Law, like polity, is one of those familiar things which are rarely defined, and, like polity, it touches human life at all points. The difficulty of definition is here aggravated by the fact that, while polity is clearly a cultural institution, law belongs also to the realm of nature. Nor is this merely an accident of verbal usage: there is a community of meaning.
The search for this broader meaning in terms of which the laws of physics and the laws of society, the laws of God and the laws of man, are all “laws,” carries us back to a basic distinction of thought, and, if thought be taken to reflect the character of what is thought about, then to a basic distinction within being itself. The interpretation of this distinction has divided philosophers from the earliest times because, while they differ in what they make of it, they cannot ignore it. The distinction in question is the distinction between the universal and the particular. The concrete persons, things, objects, or events, which occur uniquely or only once, and which in their aggregate constitute nature and history, fall into kinds or classes of similars. That which is perceived in its particularity can be conceived in its generality — in diverse generalities, and in a series of broadening generalities.
The relation between the particular and the universal can be taken in either of two aspects, both of which it actually presents. It can be taken in the aspect of subsumption, and used for purposes of classification; or it can be taken in the aspect of determination, and used for purposes of explanation. The particular belongs to its universal; and it is thus correct to say of any particular that it is a certain general; as when we say of Socrates that he is a “man.” But the universal possesses its particular; and it is then also correct to say of any general that it prescribes what its particulars shall be or do; as when we say that “man” manifests itself in Socrates. These statements are not symmetrical: man is not a Socrates; nor is Socrates manifested in man.
We have already reached the point at which the term ‘law’ and kindred terms can be introduced without violation of usage. Taken in the second of its aspects, the relation of particular and universal can be expressed by saying that the universal controls, governs, regulates, or is a law of, its particulars.
But universals are also related to other universals, and particulars are related to other particulars through their common or related universals. Thus the universal teacher is related to the universal pupil; and this relation will hold of Socrates and Plato. If these particulars are correctly conceived then they can be counted on to be and to behave as the concept and related concepts require, regardless of their other characteristics and regardless of varying and changing circumstances. If Socrates was indeed a teacher, and if Plato was indeed his pupil, then no matter what other conditions may have affected either party or the relations between them, Socrates will have formed the mind of Plato. It is the aspect of the situation expressed by the terms ‘regardless,’ and ‘no matter what,’ which constitutes the element of constraint in law. The particular cannot escape its universal; those of its characteristics which fall outside its universal are helpless to prevent.
Taken in respect of their connecting threads of universality, particular things and events compose an “order.” Nature is an order, and the knowledge of its orderliness is the knowledge of its laws. The laws of nature consist of the relations of the universals which are particularized in the existing things and events which are not of man's making; the formulations of these laws by the knowing mind constitute the “scientific laws,” such as the laws of physics and chemistry. The law of nature belongs to nature, the scientific law belongs to culture.
But culture like nature has its laws. Human artifacts are particulars of universals, and are related and describable in terms of their universals. They are not usually mathematically describable — at least in terms of any mathematics as yet available. But there are laws, however incompletely discovered, which determine human affairs, and these are the laws with which the cultural sciences are concerned insofar as they employ the explanatory method.
It is evident that some term is required by which to distinguish laws which “belong to” the realms of nature and culture from the scientific laws by which they are known and formulated. The term ‘law of nature’ will not suffice since there are also “laws of culture.” They may be designated as the real, operative, actual, governing, or “determining” laws. They are related to scientific laws as an event is related to the idea of it. In proportion as the idea is true it will become identical with the event. Similarly, in proportion as the scientific law is true it will become indistinguishable from the law of nature or of culture of which it is true.
Jural law, the subject matter of jurisprudence, is determining law which shares with all law the general character of binding particulars through their universals. Its distinguishing character lies in its being both a law of wills and a law by wills. It is voluntary both in the application and in the making. The resulting order is self-imposed.
Men are bound by jural law, and conform to it by their choosing, that is, through the balancing and integration of their interests. This does not mean that they do not conform; if they did not there would be no order. Choosing is not to be defined by its vagaries and irregularities; choosing the same is not less a choosing than is choosing the different. When men choose the true or the good it is to be expected that their choices will agree. The supposition that difference rather than sameness is evidence of will means only that when men agree voluntarily their sameness is not due to certain other causes, such as habit or imitation, by which it is more easily and more commonly brought about.
A jural order, then, is an order in which the universality of the members consists in the universality of their wills. The stars in their courses obey the laws of astronomy, but they do not choose to do so. Thus, if Joshua, instead of commanding the sun and moon to stand still, had commanded them to move in their orbits, and if they had then obeyed from choice, their laws of motion would have become jural laws. If, as on the creationist hypothesis, the laws of celestial bodies were imposed on them by God, these laws would not be jural laws unless it is assumed that the planets had to be persuaded to obey them. Observance of the jural law has to be induced. It operates through choosing; its being universally chosen is what brings it into being.
The second characteristic of jural law is that it is made not only of men but by men. The jural law is in society in the same sense as the law of nature is in nature; but it is put into society. Men adopt by choice the law which they obey by choice; and they adopt it for what seem to them good reasons. In other words, jural law is for something, and it is made for that something. It has a function — which is to introduce regularity into human life. A jural law, is a system of universals — such as voter, citizen, property-holder, taxpayer, husband and wife, landlord and tenant, plaintiff and defendant, creditor and debtor, and countless others — which are exemplified in the particular members of a society; and which, when the members are thus conceived, renders their conduct predictable. Insofar as men live lawfully they are dependable, not as automatons, but as beings who act from choice.
This is the primary and immediate function of law. When this function is exercised, the law is; and an explanatory jurisprudence will seek to discover how it comes to pass. The fuller examination of this function will disclose the instrumental or purely legal criteria of law, and at the same time will lead on to the disclosure of its ultimate moral purpose.
That law is intimately related to polity is evident — so evident that the two are often identified, to the confusion of both. The public agencies of law are a part of the frame of government. The legislative and judicial branches of government make law, and the executive branch of government administers law. Law, like the decisions of government, is enforced, and when it is enforced, it is the political authority which serves as the agency of the enforcement. But however much law and government are thus intermingled in actual social organization, their essential ideas are nevertheless distinguishable. If this were not so it would be meaningless to speak of “government by law”; which implies at least the theoretical possibility of government without law. There is a similar possibility of law without government.
