,ijnd easily become a peculiar product of a nation's genius, so is the law. The source of
a baneful corruption of the law, and that they should be most law is not the command of the sovereign, not even the habits of a
sparingly employed, must strike anyone who consults history.... community, but the instinctive sense of right possessed by every race.
. Putting together what has been said above concerning the Custom may be evidence oflaw, but its real source lies deeper in the
requisites of a really good code, it is clear that very few ages will be minds of men. 'The living law' is the secret of its validity. In those
found qualified for it. Young nations, it is true, have the clearest matters with which he is directly concerned every member of the
perception of their law, but their codes are defective in language and community has an instinctive sense as to what is right and proper,
logical skill, and they are generally incapable of expressing what is although naturally he will have no views on matters which are beyond
best, so that they frequently produce no individual image, whilst his experience. Thus the mercantile community will have an intuitive
their matter is in the highest degree individual. The laws of the appreciation of the rules that should govern bills of exchange, a
middle ages, already quoted, are examples of this; and had we the peasant ofthe doctrines that should be applied to agriculture. Such
twelve tables complete before us, we should probably find something is the approach of the historical school, and it naturally led to a
of the sort, only in a less degree. In declining ages, on the other distrust of any deliberate attempt to reform the law. Legislation can
hand, almost everything is wanting - knowledge of the matter, as succeed only if it is in harmony with the internal convictions of the
we~l as language. There thus remains only a middle period; that race to which it is addressed. Ifit goes farther, it is doomed to failure.
whIch (as regards the law, although not necessarily in any other The contribution of the historical school to the problem of the
respect,) may be accounted the summit of civilization. But such an boundaries ofjurisprudence is that law cannot be understood without
age has no need of a code for itself: it would merely compose one for an appreciation of the social millieu in which it has developed. The
a succeeding and less fortunate age, as we lay up provisions for slow evolution oflaw was ·stressed and its intimate connexion with
winter. But an age is seldom disposed to be so provident for children the particular characteristics of a people. Ever since Savigny wrote,
and grandchildren. . the .value which jurisprudence can gain from a proper use of the
historical method has been well recognized, and in England Maine
Comments by Paton on Savigny and Vinogradoff have kept the interest in these problems alive.
Writers oflegal history such as Pollock a~d Maitland or Sir William
Holdsworth have provided surveys whose value for the jurist lies in
The historical school antedates the work of Kelsen, but the the clear demonstration of the close connexion between the common
reason for postponing discussion of the historical thesis is that in law and the social and political history of England.
opposition to the doctrine of the pure science of law, the historical
But in Savigny's particular presentation there were
school considered law in direct relationship to the life of the
exaggerations of which the historical method must be freed ifit is to
community and thus laid the foundation on which the modern
play its true part. Firstly, some customs are not based on an
sociological school has built. The eighteenth century was an age of
instinctive sense of right in the community as a whole but on .t he
rationalism; it was believed possible by arm-chair deliberation to
interests of a strong minority, for example slavery. Secondly, while
construct a universal and unchangeable body of laws that would be
some rules may develop almost unconsciously, others are the result
applicable to all countries, using as a premiss the reasonable nature
of man. The historical school in part was a result of that surge of of conscious effort - our modern trade-union law was not achieved

10
11
 READINGS IN LEGAL PHILOSOPHY AND THEORY Historical School

without much struggle. The flood of legislation in the twentieth Questions in Chapter III
century connected with what has become known as the 'Welfare The Historical School
State', marks the denial of Savigny's views in practice if not in theory.
Law has been used to plan the future deliberately and not merely to
express and order the results ofthe past growth. Thirdly, the creative 1. What do you mean by the Historical School of Legal Philosophy?
work of the judge and jurist was treated rather too lightly. The life How is it distinguished from History of Law?
of a people may supply the rough material, but the judge must hew 2. Who was the foremost advocate of the Historical School? Where
the block and make precise the form oflaw. It is possible to exaggerate and how was it advocated? #

the 'great lawyer' interpretation of history, for in a sense all men are 3. What is the main thesis of the Historical School?
children of the age in which they live, but to regard the judge as a 4. What is meant by the phrase "Law is found and not made"?
mere passive representative of the Volksgeist is just dangerous. Both
in equity and in the common law we can still trace the influence of 5. How is law determined under this school of legal philosophy?
the masters of the past, and any layman would be surprised if told 6. What are the advantages and disadvantages of the Historical
that he had an instinctive sense of right concerning the rules of School?
contingent remainders or the subtle refinements of the doctrines of
equitable waste. Fourthly, imitation plays a greater part than the
historical school would admit. Much Roman law was consciously
borrowed, and when the success of the French ' Code was
acknowledged, other nations laid it deeply under debt. When the
East began its rapid assimilation of Western ideas, it borrowed freely
from the codes of Germany and France. Savigny himself could never
quite exorcize the ghost of the reception of Roman law in Germany;
the thesis that the jurist, in weaving Roman rules into the customary
law, were mere representatives of the Volksgeist would have been
ridiculed by the peasants who a<;cused the doctores iuris of depriving
the tenant of his customary rights ilf land by the introduction of
foreign rules. Lastly, Savigny encouraged what Pound has termed
,/juristic pessimism'- legislation must accord with the instinctive
sense of right or it was doomed to failure:4Ience conscious law reform
was to be discouraged. There was sometimes a tendency to think
that on,ce the evolution of a rule had been traced, this description
justified its existence. It is fatally easy to accept abuses in that to
which one is accustomed, for 'nothing binds [sic] the vision so much
as custom and habit. There was a time when the criminal law ofthis
country was in a state which would have been a disgrace to a half-
civilized community and ... judges in high authority and writers . ..
wrote about it that it was the perfection of human wisdom.
x x x

12 13
 S eminal Concepts
Chapter IV
SEMINAL CONCEPTS true reality. Still, he adds, no society, not even the Persians, believes
that the just can really be unjust. It is thus a universal rule that
(Philosophical Approach) realities, and not unrealities, are accepted.as real; whoever fails then
to reach reality, fails it find law. However, answers the companion,
we are continually changing our laws in all sort of ways. Perhaps it
THE REPUBLlC* is because you do not reflect that when we change our pieces at
By Plato draughts 'they are the same pieces, replies Socrates. Those who know
always accept the same views, whether Greeks or foreigners; they
will not write differently at different times on the same matters, nor
Classical Natural Law will they ever change one set of accepted rules of another in respect
I~ a dialogue remarkable for its anticipation of subsequent of thhe same matters. If we see some persons anYwhere doing this,
analys~s, Plato st~tes t~~t the law seeks to be the discovery of reality. we can say that they have no knowledge; and ifthey are mistaken in
He arrIves at thIS posItIon by the following argument. Sorcates asks what they describe law, then that law is mere appearance and ought
abruptly: "What is law?" "What kind of laws do you mean?" his not to be accepted to be asserting a distinction between principles
~omp~on asks: Socrates makes short work of this question by inquiring and rules, e.g., the difference between the principles of mechanics
If ther~ IS any ~ifference between law and law in the very point of being which are everywhere the same and the specific instruction followed
law, or if gold differs from gold in being gold. His companion then defines by the bridge builder which vary with every work of construction.
law as that which is accepted as legal. To this the objection is made that In holding law seeks to be the discovery of true reality, Plato
sp~ech is not the thing that is spoken, nor is vision merely the visible was defining its proper sphere in his philosophical view ofthe world.
things nor hearing the audible things. Law must therefore be distinct It represents part of his effort towards a constructive metaphysics
from that which is accepted legal. Suppose it is assumed that it is by and through it, as with any other thread we pick up in Plato, we
"law" that "the laws" are accepted, how would the "law" whereby they .r each the core of the entire Platonic system - the general theory of
are thus accepted be defined? Socrates is here raising what we are Forms or Ideas. Elsewhere, in an aside, Plato offers another definition
ac.customed ~o think of in modem terms as the problem of "authority." of law as the opportionment of reason; but inasmuch as reason is
HIS compamon answers that, ·in this sense, law is the decrees and apprehension of reality' we are brought to the same point as in the
pronouncements of the community, or, to state it generally, law is the first definition. What did Plato mean by reality? He once tentatively
opinion of the state. That is to say, as Plato expresses it elsewhere defined it ~s power, by which he meant that anything has real
when a judgement of society takes the form of a public decision of th~ existence if it has inherent in it the power of being affected or of
state, it has the name law. Socrates observes that perhaps this is right, affecting others, no matter how small the Plato remarks, however,
but he does not believe that the conversation has reached the essence that "the easy use of words and phrases and the avoidance of strict
of the matter. Law is a good thing, and public opinion is true opinion precisions is in general a sign of good breeding; indeed, the opposite
and true opinion is discovery of reality. Socrates therefore conclude~ is hardly worthy of a gentleman." Although Plato nowhere sums up
that law seeks to be the discovery of reality, or more precisely, it is the his doctrine in final form, if the pieces are put together they make
true reality with respect to the administration of a state. an intelligible picture. When he asserted that law'was the discovery
. Nevertheless, it is common knowledge that the laws of the of true reality he appeared to mean that the moral value of law
different communities differ on the same subject matter. Perhaps, increases as it approximates the ideal law which exists in the world
Socrates suggests, law may not always achieve its ideal of discovering is reality. The philosopher in the Platonic system is one who knows
true reality and who therefore knows what the ideal thing to do is. If
'Reprint from Cairns, L egal Philosophy from Plato to Hegel, p. 33. All footnotes . the philosopher is a king he will prescribe laws for the state based
were omitted.
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Seminal Concepts

upon t~e ideal laws which he has perceived in the world of reality.
- -- -- - - - -- - - - - - - -- -
They wIll therefore be the best possible laws, and by following them, The Function of Law
t~e members of the community will be directed to the way of good
hfe. Thus the laws of a city, if they are to be of moral worth, must be
Three hypotheses are assumed as the basis of Plato's thinking
modele~ u~on the laws of reality so that they are the objective about law. They have been championed by influential schools of
expressIOn m the state structure of the system ideas which alone
represents the real. thought since his day; they have also been the source of much anguish
in admirers whose political beliefs are of a different complexion than
There are obsecurities in Plato's views on the nature of law Plato's. He held that the end of law was to produce men who were
and gaps in his reasoning. In a handful of pages, however, he raised "completely good"; this could be done because, as the institutional
many o~the problems which have been the staple of juristic thought idealists of.the nineteenth century also asserted, human nature was
from thIS day down to the present time. His first question, literally capable of almost unlimited modification; the method ~o be use~ wa s
the first sentence of the dialogue, still remains the first questiori a benevolent dictatorship: philosophers must be kmgs or kmgs,
asked of itself by every school oflegal thought: What is law? He did philosophers. Those hypotheses have received as much attention as
not distinguish between society and the state nor between ethics anything else in Plato, and it is necessary only that they be properly
~nd politics. The~e was only one place for the realization of the good understood.
lIfe ~nd th~t was m the community. Mter twenty-four hundred years
As a philosopher, Plato could not accept anything less th~n
durmg whIch the notion of good life was kept distinct from that of
the polit~callife, the state philosophies of the twentieth century are complete goodness in men; he therefore rejected all laws. th:t dId
not incline to the end. "Keep watch on my present law~making, says
reassertI~~ th~ P.lato.nic thesis in one form or another. By insisting
the Athenian, " in case I should enact any law either not tending to
upon a rIgId tiIstmctIOn between the idea of law and the positive
goodness at all, or tending only to a part.ofiU' This is not the place
enactme~ts of the state, Plato prepared the way for natural law
to examine the role of ideas in legal thought, except to observe that
speculatIOn and the perception of the ideal element in law-making.
~e ans~ers the commonplace distinction, offifth and fourth-century the conception men have of a better condition of affairs has freque~tly
been a potent element in lawmaking; nor is it necessary to examme
dIscussIOn, between nature and convention by setting in opposition
t~e theory ofldeas which leads him to the conclusion that the law is Plato's views on the relation of law and morals; his legal and moral
dIs~overed and not invented. He puts forward the theory that law is views are so intertwined a1'1 to be inseparable, and lead him upon
occasion as we have already seen from the Minos, even to assert
an mstrument of social control and thus suggests the problem of the
that a b~d law is no law. He was as aware as Hobbes and Austin of
end ofl~w. By assenting in part to the notion that laws are the public
the distinction between law and morals, of the idea of law as a
resoh~tIons of the community, he raises for later speculation the
command, but he would have none of it. Although, if men would
questIOn of the relation between the state and law. The connection
betwee~ law and morals is never absent from his thought. By listen to him, his goals were possible of achievement, he understood
suggestmg (though rejecting the idea) that law might be defined as fully that his proposal was visionary, an old man's game of
aggreg~te. of la~s;. he anticipated th position which was taken by jurisprudence, and he had no expectation that his ideal wou~d be
the majorIty of JUrIst from the Middle Ages to the analytical jurists realized in practice. He was merely insisting upon the neceSSIty of
abstraction or hypotheses as control in societal inquiry.
and bey~nd. He made clear the function of principle in the
constructIOn oflegal system. So far as the extant evidence shows he He was wedded to his belief in the malleability of human nature,
was.in al~ this, p~rticularly when coupled with the tremendous po~er and he had no doubt that the children would accept the new laws
of hIS phIlosophIcal methods, the first to exhibit the possibility of a even if the parents would not. That is a common pres-qpposition of
general science oflaw. . , reform movements' it was given one of its most rigid tests, and with
complete success, d~ring two centuries of the Ottoman Empire (circa
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A .D.1365-1564) which witnessed in practice the close st body and mind to rule as an expert that he might ignore the
approximation to his proposal that the world has perhaps ever known. instructions of law. Plato therefore believed that society should fall
What is possibly the best defense by Platonists for the doctrine back upon law as a second-best, perhaps even as something in the
of the philosopher-king argues that it represents the principle that nature of a pis aZZer, the supremacy of the rigid rule adapted to the
the government is an art or science as opposed to the politicians' "average" man and the general situation and incapable of dispensing
idea of government by oratory under law; that this doctrine is merely equity in the particular case. He had no doubt whatever that fixed
a further expr ession of his theory of ideal postulates and the laws are to be preferred to the personal administration of the
combination of intellectual and moral perfection it envisages has unscientific ruler which is the type society usually receives.
never been known on this earth and is priori fictional; that it is a Plato thus came to this final view on the necessity of law. He
recognition of the demand that the state be ruled by the highest insisted that it was indispensable; without it we were
available intelligence, and represents only the autocratic dis·c retion indistinguishable from animals. It was the instructor of youth. Its
of the true shepherd, pilot, or physician; and finally that cthough noblest work was to make men hate injustice and love justice. The
Plato always insisted upon the proposition that it is better for the laws are intended to make those who uSe them happy; and they
unwise, whether they consent or not, to be ruled by the wise) in confer every sort of good. It was hard, Plato pointed out, for men to
practice to everywhere yields to the reign of law and the consent of perceive that the preoccupation of social science was with the
the governed. A marked feature of Plato's writings is the community and not with the indiVidual; loyalty to the community's
extraordinary care he takes to limit his proposals by explicit interest bound a state together; the pursuit of the individual's interest
qualification or an ironical turn of phrase. The defense offered for tore it asunder. Plato stated that it was hard for men to see also that
him, therefore, is not an impossible one. the interests of both alike were better served by the community's
Was Plato hostile to law? That is a necessary question in any prosperity than by that ofthe individuaL There was not a man among
account of Plato's jurisprudence. There is no doubt that as a seeker us whose natural equipment enabled him both to see what was good
after an ideal the Plato of the Republic preferred the adaptable for men as members of a community, and, on seeing it, always to be
intelligence of the all-wise autocrat to the impersonality of the rule both able and willing to act for the best. Irresponsible power for
of law. As it appeared on this earth, it was the despot of mankind mortal men always led to grasping and self-interested action, or, as
and often forced men to do many things which were opposed to nature. Acton was to rephrase it later, "all power corrupts and absolute power
It was the lord of the state. In the nature of things , moreover, law corrupts absolutely." If ever a man were providentially endowed with
aimed at the impossible. Through the medium of the fixed, inflexible a native capacity to apprehend the true power and position of the
general rule laws sought to direct men and actions which were irresponsible autocrat he would need no laws to govern him; for no
constantly changing and always different. In such system it was law had the right to dictate to true knowledge. But, as things were,
impossi~le to avoid the "hard case." He knew well the simple truth, such insight nowhere existed, except in small amounts; that was
as the tnal of Socrates had shown him, that the debating method of why we had to take the second best - law the generality of which
the courtroom, as distinguish from cross-examination, was perhaps could not always do justice to particular cases.
the least likely to lead to the discovery of truth. Against this the The works of the great discipline of Socrates, Plato (427-347
Plato of the Laws and Statesman had come to realize that on this B.C.), written in dialogue form, present his teacher in the act of
earth benevolent dictatorship was a counsel of perfection and that discussing with his disciples and with the Sophists his adversaries,
he would better propose a solution which had a possibility of so that the whole system of Plato is apparently expressed by Socrates.
realization. In the arts we trust the experts absolutely; but in the He, however, is not its constructor. Socrates put people on the way
realm of government the expert is rar~r than any other art. In the to philosophical speculation, but he did not himself produce a
human hive no king-bee was produced so pre-eminently fitted in complete system. The Socrates ofPla~o is not, therefore, the Socrates
of History, but is in the great part of Plato.
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Of the teachings of the latter we cannot treat insofar as they The State, therefore, according to Plato, dominates human
pertain more particularly to our .cour se of study. We shall make activity in all its manifestations. Upon its rest the duty to promot e
mention of the two Dialogues, or Republic - it would be better good in its every form. The power of the State is limitless. Nothing
translated as State - and, or Laws. To these could be added, as a is reserved exclusively to the will of the citizens. All comes under
third, intermediate between the two, the one entitled -, Political the competence and the intervention of the State. This absolutistic
Man. The most important is the first , in which Plato represents conception is opposed to that which was later sustained by other
completely his ideal concept ofthe State. He wants to consider Justice philosophers, for whom there are well~defined limits on the action
in the State, since, as he says, there Justice is read more clearly, of the State - Kant's Legal State. The Platonic concept is, for that
being written in large characters, whereas in each individual man it matter, the one with dominated in the hellenic world. Thu~, the State,
is written in small characters. . for the Greeks, has above all the function of educator. In the Dialogue
The State, for Plato, is man on large scale. It is a perfect Republic we find long discourses upon this argument. The means of
organism, indeed the most perfect unit. It is a whole form of various education, for Plato, are above all Music, which includes also the
individuals and solidly built, as a b<1dy is formed of several organs, first instruction in Letters, and Gymnastics. Music begets a
which together make its life possible. Both in the individual and in disposition of mind adapted to the reception of all the good and the
the State, there must reign that harmony which is obtained through beautiful. Next comes Mathematics, including Astronomy. After this
virtue. Justice is the virtue par excellence, insofar as it consists in a there follows, for those most capable, the teaching of other sciences
harmonic relation between the various parts of a whole. Justice and of Philosophy. Plato is especially preoccupied with the
requires that each one do his part, in relation to the common purpose. preparation of the citizens for public life. The better individuals
Plato traces carefully the par allel between the State and the should come to the government of the republic through a gradual
individual and even goes irito particular s, giving to his conception a selection, an opposite education, and only after their fiftieth year of
psychological basis. Three parts or faculties exist in the soul of the age. They should dedicate themselves exclusively to this function,
individual: reason which dominates, courage which acts, sense which which is the highest among those of the citizen.
obeys. Similarly, in the State three classes are distinguished: that of In this conception the individual element is completely
the wise, destined to dominate; that of the warriors, who must depend sacrificed to the social and the political. The idea that every individual
the social organism; that ofthe artisans and farmers, who must feed has certain fundamental rights of his own is entirely lacking. The
it. As the individual dominated by reason, so is the State by the State dominates in absolute fashion. To render stronger and closer-
class which represents precisely wisdom, by the philosophers. knit the political organization, Plato suppresses social entities which
The cause of participation in and the submission of the are intermediate between the individual and the State. Thus, he
individual to the State is the lack of autarchy, the imperfection of reaches the point of sustaining the abolition of property and of the
the individual, his insuffiCient by himself. The perfect being which family, a holding in common of women and of possessions, in such a
is sufficient unto itself, which absorbs and dominates ali, is the State. manner as to form one sole family, so therefrom will result an organic
The purpose of the State is universal. It includes in its attributes unity and a harmony of the State which is complete and perfect.
the entire life of the single individuals. The State has for its purpose This, however, is true only for the two higher classes, those which
the happiness of all through the medium of the virtue of all. It is to participate more directly in public life. We are, ther efore, very far
be noted that, the classical Greek philosophy, happiness and virtue . from modern communistic conceptions. By Plato, at any rate, the
are not antithetical terms, rather they coincide, because happiness personality of man is not adequately recognized. In vain would one
is the activity of the soul according to virtue, according to its true seek in Plato a condemnation of slavery. Slaves are not even included
nature. in the three classes he postulates is to exercise the functions of the
State. From this we see how much they err who are wont to consider

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READINGS IN LEGAL PHILOSOPHY AND THEORY

formulation of marriages and conjugal life, subject always to a most

the platonic theory as similar to those of modern socialism. Plato rigorous vigilance; musical and poetic activity, precisely regulated,
was moved only by ethical and political preoccupations to construct too, for educative purposes; religion and worship, etc. As to political
his ideal State, not by the economic. forms, Plato criticizes both monarchy and democracy, wherein one
These, briefly, are the principal concepts formulated by Plato part of the citizens commands and the other serves. He proposes a
in the Dialogue, Republic. The Dialogue, Laws, composed later, when sort of synthesis, a mixed government, having in view especially th((
Plato was over seventy, has a character different from the preceding r~gime in Sparta, where, in addition to two kings, there were the
one, because it does not trace out a pure ideal, but considers instead Senate and the Ephors.
historical reality in its contingent characteristics, and there appears
often an admirable sense of practical experience. In the Dialogue,
Republic, Plato had expressed the postulate that the wise should
govern, according to their wisdom. In truth, if we suppose that
wisdom dominates the world, laws are superfluous. If, however, we
consider practicalities and human nature in the concrete, we see the
necessity for them. The Dialogue, Laws, expressed precisely this
passage from what ideally should be to what happens in life, and
treats at length the problem of legislation. The fundamental
principles of Republic remain, nonetheless, the same even in the
Dialogue, Laws. Plato gives to the State an educative function, wants
the laws accompanied by exhortations and discussions to explain
their purposes. In penal laws, there is essentially a curative purpose.
Plato considers delinquents as sick persons, because, according to
.the teaching of Socrates, no man is wilfully unjust. Law is the means
to cure them, the penalty is the medicine. Through the effects of
crime, however, the State, too, is in a certain way sick, so the health
thereof demands, when it is a question of an incorrigible delinquent,
that he be eliminated or suppressed for the common welfare. It is
worthwhile, in this connection, to note the difference between the
conception of Plato and that of the modern school of Criminal
Anthropology. The latter considers delinquency as a product of
physical degeneration, while for Plato the delinquent is intellectually
lacking, and his sickness is aberration, ignorance of the truth, lack
of virtue which is knowledge of truth.
In the Dialogue, Laws, Plato shows a greater respect for
individual personality, always, however, that of free men only, slaves
excluded. Family and property are conserved, no longer sacrificed to
a sort of Statism, as in Republic. The authority, however, of the State
remains nevertheless very great and overpowering, for example in
regard to the division of property, and, consequently, the division of
citizens into various classes according to their income; the