Polity without law is what is called “personal government.”1 There has presumably never been a government wholly without laws, but such a government is definable as a government in which the government is itself above or beyond the law, or in which it governs by edicts (such as “bills of attainder” or “private bills”) addressed only to particular persons. When a ruler's authority is itself generalized so that it can be assumed by a succession of “legitimate” rulers, the government is a “legal” or “constitutional” government, and when it is addressed to categories of persons which can be exemplified by many particular individuals, it is a government by law.
The idea that there can be no law without polity is argued, first, from the fact that if law is to be obeyed by choice it has to be known. From this it is supposed to follow that it has to be promulgated and commanded by the head of state. But however commonly this occurs, it is not necessary. Customary law is not promulgated from any central seat of authority, but is made known to each individual by his own social conscience. It is communicated from next to next by suggestion or tradition, or by literature, monuments, or symbols. So important is this way of knowing the law that it has led some social philosophers to derive all law from custom; and other philosophers to affirm that the fundamentals of law are revealed to each individual by the “natural light” of reason. Even when law is promulgated, it need not be promulgated by the political authority: it may be promulgated by seers, by “sacred” books, such as the Koran or the Scriptures, or by a priestly authority speaking in the name of God. And when promulgated by a central authority, whether political or non-political, it need not, though it usually does, assume the form of command. It may be hortatory rather than imperative, or it may be declaratory, with little or no emotional intonation.
The argument most commonly employed to prove the dependence of law on polity is the requirement of enforcement. If law is to confer on society the benefit of order and regularity it must be generally observed; without assurance of its observance by others, there is no reason why an individual should submit to it. Human nature being what it is, he cannot possess that assurance without a guarantee. During a recent meat shortage the mayor of New York issued a “plea” for a “conservation Monday” to be observed by the restaurants. The newspapers reported that many restaurants ignored the plea, and that the others complained; or, as the headlines ran, THOSE WHO HEED IT IRKED. SPOKESMAN SAYS OBSERVANCE MUST BE GENERAL OR PLAN SHOULD BE DISCARDED.2 The implication was that the rule should be enforced by penalties; otherwise there would be no public advantage and those who did observe it would be placed at a disadvantage by their own observance. The same reasoning applies throughout the entire range of law from this more trivial level all the way to the laws governing men's most sacred liberties and rights. So to the primary law, or law of first intent, there is annexed law of second intent — a penal law, which provides that all who break the primary law shall be made to suffer.
Thus the penal law prescribes that the murderer shall be executed or imprisoned for life. The primary law prescribes that men shall respect one another's lives and avoid injury to each other, so that all may go about their business unarmed and enjoying a sense of bodily security. Owing to the violence of hate or the temptation to profit by another's removal, men will still, despite the beneficence of the law and the precepts of conscience, occasionally take one another's lives. Murder is exceptional, but one murderous individual at large in the community is sufficient to create a panic. Hence there is a secondary law imposing a severe penalty on the hypothetical murderer who now “knows what to expect”; those who define law in terms of enforcement would then be obliged to say that there is no law for bodily security, but only a law against murder; no law of the innocent but only of the guilty — than which nothing could be more fantastic and illogical. For the penal law derives its meaning from non-penal law. If there were no law to break there would be no lawbreaker to punish.
Punishment, or threat of punishment — punishment by school, by parents, by church, by God, by social disapproval, or by government — is evidence of the law's failure and not of its success. It is an instrument for dealing with lawlessness: the more punishment the less law. Punishment is an auxiliary buttress which proves the weaknesses of the legal structure. In an ideal legal order, that is, a society which was legally perfected, no sanctions would be necessary; it would be “law-abiding.” Men would choose not only obedience of the law, but the law which they would obey.3
It should now be possible to answer the question, “When can there be said to be a law?” There are several answers to this question. The jural law is, in the first and most fundamental sense, when it is obeyed: when it actually regulates human conduct — when men conform to it and when, therefore, their voluntary action is predictable. But it may also be said to be when it is promulgated. In these two cases the law becomes a part of the description of a historical event, the act of obeying it or the act of affirming it. But there is a common factor in these two acts — namely, the law as it is conceived, or the law as idea or meaning. This is the corpus of the law, or the code, which may or may not be recorded. It is what the lawmaker wills or intends, the “decision” which the court affirms. It is the “objective” law, in the sense in which the term ‘problematic’ has already been introduced in defining the object of interest.
But while the law in this last and abstract sense does not exist in itself, it is in itself, that is, one can say that it is what it is, or that “there is” such a law. It can be interpreted, compared with other laws, judged by precedents, inferred from other laws, taken as the premise from which other laws are deduced, and applied in the adjudication of particular cases. This is the formal, and relatively static aspect of the law, which is emphasized by the “analytical” school of jurisprudence.
Law may be discovered or “found” in two senses. Its conceptual content may be explained in its own terms and compared with the content of other conceptual law. It has, in other words, its abstract morphology, as when one compares one set of marriage laws with another. Or law may be found where and when it is made, uttered, promulgated, commanded, enforced, or observed. Emphasis on law as it is observed — that is, on determining law, underlies the contention that a law is finally identified with its interpretation by the courts. It is impossible to know precisely what a law is until its application is decided, and those who make the decisions then make the laws. A considerable body of law, such as the common law, begins with judicial decisions, and is afterward generalized, systematized and codified. This is what is meant by speaking of “court-made law.” Through its making and through its observance law takes its place in the stream of existence, and is influenced by existing conditions. The examination of these conditions constitutes the explanatory part of the science of jurisprudence.
The modern insistence on the explanatory method signifies an antecedent neglect not of the conditions of law altogether, but of certain kinds of conditions. The doctrines that the law was given to man by God through Moses, or that it has been created by the political ruler, or by the courts, or by conscience, or by reason, have been found inadequate because the law has so many other conditions.
Law as an historical product4 reflects all of the factors and forces which enter into human life. It reflects human nature in its original and inescapable social characteristics, and social development in all its broader phases. It is conditioned by man's irrational propensities, his instincts, habits, emotions, appetites, and prejudi es, and not merely by his higher faculties of conscience and reason. It corresponds to the diverse forms of social structure. It is influenced by the political, economic, domestic, educational, and religious forces exerted by its sister-institutions, and by the scientific or artistic characteristics of that concrete culture of which it forms a part. And law has its internal, legal, as well as its extra-legal, conditions. This adds up to the summary conclusion that jural law does not dwell in a world apart, but is embedded in a social and historical context.
The acceptance of the explanatory method in jurisprudence must be guarded against two improper inferences. Because legal institutions are historical, it does not follow, as has sometimes been affirmed by the so-called “historical school,” that they are merely historical — devoid of conceptual content and purposeless. Historical jurisprudence is not to be argued against analytical and normative jurisprudence, but as a supplement which provides answers to a different question.
In the second place, the recognition of the irrational causes of law does not exclude rational causes. There is a natural but indefensible tendency to suppose that because the lucid intervals of reason are rare, or are contaminated by unreason, they are therefore ineffectual. Just as those who have wished to exalt the law have tended to dwell excessively upon its more august connections — so their critics have fallen into the opposite error of dwelling excessively upon its less respectable connections. This tendency to give excessive weight to whatever has a flavor of scandal, appears in recent explanations of constitutional law in terms of the personal characteristics or bias of judges — as though because judges are often motivated so there is no such thing as a judicial mind. Similarly the explanation of “due process” by the interest of the propertied classes is true insofar as it does explain; but this does not imply that there is no principle of due process — no objective meaning and norm on which disinterested judges can agree, and by which they can be guided.
The law taken as itself a standard provides for normative judgments which may apply to any person or act falling within its jurisdiction. The great body of legal judgments are of this type. Judged by the conceptual law as it is, what men do is either legal or illegal; that is, agrees or disagrees with the law. Normative jurisprudence, however, is concerned not with applications of the law, but with the law itself — to the effect that it is good or bad. As in the case of polity, so also in the case of law, the institution may be appraised in its own instrumental terms; or in ulterior terms, including its external appraisal by the standards of other institutions, and its internal appraisal by that moral standard which it shares with conscience, polity, and economy.
The first of the instrumental requirements of law is that it shall be obeyed. When law is disobeyed with a frequency that destroys the mutual confidence of those who nominally live under it, then law ceases to fulfill its function of regularity and predictability. It is bad law, in the sense of weakness and inefficiency. The law “breaks down.”
Disobedience of the law may be ascribed to the refractoriness of those to whom it applies, but the probability of its being obeyed is a criterion of the law itself. Law may be bad law because of failing to take sufficient account of human nature or of the strength of human sentiments. Law must be capable of being observed and also, when necessary, of being enforced. This requirement has been brought to public attention by the experience of “sumptuary legislation” in which the law has proved an ineffective instrument for controlling certain powerful human appetites, such as the consumption of alcoholic beverages. When a law is unenforceable it may put a premium upon the very practices which it is designed to prevent; and beget new forms of crime.5 There is, in short, an economy of law, lest it undertake more than it can effectually achieve. Excess of lawmaking may not only overburden the agencies of law, but through the spread of disobedience develop a resentment of the law's intrusiveness, and a general habit of disobedience and disrespect.
The usefulness of a judicial order, like that of the order of nature, consists in its implications for tomorrow. Nature can be counted on to remain what it is long enough for the desired consequences of action to accrue. The jural order, unlike the order of nature, is a part of human history. It is a succession of orders, and not a changeless order; if it were not a succession of orders, it would not be capable of correction and growth. But there is a minimum of change, beyond which it cannot exercise its function of making human conduct predictable: legal changes may result in no constancy, no dependability, and hence no possibility of long-range plans. The rules of a game need to be changed, but if they are too frequently changed it is impossible to play the game.
For similar reasons law may be praised or condemned according as it is or is not consistent with other law within the same area of jurisdiction. New law must be consistent with old — if a man is to “know where he stands.” It is a defect of the law that the divorce laws of the several states should be in conflict, since they apply to citizens of the United States who move freely from one area to another within its boundaries. A society whose laws are unstable or conflicting is as anarchical as a society which has no laws.
The law may fail to do its job through the very proliferation of its instruments. It may fail through its complexities and delays, or through its procedural clumsiness. It may fail through its rigidity — a hardening of its arteries — its inertia, its substitution of the letter for the spirit. The law consists in its meaning and not in the words in which it is recorded and communicated. Words in themselves are never a perfect vehicle of meaning, because meaning depends on context. The words may remain when the original context has been forgotten and no new context has been introduced to give them fresh meaning.
The law through its mechanisms may become mechanized and over-mechanized. It may also fail through the inability of individuals, whom it is designed to serve and to protect, to invoke it. The jury system, the idea of presumptive innocence, the right to be represented by an attorney the cross-examination of witnesses, and all the ritual of public trial, are designed to safeguard the individual against the law's arbitrariness of dictatorship. The costs of litigation are notorious, and often prohibitive.6
A legal system may be judged externally by any non-legal interest or institution. Such criticism of the law may lie upon any level from the self-interest of an individual or class to the higher norms of conscience, polity, economy, science, art, religion, and education. He who condemns the law because it forbids his doing what he would like to do or forces him to do what he is disinclined to do, is judging it normatively. When a man condemns the tax law, as men usually do, because he dislikes to pay to the public treasury what he might otherwise spend on himself, or condemns a draft law because he dislikes the risks and sacrifices of military service, or condemns the food regulations because he has a taste for meat and butter, his judgment is likely to be true on his grounds: the objection is to the grounds he takes.
The existing legal system is open to criticism in terms of the prevailing conscience. The law of capital punishment or the laws of war may be condemned because they violate the widespread sentiment of humanity. This is the characteristic normative judgment of the so-called “pacifist” who takes the precept of non-violence as his standard. There is no doubt that the law does reflect the existing social conscience. When the Mormon practice of polygamy was prohibited by law, the decision did not rest on arguments for monogamy. It was sufficient that polygamy should be deemed an open offense “against the enlightened sentiment of mankind,” where ‘enlightened sentiment’ meant the sentiment prevailing in the United States in the year 1889.7 Similarly, the legal prohibition of nudism, indecent exposure, drunkenness, profanity, and irregular sex relations does not rest on judgments concerning the hygienic or social effects of such practices. It is sufficient that they should offend the prevailing social conscience, even when they are supported by a sectarian or cultist conscience of their own.