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Comments on Plato by Cairns, The Republic* poor, " protecting both with a strong shield, and. s~fferin~ ~either to
preveil unjustly." Herodotus and Pindar had a sImIlar opmlOn of the
importance of law. To Herodotus it was the "Master." Demara~us ,
Plato took the widest possible view of law. He held that it was t he exiled King of Sparta who was marching with Xerxes ~gamst
a product of reason a nd he identified it with Nature itself. Law was Hellas told him that the Lacedaemonians were the best warnors on
a subject which he kept constantly before him, and there is scarcely earth.': Free they are," he said, "yet not wholly free; for law is t~e~r
a dialogue in which some aspects of it is not treated explicitly. His master, whom they fear much more than your men fear you. ThIs. IS
theor y of law is a fundamental part of his general philosophy and it my proof - what their law bids them to do, that they do; and ItS
illumines and is illumined by the entire Platonic corpus. Like the bidding is ever the same, that they must never flee from the ba~tl~
law of the Greeks, his legal thought was never systematized as we whatsoever odds but abide at their posts and there conquer or dIe.
have become accustomed to regard system in law since the last To Pindar it was ':Lord of all:,,'''Law, lord of all, mortals and ~mmortals,
century of the Roman Republic; yet it was remarkably coherent in carrieth everything with a high hand, justifying the extreme. of
relation t o his major philosophical ideas. He was a layman in the violence." Anaximander declared that" the beginning of th~t WhICh
field , as were all the Greeks, in the sense that there were no is is the boundless; but whence that which is arises, thither must it
professional lawyers as we conceive their function today. But, in his r~turn again of necessity; for the things givesa~isfaction ~nd
juristic thinking, he isolated a range of legal ideas among the most reparation to one another for their injustice, as is ~ppomte~ accordmg
impor tant in the history of law and which have been the basis of to the ordering of time." Among many interpretatIons of thIS sentence
much subsequent speculation. His influence on the law has been it has been suggested that it depicts a lawsuit before t~e judgm~nt
large in both its theoretic and its practical aspects. The Romanjurists seat of Time were things present their rival claims of a nght to eXIst.
"have taken many ideas from Plato," said the learned Cujas; and his Pythagoras, in a statement which belongs to that real~ of ~rbitrary
influence upon Hellenistic law, and through its practices upon Roman .speculation which has for its subject matter t~e e~hIcal Import of
law, and thus directly and indirectly upon much of the law of modern numbers asserted in a much vexed sentence that JustIce was a square
times, has even yet not been fully appreciated. number. 'Aristotle seemingly knew the assertion meant since he
H ow much Plato owed to his predecessors in legal speculation denied that it was true. Modern commentators differ with Aristotle
is not clear, since their works survive only in fragments and are profess to find great wisdom in the remark. The poignant saying of
sometimes unintelligible . Many attempts have been made to Heraclitus do not always speak for themselves:" Men would not have
determine the meaning of the fragments and for some of them it is known the name of Justice were it not for things [i.e., justice is known
still anyone's guess. We owe their preservation to the fact that they only through injustice]"; The people must fight for its law as for its
were quoted by later writers who apparently regarded them as stating wall"; " It is law, too, to obey the counsel of one." Some of this
doctrines of importance. If we cannot in some cases make much of utterances might be interpreted as demanding an accura~e
their meaning we are nonetheless affected by their note of passion. description of what happens in fact in society as a necessary baSIS
From Solon, Plato undoubtedly inherited a tradition that the for speculative political thought. In this aspects he may be the
happiness of the state depended upon the faithful observance of sound forerunner of modern juristic realism.
laws, and that it was the duty of the good citizen to see that such
laws were made. In his poetry, Solon took the view that the law
should be impartial, assigning proper spheres to the rich and the

' Reprint from Cairns, L egal Philosophy from Plato to Hegel, p. 29. All footnotes
were omitted.

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ARISTOTLE's POLITICS circumst ances ought to be "magnified" or strengthened. That can be

Classical Natural Law done by calling it a "law" because a contract may really be considered
as a private or special and partial law; and it is not of course the
contr acts which make the law binding, but it is the law which gives
In the Platonic Minos we fortunately possess an inquiry into force to legal contracts. Aristotle therefore suggests that, in a general
the nature oflaw undertaken in the full panoply ofthe dialectic. No sense, the law itself is a kind of contract, so that whoever disregards
comparable writing of Aristotle has come down to us. We are without or respudiates a contract is repudiating the law itself. However,
any analysis of his conducted for the express purpose of stating a Aristotle believed that law was much more than a contract. He
general and ultim;3.te theory oflaw. His definiiionsofhtw are partial pointed out that if the state did not pay attention to virtue, the
and are thus an anticipation ofthe practices of modern science. They community became merely an alliance; "the law would be a contract,
are'always relative to the problem before him, and the aspect oflaw and, as Lycophron the Sophist says, a .pledge of lawful dealing
which they emphasize constantly shifts in order to permit different between man and man." Again, in arguing that it is difficult and
consequences to be drawn. perhaps impossible for a state with too large a population to have
In the Rhetoric to Alexander it is pointed out that in a democracy good legal government, he observes that law is a form of order, and
the final appeal is to reason. A self-governing community is directed good law must necessarily mean good order, but an excessively large
along the best path by its public law, and so as a king, as the embodied number cannot be orderly. Again, in considering whether the best
of reason, guides along the path of their advantage those who are men or the law should be supreme he observes that he who bids the
subject to this rule. In a clumsy attempt to bring the two ideas law rule may be deemed to bid God and reason alone to rule, but he
together, law is then stated to be tke reason defined the common who bids man rule adds an element of the beast; for desire is a wild
consent of the community, regulating action of every kind. Later, in beast, and passion perverts the minds of rulers, even when they are
the same treatise, which is a handbook on how to persuade audiences, the best of men. Hence, law is reason without appetite. As he observed
another aspects emerges. Advice is offered on how to speak in favor elsewhere, intellect is always right, but appetency may be right or
of a law (show that it affects all equally, that it is beneficial to the wrong. Appetency aims at the practical good which may not be good
city, etc.) or §lgainst a law (show that it does not apply equally to all under all circumstances. Finally, Plato had divided state organization
citizens, etc.). For this purpose law is defined as the common into two parts, one the appointment of individuals to office, the other
agreement of the state enjoining in writing how men are to act in the assignment oflaws to the offices. Both divisions came under the
various matters. Aristotle argued that the nurture and occupations general topic of the "constitution". Aristotle developed a distinction
of the young should be fixed by the law so that they would become between "constitution" and "laws". As a general principle he insisted
customary. :He agreed with Plato that legislation should teach virtue. that the laws should be laid down to suit the constitutions - the
Goodness, in men, he thought, could be secured if their lives were constitution must not be made to suit the laws. A constitution is the
regulated by a certain intelligence, and by a right system, invested organization of offices in a state, and determines what is to be the
with adequate sanctions. Paternal authority does not have the governing body, and what is the end of each community. But laws
required force to accomplish this end. But law has this compulsive are not to be confounded with the principles ofthe constitution. They
power and it is the same time a rule emanating from a certain are the rules according to which the magistrates should be administer
practical wisdom and reasons. Thus, while people hate men who the state, and proceed the offenders. Cicero observed the distinction
oppose their impulses, even ifthey are right in so doing, they do not and differentiated the "optimus rei publicae status" from "leges" and
regard the law as invidious if it enjoins virtuous conduct. Similarly, thereafter it became firmly fixed in Western political thought.
in an action involving a contract, if the contract's existence is To the extent his works have survived, it is clear that Aristotle
admitted and if that is a fact favoring the side of the speaker, that did not reach any final definition oflaw comparable, say, to his idea
of substance or of justice; he reveals no general or leading conception
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 READINGS IN LEGAL PHILOSOPHY AND THEORY Seminal Concepts

of it from the point of view of its nature. This failure to state explicitly been said in the subject. If it is asserted that happiness is virtue he
the meaning of a vital idea is not an anomaly. At the heart of claims to make an advance on this by insisting that happiness is an
Aristotle's theory of the State is the idea of; but nowhere are we told exercise and not a mere possession of virtue; if happiness is pleasure
,p lainly what the conception stands for, and it is also in analyzing he says that happiness is necessarily accompanied by an inherent
his incidental remarks when the term is emphasized that we are pleasu'te; if it is good fortune or external prosperity he says that the
able to ascertain the idea behind it. If what has come down to us functions of h.appiness 'cannot be performed without it. Thus
represents his true view of the nature of law then he attained a happiness takes its origin in virtue, it issues in pleasure, and material
position which was not reached in jurisprudence again in the good-fortune is its ordinary equipment.
twentieth century. That is to say, he saw the inherent complexity of That this position is largely Platonic scarcely needs to be stated.
legal phenomena, and he found no single description of it could Plato had held that a task of law was to produce happiness in the
embrace its manifold aspects. The identification of any aspects may state as a whole and that through its instrumentality men could be
have significance for the task in hand; and he therefore, so far as we taught virtue. However, while Aristotle's definitions satisfies the
can judge, allowed room for them all and did not insist upon the Platonic conditions for a happy life - that the goal is important on
exclusively validity of any single one. In this approach he was on its own account and not as a means to other things, that its
much sounder ground than Plato who saw law as a simple unitary satisfaction appeal to us, and that it would be the final choice of the
phenomenon. All the elements which Aristotle emphasized have been wise - as a juristic formula it has several defects. In his attitude
taken separately as the single bases of subsequent systems, and most towards the nature of law, Aristotle admitted a plurality of
of them are factors in current legal analysis. He thought oflaw as a viewpoints. Here only one position has significance; no doubt this
rule of conduct for the individual, perhaps the most discussed view is a product of his teleological method which has as its object
conception in jurisprudence; he stressed the ideal reason, the doctrine the discovery of the final end. Now it is plain that the tasks oflaw
that legal precepts should have some basis in intelligibility and not can no more can be caught within the net of a single formula than
be the mere expression of arbitrariness, force or custom; the idea of its numerous and contradictory aspects can be confined within the
law as a contract was adopted by Epicurus Lucretius, and appears limits of one definition. Ifwe look at the police functions ofthe legal
in present day opinion in the theory that its naked function is to order, the task oflaw is to keep the peace; if we look at law as one of
prevent attacks by individuals on each other; when he distinguished the instruments of control in a complex society its task is also the
law from the constitution and defined as the rules in accordance harmonization of disparate claims. The task is a function of the
with which court determine cases - which reappeared again in the problem; and since the problems are numerous, the task are alike
later development of analytical jurisprudence; when he pointed out multitudinous and are equally valid. Law may also be a means in
that law was a form of order he put his finger on an aspects that the inculcation of established ethical ideals and the promotion of
since Kant has been dominant in continental legal thought. new ones. The maxims of the Institute that the precepts of law are
,Law itself, like everything in the Aristotelian system, has its to live honorably" not to hurt another, to give each man his due,
end and to Aristotle it was very clear that its task was to make men gives expression to ideals which ifinsisted upon applicable situations,
good. This was deduced from premise that the state does not exist such as those involving the issue of good faith in undertakings, may
for the sake oflife only, but for the sake ofthe good life. But what is raise the entire moral tone of a people. Another defect in Aristotle's
goodness? Everyone agrees, Aristotle says, that the highest good is idea of the end oflaw is that it breaks down as soon as it is put into
happiness' or well~being; but that is merely a label and the main practice. However, as we have seen above, it shares this weakpess
inquiry is to find out what the word means. Aristotle's general with /ill other ideals that have 'been proposed. They do not contain
definition is that happiness is an exercise of the powers of life in enough elements to meet all concrete situfltions.Thus, Aristotle
accordance with virtue throughout the whole life-time. He endeavors excludes the man of pre-eminent virtue from the operation of the
to show that this definition sums up and improves upon all that has law. His principle is that the law is necessarily concerned only with
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it is given normatively or descriptively, is that the citizen should be
those who are equal in birth and power. He maintained that anyone educated in the aims ofthe constitution, whether good or bad. Thus
is ridiculous who attempts to make laws exceptional men, for the citizen may be taught to ~e an evil man. During the Reformation
probably they would say what the lions said when the hares made the question took on practical importance and became sharply focused
speeches in the assembly and demanded that all should have in the test issue" It is lawful to kill tyrants? Melanchthon thought
equality: "where are your claws and teeth?" This position when stated that Caesar was unjustly killed; but Luther apparently took a
conversely will also provide a justification of slavery. Some idea of different stand. In view of the rise of authoritarian government it
the concrete model Aristotle probably had before him depicting the may once again cease be an abstract matter.
actual realization of the end of the law may be derived from the In the doctrine of the categories, conduct comes under the
following summary: ''Aristotle's political ideal is that of a small but heading of Quality. Virtue is a Quality and Aristotle assumes t.hat
leisured and highly cultivated aristocracy, without large fortunes the category has four divisions: habits, or tendencies to do a thmg;
or any remarkable differences in material wealth, free from the spirit capacities for doing a thing; feelings passions and em?tions pr?mpt~ng
of adventure and enterprise, pursuing the arts and sciences quietly us to do a thing; and external form or shape. In whIch classIficatIOn
while its material needs are supplied by the labor of a class excluded does conduct fall? Aristotle does not trouble to mention form or shape,
from citizenship, kindly treated but without prospects. Weimar, in which is used in describing a man's appearance, since character is
the days when Thackeray knew it as a lad, would apparently here alone in question. Conduct is not to be classified under feeling
reproduced the· ideal better than any other modern State one can _ e.g. ·, desire, anger, fear, confidence, envy, joy, love, hate, longi~g,
think of." Goethe found Weimar the most satisfactory place in the emulation, pity - becau·s e no one is praised or blamed for haVlI~g
world in which to live; nevertheless it seems possible to devise other feelings, but for the manner in which we actually do so. If ~heIr
ideals which would have a wider appeal. conduct is neither a feeling nor a capacity, it must be a habIt or
Aristotle held that the law has no power to command obedience settled tendency to act in a 'certain way. Good conduct is not acquired
except of that habit, which can only given by time. This assertion, from nature; if it were it coul~ not be changed and moral training
like many others, reveals the clear unity of his thought. If obedience would be impossible; however, we owe nature something, for . she
to law is based on habit, then, as he says, a readiness to change from gives us the capacity for good conduct. Nor it does not come from
old to new laws enfeebles the power of the law. Inasmuch as law has teaching. Character depends on what you do and not on what you
a psychological basis, education also has a major role in Aristotle's are told to do. Most people; instead of acting, take refuge in theorizing;
theory. It assists in making obedience to law second nature to the they imagine that they are philosophers and that philosophy wilL
)
citizens. He believed that the best means to secure the stability of make them virtuous; in fact, they behave like people who lis~en
constitutions is a system of education suited to the constitutions; for atte~tively to their doctors but never do anything their doctors tell
there is no merit in the most valuable laws, ratified by the unanimous them. People who doctor themselves that way will never get well.
judgement of the whole citizens, if the citizens are not trained and Habituation therefore is the only method of acquiring that settled
educated in the constitution. The state must begin the education tendency to do acts of a certain kind. It is by doing acts of a given
early, for if a man is to lead the good life he must practice it a long kind and as a consequence of these acts that we become good or bad,
time. Aristotle's aphorism "It is hard to be good" is often quoted. But as the case may be, just as in the arts; by playing well you come to be
he also said: "A life of virtue ceases to be painful when you get used a good player; and by playing badly, a bad one. This truth is attested
to it." by the experience of the states: lawgivers make the citizens good by
training them in habits of right action - this is the aim of all
. . There is apparent paradox here which should be noted in
legislation, and. if it fails to do this, it is a failure;that is what
passing. If the citizen is to be educated in the spirit ofthe constitution,
what happens if the constitution is a bad one? Will the citizen be distinguishes a good form of constitution from a bad one.
able to live the good life" Aristotle's answer, and it is not clear whether .
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branch of polit ical science. But there is this difference between

Theory of Legislation political science and all other sciences. In these~ t~e per~ons who
teach the science are the same as those who practice It, for mstance,
Aristotle's normative view of the law is clearly apparent in his physicians and painters: but in the politics the Sophists, wh~ ~r?fess
theory of legislation. That law prescribes certain conduct; that t o t each science, never practice it. It is practices by the polItiCIans,
conduct of a brave man (e.g. not to desert or run away or to throw who apparently rely more upon a kind of empirical skill tha~ ~n the
away his weapons), that of a template man (e.g. not to commit exercise of abl2tract intelligence; for we do not see them wrItmg or
adultery or outrage), that of a gentle man (e.g. not to assault or abuse), lecturing about political principles (though t~is might "?e a more
and so with all the other virtues and vices, prescribing some actions honorable employment than composing forenSIC and ,Parhamentary
and prohibiting others - rightly ifthe law has been rightly enacted, speeches) nor have they ever made their sons or friends into
not so well if it has been at random. The science of legislation must statesme~. Yet we should expect them to have done so.if it were in
be learned like any other science. No doubt it is possible for a their power; they could not have bequeathed any "?etter legacy to
particular individual to be successful treated by some one who is not their country. Still it must be admitted that experIence does much
a trained physicians, but hoW has an empiric~l knowledge based on good; for we see that those who live in political environment become
careful observation of the effects of various forms treatment upon politicians.
the person in question; just as some people appear to be their own It follows those who aspire to a scientific knowledge of politics
best doctors, though they could not do any good to someone else. acquire practical experience as well as theory.
Nevertheless, it would doubtless be agreed that anyone who wishes However, those Sophists who profess to teach politics are found
to make himself a professional and a man of science must advance to be very far from doing so successfully. In fact they do not know
to general principles, and acquaint himself with them by the proper what it is or what it is concerned with; otherwise, they would not
method: for science deals with the universal. So presumably a man class it as 'identical with, or even inferior to, the art of rhetoric. They
who wishes to make other people better by discipline, must endeavor would not have thought it easy to legislate by merely collecting such
to acquire the science oflegislation - assuming that it is possible to laws as are held in high repute, and selecting the best ofthem -,- as
make us good by laws. For to mold aright the character of any and if the selection did not demand intelligence - as if all did not depend
every person that represent himself is not a task that can be done by on deciding rightly! Who, we would ask, is the inte~l~gence th~ j~dg~
anybody, but only (if at all) by the man with scientific knowledge, of the product of any art - of the musical compOSItion or pamtmg.
just as is the case in medicine and the other professions involving a The experienced musician or painter. Now laws are the prod~ct, so
sys~em of treatment and the exercise of prudence . This is an
to speak, of the art of politics. How then can a mere c~llectIon of
enlargement of the Socratic theory that the virtue is knowledge; since laws teach a man the science of legislation, or make hIm able to
our passions and emotions are not good or bad but are ethically judge which of them is the best. We do not see men beco~ing m~pert
neutral, they must be trained to make us desire what is right; mere physicians from a study of medical handbooks. Yet medIcal wrIters
knowledge is not sufficient to make us do right. attempt to describe not only general courses of treatment, but also
Plato had held that legislation should be so framed that it could methods of cure and modes of treatment for particular sorts ~f
be incorporated in a manual of instruction for the young. Aristotle patients classified according to their various habits of body; and theIr
does not take exception to this view but he indulges in a severe treatise appear to be of value for men who have had practical
criticism of the Sophists for attempting to teach legislation from experience though they are useless to the novice. Very p~ssibly,
existing codes of law. therefore collections of laws and constitutions may be senTlceable
From whom then or how, Aristotle asks, can the science of to stude~ts capable of studying them critically and judging what
legislation be learned? He answers: Perhaps like other subjects, from measures are valuable or the reverse, and what kip.d of institutions
the experts, namely, the politicians, for legislation is apparently a
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are suited to what national characteristics. But those who examine philosophy expressed in elegant and clear form so that they are
such compilation without possessing a tr ained faculty cannot be rendered easily accessible to the Roman people. Cicero lies frequently
capable ofjudging them correctly, unless, indeed, by accident, though on natural good sense, on the common persuasion of men, and so
they may very likely sharpen their political intelligence. gives to his discourse a popular character. His principal thesis is
Aristotle includes that as his predecessors had left the subject that Law is not a product of choice, but is given by nature: "Natura
of legislation unexamined he will proceed to state its general j uris ab hominis repetenda est natura." There is, as the Stoics had
postulates, a statement exceedingly unfair to Plato who had worked taught, an eterDJil law which is an expression of universal reason.
out an elaborate legislative theory. He, therefore, refutes the Skeptics who, having affirmed the
Accordingly, Aristotle laid down a series of principles to control impossibility of knowledge and the changeableness and relativity of
and guide the legislative process: The best legislators, he believed, all things, had deduced the impossibility of an absolute Justice.
were from the middle class, giving as instances Solon and Lycurgus Carneades, especially, had asserted this and by his skeptic preaching
and remarking that in fact almost the greatest number of the other had created in Rome a certain amount of disturbance as he shook
lawgivers had that status. In the Laws Plato had said that the common opinions and maintained that the criterion of what was
legislators ought to have his eyes directed to two points - the people just was not founded on nature.
and the country. As an example Plato cited the Cretan lawgiver who Cicero opposes these arguments and observes that not
chose for the Cretans bows and arrows which were the most suitable everything which is put down as Law is just, for in such a case even
arms for swift runners in a hilly country like Crete. Aristotle accepts the laws of tyrants would be Law. ,Law is note based upon arbitrary
this principle but adds to it the corrollary that neighboring states opinion, but there is a natural, immutable and necessary ''just,'' as
must not be forgotten by the legislator if the state for which he is proved by testimony taken from the very conscience of man. This
legislates is to have a political life, that is to say, a life of intercourse concept is developed by Cicero with great eloquence:
with other states. A nation's ar ms should be such as to enable it to "Est quidem vera lex recta ratio, naturae congruens, diffusa in
meet its foes in its own territory and in theirs, something bows and omnes, constans,sempiterna ... neque est quaerendus explanator, aut
arrows would not enable it to do. For this reason there must be a interpres eius alius. Nec erit alia lex Romae, alia Athenis, alia nunc,
fleet, the ~overnment must be organized with a view to military alia post hac, sed et omnes gentes et omni tempore una lex, et
strength, and the legislator must pay attention to the foreign sempiterna, et immutabilis continebit ... cui qui non parebit, ipse se
relations of the state. Still, the legislator should not make conquest {ugiet, ac nuturam hom in is aspernatus hoc ipso luet maxirrias poenas,
the aim of his state; it is the province of the legislative art, if the etiamsi cetera supplicia, quae putantur, effugerit."
state/ has neighbors to consider what the practices should be in Besides this jus naturale and in intimate connection therewith
relation to each sort of neighbor. It was a mistake for the there exists ajus gentium observed by all peoples which serves as a
Lacedaemonians legislators to lay down one indiscriminating rule;
basis for their mutual relations because it is based upon their common
the rule ought to vary in acJordance with the character of the
needs, though with the modifications which various circumstances
neighboring state. Socrates had maintained that laws affect only
make necessary. Finally, there isjus civile, that which is in force for
the internal organization of states, and not their mutual relations.
each people in particular. Between the termini of this trichotomy,
Cicero does not, properly speaking, belong to any school, but jus naturale, gentium and civile, there is, however, no contradiction,
he felt the influence of many, beginning with the Stoic to which since they are rather determinations of one same principle which
belonged his teacher, Poseidonius. He was eclectic. The titles and vary only in degree.
the form of some of his works, for example, De Republica, De Legibus,
The Roman Jurists had, in general, a philosophical culture.
were platonic; the content is also Atistotelian and stoic. We find, in
Stoicis:p1 was, among all the systems of Greek philosophy, that which
other words, repeated there the basic concepts of the best Greek
in Rome had the greatest success because it corresponded better to
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the austere nature, the strongly temperate ch aracter, of the Roman THE ROMAN JURISTS
citizen. Likewise, the cosmopolitan ideal of the Stoics had a certain
positive echo in the growing aominance of Rome. The concept of a
natural law, common to all men, became a familiar one to the Roman CICERO - DE LEGIBUS
Jurists, a belief, as it were; which was implicit, was to be understood,
in their very notion of positive law. The foundation thereof is precisely Translated by C. W. Keyes
the naturalis ratio which means not mere subjective, individual, The -Leob, Classical Library, New York. G.P.
reason but that rationally which is innate in the order of things and
is therefore, superior to the human will. There is, therefore a law of Putnam's Sons, 1928.
nature, immutable, not artificially made but already existing, inborn.
It is a uniform law, not subject to change by the action of men. Natural [Marcus.] Well then, the must learned men have determined to
law is defined, in this sense, by Paulus as "id quod semper bonum et beg in with Law, and it would seem that they were right, if, according
aequum est." to their definition, Law is the highest reason, impla,nted in Nature,
Ulpian gives a formulation of mitural law which is not found in which commands what oug:Q.t to be done and forbids the opposite.
other writers. Natural law, says he, is "quod natura omnia animalia This reason, whenffirmly fixed and fully developed in the human
docuit." He thus extends the force of natural law even to animals in mind, is Law. And so they believe that Law is intelligence, whose
general. In substance, however, he merely gives definite expression natural function it .is to command right conduct and forbid
to what was for all a solid principle, namely that the basis of Law wrongdoing: They think that this quality has derived its name in
lies in the very nature of things, in those driving forces which, though Greek from the idea of granting to every man his o:wn, and in our
more developed in man, are nonetheless present in embryonic form language I believe it has been named from the idea of choosing. For
even among the lower animals. as they have attribute the idea of fairness to the word law, so we
The concept of jus naturale is connected with that of aequitas. have given it that of selection, though both ideas belong to Law.
Aequitas, properly speaking, indicates an equalizing, an equal Now ifthis correct, as I think it to be in general, then the origin of
treatment ofthings and relationship which are equal. It is a criterion Justice is to be found in Law, for Law is a natural force ; it is the
which obliges us to recognize that which-is identical in the substratum mind and reason of the intelligent man, the standard by which Justice
of things, beyond the changeable and the accidental. and Injustice are measured. But since our whole discussion has to
do with the reasoning of the populace., it will sometimes be necessary
) The idea of equity and that of natural law thus become factors
to speak in the popular manner, and give the name of law to that
of progress in Law. Positive law is a modification of natural law,
which in written form decrees whatever it wishes, either by command
with elements of the accidental and ofthe arbitrary. The conditions
or prohibition. For such is the crowd's definition of law. But in
of places and of times change, utilitas suggests particular norms,
determining what Justice is~ let us begin With the supreme Law which
and this the Roman Jurists recognize fully; but nevertheless there
had its origin ages before any written law existed or any State h a d
is in them a constant tendency to bring Law back to its more basic
been established. (Book I, vi, pp. 317- 319.)
ideas; to compare the norm with its natural foundation, removing
discor'd s' and inequalities, comparing and equalizing, in such wise [M.] I will not make the argument long. Your admission leads
as to correct that which is inequitable or unreasonable. us to this: that animal which we call man, endowed with foresight
and quick intelligence, complex, keen, possessing memory, full of
reason and prudence, has given a certain distinguished status by
the supreme God who created him; for he is the only one among so
a
many different kinds and varieties of living beings who has share

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Seminal Concepts
in reason and thought, while all the rest deprived of it. But what is
more divine. I will not say in man only, but in all heaven and earth, than Nature; indeed, it is not merely Justice and Injustice which
than reason? And reason, when it is full grown and perfected is are honourable and dishonourable. For since an intelligence common
rightly called wisdom. Therefore, since there is nothing better than to us all makes things known to us formulates them in our minds,
reason, and since it exists both in man and God, the first common honourable actions are ascribed by us to virtue, and dishonourable
possession of man and God is reason. (Book I, VII, p. 321.) actions to vice; and only a mad man would conclude that these
[M.J Morever, virtue exist in man and God alike, but in no other judgments ?re matters of opinion, and not fixed by Nature. For virtue
creature besides; virtue, however, is nothing else than Nature is reason completely developed; and this certainly is natural;
perfected and developed in its highest point; therefore there is a therefore everything honourable is likewise natural. ... (Book I, XVI,
likeness between man and God. (Book I, VIII, p. 325.) p.347.)
[M.J The next point, then, is that we are so constituted by Nature [M.J To close now our discussion of this whole subje,ct, the
as to share the sense of Justice with one another and to pass it on to conclusion, which stands clearly before our eyes from what has
all men. And in this whole discussion I want it understood that what already been said is this: Justice and all things honourable are to be
I shall call Nature is [that which is implanted in us by NatureJ; sought for their own sake. And indeed all good men love fairness in
that, however, the corruption caused by bad habits is so great that itself and Justice in itself, and it is unnatural for a good man to
the sparks of fire, so to speak, which Nature has kindled in us are make such mistake as to love what does not deserve love for itself.
extinguished by this corruption, and the vices which are their Therefore Justice must be sought and cultivated for their own sake;
opposites spring up, and are established. But if the judgements of and if this is true of Justice, it is also true of equity; and if this is the
men were in agreement with Nature, so that, as the poet say, they case with equity, then all the other virtues are also to be cherished
considered "nothing alien to them which concerns mankind" then fortheir own sake. (Book I, XVIII, p. 351.)
Justice will be equally observed by all. For those creatures w'ho has
received the gift of reason from Nature have also received right Comments on Cicero by Cairns
reasons, and therefore they have also received the gift of Law which
is right reason applied to command and prohibition. And ifth~y have
received Law, they have received Justice also. Now all men have Cicero knew many kinds oflaw but his legal theory, under the
received reason; therefore all men received Justice. Co:o.sequently influence of a commonplace Stoic idea, was dominated by the
Socrates was right when he cursed, as he often did, the man who conception of a "true law" (vera lex). He knew lex as the written law,
first separ~ted utility from Justice; for this separation, he and ius not only as denoting what is right and fair, but as law in the
complained, is the source of all mischief. (Book I, XII, pp. 333-335.) most general sense of the word and also as referring to a particular
system of law. In its plural form iura w~re the ordinances, rules,
[M.] But if Justice is conformity to written and national customs
rules of law, decision on points of law; iura were also the separate
and if, as the same person claim, everything is to be tested by th~
provisions, lex the whole enactment containing them. He knew also
standard of utility, then anyone who thinks it will be profitable to
the divine law ({as). One of Cicero's contributions to philosophy was
him will, ifhe is able, disregard and violate the laws. It follows that
the invention of a Latin philosophical vocabulary which reappeared
Justice does not exist at all, ifit does not exist in Nature, and if that
in modern European languages. Thus we find him using as
form of it which is based on utility can be overthrown by that every
importations from Aristotle ius or lex naturae in the sense of an
utility itself. (Book I, xv, p. 345.)
ideal law which mayor may not have an existence in universal
[M.J ... Or, if a law can make Justice out of Injustice, can it not practice, but which ought to have. Similarly, the ius civile, the law
also make good out of bad? But in fact we can perceive the different governing citizens, has its Aristotelian counterpart. As a collorary
between good laws and bad by referring them to no other standard
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to the ius naturae Cicero employed the phrase gentium, which he Chrysippus as identifying Jupiter with the mighty law, everlasting
stated had been used by his predecessors; by the phrase he apparently and eternal which is our guide of life and instructress in duty, and
meant, when he wanted to distinguish it from the ins naturae, legal ~hich he e~titles Necessity or Fate, and the Everlasting Truth of
usage actually existing everywhere as distinguished from the ideal future events. That he has in mind a kind oflaw distinct from natural
law (ius naturae) which might not exist. Ius gentium was a world law is clear from his discussion. of wrongly gains as being contrary
common law, the principles applicable to cases in which the parties to the law of nature (in this case ius gentium), the statutes of
were not both Roman citizens and in which, therefore, no appeal particular'communities, and the "Reason which is in Nature, which
could be made to the ius civile. He used the phrase ius communis to is the law of gods and men" (ipsa naturae ratio, quae est lex divina et
mean the law which he and the person whom he is addressing humana).
acknowledge. He thought of customary law (consuetudo) as that At the point in the dialogue of De Legibus at which Cicero first
which has been approved by common consent of long standing and develops the idea of law as the ultimate mind of God his brother
which may not have been ratified by statute. He drew a sharp Quintus interrupts him and demands a fuller explanation. He
distinction between public law and private law. He had many more remarks that Cicero has, on more than one occasion, already touched
phrases and combinations of phrases to denote further kinds of law. on this topic. But before Cicero comes to treat ofthe laws of peoples,
Plainly, we are in the presence of a man to whom legal distinctions Quintus would be grateful if he would make the character of this
were important and who was fortunate enough to have before him a heavenly law clear to him, so that the waves of habit may not carry
body of material which would permit the making of distinctions. him away and sweep him into the common mode of speech on such
Cicero perceived three kinds oflaw operating in the world and subjects.
this classification apparently embraced all the forms with which he Cicero agrees that there should be a true understanding of the
was familiar. There is first the heavenly law (lex caelestis). He matter. He quotes a rule from the Twelve Tables and observe that it,
observes it has been the opinion of the wisest men that law is not a together with other rules of the same kind, is called "law." These
product of human thought, nor is it any enactment of peoples, but commands and prohibitions of nations have the power to summon to
something eternal which rules the whole universe by its wisdom in rectitude and away from wrongdoing. However, this power is not
command and prohibition. Thus they have been accustomed to say merely older than the existence of nations and states, it is coeval
that law is the primal and ultimate mind of God, whose reason directs with that God who guards and rules heaven and earth. For the divine
all things either by compulsion or restraint. Therefore, that law which mind cannot exist in a' state devoid of reason; and divine reason
the gods have given to the human race has been justly praised; for it must necessarily have this power to establish right and wrong. Prior
is the reason and mind of a wise lawgiver applied to command and to written law reason existed, derived from the nature of the universe,
prohibition. urging men to right conduct and diverting tliem from wrongdoing;
Plato's playful account of the origin of law may have been in and this reason did not first become law when it was written down,
the back of Cicero's mind as he set forth this idea, although as he but when it first came into existence; and it came into existence
develops its main foundations, it is obviously Stoic. In the old days simultaneously with the divine mind. Therefore, the true and
Plato pointed out Cronos ruled us through his daemons. Today there supreme law, whose coriunands and· prohibitions are equally
is in man a divine part - his - mind - and this divine element authoritative, is the right reason of the Sovereign Jupiter.
must do as Cronos did and appoint subordinate ministers for our Lactantius has preserved for us an eloquent passage by Cicero
government. These ministers we may call not JaiMovas butiLavoMas describing the lex caelestis iat greater length: There is in fact a true
''the arrangements" or "appointments made by the intellect" and to law, right reason, agreeing with nature, diffused among all men,
which we give the name of "laws." Elsewhere Cicero refers to the unchanging and eternal; it summons to duty by its commands, and
contention that nothing is more divine than reason and quotes deters from wrong by its prohibitions. Its commands and prohibitions

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are not laid upon good men in vain, but are without effect on the of the Stoics was too idealistic to foresee the possibility of its use
bad. It is a sin to try to alter this law, nor is it allowable to attempt in the positive law. Zeno wanted to abolish law courts altogether.
to repeal any part of it, and to annul it wholly is impossible. We H e also argued that the practice of permitting both sides to be
cannot be freed from its obligations by senate or people, and we need heard in an action at law ended in a dilemma. If the plaintiff has
not look outside ourselves for an expounder or interpreter of it. It plainly' proved his case, there is no need to hear the defendant,
will not lay down one rule at Rome and another at Athens, or different for the question is at an end; ifhe has not proved it, it is the same
laws now and in the future; but there will be one law, eternal and case as if the· plaintiff had not appeared to prosecute his cause
unchangeable, binding at all times upon all peoples. There will be, when the case was called, or had appeared and offered no evidence;
as it were, one common master and ruler of men, namely God, who so that, whether the plaintiff has proved .or flot proved his case,
is the author of this law, its interpreter, and its sponsor. The man the defendant should not be heard. To this Plutarch replied that
who will not obey it will abandon his better self, and in denying the Plato had either proved or not proved those things which he set
true nature of a man, will therepy suffer the severest of penalties, forth in the Republic; but in neither case- was it necessary for
although he has escaped all the other consequences which men call Zeno to write against him.
punishment.
Cicero as a practical lawyer attempted to give concrete
That is a clear statement of the Stoic doctrine of the Logos meaning to the idea of a lex caelestis. As an instance he cited the
carried over explicitly into jurisprudence. Heraclitus had laid it down case of Cocleswho took his stand on a bridge alone, against the
that "all things happen in accordance with the Word" and that men full force of the enemy, and ordered the bridge broken down behind
must "hold fast to that which is common to all, as a city holds fast to him. He was obeying the "law of bravery," an illustration of the
its law, and much m ore strongly still; for all human laws are positive or command aspect of the lex caelestis. For its negative
nourished by the one divine law." Assertions such as these were or prohibitory side Cicero cites the case of Sextus Tarquinius who
transformed by the Stoics into the. doctrine of a which r uled the broke the "eternal law" against rape by violating Lucretia. It is a
universe. An early work of Zeno, the Republic, was an attempt to weakness of Cicero that in his efforts at concreteness he is not
answer the argument of Plato's Republic and to show that the perfect able to rise above the level of the wall motto in his moral precepts.
state must include the entire world. A man would not say "1 am an Cocles' conduct was a noble act of bravery. But should the law
Athenian," but would follow Socrates and regard himself as a native command such conduct in all similar circumstances with penalties.
and citizen of the world. At the basis of this speculation was the Therefore, Cicero says, law is the distinction between things just
belief, taken over from physics, that the universe is governed by and unjust, made in agreement with that primal and most ancient
law, which ess,e ntially is the law ofrea$on. Morality as an expression of all things, nature; and in conformity to nature's standard are
of reason represents the commands and prohibitions of the divine framed those human laws which inflict punishment upon the
law. "Act according to nature" summed up the general ethical wicked but protect the good. This is his formal definition of natural
teaching. In its legal sense the Logos becomes the Platonic rule of law (lex naturae).
Right Reason (vera ratio) which per-vades all things and which I

commands what ought to be done and forbids the opposite. Cicero Plato had argued that law is a good and that what is not
could never understand how Zeno convinced himself that this law beneficial to the state is not a good, and hence a bad law is no law.
was alive. Eventmilly the conception took its place in the Digest in Cicero's analysis reproduces this argument, but adds the idea of
Chrysippus' definition oflaw as the Queen of all things, human and nature as the standard by which to test the goodness or badness
divip.e, a paraphrase qf Pindar. of a law. However, it is far from clear what Cicero meant by
"nature." Chrysippus had defined the highest good "as life in
Although the Roman jurists were able to work the Logos out in accordance with nature, or, in other words, in accordance with
practice by means ofthe doctrine of the law of nature, the imagination our own human nature as well as that of the universe." Apparently

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I
there was an order of: nature which was rational throughout and There was no inclina tion on Cicero's part to under estimate
man was to conform .to it. Animals were able to preserve their law even in its opprobrious sense. In his hands the theory of the
lives because nature had given them impu lse. In their case sta te assumes a legalistic form unknown to the Greeks. He
nature's rule was to follow the direction of impulse. To man nature maintains that nothing can be nobler than the law of a state. It
had added reason, and for ·him life according to reason rightly was originally made for the security of the people, for the
becomes the natur al life. By "reason" Cicero understood that which preservation of the state, for the peace and happiness of human
teaches and explains what should be done and what should be life. Law is th~ bond of civil society, and the state may be defined
left undone . Cicero regarded a life in accor dance with nature as as an association or partner ship in law. If a state has no law, it cannot
the highest good. That meant the enjoyment of a life of due be considered a state at all. Law is evJn superior to philosophy. An
measure based upon virtue, or, in other words, following nature art, even if unused, can stil.1 be retained in the form of theoretical
and living according to her law; that is to say, to spare no effort, knowledge; but virtue depends entirely upon its use,; and its noblest
so far as in us lies, to accomplish what .nature demancls, among use is the government of the state, and the realization in fact, not in
those demands being her wish that we live by virtue as our law. words, of those deeds which philosophers r ehearse in their secluded
For his third kind of law, Cicero turns to the naked idea of retreats. For, even when philosophers express just and sincere
law as that which decrees in written form whatever it wishes, sentiments about these matters, they merely state in words what
either by command or prohibition. Such, he observes with has been actually realized and put into effect by those statesmen
contempt, is the crowd's definition of law. With those words he who have given states their laws. From whom comes our sense of
dismisses the subject. Nevertheless, t he idea was a necessary one moral obligation and our reverence t owards the gods? From whom
in order to make his system philosophically complete. For one do we derive that law which is common to all peoples (ius gentium),
thing, it would serve as a catch-all for the specimens oflaw which or that to which we apply the term civil (ius civile)? Whencejustice,
could not be fitted into the categories of the lex caelestis or the ius honor, fair-dealing? Whence decency, self-restraint, fear of disgrace,
naturae. It could contain even those bad laws which were no laws eagerness for praise and honor? Whence comes endurance, toils and
at all. dangers? Assuredly, from those statement who have developed these
qualities by education and have embedded some of them in customs
What is extr aordinary in t his analysis of the nature oflaw is and have enforced others by statutes. Xenocrates, one of the most
that Cicero, although the most learned lawyer of his time, does distinguished of philosophers, was once asked, so the story goes,
not.reason from legal materials. His lex caelestis is pure Stoicism; what his pupils gained from his instructions. He replied that of their
his ius naturae appears to be a Greek imJortation. Only the lex own free will they would perform the duties they would be enforced
vulgus refers direct'ly to 'p ositive law. In this respect Cicero is much to do by the laws. A statesman, therefore, who by his authority and
closer to Plato than to Aristotle, al~hough his idea of law is by the punishments which his laws impose obliges all men to adopt
completely different from either of theirs. Plato, in working out that course which only a mere handful can be persuaded to adopt by
his theory that law seeks to be the discovery of reality, paid no the arguments of philosophers, should be held in even greater esteem
more attention to legal materials than did Cicero. Aristotle, than the teachers who make these virtues the subject of their
however, in putting forward his numerous ideas on the nature of discussioris. For what speech of theirs is excellent enough to be
law plainly kept . positive law and lega l procedure before him. preferred to a state well pr ovided with law and customs?
Cicero's conceptions, nevertheless, were to be as influential as
those of his illustrious predecessors and ar e even today the basis
of a revival in juristic thought.

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READINGS IN LEGAL PHILOSOPHY AND THEORY

inclinations and his capacity for pleasure. And, after all, the
KANT's, TI:iE PHILOSOPHY OF LAW* individual has really to acquire his Prudence at the cost of his own
PROLEGOMENA suffering or that of his neighbours.
But it is quite otherwise with the Principles of Morality. They
LAW AND ETHICS lay down Commands for everyone without regard to his particular
General Introduction to the Metaphysic of Morals inclinations, and merely because and so far as he is free, and has a
practical Reason. Instruction in the Laws of Morality is not drawn
from observation of oneself or of our animal nature, nor from
II. . The Idea and Necessity of a Metaphysic of Morals perception of the course of the world in regard to what happens, or
.... [Moral Law] in contradistinction to Natural Laws, are only how men act. But Reason commands how we ought to act, even
vahd as Laws, in so far as they can be rationally established a priori although no example of such action were to be found; nor does Reason
and cOI?prehended as necessary. In fact, conceptions and judgmentt3 give any regard to the Advantage which may accrue to us by so acting,
regardmg ourselves and our conduct have no moral significance, if and which Experience could alone actually show....
they contain only what may be learned from experience; and when
anyone is, so'to speak, misled into making a Moral Principle out of
anything derived from this latter source, he is already in danger of General Divisions of the Metaphysic of Morals
falling into the coarsest and most fatal errors.
If the Philosophy of Morals were nothing more than a Theory IV. General Preliminary Conceptions Defined and
of Happiness (Eudoemonism), it would be absurb to search after Explained
Principles a prio!,"i as a foundation for it. For however plausible it ... Natural and Positive Laws. - Obligatory Laws for which an
may sound to say that Reason, even prior to experi~nce, can external Legislation is possible, are called generally External Laws.
comprehend by what means we may attaip. to a lasting enjoyment of Those External Laws, the obligatoriness of which can be recognized
the real pleasures of life, yet all that is taught on this subject a by Reason a priori even without an external Legislation, are called
priori is either tautological, or is assumed wholly without foundation. Natural Laws. Those Laws, again, which are not obligatory without
It is. only Experience that can show what will bring us enjoyment~ actual External Legislation, are called Positive Laws. An External
The natural impulses directed towards nourishment the sex~al Legislation, containing pure Natural Laws, is therefore conceivable;
ins~inct, or the tendency to rest and motion, as well a~ the higher . but in that case a previous Natural Law must be presupposed to
desIres of honour, the acquisition of knowledge, and such like" as establish the authority ofthe Lawgiver by the Right to subject others
developed with our natural capacities, are alone capable of showing to Obligation through his own act of Will.
iIi what those e?joyments are to be found. And, further, the knowledge
thus acquired, is available for each individual merely in his own Maxims. - The Principle which makes a certain action a Duty,
way; and it is only thus he can learn the means by he has to seek is a Practical Law. The Rule of the Agent or Actor, which he forms as
those enjoyments. All specious rationalizing a priori, in this a .Principle for himself on subjective grounds, is called his Maxim.
connection, is nothing at bottom but carrying facts of Experience up Hence, even when the La:~ is one and invariable, the Maxims of the
to generalizations by induction (secundum principia generalia non Agent may yet be very different.
universalia); and the generality thus attained is still so limited that The Categorical Imperative. - The Categorical Imperative only
numberless exceptions must be allowed to every individual in order expresses generally what constitutes Obligation. It may be rendered
that he may adapt the choice of his mode oflife to his own particular by the following Formula: "Act according to a Maxim which can be
adopted at the same time as a Universal Law." Actions must therefore
. "Reprint from Cohen and Cohen, Reading in Jurisprudence and Legal be considered, in the first place, according to their subjective
Ph~losophy. All footnotes were omitted.
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Principle; but whether this principle is also valid objectively, can 1. The conception of Right .- a s referring to a corresponding
only be known by the criterion of the Categorical Imperative. For Obligation which is the Moral aspect of it - in the first place,
Reason brings the principle or maxim of any action to the test, by has regard only to the external and practical relation of one
calling upon the Agent to think of himself in connection with it as at Person to another, in so far as they can have influence upon
the same time laying down a Universal Law, and to consider whether each other, immediately or mediately, by their Actions as facts.
his action is so qualified as to be fit for entering into such a Universal In the second place, the conception of Right does not indicate
Legislation .... the ~elation of the action of an individual to the wish or the
mere desire of another, as in acts of benevolence or of
unkiindness, but only the relation of his free action to the
freedom of action of the other. And, in the third place, in this
INTRODUCTION TO THE SCIENCE OF RIGHT reciprocal relation of voluntary actions, the conception of Right
does not take into consideration the matter of act of Will in so
General Definitions and Divisions far as the end which anyone may have in view in willing it, is
concerned. In other words, it is not asked in a question of Right
A. What the Science of Right Is? whether anyone on buying goods for his own business realizes
, a profit by the transaction or not; but only the form of the
The Science of Right has for its object the principles of all the
transaction is taken into account, in considering the relation of
Laws which it is possible to promulgate by external legislation ....
the mutual acts of Will. Acts of Will or voluntary Choice are
thus regarded only in so far as they are free, and as to whether
R What Is Right? the action of one can harmonize with the Freedom of another,
This question may be said to be about as embarrassing to the according to a universal Law.
Jurist as the well-known question, "What is Truth?" is to Logician. Right, therefore, comprehends the whole of the conditions under
It is all the more so, if, on reflection, he strives to avoid tautology in which the voluntary actions of anyone Person can be harmonized in
his reply, and recognise the fact that :a reference to what holds true reality with the voluntary actions 'of every other Person, according
merely of the laws of some one country at a particular time, is not a to a universal Law of Freedom.
solution ofthe general problem thus opposed. It is quite easy to state
what may be right in particular cases (quid sit juris), as being what
c. Universal Principle of Right
the laws of a certain place and of a certain time say or may have
said; but it is much more difficult to determine whether what they "Every Action is right which in itself, or in the maxim on which
have enacted is right in itself, and to lay down a universal Criterion it proceeds, is such that it can co-exist along with the Freedom of
by which Right and Wrong in general, and what is just and unjust, the Will of each and all in action, according to a universal Law."
may be recognized. All this may remain entirely hidden even from (If, then, my action or my condition generally can co-exist with
the practical Jurist until he abandon his empirical principles for a the freedom of every other, according to a universal Law, anyone
time, and search in the pure Reason for the sources of such does me a wrong who hinders me in the performance of this action,
judgments, in order to lay a real foundation for actual positive or in the maintenance of this condition.) For such a hind~ance or
Legislation. In this search his empirical Laws may, indeed, furnish obstruction cannot co-exist with Freedom according to universal
him with excellent guidance; but a merely empirical system that is Laws.
void of rational principles is, like the wooden head in the fable of It follows also that it cannot be demanded as a matter of Right,
Phaedrus, fine enough in appearance, but unfortunately it wants that this universal Principle of all maxims shall itself be adopted as
brain. .