The ultimate connection of law and polity leads to a critique of law on political grounds. The approval of law as an instrument of government — of government by law — is such a judgment. There is a perpetual exchange of critical judgments between the maker of public policy who complains of the law's delays or anachronisms, and the exponent of law who complains of the haste and opportunism of the executive or legislature. The existing legal system may be judged by its consistency or inconsistency with a particular political standard, as when the laws regulating suffrage are condemned as violations of democracy when they are too exclusive, or as violations of aristocracy when they are too inclusive.
The exponent of a particular economic system finds grounds for praise or condemnation of the law. Thus if he is an exponent of laissez-faire capitalism he will think well of a legal system which emphasizes property and inheritance, and ill of a legal system which “interferes with business.” An advocate of a socialistic economy, on the other hand, will complain of a traditional legal system as a bulwark of capitalism, and advocate laws which regulate business and provide for a “planned economy.”
The law may be judged by the scientist. An anarchical society is as repugnant to him as chance and chaos in nature. He will look to the law to protect his freedom of inquiry and perhaps subsidize research; or he will deprecate such regulations as make science dependent and create a scientific bureaucracy. Order is one of the qualifying attributes of aesthetic enjoyment, and a law-abiding society may be deemed beautiful or pleasing to contemplate. The artist, like the scientist, may judge the law in terms of his vocation — demand legal privileges, or resent legal restrictions.
The law may be judged from the standpoint of education. Public education, in its modern developments, invokes the compulsion of law; private education may complain of such compulsion or of its exclusively secular character. Similarly the law may be appraised in terms of religion, as promoting, or failing to promote, religion in general or any particular religious cult. Such judgments may vary all the way from a theocratic demand that the law shall be subordinated to religious dogma and worship, or that a church shall be “established,” to the protests of those who would tolerate any and all religions and confine legal control to the guarantee of religious freedom.
The final internal critique of the law is its moral critique. It takes as a standard that moral purpose which law shares with conscience and polity and economy. A decision of the United States Supreme Court supports this view, though in language somewhat different from that here employed: “The function of jurisprudence is to resolve the conflict of opposing rights and interests by applying in default of a specific provision of law, the corollaries of general principles.”8
The immediate and specific function of law is to create an orderly society. But something more may properly be demanded of it; it is the business of law not only to create order but to create a morally beneficent order. There are two distinct questions that it is proper to ask of law: “Is it good law?” and “Is it good law?” This distinction is of grave importance. Without it legal conformity is likely to be substituted for morality; and law itself is likely to become static and arbitrary, for lack of a principle by which old law can be revised and new law rationally created.
The ulterior moral purpose of the law is revealed at the point where law is created: when a decision is made as to what law shall be created, or why one law should be created rather than another, or, fundamentally, why there should be any law at all. There are many such points, official and unofficial. An informal group of persons may agree among themselves on the adoption of a set of rules to govern their behavior one to another. A parent, tribal head, priest, teacher, elder, or king, may act in a judicial capacity, that is, be called upon to settle disputes or grievances; and insofar as his decision serves as a precedent and defines general rules applicable to similar situations he is a maker of law. Statutory law, that is, the law created by legislatures, arises similarly from translating policy into rules.9 In all of these situations the nature of the problem and of its successful solution is similar. The ultimate reason for having law is that it removes conflict, and enables men to live at peace with their neighbors; or enables them to cooperate, that is, live happily and fruitfully with their neighbors. This is the “why” of the law in general, and of laws in particular; it serves as the principle by which law is justified, and by which, when it is not justified as it stands, it is revised.
There is nothing revolutionary, or even new, in the moral interpretation of law. Law is traditionally associated with moral ideas such as justice, rights, and equity.10 In some languages it is named for these ideas. This is not a verbal accident. It is the purpose of law to provide justice and to define rights.
‘Justice’ means the morally right allotment of the benefits of social organization or of its penalties. It does not mean any allotment, for an allotment, in the moral sense of the term, is that which is prescribed by the principle of harmonious happiness. The judgment of Solomon would, if possible, send both disputants away happy. The term ‘rights’ in general signifies a recognized sphere within which a person acts and may enjoy the liberty of acting upon his interest unmolested. But a justice of the United States Supreme Court has referred to such liberties as “privileges long recognized in common law as essential to the orderly pursuit of happiness by free men.”11 The term ‘rights’ is correctly borrowed from the moral vocabulary because a right must be right. The claim of a right rests on the assumption that the system of rights of which it is a part serves the good of the total community, that is, the moral good. It is an adjustment of each to the requirements of the whole. In this consists the rightness of rights, namely, their justice.
The number of rights is in principle limitless. It reflects the advancing complexity of human culture, the division and specialization of human activities, and the increasing stress on the individual. Potentially there are as many rights as there are interests, provided these interests are sufficiently general and sufficiently insistent to require that the social order shall recognize them and explicitly provide for them. Insofar as rights are guaranteed by the public authority their number is determined by the “limitations upon effective legal action.”12
The current distinction between “property rights” and “human rights” is misleading. All rights are human rights. Property has no rights, but persons have limited rights to possess. The antithesis of human to property rights has no meaning except as a protest against undue emphasis on this right to possess what one has, and to accumulate and bequeath possessions, to the neglect of other rights, such as the right of free speech or the right to education.
The drafting of new lists of rights for the purpose of international organization attests to their increasing number and variety. Thus a “Bill of Human Rights” proposed in 1946 by the Commission to Study the Organization of Peace, included the following rights as applying to all persons “without distinction as to race, sex, language or religion,” and as limited “by the rights of others and by the just requirements of the democratic state”: protection of life and liberty under law; freedom of conscience and belief; freedom of religious and other forms of association; religious teaching, practice and worship; forming and holding of opinions; receiving opinions and information; freedom of expression through all means of communication; peaceable assembly; petition for redress of grievances; participation in government; freedom from searches, seizures, and other interferences with person, home, reputation, privacy, activities, and property; fair and prompt public trial when charged with criminal or civil liabilities; conviction and punishment only under domestic laws in effect at the time of the alleged offense; freedom from arbitrary arrest or detention; education; social security; stability of employment under proper conditions and with standardized compensation.13
There have been various proposals for the classification of rights. A contemporary jurist of the sociological school classifies the interests which rights are designed to protect under the heads of “interests of personality,” “public interests,” and “social interests.”14 Public interests are those of the state considered as a “juristic person”; and “social interests” are those of the “community at large.” This classification does not contradict a fundamentally individualistic conception of rights if it be admitted that the state and the community are composed of persons. Other proposed classifications distinguish between “substantive” and “procedural” rights, and between “civil,” “political,” “economic,” and “social” rights.15 While no such classifications are conclusive they illustrate the thesis that wherever there is an interest there is a potential right, provided only that it satisfies the principle of equality and the criterion of expediency.