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my maxim, that is, that I shall make it the maxim of my actions. For Comments by Paton on Kant
anyone may be free, although his Freedom is entirely indifferent to
me, or even if I wished in my heart to infringe it, so long as I do not
actually violate that freedom by my external actions. Ethics, however, Since the time of the ancient Greek philosophers, many writers
as distinguished from Jurisprudence, imposes upon me the obligation have emphasized the relativity of law - there is scarcely a rule of
to make the fulfillment of Right a maxim of my conduct. today which may not be matched by its opposite of yesterday. A study
The universal Law of Right may then be expressed, thus: "Act of actual systems makes many despair of finding universal elements
externally in such a manner that the free exercise of thy Will may be on which a definition of law can build. Kant attacked this problem
able to co-exist with the Freedom of all others, according to a by the application of his 'critical method'. It is not possible in a short
universal Law." This is undoubtedly a Law which imposes obligation section to expound one of the inost difficult systems of philosophy
upon me; but it does not at all imply and still less command that I ever conceived. All that can be achieved is to point out the bearing of
ought, merely on account of this obligation, to limit my freedom to Kant's method on the problem of defining law. To Kant the world of
these very conditions. Reason in this connectio"n says only that it is sensible experience is full of diversity and can of itself produce no
restricted thus far by its Idea, and may be likewise thus limited in principles which are universally valid. To define law we must
fact by others; and it lays this down as a Postulate which is not distinguish between form and matter; the first being the complex of
capable of further proof. As the object in view is not to teach Virtue, universally valid principles presupposed in any legal judgment, and
but explain what Right is, thus far the Law of Right, as thus laid the latter the changing world of social experience which those
down, may not and should not be represented as a motive-principle principles construe legally'. To define law we should not study actual
of action. " legal systems, but rather retire to the world of pure thought and
discover those elements without which it is logically impossible to
D. Right is Conjoined with the Title or Authority to Compel conceive of law at all.
The method may be illustrated by turning to the work of Rudolf
The resistance which is opposed to any hindrance of an effect,
is in reality a furtherance of this effect, and is in accordance with its Stammler. He regards the philosophy of law 'as the theory of those
accomplishment. Now, everything that is wrong is a hindrance of propositions about law which have universal validity'. The natural
the freedom, according to universal Laws; and Compulsion or world shows us the working of cause and effect: law belongs to the
Constraint of any kind is a hindrance or resistance made to Freedom. realm which chooses ends and determines means. His first emphasis,
Consequently, if a certain exercise of Freedom is itself a hindrance therefore, is that law is a type of volition; or, to put it in other words,
ofthe Freedom that is according to universal Laws, it is wrong; and that inherent in law is the notion of purpose. Law exists to bind
the compulsion or constraint which is opposed to it is right, as being together the community; it is sovereign, and cannot be violated with
a hindering of a hindrance of Freedom, and as being in accord with impunity. Since by definition law exists to harmonize the purposes
the Freedom which exists in accordance with universal Laws. Hence, of individuals, law itself strives towards justice. The fundamental
according to the logical principle of Contradiction, all Right is basis of law and of just law are, therefore, the same. The form of
accompanied with an implied Title or warrant to bring compulsion human society is external regulation, as social co-operation cannot
to bear on anyone who may violate it in fact .... be thought of in the absence of control - since law exists to co-
ordinate, it can operate only by unifying all possible acts of men.
This analysis does not depend on any particular theory of ethics or
on postulates drawn from actual legal systems. When Stammler
works out his theory he does not examine an actual society but
postulates an ideal community in which everyone accepts as his own
all those purposes of others which can be objectively justified. These
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principles of just law are based on the doctrines of respect (one must law is that implicit in its legal principles is the answer to every
not treat another arbitrarily) and of participation (all must be allowed conceivable legal problem.
to shared in the legal community). This picture of society is regarded But we do not find that the legal systems of the world follow
as a determining form which will condition the rules in any particular any a priori logic. The striving for justice may be the mark of ideal
group of men. law, but it is not always the characteristic of actual systems.
It is unfair to attempt to describe a great system of learning in Stammler correctly emphasizes that inherent in law is the notion of
a few lines. But despite all the skill and vigour of Stammler's work, purpose - bht this purpose is determined, not by the logical
it is hard to resist the conclusion of Geny that his conclusions do not principles of the academic jurist, but by the actual struggles of flesh
really depend on his premisses - they are suggested by his particular and blood. The purpose of law is hardly a conditioning form which
prejudices and social views. Jurisprudence, in the hands ofthe formal determines the rules of every community.
theorist, is always faced with a dilemm~: if it is true to the premisses Del Vecchio follows the same Kantian method, but his writings
on which it is built, it remains in the pure heaven oflogical concepts; are easier to follow. He defines law as the objective co-ordination of
if it attempts to descend to earth, the~ these concepts are explained possible acts among men, according to an ethical principle which
according to the social picture of the writer. Thus Stammler has not determines them and prevents their interference.
really solved the relationship of just law and law. Does he mean that
just law effectively dominates law in every society? If so, the
conclusion is demonstrably faise. The abstractlformulae produced
are very subtle, but after all they are merely affirmed without being
proved. The unity of the ideal community is merely a formal one in
which there is logically no contradiction between the ends of each
legal subject.
Whether we adopt the Kantian theory or not, there are points
in Stammler's theory which any discussion of law must note. He
rightly emphasizes that the notion of community is inherent in the
nature of law: law could exist as ', a theory if Adam were the sole
inhabitant of the globe, but law can exist only in fact if an actual
society exists. Secondly, the realm of law 'and of the natural world
are distinct. A natural law cannot be broken since it is merely a
description of what invariably happens, whereas law is essentially
normative,in that it sets up a standard which men ought to follow.
But while the dictates of law may be disobeyed, they cannot be
disobeyed without risk. It is true that a wrongdoer may escape
punishment, but the very notion of law is that it imposes itself on
the will of the, individual. In this sense law is autonomous and
inviolable, for while man may be free to'break the law, he is not free
to evade its penalties. Thirdly, most systems do assume that law is a
complete and exclusive system in itself. This raises the issue of non
liquet - no judge is free to refuse'to decide a case on the ground that
legal authority provides no precise answer. The theory of the common

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HEGEL's, THE PHILOSOPHY OF RIGHT* N evertheless, it appears possible to com pr ehen d Hegel's
philosophy of law without a preliminary excursus on his gene:al
We are told by Hegel that philosophy was accessible to the system or on the systems of his predecessors. Indeed the first Enghsh
ordinary knowledge of the cultured public until Kant. ,Beginning with expositor of the system thought that "we may take down the volume
Kant's intricate idealism it passed beyond their understanding, and of Hegel's works containing the Philosophy of Right, and although
its subtleties are now open only to the grasp of the professional. If we have never opened any of the other volumes, we shall not find
Hegel's remark is an accurate description of a difficulty of modern what we reaa unintelligible .... We need not travel beyond the limits
philosophical thought, his own system, notwithstanding his of this particular sphere in order to apprehend it s true character."
insistence that it is the duty of all individuals to occupy themselves Hegel himself took pains in the Introduction to the Philosophy of
with philosophy, did nothing to overcome it. The intricacy of his Right to sketch the elements of his general theory; but it may be
thought is the theme of the comment~tor and the e;perience of the doubted that his full meaning will be understood in the absence of a
student. But Hegel also brings a speCial burden to the student who knowledge o{his more elaborate statements. Nevertheless his legal
wishes to understand him. We are assured that Hegel during the theory, and the ethical theory of which it forms a part"can b~ stated
course of the exposition of a particular point not only had his entire without difficulty. There is no likelihood that legal thought will adopt
system present 'to his mind, but that he kept equally before him all either the philosophical basis or the technical apparatus of Hegel's
the philosophy of the past. jurisprudence. We have a vital interest in understanding as fully as
An introduction to Hegel's thought is thus likely to begin with may be the meaning and the grounds of the conclusions he ~as
a preliminary sketch of philosophical ideas to the first years of the reached in jurisprudence. But it is the conclusions themselves WhICh
nineteenth century. An exposition of a particular aspect of Hegel's are our primary concern,since it is possible tO 'deduce them from
system is usually preceded by an account of the major ideas upon premises other than those which Hegel employed. Many of those
which it rests. In all this there is much merit. When we are concerned conclusions have passed over into jurisprudence, and are part of the
with a thinker of Hegel's stature we cannot know too much about stock of ideas of legal theory today. Our task is to ascertain the
the interccmnections of his thought. What he has to say on other meaning of those conclusions as they were expounded by Heg;el, and
topics, and especially the process by which he arrives at the specific to understand, so far as necessary for the purposes of the lnquiry,
conclusion he is expounding, are valuable in our efforts to reach ,the the presuppositions which led him to ' reach them. That is an
essence of his thought. This would seem to be the case with Hegel's undertaking which appears possible although accompanied by a
theory of jurisprudence. It was first put forward as an integral part minimum of explanatory exegesis.
ofthe volume which he regarded as the methodical summary of his Hegel's purpose in publishing a treatment of the philosophy
system. It was later reconsidered and expanded as a separate volume. of right in a separate volume is made abundantly clear from his
Further, the latter part of the jurisprudence was itself additionally preface. He felt that the audience which attended his lectures on
developed in the form of the lectures, published after his death, on the subject needed the guidance of a manual in ord~r fully to
the philosophy of history. Finally, Hegel himself apparently understand the import of his remarks; he felt also that the lectures
presupposed on the part of the reader some knowledge of his general stood in need of clarification and amplification, and that writing
system, particularly the exposition of his philosophic method in the them out in the form of a manual provided the opportunity to
Science of Logic. accomplish those ends. His manual was thus to He a compendium,
with its subject-matter circumscribed by the limits of the science.
But it was to be a compendium with a difference. Hegel believed
that philosophy possessed a logic or method of its own, one that
' Reprint from Cairns, Legal Philosophy from Plato to Hegel, p. 503. All footnotes was peculiar to itself, and which constituted philosophy's own kind
were omitted.
of scientific proof. This was the dialectical method, which proceeds
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through the development ofthe concept. It is the process by which .i u riFlprudence at bottom was a philosophical science <W.issenschaft)
from the first member of a triad, say Being, a second element, und in such a subject, he held, form ,and content are Inseparable.
Nothing, is deduced. This is possible because Being in its At this point we come to one of Hegel's most controversial
completely abstract form, devoid of all qualities, is Nothing. But ideas and, at the same time, one of the most important in his
we are able at this point to perceive the presence of the member philosophy. This is his assertion that the ratio~al is actual and
of the triad, Becoming. In fact, we are forced to take this step the actual is rational. Perhaps the best course, In order to grasp
according to Hegel because, unless we do so, we are asserting the the me~ning ofthis proposition, is to follow the steps which led to
paradoxical proposition that Being and Nothing are the same - its assertion.
that a thing both is in and is not. We must therefore search for We can assume that the task of the philosopher is to state
what Hegel calls the unity of opposites. In the present case it is the truth about the subjects with which he is concerned.
found in Becoming; a thing both is and is not when it becomes. It Philosophers in their books k eep serving up hashes which purport
is on this basis, says Hegel, that "the system of concepts has to set forth these truths, but they ' are ' merely rewarmed dishes
broadly to be constructed; and go on to completion in a resistless which are supplanted by 'each new serving. Through the
course." Hegel explicitly rejects two other methods of procedure, philosophical method we can really arrive at the truth. So far as
that which he terms raisonnement and the mathematical method jurisprudence is concerned the truth is nothing. new. It was
of Spinoza. Raisonnement in Hegel's view was the method of the embodied long la go in the va.rious systems of law whIch the world
Sophists. It consists of the finding of reasons which justify the has known. Philosophy's problem is to isolate those truths and to
conclusions the individual wishes to uphold. These reasons, or exhibit their logical necessity. This does not mean, as Heg~l's
grounds, have therefore no objective or essential principles of their critics have asserted, that the legal institutions or rules are
own, and it is as easy to discover grounds for what is wrong as for immune from criticism, or, in other words, that what~ver is, is
what is right. It is the method especially adapted by the Sop4ists right. Hegel makes this perfectly clear in the distinction he draws
to the consideration of questions of law; it is still followed in the between the laws of nature and positive law. The laws of nature
legal profession and its products are known as "lawyer's are given and their measure is outside man. No matter ho~ w~l~
arguments." To the mathematical method he objects that it we know them we can add nothing to them nor can we assIst In
necessarily involves presuppositions and that it is the method of their operation. Our ideas about ' them, however, can ?e false.
the understanding. By presuppositions he means that Spinoza's Positive law on the contrary, is posited, it originates wIth man.
method of beginning with definitions and axioms, notwithstanding For the posited, however, man ,insists that the measure is within
the fact that they are a great storehouse of speculative truth, is him. When we are confronted with nature we do not go beyond
basically the method of dogmatic assertion. Hegel held that his the truth that there is a law; but we cannot accept positive law
own method made no assumptions of this character. By the method simply because it exists. There is thus the possibility of a conflict
of the understanding Hegel means the type of reasoning which is between the ought and the is . It is the assignment of the
based upon the law of identity A=A. In jurisprudence, he pointed philosophy of law to establish the r ationality of law or ri.g~t, and
out, since we argue from a specific law or precedent to another, in this r espect it stands in contrast with the study of posItIve law
advances are primarily regulated by identity. But when we pass which is mainly occupied with the revelation of contradictions.
to the speculative method we are at the level of the concept and Thought is now seen to be the essential form of thin?,s, and
have passed beyond identity to the unity of opposites. In the philosophy must therefore attempt to gr~sp law or :rIght as
Hegelian system methodology occupied a preeminent place, and thought. Again, this does not mean that rIght must YIeld to a
it was from the point of view of the application of his own supposed supremacy of thought, or that random opinions are
philosophical method to the problems of law that Hegel wished entitled to weight. Thought .which is valid must take the form,
his jurisprudence primarily to be judged. He took the view that not of a mere opinion, but of a concept about the thing. We arrive
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at this position only through the employment of the philosophic can tell us whet her the action is self consistent or not, but we
methodology. Above all we cannot know the truth through the want t o know wh ether the pra ctice deposits is morally valid. An
method of either intuitionalism or subjectivism. evil man can be perfectly consistent and can thus m eet the test of
Philosophy's concern is with the rational. This means that it universality. Hegel's theory of the concrete universal, the concept,
is an effort to apprehend the actual. For the world that the attempts t o meet exa ctly this point. It gives a material content to
philosopher contemplates is a world of appearance and essence, t h e universal. Hegel shows also that the Kantian morality itself
the outward and the inward, the unity of which constitutes is self-contradi~tory. We can take as a universal maxim the rule:
actuality. Now the mere existent is not the actual, since ifit were "Help the poor." But the best way to help the poor is to abolish
it would include caprices of fancy and evil, which are not rational. poverty. But this would mean the abolition of a moral duty, since
Caprices of fancy and evil represent the fortuitous, something of our duty to help the poor would vanish with the poor themselves.
no greater value than the possible, something which may as well We must therefore keep poverty so that we can perform our duty.
be as not be. It is the actual alone which is rational, which can be But in that case we are not really doing our duty, which is to give
grasped in thought. But when rationality is actualized it assumes the most effective assistance possible to the poor.
a multitude of forms, and it is not the business of philosophy to Hegel was careful to warn his readers not to expect too much
concern itself with such an infinite variety of affairs' Thus Plato from philosophy. It always comes too late to teach the world ~hat
l
should not have urged that nurses with children in their arms it ought ,to be. Philosophy, a s the thought of t he world, appears
should continually rock them; nor should Fichte have insisted that only when the for mative pr ocess of actuality has been completed.
passports should be signed and have the portraits of their owners Only when actuality is mature can the ideal be contrasted with
painted upon them. Attempts to pass judgment upon' ~atters of the real; it is only then th.at the ideal apprehends the substance
this sort are a form of supererudition in which philosophy loses of the real world and shapes it into an intellectual realm. "The
its way. At bottom Hegel's book has as its aim the effort to owl of Minerva," Hegel observes in his greatest Delphic utterance,
understand the state as an inherently rational institution. It is "takes its flight only with the falling of the dusk." If this is an
not an endeavor to construct the state as it ought to be, but only impractical philosophy, a s critics of Hegel allege, it is nevertheless
to reveal how the state, which is the world of the ethical, is to be not without its justification. The impulse to understand the world
understood.
is justified by the fact that it gratifies legitimate curiosity. It needs
We can approach Hegel's position from another point of view. no further support in the hope or desire that practical results
His system, like Kant's, is based upon a principle of knowledge, will issue from it. In fact, that some philosophies may have no
reason', which acts universally. But reason in Kant's hands is a practical consequences is at present perceived to be a virtue, now
formal principle. The ethical rules which are to guide individuals that the wave of utilitarianism is receding. "This subject," Hardy
must be given a universal form, otherwise the individual could, wrote of pure mathematics, "has no practical use ; that is to say, it
in his behavior, indulge in self-contradictions. Kant puts the case cannot be used for promoting directly the destruction of human
of the person who adopts the maxim: "I may increase my fortune life or for accentuating the present inequalities, in the distribution
by every safe means." That person has in his hands a deposit the of wealth." That Hegel himself was not always a consistent
owner of which is dead; but there is no proof of the deposit. Is it Hegelian in the non-utilitarian view he took of his philosophy need
possible, in accordance with the maxim, to permit the law: not concern us her e.
Everyone may deny a deposit of which no one can produce a proof?
Kant answers "No," because such a law would annihilate itself
since there would be no deposits. But as Hegel observes, suppose
there are no deposits, where is the contradiction? Kant's system

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The Foundations of the Philosophy of Law Comments by Del Ver Vecchio on

Hegel's Phil~sophy of Law '
Hegel's philosophy oflaw takes as its subject-matter the Idea
of right, that is, the concept of right and the actualization of that . Georg Hegel lived from 1770 to 1831. Less precocious than
concept. Law itself, we are thus told at the outset, is to be explored Schelling, he published his works after those of the former had
from the point of view from which Hegel customarily regarded appeared. His Phanomenologie des Geistes appeared, in fact, in 1807,
the world. Hegel held that mathematics, formal logic, and related his Encyklopadie der philosophischen Wissenschaften in 1817, and
subjects operated at the level of the understanding; they are his Grundlinien der Philosophie des Rechts in 1821. The fundamental
concerned with "thoughts" or "universals" (the form) and with thought of Hegel is absolute idealism in the objective sense. He denies
"particulars" (the content). But at the level of reason we encounter dogmatically any limit to knowledge. Even the absolute is knowable.
the "concept," the principle of which is the identity of opposites. For Kant this idea was absurd and contradictory, because if the
When opposites such as form and content, universal and absolute should become known, by that very fact it would no longer
particular, are synthesized at the level of reason, they become be such, but would be relative. With, however, the analytical, careful,
concrete thought, the concept. By concreteness Hegel m.e ans that prudent work of Kant to seek the limits of knowledge, he does not
the concept has a content which it has given to itself through the bother. Indeed, he has for it a certain disdain. Consequently, one of
process of synthesis. But this process can also be applied to the the first characteristics of hegelian philosophy is dogmatism . Another
concept itself and, in turn, it yields the Idea. When we see the characteristic, which could be indicated by the name of intellectualism
concept in its development, that is, when the concept itself has or likewise of panlogism, is afforded by the identification of thought
become concrete through its own self-determination, it is the Idea. and of being. All is thought and there is nothing outside ofthought.
The concept and its existence are two sides of the same thing; Things are what they are thought to be. The subjective forms of
they. are distinct, yet, like body and soul, to use Hegel's own knowledge are also the objective forms of reality. Thus, for example,
example, they are united. . the laws of astronomy are also the laws of mathematicl:J.I thought.
They are objective reason. All that takes place is a movement of the
idea, or the idea which moves itself. A famous passage from the
preface to his Grundlinien says: "All that is real is rational, and all
that is rational is real," From this it would follow that discord between
being and what should be is impossible, whereas the consciousness
of this contrast had been the torment and at the same time the
greatest of previous thinkers, and had promoted so many noble efforts
toward the amelioration of human affairs.
For Hegel the fact is divine, is worthy of adoration, because it
is identified with the idea. From this comes likewise the political
significance of the Philosophy of Hegel, The significance is strictly
optimistic, because no injustice, no violation of law, is, absolutely
speaking, possible. As by his character and dogmatic tendency Hegel
is opposed to Kant and to Fichte, so also by his optimism he is to be
distinguished from the critical idealists, among whom is
Schopenhauer, who ~re generally inclined to pessimism.