While all such classifications are more or less arbitrary, there is one distinction which has the double merit of emphasizing the recent trend toward the multiplication of rights and of revealing their essentially moral purpose. Rights are permissive, meaning that certain interested activities may be pursued, or are enabling, meaning that certain interested activities can be pursued. The permissive rights guarantee non-interference, and entrust the fulfillment of interests to the existing private resources of the persons interested. Certain of these permissive rights are universal or “inalienable”: the right to “life,” the right to control the movements of one's own body (“liberty”), and the right to such happiness as is attainable by one's own efforts (“the pursuit of happiness”). They are “inalienable” in the sense that they constitute those values of the person short of which no social organization whatever is justified.
Enabling rights, on the other hand, require that the public shall provide private persons with resources by which their permissive rights become effective; and include such rights as the rights of education, and health, or the right to a job — rights of the type characteristic of a comparatively collective society. It is the inclusion of enabling rights, or the claim that all rights are enabling in some degree, that has led recent jurists to affirm for each right a corresponding duty on the part of organized society; as the right of education implies an obligation to provide schools, the right to health implies an obligation to provide hospitals and medical care, and the right to life implies an obligation to provide the means of subsistence.
This growing recognition of enabling rights is a characteristic feature of the present epoch even among societies which profess to reject collectivism in their fundamental ideology. It is generally acknowledged that the purpose of rights is to create opportunity, and not merely to fence off a space within which the person is left to himself. Whatever misgivings may be felt are justified on the ground that legal rights must be limited by what public institutions can and cannot do, or can do better than private agencies, or can do without destroying the incentive to private initiative and effort. In any case the acknowledgment of enabling rights implies that the fulfillment of private interests is a matter of public concern. It implies that the law is to be judged not merely by its setting bounds, but also by its promotion of interests within bounds — that is, has a duty not merely to peace, but also to welfare and prosperity.
There is a rightness of rights which do not yet have the force of law. It is necessary, in short, to recognize the claim of ideal rights as well as legal rights.
There are rights which ought to be, in advance of their embodiment in organized society. When rights such as women's rights were argued for, their proponents claimed that they had such rights, or a right to such rights — nor can this be attributed to mere naïveté. And the same is true of all law: it may be deduced, and correctly deduced, from the moral purpose, before it is “made law.” Not only the adoption and the enactment of law, but the discussion of the merits of law, whether by courts or by legislatures, presupposes this distinction. The term ‘higher law’ has been used in jurisprudence to indicate such ideal law, or the law that ought to be, as distinguished from such law as is carried into effect. While jural law cannot be said to exist until it is realized in a social order (and this ordinarily implies promulgation and enforcement) it is deducible from moral premises in advance of being so realized.
It is customary to use the term ‘positive law’ to designate such law as exists or is realized in some historical society, and the “positivistic” doctrine of law is the untenable doctrine that there is no law but positive law.16 Higher law, then, is law which satisfies, or would satisfy the requirements of morality, and which thus serves as a norm by which to judge the positive law.
“Natural law” as it appears in political and legal thought is a hybrid conception, but it is too ancient and persistent to be lightly dismissed. It is deeply rooted in pagan, Hebraic, and Christian thought, and is still widely accepted despite its repeated rejection. In various wordings and philosophical interpretations, this idea has consisted in the union of two statements: that there is a higher law which is entitled to overrule the positive law; and that this higher law is actually operative in the nature of things at large. It claims a double priority — moral and metaphysical, representing what ought to be in a world in which things are, in the last analysis, what they ought to be.
The doctrine of natural law is sound doctrine insofar as it admits an appeal beyond the positive to ideal law; and at the same time recognizes that the law's realization lies in its actual observance, and therefore requires that it shall be consistent with human nature and with the human environment. But because it unites these two ideas it is in unstable equilibrium; it tends to fall into either dogmatism or positivism: a dogmatic affirmation that what ought to be is, or a positivistic affirmation that what is ought to be. The first was the besetting sin of the eighteenth century, while the latter was the besetting sin of the naturalism and historicism of the nineteenth.
The way is thus paved for a doctrine which will escape both horns of this dilemma. There is an ideal law which defines a standard by which the de facto law may be normatively judged. But ideal law does not exist merely because it is ideal; it induces men to act in its behalf, but they may or may not succeed. Here, as elsewhere, endeavor is conditioned by the possibility of success. In the realm of law this faith expresses itself in the conceptual and imaginative representation of a perfected legal order in which the members would enjoy the benefits of justice, living peacefully and prosperously within their rights.
Law, like polity, may fail of its moral purpose through the infidelity or ignorance of its agents. Like polity, and unlike conscience, the law has its own specialized functionaries: judges, legislators, jurors, attorneys. The moral purpose of law requires that these agents shall hold this purpose firmly in mind, and not allow themselves to be deflected by their personal interests. Such infidelity is explicable, as is any form of bias, but it is not excusable. The agent of the law who allows his prejudice to color his judgment is an unfaithful servant of right and justice.
As the judge or the juror may allow his personal interests to displace his legal role so the lawyer may violate his code, however that may be defined. Assuming that it is the function of the lawyer to acquaint his client with the law — to enable him to obtain its benefits, and to protect him against the law's abuses — he may from the ardor of his partisanship or professional zeal teach his client how to evade the law. Or the prosecuting attorney in his eagerness to secure conviction, whether to enhance his reputation or simply because his combative instincts prompt him to defeat his opponent and “win his case,” may act as the law's enemy rather than as its friend.
The weakness and ambiguity of the code of the lawyer and business man, as compared with the code of the medical profession, is a topic worthy of reflection. The physician sometimes sacrifices the cure to the fee, or loses sight of the health of the community in his preoccupation with a selected clientele, but since the time of Hippocrates the institution of medicine has on the whole been governed by a mandate to heal the sick. He is judged by his mandate both by his colleagues and by the community at large. The lawyer is less unambiguously devoted to the social purpose of law, and may be honored for the zeal with which he serves his client even when its effect is to promote wrong and injustice.
But the “upright judge” must also be the “learned” judge. Like the proverbial Daniel he merits his high office by wisdom and understanding, as well as by integrity. Orientation to the moral good is not sufficient. Solomon not only faced the problem objectively, but found a solution. Moral enlightenment is not to be identified with all forms of intellectual capacity. There are words such as ‘sharp,’ ‘expert,’ ‘shrewd,’ and ‘clever,’ which are commonly applied to agents of the law who exhibit intelligence on its lower levels; where its moral purpose is ignored, and it becomes “a combat of wits” in which the criterion of success is to “win the case.”
The legal reformer, looking to the optimum legal system, will apply the principle of liberality. Morally speaking, order does not exist for the sake of order, but for the sake of the interests of the persons ordered. The restrictions imposed by the law are justified only by their benefits to the persons restricted. The burden of proof is on the restriction of interacts; freedom is innocent until it is proven guilty. A society may be legally ordered at unjustifiable cost to the persons ordered; that is, when rights are negated beyond what is required by the like rights of all. This illiberality may be due to its inertia or rigidity. Prestige and tradition beget an idolatrous worship of the legal status quo; which, under the name of “The Law,” or “Law and Order,” may borrow the reverence which is due only to its benefits. Such causes work together to close the door to a fuller provision for interests.
The existing legal order may be illiberal owing to the influence exerted by those who profit from it unjustly. It is essential to the law that it should prescribe limits — that it should deny interests as well as affirm them; but at any given time in the course of human history this cost of the legal order is likely to be unevenly distributed among its beneficiaries, and those who pay least will be its friends. Paying least they acquire a power to prevent its revision in favor of those who pay most. The sick man who most needs health is most handicapped in the pursuit of it. To him who hath it shall be given.
As in polity so in law, there is a right of protest from those who demand a more liberal allowance and argue that it would be consistent with the requirements of a legal order in general. And there is a “moral right of revolution,” that is, a right in extremity to resort to lawlessness. Revolution is illegal, by definition. The moral case against it does not lie in any absolute prohibition but in its costs, which are likely to outweigh, even to the least privileged, the gains of anarchy. What these costs are need not be urged in an age in which all mankind has suffered or observed them.
An ideal legal system will be a system possessing the maximum of liberality. In order that this maximum may be approximated without violent revolution, the legal system must be flexible; it must without loss of the essential benefits of order yield to the expansive pressure of interests. The house of law must not be built once and for all with an unalterable architecture, but must have movable partitions and be capable of new stories and wings, so that it may afford ever more roomy quarters.
It is this demand which creates the gravest difficulties in the restoration of order after war. Those whose interest is in domestic peace and in rebuilding the mutual confidence between man and man which is the condition of all the mechanisms of daily life, and indirectly of food, clothing, health, transportation, and communication, become the exponents of order — order first, and at all costs. Those whose interest is in a more liberal order, being those who have hitherto suffered most from the illiberality of the old, are disposed to regard the post-war condition of anarchy as opportunity — and to profit by the fluidity of society in order to shape its future crystallization. To find the right balance between these counter-claims is beyond any man's impromptu wisdom But one thing is clear, namely, that to advocate either legal status quo or anarchy without weighing the costs of both is to be blind to the meaning of law.
Finally, a legal order falls short of the optimum and is open to moral criticism when it fails to embrace all persons, or lacks all-inclusiveness. If law is good as between the persons of one society, it is also good as between the persons of different societies and between the organization which represent them. From remote antiquity men have recognized that in principle law is human, and not merely domestic, tribal, racial, or national. This does not mean that all men should live under some law, but that there should be one system of law under which all men live.
The preoccupation of the present age with international law is due, in the first place, to the fact that from the earliest history of man the anarchy between social groups has been a running sore. Societies have to a large extent achieved and enjoyed internal order; but while this has promoted an understanding of the law and an appreciation of its benefits, it has often aggravated the evils of the large-scale disorder. It has enabled men within legally organized societies to live at peace, and to pool their efforts for the general good; but at the same time it has intensified the shock of intersocietal war and facilitated the conquest and exploitation of weak societies by the strong.
Meanwhile, in the second place, the development of the technical arts has multiplied the occasions of conflict and increased its destructiveness. Man has overrun the planet on which he lives, and men encounter each other everywhere throughout its diminishing surface. But since every encounter may be a quarrel, so the moral problem now occurs more frequently, and calls more frequently for solutions by the social institutions, such as law, which are designed for the purpose. International law has become not a mere logical implication or counsel of perfection but an imperative necessity.
The benefits of international law are parallel to those of domestic or municipal law. It enables, or would enable, men of different social groups, however otherwise divided, to trust one another abroad as well as at home, and engage together in long range, large-scale enterprise for the greater good of mankind at large. Rights of every type — civil and social, permissive and enabling, moral and positive — have their international equivalents, and preserve the same essential meaning. There is the same equality before the law, implied in the nature of the law. Nations which qualify under the general terms of the law are equally entitled to its benefits and equally subject to its prescriptions — despite their inequality in other respects.
The expression ‘international law’ must not be allowed to obscure the fact that the rightful beneficiaries of law, as of all other moral institutions, are persons — those beings, namely, whose interests are at stake and who possess the faculties which distinguish the moral agent. International law applies to nations only when nations are conceived as aggregates of persons; and to governments only insofar as these represent those whom they govern. The idea that international law obtains between sovereigns and other personal rulers is as obsolete as the authoritarian political doctrine on which it rests.
Those who urge that international law should concern itself with the rights of individuals, and not merely of governments, are too modest in their demands. In the last analysis only individual persons have interests, and only individual persons have the capacities required for the enjoyment and exercise of that freedom which rights guarantee. The interest of the government in its official capacity is a representative interest, which owes its superiority only to the individual interests for which it speaks. Otherwise the interests and freedoms of governing officials have no higher title than that of any other persons.