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Another characteristic of the Philosophy of Hegel is evolution. forms: art, religion, and philosophy, in which supreme forms the spirit
"Nothing is, all· becomes." Struggle is the law of all things. This becomes reconciled with'itself, and there is perfect identity between
thought had already been expressed by Heraclitus in Greek antiquity subject and object. Art and religion are, however, but forerunners of
who said "all flows ," and, ''War is the mother and queen of all things." philosophy. They are philosophy in the stage of der~lopment. The
For Hegel the 'absolute, the idea, becomes through relationship which exists between these three terms IS analogous to
contradictions, contrast, the fluctuations of battle. The absolute is that between intuition, representation, and concept.
knowable only by means of a system of concepts, not by means of We should now add some clarification as to the portion of the
one concept which is necessarily unilateral, partial. As reality is system which more closely concerns are course of study, that is, as
essentially development, movement, so also the system of concepts to the portion on the objective spirit. This appears first of all, as we
must be mobile, composed of thoughts in movement. This is the said, in Law. Law is, according to Hegel, "the existence of free will/'
dialectic method which is characteristic ofhegelianism. Every concept in other words it is liberty which establishes itself externally. It IS
is unilateral because it lays down its contrary, it raises a the external e~istence of liberty. The will of man is essentially free.
contradiction. From a thesis proceeds an antithesis. From this follows It is free insofar as it is will. In this manner the problem of freedom
the necessity of a new concept, which will fuse the two preceding of will which has bothered so many philosophers, is, as it were,
concepts, surpass them, and eliminate the contradiction. This higher skipped by Hegel, or eliminated by ~ simple i?en~ificat~on. I.Iegel,
concept, however, i.n its turn, falls into its contrary. Consequently however continues saying that the lIberty whIch IS realIzed m the
there appear again thesis, antithesis, synthesis. So it goes. This external forms of law is defective. Consequently, liberty withdraws
dialectic method Hegel wanted to apply to all reality, proceeding upon itself, and one has morality, moral conscienc.e, or t~e subje~,tive
always by way of contradictions and of surpassing the contradictions. stage of duty. This, however, is in its turn uncer~am and l~s,:fficlent.
Every successive concept is richer than the preceding ones, because Following always the dialectic method, upon thIS contr~dIc~Ion must
it contains them in itself. The higher degree is the "truth" of the follow the synthesis, and this, indeed, is custom, the objectIve Et~os.
inferior. The first concept is the most empty, the most abstract. It is This, in the language of Hegel, signifies the effective, concrete, ethIcal
the concept of pure being. The last is the fullest, the most complete. life, as a synthesis of the abstract categories of law and of ~or~l~.
It is the idea which thinks itself, or the thought of the absolute. Here in custom are found three forms of organization: famlly, cWll
Once we have thus set forth the general characteristics of socie;y, State. N~ one prior to Hegel had distinguished so precisely
hegelian speculation, it will be profitable also to observe more closely between society and State, portraying the former as a form of
the structure of the system. The subject of the world process is called spontaneous organization and the latter as a spec~al juridical f~rm
Idea. The idea, says Hegel with a terminology which is very much of organization. Hegel, however, erroneously attnbuted to SOCIety
his own, is first of all in itself, that is, it represent a realm of abstract many juridical characteristics.
truths. In a second stage the idea is outside of itself, it externalizes . Hegel, too, like Schelling, gives a panegyric of th~ State. ~~e
itself in the forms of space and of time, as nature. In a third stage State is the highest degree of the objective spirit. It IS the spmt
the idea is in itself and for itself, that is, it reenters into itself. It which awakens, while in nature it appears to sleep. It is the supreme
becomes spirit. It then begins a new process, distinguishing itself manifestation of liberty. Above the State there is but the absolute.
into subjective spirit, objective spirit, and absolute spirit. Everyone From this comes the important consequence that all States are in a
of these has in its turn three degrees, or forms. The subjective spirit condition of equality, nor can there be a human jurisdiction supe.rior
is distinguished into soul, knowledge and reason. The objective spirit to them. Thus one arrives at a systematic justification of war, smce
presents itself in the three forms of law, morality, and custom. These conflicts between States, being incapable of being smoothed out or .
terms, too, as we shall soon see, have a special significance. Finally, decided by a superior jurisdiction, will have to be regulate~ in final
the spirit touches the greatest heights of the absolute in three other analysis by war which is a sort of divine judgment. In thIS regard

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Hegel makes his own, perhaps exaggerating the meaning somewhat, Questions in Chapter IV
, a maxim ofthe ,poet Schiller, "The history of the world is the tribunal Teleological Perspective
ofthe world." That is, peoples receive in history their just sentence.
Hegel, therefore, does not admit the possibility of an unjust invasion,
or of an illicit conquest. In war he wins who must win, and every 1. How do you distinguish the concept of justice of Plato from
people has the lot, just as it has the government, which it deserves. that of Aristotle?
The spirit ofthe world is superior to the spirit of the individual States, 2. What was the Platonic concept of natural law?
and pronounces irrevocably upon them its sentences. 3. What was the contribution of Roman jurist Cicero to legal
The spirit of the world develops through the individual States, Philosophy?
. ?
causing itself to be represented now by one people, now by another. 4. What was the concept oflaw of St. Thomas A qumas.
The State which at a particular moment of history represents the What was the difference between the natural law conceived
spirit of the world is the one which dominates that epoch. Hegel , 5.
by Plato and Aristotle with that of St. Thomas Aquinas?
enumerates four types of the State, which he supposes to have
represented successively, like steps, the progressive development of 6. Explain what is meant by Immanuel Kant's system of
the world spirit: the Oriental, the Greek, the Roman, and the German, "transcendental philosophy"?
or Prussian. Thus, for Hegel, the ultimate ideal of the State would 7. What is meant by Kant's theory of the term "categorical
be found concretely in the German State, and more particularly in imperative"? Give examples;
the monarchical Prussian State. He does not, however, recognized 8. What was the theory of Law and the State of Hegel?
any universal historical mission of Italy, England, or France. What is meant by the dialectical theory of Hegel?
9.
The optimistic and consequently, in practice, conservative Hegel impliedly justified war. Explain.
character of hegelian philosophy gained for it much favor. For a 10.
certain time it was the official philosophy of the Prussian State. The
philosopher, after various vicissitudes, gained a chair at the
University of Berlin, and from there pontificated as supreme arbiter
of Philosophy amid almost general admiration until 1831, the year
of his death. The official character itself of his philosophy, which
was momentarily a factor in its success, caused it later, however,
especially after 1848, the year of revolutions and political crises,
and not without reason, a certain discredit.
We should not, finally, that the hegelian system is presented,
indeed, under the guise of idealism, but, in effect, by identifying the
real with the ideal, it is at the same time realism. Consequently, it is
not surprising that out of the hegelian philosophy there came also
materialistic systems. From it, for example, Marx drew the concept
of historical necessity, understanding this, in a restricted sense, as
economic determinism (historical materialism).

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Chapter V or slender analogy, they are related to laws metaphorical, or laws

THE POSITIVIST SCHOOL . merely met aph orical.
The principal purpose or scope of the six ensuing lectures, is to
AUSTIN, THE PROVINCE OF JURISPRUDENCE distinguished positive laws (the appropriate matter ofjurisprudence)
from the objects now enumerated: objects with which they are
DETERMINED connected by ties of resemblance and analogy;with which they are
further co~nected by the common name of "laws"; and with which,
Laws proper, or properly so called, are commands; laws which therefore, they often are blended and confounded. And, since such is
are not commands, are laws improper or improperly so called. Laws t he principal purpose of the six ensuing lectures, I style them,
properly so called, with laws improper by so, called, may be aptly considered as a whoie, "the province of jurisprudence determined."
divided into the four following kinds. For, since such is their principal purpose, they affect to describe the
1. The divine laws, or the laws of God: .that IS to say, the boundary which severs the provi:ht:e ofjurisprudi:mce from the regions
laws which are set by God to his human creatures. lying oil its confines.
2. Positive laws: that is to say, laws which are simply and The way which I take in or der to the accomplishment of the
strictly so called, and which for m the appropriate matter purpose, may be stated shortly thus.
of general and particular jurisprudence.
I. I determi,n e the essence or n~ture ~hich ~s common to all laws
3. Positive morality, rules of positive morality, or positive that are laws properly so called: In other words, I determine
moral rules.
the essence or nature of a law imperative and proper.
4. Laws metaphorical or figurative, or merely metaphorical
or figur ative. II. I determine the respective characters of the four several kinds
,into which laws may be aptly divided: Or (changing the phrase)
The divine laws and positive laws are laws properly so called.
- Of positive moral rules, some are laws properly so called, but I determine the appropriate marks by which laws of each kind
are distinguished from laws of the others.
others are law~ improper. The posit ive moral rules which are laws
improperly so called, may be styled laws or r ules set or imposed by And here I remark, by the by, that examining the respective
opinion: for they are, merely opinions or sentiments held or felt by characters of those four several kinds, I found the following the order
men in regard to human conduct. A law set by opinion and a law wherein I could explain them best: First, the characters or
imperative and proper are allied by analogy merely; although the distinguishing marks ofthe laws of God; secondly, the characters or
analogy by which theY"are allied is str ong or close . - Laws distinguishing marks of positive moral rules; thirdly, the characters
meta~horical or figurative, or merely metaphorical or figurative, are or distinguishing marks oflaws metaphorical or figurative; fourthly
laws Improperly so called. A law metaphorical or figurative and a and lastly, the characters or distinguishing marks of positive law, or
law imperative and proper are allied by analogy merely; and the laws simply and strictly so called. .
analogy by which they are allied is slender or remote.
By determining the essence or nature of a law imperative and
Consequently, positive laws (the appropriate matter of proper, and by determining the respective characters of those four
jurisprudence) are related in the way of resemblance, or by close or several kinds, I determine positively and negatively the appropriate
remote analogies, to the following objects. In the way of resemblance, matter of jurisprudence, I determine positively what that matter is;
they are related to the laws of God. In the way of resemblance, they and I distinguish it from various objects which are variously related
are related to those rules of positive moral~ty which are laws properly to it, and with which it not unfrequently is blended an~confou:o.ded.
so called: And by a close or strong analogy, they are related to those I show more over its affinities with those various related objects:
rules of positive morality which are laws set by opinion. By a remote
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affinities that ought to be conceived as precisely and clearly as may Ii chain of systematical lectures concerned with the rationale of
be, inasmuch as there are numerous portions of the rationale of jurisprudence, such an exposition is a necessary link.
positive law to which they are the only or principal key.
Of the principles and distinctions involved the rationale of
Having suggested the principal purpose of the following treatise, jurisprudence, or of the principles and distinctions occuring in the
I now will indicate the t~pics with which it is chiefly concerned, and writings of jurists, there are many which could not be expounded
also the order wherein it presents them to the reader. correctly and clearly, if the three hypotheses or theories had not been
expounded previously. For example: Positive law and morality are
I. In the first ofthe six lectures which immediately follow, I state
distinguished by modern jurists into law natural and law positive:
the essentials of a law or rule (taken with the largest
that is to say, into positive law and morality fashioned on the law of
signification that can be given to the term properly). In other
God, and positive law and morality of purely human origin.
words, I determine the essence or nature which is common to
all laws that are laws properly so called. [T]he divine law is the measure or test of positive law and
morality: or (changing the phrase) law and morality, in so far as
Determining the essence or nature of a law imperative and
they are what they ought to be, conform, or are not repugnant, to the
proper, I determine implicitly the essence or nature of a command;
law of God. Consequently, an all-important object of science of ethics
and I distinguish such commands as are laws or nlles from such
(or, borrowing the language of Bentham, "the science of deontology")
commands as are merely occasional or particular. Determining the
is to determine the nature of the index to the tacit commands of the
nature of a command, I fix the meaning of the terms which the ter:r~
Deity, or the nature of the signs or proofs through which those
"comman,d" implies: namely "sanction" or "enforcement of obedience";
commands may be known, - I mean by "the science of ethics" (or by
"duty" or "obligation"; "superior and inferior."
"the science of deontology"). the science of law and morality as they
II. (a) In the beginning of the second lecture, I briefly determine respectively ought to be: or (changing the phrase), the science oflaw
the characters or marks by which the laws of God are and morality as they respectively must be if they conform to their
distinguished from other laws. measure or test. That department of the science of ethics, which is
concerned especially with positive law as it ought to be, is styled the
In the beginning of the same lecture, I briefly divide the laws,
science oflegislation: that department of the science of ethics, which
and the other commands of the Deity, into two kinds: the revealed or
is concerned especially with positive morality as it ought to be, h~s
express, and the unrevealed or tacit.
hardly gotten a name perfectly appropriate and distinctive. - Now,
Having briefly distinguished his revealed from his unrevealed though the science oflegislation (or of positive Joaw as it ought to be)
commands, I pass to the nature of the signs or index through which is not the science of jurisprudence (or of positive law as it is), still
the latter are manifested to Man. Now, concerning the nature of the the sciences are connected by numerous and indissoluble ties. Since,
index to the tacit commands of the Deity, there are three theories or then, the nature of the index to the tacit command of the Deity is an
three hypotheses: First, the pure hypotheses or theory of general all-important object of the science of legislation, it is a fit and
utility; secondly, the pure hypothesis or theory of a moral sense; important object of the kindred science of jurisprudence.
thirdly, a hypot~esis or theory mixed or compounded of the others.
There are certain current and important mis~onceptions of the
And with a statement and explanation of the three hypothesis or
theory of general utility: There are certain objections resting on those
theories, the greater portion of the,second lecture, and the whole of
misconceptions, which frequently are urged against it: There are
the third and fourth lectures, are exclusively or chiefly occupied.
also considerable difficulties with which it really is embarrassed.
That exposition of the three hypotheses or theories may seem Labouring to rectify those misconceptions, to answer those objections,
somewhat impertinent to the subject and scope of my Course. But in and to solve or extenuate those difficulties, I probably dwell upon

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the theory somewhat longer than I ought. Deeply convinced of its tallies, in the main, with a division oflaws which is given incidentally
truth and importance, and therefore earnestly intent on commending by Locke in his Essay on Human Understanding.
it to the minds of others, I probably wander into ethical disquisitions II. (c) At the end of the sam:e lecture, I determine the characters
which are not precisely in keeping with the subject and scope of my or distinguishing marks oflaws metaphorical or figurative. And .
Course. If! am guilty of this departure from the subject and scope of I show that laws which are merely laws through metaphors,
my Course, the absorbing interest of the purpose which leads me are blended and confounded, by writers of celebrity, with laws
from my proper path, will excuse, to indulgent readers, my. offense imperative and proper.
against rigorous logic.
II. (d) In the-sixth and last lecture, I determine the characters of
II. (b) At the beginning of the lilth lecture, I distribute laws or laws positive: that is to say, laws which are simply and strictly
rules under two classes: First, laws properly so called, with such .so called, and which form the appropriate matter of general
improper laws as are closely analogous to the prop~r; secondly, those and particular jurisprudence. '
impr?per laws which are remotely analogous to the proper, and which
I style, therefore, laws'metaphorical or figurative. - I also distribute Determining the characters of positive laws, I determine
laws proper with much improper laws as are closely analagous to implicitly the notion of sovereignty, with the implied or correlative
the proper under three classes: namely, the laws properly so called notion of independent political society. Fqr the essential difference
which I style the laws Of God; the laws properly so called which I of a positive law (or the difference that severs it from a law which is
style positive laws; and the laws properly so called, with the laws . I),ot a positive law) may be stated generally in the following manner.
improperly so called, which I style positive morality or positive moral Every positive law or every law simply and strictly so called, is set
rules. - I assign moreover my reasons for marking those several by a sovereign person, or ~ sovereign body of persons, to a member
~lasses with those respective names.
or members ofthe independent political society wherein that person
or body is sovereign supreme. Or (changing the phrase) it is set by a
Having determined, in preceding lectures, the characters or monarch, or sovereign number, to a person or persons in a state of
distinguishing marks of the divine laws, I determine, in the fifth . subjection to its author.
lecture, the characters or distinguishing marks of positive moral
rules:' that is to say, such of the laws or rules set by men to men as To elucidate the nature of sovereignty, and of the independent
are not armed with legal sanctions; or such of those laws or rules as political society that sovereignty implies, I examine various topics
are not positive laws, or are not appropriate matter for general or which I arrange under the following heads. First, the possible forms
particular jurisprudence.- Having determined the distinguishing or shapes of supreme political government; secondly, the limits, real
marks of positive moral rules, I determine the respective characters or imaginary, of supreme political power; thirdly, the origin or causes
of their two dissimilar kinds: namely, the positive moral rules which of political government and society. Examining those various topics,
are laws imperative and proper, and the positive moral rules which I complete my description ofthe limit or boundary by which positive
are laws set by opinion. law is ' severed from positive morality. For I distinguish them at
certain points whereat they seemingly blend, or whereat the line
.The divine law, positive law, and positive morality, are mutually which divides them is not easily perceptible.
related in various ways. To illustrate their mutual relations, I advert,
in the fifth lecture, to the cases wherein they agree, wherein they The essential difference of a positive law (or the difference that
disagree without conflicting, and wherein they disagree and conflict. severs it from a law which is not a positive law) may be stated
generally as I have stated it above. But the foregoing general
, .I show, in the same lecture, that my distribution oflaws proper, statement of the essential difference is open to certain correctives.
and of such improper laws as are closely analogous to the proper, And with a brief allusion to those correctives, I close the sixth and
last lecture.
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Lecture 1. Political
The matter of jurisprudence is positive law: law, simply, and Of the laws or rules set by men to men, some are established
strictly so called: or law set by politicat superiors to political inferiors. by superiors, sovereign and ~ubject: by persons exercising supreme
, But positive law (or law, simply and strictly so called) is often and subordinate govern'!1ent, in irldepen'dent nations, or independent
confounded with objects to which it is related by resemblance, and political societies. 'The aggregate:'of the rules thus established or
with objects to which it is related in the way of analogy: with objects some aggregate forming a 'p ortio'n of that aggregate, is the appropriate
which are also signified, properly and improperly, by the large and matter of jurisprudence, general or particular. To the aggregate of
vague expression law. To obviate the difficulties springing from that the rules thus established, or to some aggregate forming a portion of
confusion, I begin my projected Course with determining the province that aggregate,the term law, as used simply and strictly, is
of jurisprudence, or with distinguishing the matter of jurisprudence exclusively applied. But, 'a s contradistinguished to natural law, or
from those various ' related objects: trying to define the subject of to the law of nature (meaning, by those expressions, the law of God),
which I intend to treat, before I endeavour to analyse its numerous the aggregate of the rules, established by political superiors, is
and complicated parts. frequently styled positive law, or law existing by positiQn. As
contradistinguished to the rules which I style positive morality, and
A law, in the most general and comprehensive acceptation in
on which I shall touch immediately, the aggregate of the r,u les,
which the term, in its literal meaning, is employed, may be said to
established by political superiors, may also be marked commodiously
be a rule laid down for the guidance of an intelligent being by an
with the name of positive law. For the sake, then, of getting a name
intelligent being having power over him. Under this definition are
brief and distinctive at once, and agreeably to frequent usage, I style
included, and without impropriety, several species.' It is necessary
that aggregate of rules,. or any portion of th~t aggregate, positive
to define accurately the line of demarcation which separates these
law: though rules, which are not established by political superiors,
species from one anotlier; as much mistiness and intricacy has been
are also positive, or by position, ,ifthey be rules or laws, in the proper
infused into the science of jurisprudence by their being confounded
signification of the term.
or not clearly distinguished. In the comprehensive sense above
indicated; or in the largest meaning which it 'has, without extension Though some of the laws or rules, which are set by men to men,
by metaphor or analogy, the term law embraces the following objects: are established by political superiors, others are not established by
Laws set by God to his human creatures, and laws set by men to political superiors, or are not established by political superiors, in
men. that capacity or character.
The whole or a portion of the laws set by God to men is Closely 'a nalogous to human law's of this second class, are a set
frequently styled the law of nature, or natural law: being, in truth of objects frequently but improperly ,termed laws, being rules set
the only natural law of which it is possible to speak without a and enforced by mere opinion, that is, by the opinions or sentiments
metaphor, or without a blending of objects ,which ought to be held or felt by an indeterminate body of men in regard to human
distinguished broadly. But, rejecting the appellation Law of Nature conduct. Instances of such a use ofthe term law are the 'expressions
as ambiguous and misleading, I name those laws or rules, as - "The law of honour", "The law set by fashion"; and rules of this
considered collectively or in a mass, the Divine Law, or the law 'of species constitute much of , wha,.~ is usually termed "International
God. l~" ,
Laws set by men to men are of two leading or principal classes: The aggregate of human laws properly so called ,belonging to
classes which are often blended, although, they differ extremely; and the second of the classes above mentioned" with the aggregate of
which, for that reason, should be severed precisely, and opposed objects improperly but by close analogy termed laws, I place together
distinctly and conspicuously. in a common class, and denote them by the term positive morality,
The name morality severs them from positive law, while the epithet

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positiv~ dis~oi.ns them from the law of God.