While international law imposes additional restrictions, the principle which justifies them is precisely the same as that which justifies the restrictions of domestic law, namely, the priority of all to each. If men are to enjoy the benefits of world-wide peace and coöperation, each person's rights must be fitted to the rights of all other men. The broader moral base implies more far-flung obligations. It is, however, a mistake to suppose that such restrictions are cumulative. The positive benefits of the wider system outweigh its sacrifices: it gives more liberty than it takes away. This holds in the world at large precisely as it does within any given society. A man who is in conflict with his neighbor nominally does as he pleases, but in fact he is obliged to devote the larger part of his energies to the negating of what his enemy pleases. When members of a group are lawless they spend their lives not in doing what they choose but in pursuing, without ever capturing, the opportunity of doing what they choose; which state of affairs suits no one but the warrior, and no interest of any man save his combativeness.
The supreme example of the negation of liberty through lawlessness is international war. It is one of the paradoxes of international law that until recently it has consisted largely of the laws of war, that is, in the regulation of man's lawlessness. War in its modern phases absorbs the total energies of a nation, superseding the preferred occupations of its members, or forcing all of its members into activities congenial only to a few; and at the same time it paralyzes the coöperative activities by which the interests of its members are enhanced. Lawlessness on the world-wide scale creates a situation in which the maximum of persons are to the maximum extent doing what they prefer not to do, and losing the opportunity to do what they prefer to do. This loss of liberty through war pervades every corner of human life, descending from the action of nations to the immediate and private action of the least of its members. By the same token the relief from fear and distrust on the international level through international law would relieve pressures all along the line. It would free nations, free the members of nations, and free the interests of the members.
The objection that international law, by piling law upon law, merely multiplies restraints is further met by the fact that as the law is broadened in its scope it is at the same time diluted. However much human contacts may be extended and multiplied by technological advances, degrees of proximity and intimacy will still remain. The family, the neighborhood, the province, the nation-state, the region, and the international community, represent a succession of wholes in which the parts become progressively autonomous or self-regulative; or in which the legal jurisdiction of the whole is progressively attenuated.
The criterion by which to judge what should or should not be embraced within international law is the degree of interdependence. That international law should embrace health and security is undisputed, because it has become increasingly clear that disease and violence anywhere concern men everywhere. That it should embrace trade or access to raw materials is urged because every economy is in some measure dependent on every economy; so that the maximum of welfare and prosperity for all mankind can be achieved only through world-wide cooperation. That international law should embrace civil rights is argued on the ground that no international law is possible where it is plainly desirable, as in the areas of security, health, and trade, without world-wide freedom of thought and communication.
International law, then, is to be finally judged, like other moral institutions, by the standards of unversality and liberality. It is generated by the principle of universality; and when so justified it serves to correct the morally indefensible exclusiveness of municipal law. But at the same time it is pledged, like all law, to liberality, that is, to the maximum enlargement of the spheres of interest, regional, national, cultural, and personal, which are embraced within the order which it creates.
There is, finally, in jurisprudence, as in other social sciences, a technology. International law provides a peculiarly pertinent example of the technology of jurisprudence, because here it is clearly evident that man makes his laws, and makes them for the benefits which he hopes to derive from them. When man finds his institutions ready-made, thanks to God or history, so much the better; if not, he must make them to order. In the field of international law, he must, comparatively speaking, make them out of whole cloth. In approaching the problems of international law men cannot take the view that law is a natural organism, or an inheritance from the past, or a divine institution like state or church; they begin without it, and must contrive to create it. This contemporary situation renders irrelevant the attitude of jurists who say, “But there is no international law”; and feel that out of the depths of their juristic learning they have said the last word.
Fortunately the positivists and historicists are not in charge of the matter. Leadership has been seized by those who combine learning in the law with the layman's naïve idea that if there is anything man greatly needs, and he does not have it, he must devote his energies and wisdom to its making. Every agency organized or affiliated with the United Nations is engaged to the best of its ability in the making of international law, with a view to attaining through law on a world-wide scale the two great moral benefits of security and welfare.
This effort exemplifies the wide range of legal technology. The makers of international law borrow from the sciences whatever knowledge may be applicable to the matter in hand. Because the greatest present threat to safety on the international level, and indirectly on all levels, lies in the use of the atomic bomb, the maker of international law enlists the expert advice of the nuclear physicist. Because the greatest possibilities of welfare, on the international level and indirectly on all levels, lies in the industrialization of backward areas or in a freer access to raw materials, the maker of international law looks for aid to the chemist and biologist. Because the world-wide order which international law seeks to bring into being is composed of human beings and groups of human beings, its making is served by all the sciences of man — by psychology, anthropology, and sociology.
The technology of international law draws upon existing social institutions, and utilizes whatever experience and certified conclusions are to be found within the corresponding cultural sciences — politics, economy, and law itself. Since the benefits of law to each depend on its guaranteed observance by all, international law looks to enforcement as a last resort, and the military expert must be added to the staff. Because education and religion are not only embraced within the world-wide order but throw light on human motivation, knowledge of these universal human enterprises also contributes to the making of international law, and their exponents play the roles of expert consultants to the jurist.
Since the ultimate purpose of international law is a moral purpose its makers profit by moral judgments in proportion to their truth, and thus consult, or should consult, even the moral philosopher, though usually known by some other name. Since of all social institutions conscience is the most direct expression of morality, the international jurist, like the international economist or the political scientist, will look to ethics for guidance. He will appeal to the conscience of the times and at the same time employ whatever techniques are available to create a new opinion and sentiment; so that international law may enjoy the sanction of approval, within each man's breast and in the supporting attitudes of his fellows.
When law is conceived as a product of man's making, and it is recognized that it is made not only by legislatures and administrative officers, but by courts, jurisprudence is faced with a seeming paradox. How can an agency designed to apply the law at the same time make the very law which it is applying? Since the real law is the law as it takes effect, and since the law as it takes effect is the law as it is interpreted by the court, there is no escaping the conclusion that precisely this does, in fact, occur.