And to the end of obviating Accordingly, I shall endeavour, in the first instance, to analysfl
confusIOn, It IS necessary or expedient that they should be disjoined the meaning of "command": an analysis which, I fear, will task the
from the latter by that distinguishing epithet. For the name morality patience of my hearers, but which they will bear with cheerfulness,
(or morals), when standing unqualified or alone, denotes indifferently or, at least, with resignation, if they consider the difficulty in
either of the following objects: namely, positive morality as it is, or performing it. The elements of a science are precisely the parts of it
without regard to its merits; and positive morality as it would be if which are explained least easily. Terms that are the largest, and,
it conformed to the law of God, and were, therefore, deserving' of therefore, the simplest of a series, are without equivalent expressions
approbation. into which we can resolve them concisely. And when we endeavour
to define them, or to translate them into terms which we suppose
Besides the various sorts of rules which are included in the
are better understood, we are forced upon awkward and tedious
literal acceptation of the term law, and those which are by a close
circumlocutions.
and striking analogy, though improperly, termed laws, there are
numerous applications of the term law, which rest upon a slender If you express or intimate a wish that I shall do or forbear from
analogy and are merely metaphorical or figurative. Such is the case some act, and if you will visit me with an evil in case I comply not
when we talk of laws observed by the lower animals ' of laws with your wish, the expression or intimation of your wish is a
regulating the growth or decay of vegetables; of laws det~rmining command. A command is distinguished from other significations of
the movements of inanimate bodies or masses. For where intelligence desire, not by the style in which the desire is signified, but by the
is not, or where it is too bounded to take the name of reason and power and the purpose of the party commanding to inflict an evil or
. therefore, is too bounded to conceive the purpose of a law, there i~ pain in case the desire be disregarded. If you cannot or will not harm
not the will which law can work on, or which duty can incite or me in case I comply not with your wish, the expression of your wish
restrain. Yet through these misapplications of a name, flagrant as is not a command, although you utter your wish in imperative phrase.
the metaphor is, has the field of jurisprudence and morals been If you are able and willing to harm me in case I comply not with
deluged with muddy speculation. your wish, the expression of your wish amounts to a command,
although you are prompted by a spirit of courtesy to utter it in the
Having suggested the purpose of my attempt to determine the
shape of a request.
province ofjurisprudence: to distinguish positive law, the appropriate
matter ofjurisprudence, from the various objects to which it is related A command, then, is a signification of desire. But a command
by resemblance, and to which it is related, nearly or remotely, by a is distinguished from other significations of desire by this peculiarity:
strong or slender analogy: I shall now state the essentials of a law that the party to whom it is directed is liable to evil from the other,
or rule (taken with the largest signification which can be given to in case he comply not with the desire.
the term properly). . Being liable to evil from if I comply not with a wish which you
Every law or rule (taken with the largest signification which signifY, I am bound or obliged by your command, or I lie under a
can be given to the term properly) is a command. Or rather,'laws or duty to obey it. If, in spite of that evil in prospect, I comply not with
rules, properly so called are a species of commands. the wish which you signify, I am said to disobey your command, or to
violate the duty which it imposes.
. Now, since the term command comprices the term law' the first
is th~ simpler as well as the larger of the two. But simple ~s it is, it Command and duty are, therefore, correlative terms: the
admIts of explanations. And, since it is the key to the sciences of meaning denoted by each being implied or supposed by the other. Or
jurisprudence and morals, its meaning should be analysed with (changing the expression) wherever a duty lies, a command has been
precision. signified; and whenever a command is signified, a duty is imposed.
Concisely expressed, the meaning ofthe correlative expressions
is this, He who will inflict an evil in case his desire be disregarded,
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utters a command by expressing or intimating his desire: He who is of incurring it, the greater is the efficacy of the command, and the
liable to the evil in case he disregard the desire, is bound or obliged greater is the strength of the obligation: Or, (substituting expressions
by the command. exactly equivalent) the greater is the chance that the command will
The evil which will probably be incurred in case a command be be obeyed, and that the duty will not be broken. But where there is
disobeyed or (to use an equivalent expression) in case a duty be' the smallest chance of incurring the smallest evil, the expression of
broken, is frequently called a sanction, or an enforcement ofobedience. a wish amounts to a command, and therefore, imposes a duty. The
Or (varying the phrase) the command or the duty is said to be sanction, if you will, is feeble or insufficient; but still there is a
sanctioned or enforced by the chance of incurring the evil. sanction, and therefore, a duty and a command.
Considered as thus abstracted from the command and the duty By some celebrated writers (by Locke, Bentham, and I think,
which it enforces, the evil to be incurred by disobedience is frequently Paley), the term sanction, or enforcement of obedience, is applied to
styled a punishment. But, as punishments, strictly so called, are ' conditional ' goo<J as well as to conditional evil: to reward as well as
only a class of sanctions, the term is too narrow to express the · to punishment. But, with all my habitual veneration for the names
meaning adequately. of Locke and Bentham, I think that this extension of the term is
I observe that Dr. Paley, in his analysis of the term obligation, pregnant with confusion and perplexity.
lays much stress upon the violence ofthe motive to compliance. In so Rewards are, indisputably, motives to comply with the wishes
far as I can gather a meaning from his loose and inconsistent of others. But to talk of commands and duties as sancti@ned or
statement, his meaning appears to be this: that, unless the motive enforced by rewards, or to talk of rewards as obliging or constraining
to compliance be violent or intense, the expression or intimation of a to obedience, is surely a wide departure from the established meaning
wish is not a command, nor does the party to whom it is directed lie · of the terms.
under a duty to regard it. If you expressed a desir e that I should render a service, and if
If he means, by a violent motive, a motive operating with you proffered a reward as the motive or inducement to render it, you
certainty, his proposition is manifestly false. The greater the evil to would scarcely be said to command the service, nor should I, in
be incurred in case the wish be disregarded, and the greater the ordinary language, be obliged to render it. In ordinary language,
chance of incurring it on that same event, the greater, no doubt, is you would promise me a reward, on condition of my rendering the
the chance that the wish will not be disregarded. But no conceivable service, whilst I might be incited or persuaded to render it by the
motive will certainly determirie to compliance, or no conceivable hope of obtaining the reward.
motive will render obedience inevitable. If Paley's proposition be true, Again: If a law hold out a reward as an inducement to do some
in the sense which I have now ascribed to it, commands and duties act, an eventual right is conferred, and not an obligation imposed,
are simply impossible. Or, reducing his proposition to absurdity by upon those who shall act accordingly: The imperative part of the law
a consequence as manifestly false, commands and duties are simply being addressed or directed to the party whom it requires to render
possible, but are never disobeyed or broken. the reward.
Ifhe means by a violent motive, an evil which inspires fear, his In short, I am determined or inclined to comply with the wish
meaning is simply this: that the party bound by a command is bound of another, by the fear of disadvantage or evil. I am also determined
by the prospect of an evil. For that which is not feared is not or inclined to comply with the wish of another, by the hope of
apprehended as an evil; or (changing the shape of the expression) is advantage or good. But it is only by the chance of incurring evil, that
not an evil in prospect. I am bound or obliged to compliance. It is only by conditional evil,
The truth is, that the magnitude of the e~entual evil, and the that duties are sanctioned or enforced. It is the power and the purpose
magnitude of the chance of incurring it, are foreign to the matter in of infl~cting eventual evil, and not the power and the purpose of
question. The greater the eventual evil, and the greater the chance
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imparting eventual good, which gives to the expression of a wish the express my meaning accurately in a breath. - Each ?f the three
name of a command. terms - signifies the same notion; but each denotes a dIfferent part
Ifwe put reward into the import of the term sanction, we must of that notion, and connotes the residue.
engage in a toilsome struggle with the current of ordinary speech; Commands are of two species. Some are laws or rules. The others
and shall often slide unconsciously, notwithstanding our efforts to have not acquired an appropriate name, nor does language afford
the contrary, into the narrower and customary meaning. an expression which will mark them briefly and precisely. I must,
It appears then, from what has been premised, that the ideas therefore, note them as well as I can by the ambiguous name of
or notions comprehended by the term command: are the following. "occasional or particular commands."
1. A wish or desire conceived by a rational being, that another rational The term laws or rules being not unfrequently applied to
being shall do or forbear. 2. An evil to proceed from the former, and occasional or particular commands, it is hardly possible to desc~be
to be incurred by the latter, in case the latter comply not with the a line of separation which shall consist in every respect WIth
wish. 3. An expression or intimation of the wish by words or other established forms of speech. But the distinction between laws and
signs. particular commands may, I thi,n k, be stated in the following manner.
It also appears from what has been premised, that command, By every command, the party to whom it is directed is obliged
duty, and sanction are inseparably connected terms: that each to do or to forbear.
embraces the same ideas as the others, though each denotes those Now where it obliges generally to acts or forbearances of a class?
ideas in a peculiar order or series. a command is a law or rule. But where it obliges to a specific act or
"A wish conceived by one, and expressed or intimated to another, forbearance or to acts or forbearances which it determines
with an evil to be inflicted and incurred in case the wish be specifically o~ individually a command is occasional ~r particular.
. disregarded," are signified directly and indirectly by each of the three In other words a class or description of acts is determmed by a law
expressions. Each is the name of the same complex notion. or rule and act~ ofthat class or description are enjoined or forbidden
But when I am talking directly of the expression or intimation gener;lly. But where a command is occasional or particula~, the act
of the wish, I employ the term command: The expression or or acts, which the command enjoins or forbids, are aSSIgned or
intimation of the wish being presented prominently to my hearer; determined by their specific or individual natures as well as by the
whilst the evil to be incurred, with the chance of incurring it, are class or description to which they belong.
kept (if I may so express myself) in the background of my picture. The statement which I have given in abstract expressions I
When I am talking directly of the chance of incurring the evil, will now endeavour to illustrate by apt examples.
or (changing the expression) of the liability or obnoxiousness to the If you command your servant to go on a given errand, or not to
evil, I employ the term duty, or the term obligation: The liability or leave your house on a given evening, or to rise at such an hour on
obnoxiousness to the evil being put foremost, and the rest of the such a morning, or to rise at that hour during the next week or ~o?-th,
complex notion being signified implicitly. the command is occasional or particular. For the act or acts enJomed
When I am talking immediately of the evil itself, I employ the or forbidden are specially determined or assigned.
term sanction, or a term of the like import: The evil to be incurred . But if you command him simply to rise at that hour, or ~o rise
being signified directly; whilst the obnoxiousness to that evil, with at that hour always, or to rise at that hour till further orde~s, It may
the expression or intimation of the wish, are indicated indirectly or be said, with propriety, that you lay down a rule for the guIdance of
obliquely. your servant's conduct. For no specific act is assigned by the
To those who are familiar with the language of logicians co~mand, but the command obliges him generally to acts of a
(language unrivalled for brevity, distinctness, and precisions), I can determined class.

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particular, although the commands which they are calculated t o

If a regiment be ordered to attack or defend a post, or to quell a
riot, or to march from their present quarters, the command is enforce are commonly laws or r ules.
occasional or particular. But an order to exercise daily till further For instance, the lawgiver commands that t~ieves sh~ll be
orders shall be given would be called a general order, and might be hanged. A specific theft and a specified thief being gIVen, the Judge
called a rule. commands that the thief shall be hanged, agreeably to the command
If Parliament prohibited simply the exportation of corn, either of the lawgiver. .
for a given period or indefinitely, it would establish a law or rule: a Now· the lawgiver determines a class or description of acts;
kind or sort of acts being determined by the command, and the acts prohibits ~cts ofthe class generally and indefinitely; and comma~ds,
of that kind or sort being generally forbidden. But an order issued with the like generality, that punishment shall follow transgressIOn.
by Parliament to meet an impending scarcity, and stopping the The command of the lawgiver is, therefore, a law or rule. But the
exportation of corn then shipped and in port, would not be a law or command of the judge is occasi~nal or particular: For he orders a
rule, though issued by the sovereign legislature. The order regarding specific punishment, as the consequence of a specIfic offence.
exclusively a specified quantity of corn, the negative acts or According to the line of separation which I ~a~e no~ attempted
forbearances, enjoined by the command, would be · determined to describe a law and a particular command are dIstmgmshed thus.-
specifically or individually by the determinate nature of their subject. Acts or forbearances of a class are enjoinedgene~ally by the former.
As issued by a sovereign legislature, and as wearing the form Acts determined specifically, are enjoined or forbIdden by the latter.
of a law, the order which I have now imagined would probably be , A different line of separation has been drawn by Black.stone
called a law. And hence the difficulty of drawing a distinct boundary and others. According to Blackstone and others, a law and a partIc,:lar
between laws and occasional commands. command are distinguished in the following ma~mer. - A law obl~ges
Again: An act which is not an offence, according to the existing generally the members of the given c0In:mumty, or a law o?lIges
law, moves the sovereign to displeasure: and, though the authors of generally persons of a given class. A part~cula~ c~~mand oblIges a
the act are legally innocent or unoffending, the sovereign commands single person, or persons whom it determmes mdlmdu~ll~. .
that they shall be punished. As enjoining a specific punishment in That laws and particular commands are not to be distmguished
that specific case, and as not enjoining generally acts or forbearances thus, will appear on a moment's reflection.
of a class, the order uttered by the sovereign is not a law or rule. For first commands which oblige generally the members of
Whether such an order would be called a law, seems to depend the give~ com~unity, or commands which oblige generally persons
upon circumstances which are purely immaterial: immaterial, that .of given classes, are not always laws or rules. .
is, with reference to the present purpose, though material with Thus, in the case already supposed; that in whic~ the sovereIgn
reference to others. If made by a sovereign assembly, deliberately, commands that all corn actually shipped for exportatIOn be stop~ed
and with the forms of legislation, it would probably be called a law. and detained; the command is obligatory upon the whole c~mmu~It!,
If uttered by an absolute monarch, without deliberation or ceremony, but as it obliges them only to a set of acts individually assIgned, It IS
it would scarcely be confounded with acts of legislation, and would not a law. Again, suppose the sovereign to issue an order ~nforced.by
be styled an arbitrary command. Yet, on either of these suppositions, penalties, for a general mourning, on occas~on of a publIc calamIt!.
its nature would be the same. It would not be a.law or rule, but an Now though it is addressed to the commumty at large, the order ~s
occasional or particular command of the sovereign One or Number. scar~elY a rule, in the usual acceptation of the term .. Fo~, tho.ugh It
To conclude with an example which best illustrates the obliges generally the members of the entire comIn:u~llty, It oblIges to
distinction, and which shows the importance of the distinction most acts which it assigns specifically, instead of oblIgmg generally to
conspicuously, judicial commands are commonly occasional or acts 'or forbearances of a class. If the sovereign commanded that

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black should be the dress of his subjects, his command would amount Laws and other commands are said to proceed from superiors,
to a law. But ifhe commanded them to wear it on a specified occasion, and to bind or oblige inferiors. I will, therefore, analyse the meaning
his command would be merely particular. of those correlative expressions; and will try to strip them of a certain
And, secondly, a command which obliges exclusively persons mystery, by which that simple meaning appears to be obscured.
individually determined, may amount, notwithstanding, to a law or Superiority is often synonymous with precedence or excellence.
rule. We talk of superiors in rank; of superiors in wealth; of superiors in
For example, A father may set a rule to his child or children: a virtue: com:paring certain persons with certain other persons; and
guardian, to his ward: a master, to his slave or servant. And certain meaning that the former precede or excel the latter in rank, in wealth,
of God's laws were as binding on the first man, as they are binding or in virtue.
at this hour on the millions who have sprung form his loins. But taken with the meaning wherein I understand it, the term
Most, indeed, of the laws which are established by political superiority signifies might: the power of affecting others with evil or
superiors, or most of the laws which are simply and strictly so called, pain, and of forcing them, through. fear of that evil, to fashion their
oblige generally the members of the political community, or oblige conduct to one's wishes.
generallypersons of a class. To frame a system of duties for every For example, God is emphatically the superior of Man. For his
individual of the community, were simply impossible: and ifit were power of affecting us with pain, and offorcing us to comply with his
possible, it were utterly useless. Most of the laws established by will, is unbounded and resistless.
political superiors are, therefore, general in a twofold manner: as
To a limited extent, the sovereign One or Number is the superior
enjoining or forbidding generally acts of kinds or sorts; and as binding
of the subject or citizen: the master, of his slave or servant: the father,
the whole community, or, at least, whole classes of its members.
of the child.
But if we suppose that Parliament creates and grants an office,
In short, whoever can oblige another to comply with his. wishes,
and that Parliament binds the grantee to services of a given
is the superior of that other, so far as the ability reaches: The party
description, we suppose a law established by political superiors, and
who is obnoxious to the impending evil, being, to that same extent,
yet exclusively binding a specified or determinate person.
the inferior.
Laws established by political superiors, and exclusively binding The might or superiority of God, is simple and absolute. But in
specified or determinate persons are styled, in the language of the
all or most cases of human superiority, the relation of superior anp
Romanjurists,priuilegia. Though that, indeed, is a name which will inferior, and the relation of inferior and superior are reciprocaL Or
hardly denote them distinctly: for, like most of the leading terms in
(changing the expression) the party who is the superior as viewed
actual systems oflaw, it is not the name of a definite class of objects,
from one aspect, is the inferior as viewed from another.
but of a heap of heterogeneous objects. '
For example, To an indefinite, though limited extent, the
It appears from what has been premised, that a law, properly
monarch is the superior of the governed: his power being commonly
so called, may be defined in the following manner.
sufficient to enforce compliance with his will. But the governed,
A law is a command which obliges a person or persons. collectively or in mass, are also the superior of the monarch: who is
But, as contradistinguished or opposed to an occasional or checked in the abuse of his might by his fear of exciting their anger;
particular command, a law is a command which obliges a person or and of rousing to active resistance the might which slumbers in the
persons, and obliges generally to acts or forbearances of a class. multitude.
In language more popular, but less distinct and precise, a law . A member of a sovereign assembly is the superior of the judge:
is a command which obliges a person or persons to a course of conduct. the judge being bound by the law which proceeds from that sovereign
!lody. But, in his character of citizen or subject, he is the inferior of
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the judge: ,the judge being the minister of the law, and armed with Working no change in the actual duties of the governed, but
the power of enforcing it. simply declaring what those duties are, they properly are acts
It appears, then, that the term superiority (like the terms duty of interpretation by legislative authority. Or, to borrow an
and sanction) is implied by the term command. For superiority is expression from the writers on the Roman Law, they are acts of
the power of enforcing compliance with a wish: and the expression authentic interpretation.
or intimation of a wish, with the power and the purpose of enforcing B~t, this notwithstanding, they are frequently styled laws;
it, are the constituent elements of a command. declaratory laws, or declaratory statutes.~hey must, therefore,
"That laws emanate from superiors" is, therefore, an identical be noted as forming an exception to the proposition "that laws
proposition. For the meaning which it affects to impart is contained are species of cpmmands."
in its subject . . It often, indeed, happens (as I shall show in the proper
If I mark the peculiar source of a given law, or if I ' mark the place), that laws,declaratory in name are imperative in effect:
peculiar source oflaws of a given class, it is possible that I am saying Legislative, like judicial interpretation, being frequently
something which may instruct the hearer. ' But to affirm Of laws deceptive; and establishing new law, under guise of expounding
universally "that they flow from superiors," or to affirm of laws the old.
universally "that inferiors are bound to obey them," is the merest 2. Laws to repeal laws, and to release from existing duties, must
tautology and trifling. also be excepted from the proposition" that laws are a species
Like most of the leading terms in the sciences of jurisprudence of commands." In so far as they release from duties imposed by
and morals, the term laws is extremely ambiguous. Taken with the existing laws, they are not commands, but revocations of
largest signification which can be given to the term properly, laws commands. They authorize or permit the parties to whom the
are a species of commands. But the term ,i s improperly applied to repeal extends, to do or to forbear from acts which they were
various objects which have nothing of the imperative character: to commanded to forbear from or to do. And, considered with
objects which are not commands; and which, therefore, are not la~s regard to this, their immediate or direct purpose, they are often
properly so called. named permissive laws, or; more briefly and more properly,
permissions.
Accordingly, the proposition "that laws. are commands" must
be taken with limitations. Or, rather, we must distinguish the various Remotely and indirectly, indeed, permissive laws are often
meanings of the terr~ laws; and must restrict the proposition to that or always imperative. For the parties released from duties are
class of objects which is embraced by the largest 'signification that restored to liberties or rights: and duties answering those rights
can be given to the term properly. are, therefore, created or revived.
I have already indicated, and shall hereafter more fully describe, But this is a matter which I shall examine with exactness,
the objects improperly termed laws, which are not within the province when I analyze the expressions "legal right," "permission by
of jurisprudence (being either rules enforced by opinion and closely the sovereign or state," and "civil or political liberty."
analogous to laws properly so called, or being laws so called by a 3. Imperfect laws, or laws of imperfect obligation, must also be
metaphorical application of the term merel~). Th'e re are other,objects excepted from the proposition "that laws are a species of
improperly termed laws (not being commands) which yet may commands."
properly be included within the province of jurisprudence. These I An imperfect law (with the sense wherein the term is used
shall endeavour to particularise: - , by the Roman jurists) is a law which wants a sanction, and
1. Acts onthe part oflegislatures to - explain positive law, can which, therefore, is not binding. A law declaring that certain
scarcely be called laws, in the,proper signification of the term. acts are crimes, but annexing no punishment to the commission
of acts of the class, is the simplest and most obvious example.
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are not laid down by a definite person. Jurisprudence was the general
Comments by Paton on science of positive law in the rigid sense in which Austin defined it.
John Austin's Imperative School' But if the law of each country is based on the commands of the
sovereign person (or body of persons) in that country, on what is
" jurisprudence to be based? As each sovereign may command what
In 1832 John Austin, after a course oflectures at the University
he wishes, will not there be the utmost diversity between the legal
of London, published a work which he entitled The J!rovince of systems? Is there any element of identity on which a general science
Jurisprudence Determined - and determined it was with great rigour can be based? If we take the legal systems of the world from China
of analysis. After his death he achieved greater fame and became to Peru, we find the utmost conflict as to the content of the rules, the
the founder of what was popularly called the analytical school. This classification of the law, and the technical language in which it is
title is rather misleading as it suggests that analysis is the exclusive expressed. Must not jurisprudence, therefore, be confined to a study
property of this school instead of being (as it is) a method used
of a particular system so that we will have English jurisprudence,
throughout jurisprudence. Hence Allen prefers to speak of. the French jurisprudence, and so on? '
imperative school, for this emphasizes Austin's particular conception
oflaw. Austin does not fit exactly into any of the broad divisions we Austin did not deal clearly with this problem. He assumed,
have laid down. In some ways he was a precursor of the pure science without any real investigation, that certain principles, notions, and
of law, for he drew the boundaries of jurisprudence somewhat distinctions were common to all systems of law. Some notions were
narrowly. Austin was not unmindful of the part played by ethics in universal because it was impossible coherently to construct a legal
the evolution oflaw; indeed, he devoted several lectures to the theory system without using them, e.g. the terms 'duty', 'right', 'injury',
of utility. But, finding works on jurisprudence full of confusion, Austin 'punishment', and 'redress'. Some principles were common to all
decided to confine jurisprudence to a study of law as it is, leaving refined or mature systems because they depended on general
the study of the ideal forms oflaw to the 'science of legislation', or principles of utility which modern nations accepted. If it were
philosophic jurisprudence as we should term it today. Austin's suggested that primitive nations often accepted views the opposite
followers were even more rigorous than their 'master in confining of those accepted today, Austin would have had no hesitation in
jurisprudence to an analysis of the rules in force. We will discuss confining jurisprudence to the more advanced systems.
Austin's views under three heads": (a) the basis of jurisprudence, (b) Analysis reveals Austin's foundation to be rather unstable.
the method of jurisprudence, (c) the relation of laws and ethics. Firstly, it is clear that there are no universal rules of law - 'hardly
a rule of today but may be matched by its opposite of yesterday'.
'The moment we have disengaged some principle of which we think
(a) The Basis of Jurisprudence
to say, with a sigh of relief, "Well, that at least is an indispensable
Austin's broad approach to law was to regard it as the command element of all law", some patient investigator into the legal systems
of the sovereign. Positive law is a general rule of conduct laid down of the Houyhnhnms in the mists of antiquity will discover a fragment
by a political superior to a political inferior. The notion of command of stone or pottery which disturbs all our conclusions.' Secondly, there
requires that there must be a determinate person to issue the are few concepts which are common to all legal systems, and if we
command, and that there is an implied threat of a sanction if the confine our analysis to such as we think are universal, we run two
command is not obeyed. Austin's aim was to separate positive law dangers: firstly, iffurther research shows that there are no concepts
sharply from such social rules as those of custom and morality. The which are common to all systems, then there is no basis for general
emphasis on command achieved this end, for the rules of etiquette jurisprudence at all; secondly, even if a few notions are proved to be
universal, they form a somewhat narrow basis for a science of law.
'Reprint from Paton, A Textbook in Jurisprudence, p. 3, All footnotes Much of what the Romans considered universal is today considered
were omitted.
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a mere accident of the particular conditions in which Roman law Austin did not analyse this problem acutely, for both he and
was developed. In the nineteenth century writers frequently deduced many of his followers fell into the error of thinking that what was
certain universal legal principles, but twentieth-century insight common to certain nations in the nineteenth century was a universal
shows that these principles are not universal but were based only element of all mature systems. The emergence of the Soviet Russia
on the necessities of a capitalist economy that still emphasized (with its legal system based on a social philosophy that rejects
laissez-faire. Rules of property that were considered axiomatic in capitalism) saves us from the mistake of considering that what is
1850 do n?t apply in Russia nor in many other countries today. Hence, suitable for one· particular economy is a universal rule. Jurisprudence
dQu~ have been expressed whether it is possible to construct any must widen its scope, for if it is concerned with universal rules of
basis for jurisprudence that will not be upset by changes in economic law, it will perish for want of material.
.and social conditions.
The solution of the pr oblem is that, although there are few (if (b) The Method of Jurisprudence
any) rules of law that are universal, yet there may be universal
principles of jurisprudence. The assumptions of jurisprudence are Austin believed that the chief tool ofjurisprudence was analysis.
simple . In all communities which reach a certain stage of The emphasis on law as the command of the sovereign led to
development there springs up a social machinery which we call law. concentration on mature (or what he sometimes called 'civilized')
Jurisprudence is not primarily interested in cataloguing uniformities, systems, since it is clear that a sovereign with effective machinery
nor in discovering rules which all nations accept. Its task is to study for enforcing law can exist only when the State has reached a fairly
the nature of law, the nature of legal institutions, the development high degree of development. Today, however, it is increasingly
of both law and legal institutions and their relationship to society. recognized that, useful as analysis may be, it will not suffice to answer
In each society there is an inter-action between the abstract rules all the problems of jurisprudence. An analysis of the judicial method
the institutional machinery existing for their application, and th~ shows that law is not a static body of rules, but is rather an organic
life of the people. Even ifthere were no common element discoverable body of principles with an inherent power of growth. The law that
in the legal systems of the world, jurisprudence would still have the is, of which some of Austin's followers so proudly boast, cannot be to
function of tracing the relationship between law, legal institutions, sharply divided from the law that ought to be, because where there
and the life of the people. L~gal systems seem to have develop.ed for is no authority, the judge is perpetually clothing with the robe of
the settlement of disputes and to secure an ordered existence for the positive law the rule that he thinks ought to exist. Whence is the
community. They still exist for those purpose but in addition they judge to draw his material? Some of the imperative school seem to .
are part of the social machinery used to enable planned changes and proceed on the tacit assumption that all legal problems can be
improvements in the organization of society to take place in an answered by analysis of the rules that exist and by deductions from
ordered fashion. In order to achieve these ends each legal system them. This is too narrow a view. The principles of the common law
develops a certain method, an apparatus of technical words and did not descend from the clouds complete and ft).lly developed: nor
concepts, and an institutional" system which follows those methods can we say that the creative period is yet over. Exaggerated positivism
and uses that apparatus. The pressure of social needs which the law ignores the fact that law develops not by logic alone, but by drawing
must satisfy will vary from one community to another, but new values from the life of the community and by gradually reshaping
jurisprudence studies the methods by which these problems are the rules so that they accord with the standards of today. We cannot
solved rather than the particular solutions. Jurisprudence is founded always convict a dissenting minority in the House of Lords of an
on the attempt, not to find universal principles oflaw, but to construct error in logic - what is frequently decisive is the judge's view of the
a science which will explain the relationship between law, its purpose that law should achieve.
concepts, and the life of society.

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It cannot be suggested that such elementary truths were beyond work. Clearly, law does not exist for the sake of consistency, fDr many
the understanding of the imperative school, and one of the besetting a rule that is theoretically anomalous is based on sound views of
vices of jurisprudence is to exaggerate the views of an opponent in public policy. The English law of tort would be more consistent if
order to show how ridiculous they are and incident~lly how much liability never arose in the absence of fault, but strong reasons of
wiser the writer is. What is here stressed is only that the analytic justice have led the law to create some instances of stri,ct liability.
system based on Austin's teaching did not make sufficient allowance One ofthe great virtues of the Roman jurist was that he was unwilling
for the creative element in law and tended to magnify the static to push a principle to its logical extreme if injustice would result.
character of legal rules. It is considered possible to solve all legal Thus, criticism of the analytical school emphasizes two very
problems by deduction from the actual rules of .English law, eked significant truths for jurisprudence. Firstly, the law that is does not
out perhaps by careful borrowing from the Roman jurists. exist as a perfectly proportioned body of rules deduced from a few
leading principles. The social pressures of the past have led to many
convenient anomalies being adopted. HencGany attempt to reconcile
.(c) Law and Ethics
the rules on logical grounds easily develops into a study not of the
Austin, as we have said, distinguished jurisprudence, the law that is but of the law that should be, iflogic were to prevail. It is
science of the law that is (without reference to its goodness or not suggested that it is wrong to attempt to render the rules as
badness), from the science of legislati(i)n which he based on the logically harmonious as possible. All that is stressed is that the
principle of utility. Many of his followers ignored entirely the latter analytical school, while proudly boasting that it treated only of the
study and proudly boasted that they studied the facts, keeping their facts, set up an ideal oflogical self-consistency by means of which it
feet on the ground instead of soaring into the clouds of misty developed the law. Thus, the second point is that it is extraordinarily
speculation. When Austin wrote it was very necessary to delimit the difficult for any school to resist setting up an ideal which can be
sphere of jurisprudence because of the 'prevailing confusion. But we made the basis for constructive criticism of the law. The analytical
can see today that even the most positive member of the analytical school boasted that they were treating only of the law that actually
school did 'not succeed in separating the law that .is from ideal existed, but, unconscious as their ideal was, it was the real driving
elements. The analyst did not discover his principles and force of their work. The influence of their work was such, however,
classifications ready made but evolved them after long and patient that their insistence that lawyers should be concerned with the law
study, and they depended not on the law of anyone particular country, that is, combined with the dogma that judges do not make law, led to
but on an idealized picture of English and Roman law. Unconsciously, a wasteful argument about whether or not judges do make law, and
the analysts laid down as the supreme end oflaw an ideal oflogical to the exclusion from legal studies in England for many years of
harmony. Law was treated as a coherent system based on certain many matters which are relevant when judges in fact do make law.
fundamental principles from which the particular rules may be Perhaps the most significant recent development in England,
deduced. Naturally, no system oflawis perfectly self-consistent, but following the imperative school with its origins in Austin's work, is
any rule that could not be fitted into the analyst's framework was the application to legal thinking of the methods of the linguistic
dubbed an historical accident or a logical anomaly which (it was positivists among the philosophers. The influence of Ludwig
predicted) would soon disappear. Internal consistency is a desirable Wittgenstein at Cambridge is accepted as having been the most
attribute of a legal system, for if it is logically interrelated it can be significant in the development of those methods; but it is at Oxford
better understood, applied, and extended than if it is a mere chaos that those methods are now most directly influencing juristic thinking
of particular rules. But the . analyst assumed that logical self- _ particularly since the appointment ofH. L. A. Hart to the Oxford
consistency was the sole end of law. This was not stated in so many
Chair of Jurisprudence in 1952.
words, or its fallacy would have been apparent, but it was the
underlying assumption on which the analytical school based their

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The analytical positivists influenced by those methods still

affirm the Austinian belief that law can and ought to be made the KELSEN's, PURE THEORY OF LAW*
subject of study separately from morals; that it can be seen as a
system of rules with a logic of its own capable of more satisfactory Law and Nature
elucidation than heretofqre; and that the methods of linguistic
?n?lysis pursued by the philosophers can be employed in Law as a Part of Morals
JUrIs~rudence to clear up many puzzles which have troubled legal
theOrIsts, and to produce clearer thinking for lawyers generally. Once law and morals are recognized as different kinds of
normative systems, the question of the relationship oflaw and morals
arises. This question has two meanings: One, What is the relationship
between the two? The other, What ought it be? Ifboth questions are
intermingled, misunderstandings result. The first question is
sometimes answered by saying that law by its very nature is moral,
which means that the behavior commanded or prohibited by legal
norms is also commanded or prohibited by the moral norms.
Furthermore, that if a social order commands a behavior prohibited
by morals or prohibits a behavior commanded by morals, this order
is not law, because it is not just. The question is also answered,
however, by stating that the law may, but need not, be moral - in
the mentioned sense, that is, "just"; that a social order that is not
moral (which means: just) may nevertheless be law, although the
postulate is admitted that the law ought to be moral, which means:
just.
If the question of the relationship between law and morals is
understood as a question concerning the content oflaw and not as a
question concerning its form; if it is said that law according to its
nature has a moral content or constitutes a moral value; then one
asserts by these statements that law is valid within the sphere of
morals, that the legal order is a part of the moral order, that law is
moral and therefore by its nature just. So far as such an assertion
aims at a justification of law - and this is its true meaning - it
must be presuppos~ that only one moral order is valid constituting
an absolute moral value; and that only norms that conform with
this moral order and therefore constitute an absolute moral value,
can be regarded as "law." This means: one-proceeds from a definition

-Reprint from Cohen and Cohen, Readings in Jurisprudence and Legal

Philosophy, p. 316. All footnotes were omitted.
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 READINGS IN LEGAL PHILOSOPHY AND THEORY 'J. 'he Positivist School

of law, which determines law as a part of morals which identifies too is - r elatively - moral or just. All moral or ders have only one
law and justice. ' thing in common: namely, that they are social norms, th at is, norm
that order a certain behavior of men - directly or indirectly - tow ard
other men. All possible moral systems have in common their form,
Relativity of Moral Value the "ought": they prescribe something, they have normative character.
. But if an absolute value in general and an absolute moral value Morally good is that which conforms with the social nor m that
m particular is rejected from the point of view of scientific cognition prescribes· a certain human behaviour; morally evil that which is
because an absolute value can be assumed only on the basis of opposed to such a norm. The relative moral value is established by a
~eligious faith ir: the absolute and transcendent authority of a deity; social norm that men ought to behave in a certain way. Norm and
If one ~ust admIt that, from this viewpoint, an absolute moral order value are correlative concepts.
excludmg the possibility of the validity of another moral order does Under these presuppositions the statement "law is moral by
not exist; if o~e denies that what is good or just according to that nature" does not mean that law has a certain content, but that it is
moral.order IS good under all circumstances, and what is evil norm _ namely a social norm that men ought to behave in a certain
accordmg to that order is evil under all circumstances· if further way. Then, in this relative sense, every law is moral; every law
one admits that at different times and with different ~ations and constitutes a - relative - moral value. And this means: The question
even within the same nation, depending on various classes and about the relationship between law and morals is not a question
~rofessions, very different and contradictory moral systems are valid; about the content of the law, but one about its form. Then one cannot
If one grants that under different circumstances different behavior say, as is sometimes said, that the law is not only norm (or command)
may ?e considered good or evil, just or unjust, and nothing has to be but also constitutes or realizes a value - such an assertion is
c?nsIdered go?d. or evil, just or unjust, under all possible meaningful only if an absolute, divine value is presupposed. For the
cIrcumstances; If, m short, one acknowledges that moral values are law constitutes a value precisely by the fact that it is a norm; it
only relative: then, the assertion that social norms must have a moral constitutes the legal value which, at the same time, is a (relative)
content, must be just in order to qualify as law, can only mean that moral value; which merely means that the law is norm.
these norms must contain something common to all possible moral
The theory, however, that the law in its essence represents a
systems, ~s systems of justice. In view of the extraordinary
moral minimum - that a coercive order, to be regarded as law, must
hete~og~neIty, ho~ever, of what men in fact have considered as good
fulfill a minimum moral postulate - is not thereby accepted. For to
or eVIl, Just or unJust, at different times and in different places, no
assume the existence of this postulate presupposes an absolute
element common to the contents of the various moral orders is
morality, determined by its content, or at least a content common to
detectable .. .. But even if one could detect an element common to all
all positive moral systems - usually the ideal of peace. From what
moral systems valid so far, there would not be sufficient reason to
has been said it follows that the legal value, as used here, does not
regard as not "moral" or not "just" and therefore not as "law" a
represent ~ moral minimum in this sense - that, specifically, the
coercive order that does not contain this element that commands a
be~avior that so far in no community has been co~sidered to be good peace value is not an element essential for the concept of law.
or Just and tha~ prohibits a behavior that so far in no community
has been consIdered to be evil or unjust. For if one does not Separation of Legal and Moral Orders
presuppose an a-priori, that is, absolute, moral value one is unable lfit is assumed that law is moral by nature, then, presupposing
to determi~e what must be considered good and evil,j~st a~d unjust, an absolute moral value, it is meaningless to demand that the law
under all CIrcumstances. And then, undeniably, also that which the ought to be moral. Such a postulate is meaningful only (and the
~entioned coercive order commands may be considered as good and
presupposed morality represents a yardstick for the law only), if the
Just, and that which it prohibits as evil and unjust; so that this order

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READINGS IN LEGAL PHILOSOPHY AND '1'H I';OHY

It is obvious that merely relative morals cannot render the function

possibility of the existence of an immoral law is admitted - if in _ consciously or unconsciously demanded - to provide an absolute
other words, the definition of law does not include ,the element of st andard for the evaluation of a positive legal order. Such a standard of
moral content. If a theory of positive law demands a distinction evaluation simply cannot be found by scientific cognition. But this does
bet~een law and ~orals in general, and between law and justice in
not mean that there is no such standard - every moral system can
partIcular, then thIS theory is directed against the traditional view serve as such. But one must be aware, in judging a positive legal order
regarded as obvious by most jurists, which presupposes that onl; from a mora.l point of view (as good or bad, as just or unjust) that the
?ne .absol~tely valid moral order and therefore only one absolute standard of evaluation is relative and that an evaluation based on a
JustIce eXIsts. The demand for a separation between law and morals different moral system is not excluded; further, that a legal order
~aw and justice, means that the validity of a positive legal order i~ evaluated on the basis of one moral system as unjust may well be
mdep~~dent of the validity of this one, solely valid, absolute moral
evaluated as just on the basis of another moral system.
order, the moral order, the moral order par excellence. If only relative
moral values are presupposed, then the postulate that the law ought
to be moral, that is,just, can only mean that the formation of positive Justification of Law through Morals
law ~ught to conform. to one specific moral system among the many A justification of positive law through morals is possible only if a
possIble systems. ThIs, however, does not exclude the possibility of contrast can exist between the moral and the legal norms - if there
t~e postulate that the formation of positive law ought to conform can be a morally good and a morally bad law. If a moral order, like the
wIth ~no~her moral system - and actually perhaps conform with it one proclaimed by Paul in his Letter to the Romans prescribes to observe
- w~Ile It does not conform with a moral system that is different under all circumstances the norms enacted by the legal authority and
from It. If, presupposing only relative values, the demand is made to thereby excludes any discrepancy between it and positive law,' then it is
separate law and morals in general, and law and justice in particular not possible to legitimize the positive law by the moral order. For if all
then this dema~d does not mean that law and morals, law and justice: positive law, as willed by God, is just (like everything else that exists is
are unrelated; It does not mean that the concept oflaw is outside the good insofar as it is willed by God); and if no positive law is unjust,
concept of the Good. For the concept ofthe "good" cannot be defined because nothing that exists can be evil; iflaw is identified with justice;
oth~rwise than as that which ought to be: that which conforms to a and if that which is is identified with that which ought to be) then the
SOCIal norm; and if law is defined as norm, then this implies that concept of justice as well as the concept of the Good have lost their
what is lawful is "good." The postulate, made under the supposition meanings. It nothing bad (unjust) exists, then nothing good (just) can
of a relativistic theory of value, to separate law and morals and exist. The postulate to differentiate law and morals, jurisprudence and
~herefore law and justice, merely means this: (1) If a legal order is ethics, means this: from the standpoint of scientific cognition of positive
Judged to be moral or immoral, just or unjust, these evaluations law, its justification by a moral order different from the legal order, is
express the relation of th~ legal order to one of many possible moral irrelevant, because the task of the science of law is not to approve or
syste~s but not to "the" moral system and therefore constitute only disapprove its subject, but to know and describe it. True, legal norms,
a r~l~tIv~, not an absolute, value judgment; and (2) the validity of a as prescriptions of what ought to be, constitute values; yet the function
pOSItIve legal order does not depend on its conformity with some of the science of law is not the evaluation of its subject but its free
moral system. description. The legal scientist does not identify himself with any value,
A relativistic theory of value is often misunderstood to mean not even with the legal value he describes.
that there are no values and, particularly, that there is no justice. It If the moral order does not prescribe to obey the positive legal
mea~s rather that values are relative, not absolute, that justice is order under all circumstances, if, in other words, a discrepancy between
relatI.ve not absolute; that the values as established by our norm- a moral and a legal order is possible, then the postulate to separate law
creatmg acts cannot claim to exclude the possibility of opposite and morals, science oflaw and ethics means that the validity of positive
values.
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 READINGS IN LEGAL PH ILOSOPHY AND THEORY The Positivist School

legal nDrms dDes nDt depend Dn their CDnfDrmity with the mDral Drder; Comments by Paton on The Pure Science of Law*
it means, that frDm the standpDint Df a cDgnitiDn directed toward pDsitive Nearly a century separates the wDrk DfHans Kels~n.frDm that Df
law a legal nDrm may be cDnsidered valid, even if it is at variance with Austin. IfAustin was driven to. make his jurisprudence ngld because Df
the mDral Drder. the cDnfusiDn Df previDus writers, Kelsen represents a reactiDn a~ainst
It is paramount and cannDt be emphasized enDugh to. understand the mDdern schDDls which have so. far widened the bDu~danes Df
that nDt Dnly Dne mDral Drder exists, but many different and even jurisprudence that they seem almDst cDnte~Dus with thDse Df .the
cDnflicting Dnes; that a pDsitive legal Drder may Dn the whDle cDnfDrm sDcial sciences. But while Austin did nDt cDnsCIDusly fDrmulate a detailed
with the mDral views Df a certain grDUp Df the pDpulatiDn (especially philDsDphy, Kelsen admittedly builds Dn the dDctrine Df Ka:p.~. MD~t
the ruling Dne), yet may cDnflict with the mDral views Df anDther grDUp; philDsDphers emphasize that jurisprudence must study the relatIDnship
and that abDve all, the judgment Dfwhat is mDrally gDDd Dr evil, mDrally between law and justice, but Kelsen wishes to free 'the law frD.m the
justifiable Dr unjustifiable, is subject to' cDntinuDUS change, as is the metaphysical mist with which it has been cDvered at aU tim~s by the
law, and that a legal Drder (Dr sDme Dfits nDrms) that at the time Dfits speculatiDns Dn justice Dr by the doctrine Df ius .natur~e'. He IS thus a
validity may have cDnfDrmed with the pDstulates Df the mDral Drder philDsDpher in revDlt frDm the tendencies to w~ch philDsDphy.has led
then prevalent, may still be judged to' be immDral tDday. The thesis, so. many writers. He desires to. create a pure SCIence Dflaw, stnpped.Df
widely accepted by traditiDnal science Df law but rejected by the Pure all irrelevant material and to separate jurisprudence fDrm the sDcIal
TheDry Df Law, that the law by its nature must be mDral and that an sciences as rigDrDusly ' as did the analysts. The mathematical is nDt
immDral sDcial Drder is nDt a legal Drder, presuppDses an absDlute mDral interested in the way in which men think nDr is he directly cDncerned
Drder, that is, Dne valid at all times and places. Otherwise it wDuld nDt whether his wDrk is to. be used to. build a bridge Dr to. wDrk DUt a new
be pDssible to. evaluate a pDsitive social Drder by a fixed standard Df system to. break the bank at MDnte Carlo.: so. the jurist, if he is to be
right and wrDng, independent Df time and place. scientific must study the legal rules abstracted from all social cDnditions.
The thesis that law is mDral by nature - in the sense that Dnly a Kelsen r~fuses to define law as a cOJ;nmand, fDr that intrDduces subjective
mDral sDcial Drder is law - is rejected by the Pure TheDry Df Law nDt and pDlitical cDnsideratiDns and he wishes his science to. be truly
Dnly because this thesis presuppDses an absDlute mDral Drder, but alSo. Dbjective.
because in its actual applicatiDn by the science Df law prevailing in a First, Kelsen wishes to. separate the realm Df jurisprudence frDm
certain legal cDmmunity, this thesis amDunts to an uncriticaljustificatiDn that Df natural sciences. The latter deals with cause and effect: fDr
Dfthe natiDnal cDercive Drder that cDnstitutes this cDmmunity. FDr it is exampl~ NewtDn attempted to. fDrmulate a general principle which
taken fDr granted that Dne's Dwn natiDnal cDercive Drder is a legal Drder. wDuld d~scribe what actual dDes happen to. the apple when its stalk Dr
The dubiDus standard Df an absDlute mDrality is applied Dnly to the IDDsened frDm the tree. Law, Dn the Dther hand, dDes nDt attempt to
cDercive Drder Df Dther natiDns. Only they are disqualified as immDral describe what occurs but rather to. prescribe certain rules, to lay dDwn
and therefDre as nDnlaw, when they do. nDt cDnfDrm with certain standards Df actiDn which men Dught to. fDllDw. If X breaks the
pDstulates with which Dne's Dwn cDercive Drder cDnfDrms- fDr example, criminal law, then he Dught to. be punished. The sDle Dbject Df st~dy
when they recDgnize Dr do. nDt recDgnize private prDperty, Dr when they fDr jurisprudence is the nature Df the nDrms (Dr. standard~) w~Ich
are demDcratic Dr nDt demDcratic. But since Dne's Dwn cDercive Drder is are set up by law. A legal system exists in Drder to. ImpDse DblIgatIOns
law, then, accDrding to the abDve-mentiDned thesis, it must alSo. be mDral. on certain individuals; to. knDw whether in a particular case an
SuchjustificatiDn Df the pDsitive law may pDlitically be cDnvenient, even DbligatiDn exists, we ask whether the individual, if he di~D~eys a
thDugh IDgically inadmissible. FrDm the pDint Dfview of a science Dflaw rule, wDuld suffer a sanctiDn. But Kelsen dDes nDt take AUStIll s step
it must be rejected, because it is nDt the task Df this science to' justify
the law by absDlute Dr relative mDrals; but to' knDW and to' describe it.
-Reprint frDm PatDn, A Textbook in Jurisprudence. All fODtnDtes were
omitted
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I I
 READINGS IN LEGAL PHILOSOPHY AND THEORY The Positivist School

of defining law as a command of the sovereign. Law and the State hypothesis for any country we must go beyond jurisprudence,
are really the same thing envisaged from different aspects. A legal examine the world of reality, and discover an hypothesis that has
order becomes a state when it has developed organs for the creation, some measure of the correspondence with the facts. It would be futile
declaration, and enforcement of law. When we look at the abstract to state as the initial hypothesis for the U.S.S.R. that the will of the
rules we think of the legal order; when we examine the institutions Tsar ought to De obeyed. But it should be noted that the hypothesis
by which law is put into effect to thihk of the State. But this is merely need not absolutely correspondence with the facts. In England the
looking at the same thing from two angles. will of the King in ParliameJ;lt ought to be obeyed, but no one supposes
If, howeve; , we cannot adopt the 'easy method of d~fining law that every member of the community actually does obey the law on
in terms of the State, by what we can distinguished a rule of la~? every occasion. This emphasizes again that law does not state what
Rules of law cannot be tested but their content, the actual subject- actually does happen, but lays down what ought to happen; yet if
matter with which they deal, sin~e l~w may cover any topic. The the legal order is to be effective, it must secure a certain measure of
acceptance. . ,
modern tendency to regulate so many pf the' affairs of t,h e private
,citizen means that the sphere oflaw is daily increasing. Nor we can The sphere of jurisprudence, then, is a study of the nature of
define law in terms of justice, for many rul~s may be unjust, but this hierarchy of norms, the validity of each norm depending on its
they do not therefore cease to be law. 'Justice,is an irrational ideal' being laid down in accordance with a superior norm until we reach
- that is, it cannot be clearly defined by reason, and hence it is not the final norm which imposes an obligation,an a particular individual,
a satisfactory concept for a science of pure law. e.g. either by the judgment of a court, the order of an administrative
Kelsen finds the criterion in the way in which the rule is created. officer, or the making of a contract between two citizens. In essence
Ajudge in a mock trial may pass the same sentence as the judge of a these three operations merely carry out a superior norm and impose
properly constituted court, but the latter sentence has legal validity constraint on individuals.
because the prescribed conditions of the legal order have been It is difficult to appreciate the significance of Kelsen's work
fulfilled. Hence we must trace every legal act back to a norm which until the application ofthe theory is understood, but for the present
imputes legal validity to certain human behaviour. The imprisonment we are concerned only with the bearing of his theory on the problem
of Jones is justified because of the sentence of a criminal court: the of the boundaries of jurisprudence. The subject-matter for
court has this power because ofthe criminal code: the criminal code jurisprudence is the legal norm emptied of all practical content, all
has legal effect because it was enacted by the appropriate legislative questions of ethics or social philosophy being beyond the jurist's ken.
body, which is granted ' the power t9 legislate by the ,c onstitution. His claim that he has created an impartial and universal science is
But how can we explain the legal force of the constitution? What is justified, but we are not left with the dry bones of the law deprived
the legal basis ,o f the power of the King in Parliament to change the of the flesh and blood which give them life? The great value of his
law? Constitutions ultimately have an extra-l~gal origin. Even if work is its critical force, since he ably shows that many writers have
the whole community unanimously agrees to accept a particular clothed with the glory of first principles of jurisprudence what are
constitution, that agreem,ent has no legal force, for until a constitution only their own prejudices. Kelsen is not alone in his disgust at 'politics
is adopted the methods by which law is to be created are not laid masquerading as jurisprudence',! at those who object to state
down. A revolution may destroy an old constitution and create a new regulation oflabour conditions because it interferes with the onward
one, bl,lt such matters are beyond the sphere of jurisprudence which march of the neo-Hegelian Idea that law must give increasing
must posit an initial hypothesis: or Grur-dnorm beyond which it freedom to the individual will. Kelsen is correct in showing that law
cannot go. Once it has been accepted as a basis that the will of the is a weapon that may be used to effect many ends - indeed, it is
King in Parliament ought to be obeyed, we may trace the validity of curious to see that his impartiality in the conflicting social problems
any particular legal rule; but to determine what is to b initial of today has led conservatives to call him a dangerous radical and