The question arose in an acute form in the field of criminal law, in the recent Nürnberg trials. The court presiding over these trials undertook to create new international laws — laws of peace and humanity, laws against aggression and “genocide” — in the very act of finding certain Nazi leaders guilty of their violation. But this procedure would appear to be ex post facto, and to deprive the defendants of a fundamental human right, which has recently been formulated as follows:
Every person has the right to freedom from conviction and punishment except under laws in effect at the time of the commission of any act charged as an offense, and likewise to immunity from any penalty greater than that applicable at the time the offense was committed.17
The Nürnberg trials cannot be justified under the strict terms of this maxim. The only maxim that would be consistent with the Nürnberg trials, and with court-made law in general, would be founded on such a principle as the following, stated by Justice Cardozo:
International law … has at times, like the common law within states, a twilight existence during which it is hardly distinguishable from morality or justice, till at length the imprimatur of a court attests its jural quality.18
This “twilight existence” is represented by the conscience of the community, speaking for right. When a defendant is found guilty of transgressing precepts recognized by the community of which he is a member and held to be vital to its well-being, it is reasonable to suppose that he anticipates the possibility of retribution from the community which he injures. In terms of the ex post facto maxim, literally and rigidly construed, it would be impossible to explain either the latitude of the judicial process, or the first steps in the development of the common law. Positive law is forever being generated from custom or conscience by application to cases deemed of sufficient importance to warrant the intervention of society as a whole.
Suppose a pioneer community in which there is no established legal system. A horse thief is caught red-handed. Shall he be expelled, hanged, confined, or otherwise punished? Or shall he be exonerated on the ground that at the time of his theft there was no law against stealing horses? No such community has ever hesitated in its answer. The horse thief was aware that his action so violated the common interest that every man's hand would be against him. He has no excuse for being surprised that having declared war on society, society in turn should protect itself against him. Such procedures of the community express the collective interest against its internal enemies; and at the same time its aspiration to become an organized community, in which justice shall prevail over vindictiveness, and cool reflection over passion. They are not manifestations of disorder, but beginnings of order.
The criminals of Nürnberg were like that horse thief, taken redhanded in conduct intolerable to the wider complex of human interests. None of those convicted at Nürnberg, despite their air of injured innocence and their legalistic protests, could have been unaware of the opinion and sentiment of the world in which they lived — repeatedly and solemnly affirmed in countless treaties and agreements, publicly professed by heads of state, and voiced by the most authentic exponents of the western and modern conscience. Had those responsible for the aggressions and inhumanities of the Nazi regime been allowed to go unpunished, mankind would have lost a supreme opportunity to crystallize in legal form a recognized and pressing moral necessity. The time was ripe to step across the line from conscience to a legal order; and to create a legal precedent for future time. Those who would have preferred exoneration, or assassination, or summary execution, were not the friends of law in principle, but the defenders of outmoded law or of the perpetuation of lawlessness.
“We must not rend our subjects from our laws And stick them in our will….” Shakespeare, Henry VIII. Act I, Scene 2.
New York Times, February 6, 1945.
For the classic statement of this view, of, the following passage from Kant: “A constitution allowing the greatest possible human freedom in accordance with laws by which the freedom of each is made to be consistent with that of all others … is … a necessary idea, which must be taken as fundamental not only in first projecting a constitution but in all its laws…. The more legislation and government are brought into harmony with the above idea, the rarer would punishments become, and it is therefore quite rational to maintain, as Plato does, that in a perfect state no punishments whatsoever would be required.” (Critique of Pure Reason, tr. by N. Kemp Smith, Copyright 1933, p. 312; reprinted by permission of the Macmillan Company.)
This shift of emphasis in jurisprudence, as in political science, is due largely to Sir. Henry Maine. Cf. his classic Lectures on the Early History of Institutions, 1875.
It has been alleged that “in five short years the Capunes of our cities took over the billion-dollar rackets growing out of four specific prohibitions: the Harrison Narcotic Act, the Volstead Act, Legislation outlawing Prostitution, Legislation outlawing Gambling”; D. P. Wilson, My Six Convict; 1951, p. 329.
For an excellent presentation of this general topic, of. A. T. Vanderbilt, Men and Measures in the Law, 1949. Cf. also. M. Hadim, The Law and You, 1948.
Latter Day Saints vs. U.S., U.S. Reports, 136 (1889), p. 50.
N. J. vs. Delaware, U.S. Reports, 29 (1934), p. 884, note 7. Those authorities in jurisprudence who reject or play down the moral principle of the law appear to accept it under another name. Thus Justice Oliver Wendell Holmes: “I think that the judges themselves have failed adequately to recognize their duty of weighing considerations of social advantage.” Qu. in Max Lerner, The Mind and Faith of Justice Holmes, 1943, p. 81. Cf. ibid., pp. 76, 396–7.
Historically speaking, of course, there is no society without law — as is the case with all the major institutions. The creation of law in general, de novo, can be described only hypothetically, in terms of the motives which would impel men to make law if they did not already have it.
It is well in this context to recall the words of Magna Carta: “To no one will We sell, to none will We deny or defer, right or justice.” For present purposes the term equity need not be separately examined. It is sometimes used as synonymous with justice, or with the fundamental moral principles of the law; sometimes to designate the special jurisdiction of the English “Court of Chancery,” which was originally designed to correct the “injustices” resulting from the law's rigidity. Cf. J. B. Ames, Lectures on Legal History, 1913, pp. 233–4: “Equity lays the stress upon the duty of the defendant, and decrees that he do or refrain from doing a certain thing because he ought to act or forbear. It is because of this emphasis upon the defendant's duty that equity is so much more ethical than law.” There is a famous passage in Aristotle's Rhetoric, in which he says that “equity is a kind of justice, but goes beyond the written law.” Rhetoric, tr. by R. C. jebb, 1909, p. 58.
Quoted by C. Warren, “The New ‘Liberty’ under the 14th Amendment,” Harvard Law Review, 39 (1925–6), p. 454 (italics mine).
R. Pound, “Interests of Personality,” Harvard Law Review, 28 (1914–5), p. 344.
International Conciliation. Carnegie Endowment for International Peace, New York, 1946. Cf. also the “Statement of Essential Human Rights,” prepared by a committee of the American Law Institute, and published by Americans United for World Organization, Inc.
R. Pound, op. cit.
Cf. Q. Wright, Human Rights and the World Order, Commission to Study the Organization of Peace, New York.
It is, of course, possible to reduce this question to a merely verbal question by choosing to confine the word ‘law’ to positive law, and to substitute such a term as ‘legal principle’ for ideal law. But this is highly unsatisfactory because the ideal law has the same justification as positive law, and need not be of a more general character, or play the role of a first premise, as is suggested by the term ‘principle.’
Memorandum prepared and adopted by the Executive Committee of the Committee on Human Rights of the Commission to Study the Organization of Peace, New York, 1946.
N. J. vs. Delaware, U.S. Reports, 291 (1931), p. 383.