~
<''BN rot~ ,
'I. J
100 ' ~ ......
I
101
JI! ~I'
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 READINGS IN LEGAL PHILOSOPHY AND THEORY The Positivist School

the revolutionaries to dub him a reactionary. Kelsen's work is also Jeremy Bentham (1743-1832) can be said to be the founder
valuable in its emphasis that in executing the norms oflaw the judge of English Utilitarianism. He wrote numerous works, among
has much discretion - it is impossible for any general rule to provide which we might mention: Introduction to the Principles of Morals
for all contingencies, and the general rules must be made precise by and Legislation (1789), Traite de la Legislation civile et penale
those who have the duty of applying them. But, in order to maintain (1802), Theorie des peines et des recompenses (1811), The Book
the air of impartiality, Kelsen regards as outside the scope of of Fallacies (1824). His Deontology or the Science of Morality
jurisprudence all discussion of natural law, and all the examination was published in 1834, two years after his death.
of the sources whence the' judge draws his rules when there is no Bentham was a liberal and courageous soul who promoted ardently
authority in point. This leaves the science of law very 'pure:, but various legislative reforms, for example, in the field of penal law. The
deprives it of all interesting contact with life itself. Indeed, what we bases, however, of his system are somewhat defective. The utilitarian
obtain from this method is not a theory of legal development but principle appears therein in a form which is, as it were, rough and
simply the formal principles of juristic thought. To exclude the whole primitive. Pleasure, understood in a materialistic sense, as sense
of sociology and of ethics leaves jurisprudence but a mental exercise satisfaction and personal advantage, is, for Bentham, the sole purpose
in abstract notions. The objection to Kelsen's pure science of law is of life. Good, therefore, is that which procures pleasure. Morality is
that if the premisses are rigidly followed, the result is too formalto nothing but the calculation of pleasures. From this springs the so-called
be of service to jurisprudence; if the jurist goes beyond his premisses, "moral arithmetic." It is necessary to avoid vice only insofar as it leads
the method is destroyed. Kelsen would be very impatient if any to unhappiness, or represents an error of calculation in the search for
argument that jurisprudence should serve the needs of life - its happiness. Virtue, always according to Bentham, would be egoism
aim in his eyes should be enable us to understand the nature oflaw properly understood. It demands, indeed, some renunciations, but only
and the State. But the point made here is that Kelsen's methods for a utilitarian purpose. Thus, for example it requires the sacrifice of a
does not even give us a true picture oflaw, for jurisprudence must go lesser pleasure for a greater one, the renunciation of a present pleasure
beyond the formal hierarchy of norms to study the social forces that in view of a future one. Thus, clearly, one would come to a denial of any
create law. The doctrine of natural law has certainly been abused, true morality, since it would always be a question of individual pleasure,
but is jurisprudence, therefore, to ignore the whole question of ethics? without any regard for the good of others. Bentham, nevertheless, like
Indeed, Kelsen himself goes beyond the limits of his method in the other utilitarians, recognized the need of some correction in his
discussing the nature of international law and really bases his view crude principle. He had recourse, consequently, to the coefficient of
on the ideal of the legal unity of the world. Nor can we understand sympathy. He recognized the need we feel to participate in some way in
the real nature of the StB;te by regarding it in purely formal light. the sentiments of our neighbor. He admitted, in substance, that one
The philosophic difficulties involved in Kelsen's clear separation of cannot be happy in the midst of a multitude who are unhappy. To this
the legal world of norms from the world of reality cannot be here consideration is joined another, namely, that acting according to the
discussed, but it may be pointed out that, however pure his science pure egoistic principle we should provoke an equal attitude on the part
is kept, the initial premisses for any legal order can be discovered of others toward ourselves, and we should consequently, in the final
only by a study of the facts in that particular community. analysis, create an injury to ourselves. From all this there arises a certain
mitigation of the original doctrine. For the concept of individual utility
Noone can doubt that Kelsen has made an origin and striking
there tends to be substituted a higher and broader concept. The final
contribution to jurisprudence. In 1832 Austin cleared away much
purpose is no longer the pleasure of the individual, but the "greatest
dead wood, and a century later Kelsen with critical acumen exposed
happiness of the greatest number." In this consists the so-called
many fallacies. But the aim of the pure science oflaw is narrow one,
maximization of pleasure. Bentham adds this rule: "in the division of
and it must be complemented by other and broader approaches.
pleasures no man must be excluded, and each one must count for one."

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3. (By utility is meant that property in any object, whereby it t ends

THE UTILITARIAN PRINCIPLE to produce benefit, advantage, pleasure, good, or happiness,
BENTHAM, AN INTRODUCTION TO THE PRINCIPLES (all this in the present case comes to the same thing) or (what
comes again to the same thing) to prevent the happening of
OF MORALS AND LEGISLATION' mischief, pain, evil, or unhappiness to the party whose interest
is considered: if that party be the community in general, then
Chapter I. Of the Principle of Utility the happiness of the community: if a particular individual, then
1. (N ature has placed mankind under the governance of two the happiness of that individual).
sovereign masters, pain and pleasures. It is for them alone to 4. (The interest of the community is one of the most general
point out what we ought to do, as well as to determine what we expressions that can occur in the phraseology of morals:) no
shall do. On the one hand the standard of right and wrong, on wonder that the meaning of it is often lost. When it has a
I

the other the chain of causes and effects, are fastened to their meaning, it is this. The community is a fictitious body, composed
throne. They govern us in all we do, in all we say, in all we of the individual persons who are considered as constituting as
think: every effort we can make to throw off our subjection, it were its members. The interest of the community then is,
will serve but to demonstrate and confirm it.) In words a man what? - .the sum of the interests of the several members who
may pretend to abjure their empire: but in reality he will remain compose it.
subject to it all the while. The principle of utility recognises 5. It is in vain to talk of the interest of the community, without
this subjection, and assumes it for the foundation ofthat system, understanding what is the interest ofthe individual. A thing is .
the object of which is to rear the fabric of felicity by the hands said to promote the interest, or to be - for the interest, of an
of reason and of law. Systems which attempt to question it, individual, when it tends to add to the sum total of his pleasures:
deal in sounds instead of sense, in caprice instead of reason, in or, what comes to the same thing, to diminish the sum total of
darkness instead of light. his pains.
But enough of metaphor and declamation: it is not by such 6. An action then may be said to be conformable to the principle
means that moral science is to be improved. of utility, or for shortness sake, to utility, (meaning with respect
2. The principle of utility is the foundation of the present work: it to the community at large) when the tendency it has to augment
will be proper therefore at the outset to give an explicit and the happiness of the community is greater than any it has to
determinate account of what is meant by it. (By the principle diminish it.
of utility is meant that principle that which approves or 7. A measure of government (which is but a particular kind of
disapproves of every action whatsoever, according to the action, performed by a particular person or persons) may be
tendency which it appears to have to augment or diminish the said to be conformable to or dictate by the principle of utility,
happiness of the party whose interest is in question: or, what is when in like manner the tendency which it has to augment the
the same thing in other words, to promote or to oppose that happiness of the community is greater than 'a ny which it has to
happiness). I say of every action whatsoever; and therefore not diminish it.
only of every action of a private individual, but of every measure 8. When an action, or in particular a measure of government, is
of government. supposed by a miln to be conformable to the principle of utility,
it may be convenient~ for the purposes of discourse, to imagine
a kind oflaw or to dictate, called a law or dictate of utility: and
"Reprint from Cohen and Cohen, Readings in Jurisprudence and Legal to speak ofthe action in question, as being conformable to such
Philosophy, p. 494. All footnotes were omitted. law or dictate.
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9. A man may be said to be a partisan of the principle of utility, 13. When a man attempts to combat the principle of utility, it is
when the approbation or disapprobation he annexes to any with reasons drawn, without his being aware of it, from that
action, or to any measure, is deter mined by, and proportioned very principle itself. His arguments, if they prove any thing,
to the tendency which he conceives it to have to augment or to .prove not that the principle is wrong, but that, according to the
diminish the happiness ofthe community: or in other words, to applications he supposes to be made of it, it is misapplied. Is it
its conformity or unconformity to the laws or dictates of utility. possible for a man to move the earth? Yes; but he must first
find out another earth to stand upon. .
10. Of an action that is conformable to the principle of utility, one
may always say either that it is one that ought to be done, or at 14. To disapprove the propriety of it by arguments is impossible;
least that it is not one that ought not to be done. One may say but, from the causes that have been mentioned, or from some
also, that it is right it should be done; at least that it is not confused or partial view of it, a man may happen to be disposed
wrong it should be done: that it is a right action; at least that it not to relish it. Where this is the case, if he thinks the settling
is not a wrong action. When thus interpreted, the words ought, of his opinio~s on such a subject worth the trouble, let him
and right and wrong, and others of that stamp, have a meaning: take the following steps, and at length, perhaps, he may come
when otherwise, they have none. to reconcile himself to it.
11. Has the rectitude ofthis principle been ever formally contested? 1. Let him settle with himself, whether he would wish to
It should seem that it had, by those who have not known what discard this principle altogether; if so, let him consider
they have been meaning. Is it susceptible of any direct proof? it what -it is that all his reasonings (in matters of politics
should seem not: for that which is used to prove every thing especially) can amount to?
else, cannot itself be proved: a chain of proofs must have their
commencement somewhere. To give such proofis as impossible 2. Ifhe would, let him settle with himself, whether he would
as it is needless. judge and act without any principle, or whether there is
any other he would judge and act by?
12. Not that there is or ever has been that human creature
breathing, however stupid or perverse, who has not on many, 3. If there be, let him examine and satisfy himself whether
perhaps on most occasions of his life, deferred to it. By the the principle he thinks he has found is really any separate
natural constitution of the human frame on most occasions of intelligible principle; or whether it be not a mere principle
their lives men in general embrace this principle, without in words, a kind of phrase, which at bottom expresses
thinking of it: if not for the ordering of their own actions, yet neither more nor less than the mere averment of his own
for the trying of their own actions, as well as of those of other unfounded sentiments; that is, what in another person he
men. There have been, at the same time, not many, perhaps, might be apt to call caprice?
even of the most intelligent, who have been disposed to embrace 4. If he is inclined to think that his own approbation or
it purely and without reserve. There are even few who have disapprobation, annexed to the idea of an act, without any
not taken some occasion or other to quarrel with it, either on regard to its consequences, is a sufficient foundation for
account of their not understanding always how to app'l y it, or him to judge and act upon, let him ask himself whether
on account of some prejudice or other which they were afraid to his sentiment is to be a standard of right and wrong, with
examine into, or could not bear to part with it. For such is the respect to every other man, or whether every man's
stuff that man is made of: in principle and in practice, in a sentiment has the same privilege of being a standard to
right track and in a wrong one, the rarest of all human qualities itself? .
is consistency. '

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5. In the first case, let him ask himself whether his principle Chapter II. Of Principles Adverse to that of Utility
is not despotical, and hostile to all the rest of human race? 1. (If the principle of utility be a right principle to be governed by,
6. In the second case, whether it is not anarchical; and and that in all cases, it follows from what h as been just observed,
whether at this rate there are not as many different that whatever principle differ s from it in any case m u st
standards of right and wrong as there are men? and necessarily be a wrong one). To pr ove any other principle ,
whether even to the same man, the same thing, which is therefore, to be a wrong one, there needs no more than just to
right today, may not (without the least change in its show it to be what it is, a principle of which the dictates are in
nature) be wrong tomorrow? and whether the same thing some point or other different from those of the principle of
is not right and wrong in the same place at the same time? utility: to state it is to confute it ....
and in either case, whether all argument is not an end? 3. By the principle of asceticism I mean that principle, which,
and whether, when two men have said, "I like this," and like the principle of utility, approves or disapproves of any
"I don't like it," they can (upon such a principle) have any action, according to the tendency which it appears to have to
thing more to say? augment or diminish the happiness ofthe party whose interest
7. Ifhe should have said to himself, No: for that the sentiment is in question; but in an inverse manner: approving of actions
which he proposes as a standard must be grounded on in as far as they tend to diminish his happiness; disapproving
reflection, let him say on what particulars the reflection of them in as far as they tend to augment it ...
is to turn? if on particulars having relation to the utility 9. The principle of asceticism seems originally to have been the
of the act, then let him say whether this is not deserting reverie of certain hasty speculators, who having perceived, or
his own principle, and borrowing assistance from that very fancied , that certain pleasures, when reaped in certain
one in opposition to which he sets it up: or if not on those circumstances, have, at the long run, been attended with pains
particulars, on what other particulars? more than equivalent to them, took occasion to quarrel with
8. Ifhe should be for compounding the matter, and adopting every thing that offered itself under the name of pleasure.
his own principle in part, and the principle of utility in Having then got thus far, and having forgot the point which
part, let him say how far he will adopt it? they set out from, they pushed on, and went so much further as
to think it meritorious to fall in love with pain. Even this, we
9. When he has settled with himself where he will stop, then
see, is a~ bottom but the principle of utility misapplied.
let him ask himself how he justifies to himself the adopting
it so far? and why he will not adopt it any farther? 10. The principle of utility is capable of being consistently pursued;
and it is but tautology to say, that the more consistently it is
10. Admitting any other principle than the principle of utility
pursued, the better it must ever be for human-kind. The
to be a right principle, a principle that it is right for a
principle of asceticism never was, nor ever can be, consistently
man to pursue; admitting (what is not true) that the word
pursued by any living creature. Let but one tenth part of the
right can have a meaning without reference to utility, let
inhabitants of this earth pursue it consistently, and in a day's
him say whether there is any such thing as a motive that
time they will have turned it into a hell.
a man can have to pursue the dictates of it: if there is, let
him say what that motive is , and how it is to be 11. Among principles adverse to that of utility, that which at this
distinguished from those which enforce the dictates of day seems to have most influence in matters of government, is
utility: if not, then lastly let him say what it is this other what may be called the principle of sympathy and antipathy.
principle can be good for? (By the principle of sympathy and antipathy, I mean that
principle which approves or disapproves of certain actions, not

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on account of thei~ tending to augment the happiness, nor yet To a person considered by himself, the value of a pleasure or
on account of theIr tending to diminish the happiness of the 2.
pain considered by itself, will be greater ·o r less, according to
party whose interest is in question, but merely because a man
the four following circumstances.
finds himself disposed to approve or disapprove ofthem: holding
up that approbation or disapprobation as a sufficient reason 1. Its intensity.
for i~se~f, and disclaiming the necessity of looking out for any 2. Its duration.
ext~nslc ground). Thus far in the general department of morals: 3. Its certainty or uncertainty.
and In the particular department of politics, measuring out the 4. Its propinquity or remoteness.
quantum (as well as determining the ground) of punishment 3. These are the circumstances which are to considered in
by the degree of the disapprobation... . ' estimating a pleasure or a pain considered each of them
13. In lo~kin~ ov~r th~ catalogue of human actions (says a partisan by itself. But when the value of any pleasure or pain is
of thIs prmclple) m order to determine which of them are to considered for the purpose of estimating the tendency of
marked with the seal of disapprobation, you need but to take any act by which it is produced, there are two other
counsel ?f your own feelings: whatever you find in yourself a circumstances to be taken into the account; these are,
propensIty to condemn, is wrong for that very reason. For the 5. Its fecundity, or' the chance it has of being followed by
~a~e reason it is also meet for punishment: in what proportion sensations of the same kind: that is, pleasures, if it be a
It I~ adverse to utility, or whenever it be adverse to utility at pleasure: pains, if it be a pain.
all, I~ a .matter that makes no difference. In that same proportion 6. Its purity, or the chance it has of not being followed by
~lso IS It meet for punishment: if you hate much, punish much:
sensations of the opposite kind: that is, pains, if it be a
If you hate lit~le, punish little: punish as you hate. If you hate
pleasure: pleasures, if it be a pain.
not at all, pUnIsh not at all: the fine feelings of the soul are not
to be overborne and tyrannized by the harsh and rugged dictates These two last, however, are in strictness scarcely to be
of political utility. deemed properties of the pleasure or the pain itself; they are
not, therefore, in strictness to be taken into the account of the
14. The various systems that have been formed concerning the value of that pleasure or that pain. They are in strictness to be
standard of right and wrong, may all be reduced to the principle deemed properties only of the act, or other event, by which such
of sympathy and antipathy. One account may serve for all of pleasure or pain has been produced; and accordingly are only
them. They consist all of them in so many contrivances for to be taken into the account of the tendency of such act or such
avoiding the obligation of appealing to any external standard
and for prevailing upon the reader to accept of theauthor'~ event.
4. To a number of persons, with reference to each of whom the
sentiment or opinion as a reason and that a sufficient one for
value of a pleasure or a pain is considered, it will be greater or
itself. The phrase different, but the principle the same ....
less, according to seven circumstances: to vvit, the six preceding
ones; viz.
Chapter Iv.. Value of a Lot of Pleasure or Pain, How to be 1. Its intensity.
Measured
2. Its duration.
1. Pleasures then, and the avoidance of pains, are the ends which 3. Its certainty or uncertainty.
the legislator has in view: it behoves him therefore to 4. Its propinquity or remoteness.
understand their value. Pleasures and pains are the instruments
he has to work with: it behoves him therefore to understand 5. Its fecundity.
their force, which is again, in another point of view, their value. 6. Itspurity.
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The Positivist School

And one other; to wit :

act, with respect to the total number or community of
7. Its extent; that is, the number of persons to whom it individuals concerned; if on the side of pain, the general
extends; or (in other words) who are affected by it. evil tendency, with respect to the same community.
5. To take an ex~ct am~unt then of the general tendency of 6. It is not to be expected that this process should be strictly
any act, by whIch the mterests of a community are affected pursued previously to every moral judgment, or to every
procee~ as follows. Begin with anyone person of thos~ legislative or judicial operation. It may, however, be always
~hose mterests seem most immediately to be affected by kept in view: and as near as the process actually pursued on
It; and take an account , these occasions approaches to it, so near will such process
1. Of the value of each distinguishable pleasure which approach to the character of an exact one.
appears to be produced by it in the first instance. 7. The same process is alike applicable to pleasure and pain, in
2. Of the value of each pain which appears to be whatever shape they appear: and by whatever denomination
produced by it in the first instance. they are distinguished: to pleasure, whether it be called good
3. Of the value of each pleasure which appears to be (which is properly the cause or instrument of pleasure) or
produced by it after the first. This constitutes the profit (which is distant pleasure, or the cause or instrument
fecundity of the first pleasure and the impurity of of distant pleasure,) or convenience, or advantage, benefit,
the first pain. emolument, happiness, and so forth: to pain, whether it be
called evil, (which cor responds to good) or mischief, or
4. Of the value of each pai~ which appears to be
inconvenience, or disadvantage, or loss, or unhappiness;and
produced by it after the first . This constitutes the so forth.
fecundity of the first pain, and the impurity of the
first pleasure. 8. Nor is this a novel and unwarranted, any more than it is a
useless theory. In all this there is nothing but what the
5. Sum up all the values of all the pleasures on the one
practice of mankind, wheresoever they have a clear view of
side, and those of all the pains on the other. The
their own interest, is perfectly conformable to. An article of
balance, ifit be on the side of pleasure, will give the
property, an estate in land, for instance, is valuable, on what
good te.ndency of the act upon the whole, with respect account? On account of the pleasures of all kinds which it
to the mterests of that individual person· if on the
enables a man to produce, and what comes to the same thing
side of pain, the bad tendency of it upon the whole.
the pains of all kinds which enables him to avert. But the
6. !ake an account of the number of persons whose value of a such an 'article of property is universally understood
mterest appear to be concerned; and repeat the above to rise or fall according to the length or shortness of the time
process with respect to each. Sum up the numbers which a man has in it: the certainty or uncertainty of its
expressiv~ of the degrees ofgood tendency, which the coming into possession: and the nearness or remoteness of
act has, wIth respect to each individual, in regard to the time at which, if at all, it is to come into possession. Ai; to
whom the tendency of it is good upon the whole: do the intensity of the pleasures which a man may derive from
this again with respect to each individual, in regard it, this is never thought of, because it depends upon the use
to whom the tendency of it is good upon the whole: which each particular person may come to make of it; which
do this again with respect to each individual, in cannot be estimated till the particular pleasures he may come
regard to whom the tendency of it is bad upon the to derive from it, or the particular pains he may come to
whole. Take the balance; which, if on the side of exclude by means of it, are brought to view. For the same
pleasure, will give the general good tendency of the reason, neither does he think of the fecundity or purity of
112
those pleasures ....
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 READINGS IN LEGAL PHILOSOPHY AND THEORY

Questions in Chapter V Ch apter VI

The Positivist School
THE FUNCTIONAL SCHOOL
1. What is the meaning of the Positivist School of Legal
Philosophy? . THE SCOPE AND PURPOSE OF SOCIO·
2. Who was the main advocate of Positivist School? What book LOGICAL JURISPRUDENCE
did he publish advocating the said school of Philosophy.?
by Roscoe Pound'
3. How is law determined in this school?
4. Why is this theory also called the imperative school? Schools of Jurists and Methods of Jurispru<J.ence
5. What are the advantages of the positivist school?
Until recently, it has been possible to divide the jurists into
6.. What do you mean by the Pure Science of Law? three principal groups, according to theIr views ofthe nature oflaw
7. Who was the foremost advocate of the Pure Science or Pure and of the standpoint from which the science of law should be
Theory of Law? approached. We may call these groups the Philosophical School, the
8. What is the main thesis of the Pure Science or Pure Theory of ,Historical School, and the Analytical School. On closer analysis, the
Law? Philosophical School falls into three: an Eighteenth-Century Law-
of-Nature School, perhaps still represented by a Rousseauist School
9. What are the advantages and disadva ntages ofthe Pure Science
Theory? in France,and not without representatives in Americ~n juristic
thought, a Metaphysical School, dominant in philosophical
10. What is meant by the Utilitarian Theory of Law? jurisprudence during the first half of the nineteenth century, and a
11. What are the measures to achieve the principle of utility? Social-Philosophical School, of which there are several varieties, but
in which the·Neo-Hegelians seem to have the most fruitful program.
The historical jurists may be distinguished into a German Historical
School, whose method is philosphical (indeed often metaphysical)
and historical, and an English Historical School, whose method is
comparative and historical. The Analytical School, likewise, has an
older and a newer phase. The older type, which adhered to the
analytical method exclusively, may be distinguished from a later
English school, whose method is historical as well as analytical. Thus
it will be noted that there is a marked tendency to abandon the
exclusive use of anyone method, and to bring these formerly
divergent schools into something like accord. In this movement,
however, propinquity hitherto has played a curious part. The German
Historical School arose in a country dominated by philosophical
methods and at a time when the Metaphysical School was at its

' Reprint from Harvard Law Review. All footnotes were omitted.

114
115