The possibilities of analytical and his torical development of the classical materials have been substantially exhausted. While jurists have been at these tasks, a new social order has been building which makes new demands and presses upon the legal order with a multitude of unsatisfied desires. Once more we must build rather than merely improve; we must create rather than merely order and systematize and logically reconcile details. Hence the nature of law has been the chief battle ground of jurisprudence since the Greek philoso phers began to argue as to the basis of the law's authority.
But the end of law has been debated more in politics than in jurisprudence. In the stage of equity and natural law the prevailing theory of the nature of law seemed to answer the question as to its end. In the maturity of law the law was thought of as something self-sufficient, to be judged by an ideal form of itself, and as something which could not be made, or, if it could be made, was to be made sparingly.
The idea of natural rights seemed to explain inci dentally what law was for and to show that there 59 THE END OF LAW ought to be as little of it as possible, since it was a restraint upon liberty and even the least of such restraint demanded affirmative justification. Thus, apart from mere systematic and formal improvement, the theory of lawmaking in the maturity of law was negative.
It told us chiefly how we should not legislate and upon what sub jects we should refrain from lawmaking. Having no positive theory of creative lawmaking, the last century was little conscious of requiring or hold ing a theory as to the end of law. But in fact it held such a theory and held it strongly. As ideas of what law is for are so largely im plicit in ideas of what law is, a brief survey of ideas of the nature of law from this standpoint will be useful. No less than twelve conceptions of what law is may be distinguished. First, we may put the idea of a divinely or dained rule or set of rules for human action, as for example, the Mosaic law, or Hammurapi's code, handed him ready-made by the sun god, or Manu, dictated to the sages by Manu's son Bhrigu in Manu's presence and by his direction.
For primitive man, surrounded by what seem vengeful and capri cious powers of nature, is in continual fear of giving offence to these powers and thus bringing down their wrath upon himself and his fellows. The general security requires that men do only those things and do them only in the way which long custom has shown at least not displeasing to the gods. Law is the traditional or recorded body of precepts in which that custom is pre served and expressed. Whenever we find a body of primitive law possessed as a class tradition by a political oligarchy it is likely to be thought of in this way just as a body of like tradition in the custody of a priesthood is certain to be thought of as divinely revealed.
A third and closely related idea conceives of law as the recorded wisdom of the wise men of old who had learned the safe course or the di vinely approved course for human conduct. Fourth, law may be conceived as a philo sophically discovered system of principles which express the nature of things, to which, therefore, man ought to conform his conduct. Such was the idea of the Roman jurisconsult, grafted, it is true, on the second and third ideas and on a political theory of law as the command of the Roman people, but reconciled with them by con ceiving of tradition and recorded wisdom and command of the people as mere declarations or reflections of the philosophically ascertained principles, to be measured and shaped and inter preted and eked out thereby.
In the hands of philosophers the foregoing conception often takes another form so that, fifth, law is looked upon as a body of ascertainments and declarations of an eternal and immutable moral code. This is a democratic version of the identification of law with rules of law and hence with the enact ments and decrees of the city-state which is dis cussed in the Platonic Minos. Not unnaturally Demosthenes suggests it to an Athenian jury. Very likely in such a theory a philosophical idea would support the political idea and the inherent moral obligation of a promise would be invoked to show why men should keep the agreements made in their popular assemblies.
Seventh, law has been thought of as a reflec tion of the divine reason governing the universe; a reflection of that part which determines the "ought" addressed by that reason to human beings as moral entities, in distinction from the "must" which it addresses to the rest of creation. Such was the conception of Thomas Aquinas, which had great currency down to the seven teenth century and has had much influence ever since. So thought the Roman jurists of the Republic and of the classical period with respect to positive law.
And as the emperor had the sovereignty of the Roman people de volved upon him, the Institutes of Justinian could lay down that the will of the emperor had the force of a law. Such a mode of thought was congenial to the lawyers who were active in sup port of royal authority in the centralizing French monarchy of the sixteenth and seventeenth cen turies and through them passed into public law. It seemed to fit the circumstances of parliamen tary supremacy in England after , and became the orthodox English juristic theory.
A ninth idea of law takes it to be a system of precepts discovered by human experience whereby the individual human will may realize the most complete freedom possible consistently with the like freedom of will of others. This idea, held in one form or another by the historical school, divided the allegiance of jurists with the theory of law as command of the sovereign during almost the whole of the past century. It assumed that the human experience by which legal principles were discovered was determined in some inevitable way. It was not a matter of conscious human endeavor.
The process was de termined by the unfolding of an idea of right and justice or an idea of liberty which was realizing itself in human administration of jus tice, or by the operation of biological or psycho logical laws or of race characters, whose neces sary result was the system of law of the time and people in question.
Again, tenth, men have thought of law as a 6s THE END OF LAW system of principles, discovered philosophically and developed in detail by juristic writing and judicial decision, whereby the external life of man is measured by reason, or in another phase, whereby the will of the individual in action is harmonized with those of his fellow men. This mode of thought appeared in the nineteenth cen tury after the natural-law theory in the form in which it had prevailed for two centuries had been abandoned and philosophy was called upon to provide a critique for systematic arrangement and development of details.
Eleventh, law has been thought of as a body or system of rules imposed on men in society by the dominant class for the time being in further ance, conscious or unconscious, of its own inter est. This economic interpretation of law takes many forms. In an idealistic form it thinks of the inevitable unfolding of an economic idea. In a mechanical sociological form it thinks of class struggle or a struggle for existence in terms of economics, and of law as the result of the opera tion of forces or laws involved in or determining 66 THE END OF LAW such struggles.
In a positivist-analytical form it thinks of law as the command of the sovereign, but of that command as determined in its eco nomic content by the will of the dominant social class, determined in turn by its own interest. All of these forms belong to transition from the sta bility of the maturity of law to a new period of growth. When the idea of the self-sufficiency of law gives way and men seek to relate juris prudence to the other social sciences, the relation to economics challenges attention at once.
More over in a time of copious legislation the enacted rule is easily taken as the type of legal precept and an attempt to frame a theory of legislative lawmaking is taken to give an account of all law. Finally, twelfth, there is an idea of law as made up of the dictates of economic or social laws with respect to the conduct of men in so ciety, discovered by observation, expressed in precepts worked out through human experience of what would work and what not in the adminis tration of justice.
This type of theory likewise belongs to the end of the nineteenth century, 67 THE END OF LAW when men had begun to look for physical or biological bases, discoverable by observation, in place of metaphysical bases, discoverable by philosophical reflection. Another form finds some ultimate social fact by observation and develops the logical implications of that fact much after the manner of the metaphysical jurist. This again results from the tendency in recent years to unify the social sciences and consequent attention to sociological theories. Digression is worth while in order to note that each of the foregoing theories of law was in the first instance an attempt at a rational explana tion of the law of the time and place or of some striking element therein.
Thus, when the law has been growing through juristic activity, a philo sophical theory of law, as declaratory of philo sophically ascertainable principles, has obtained. When and where the growing point of law has been in legislation, a political theory of law as the command of the sovereign has prevailed.
When the law has been assimilating the results of a prior period of growth, a historical theory of 68 THE END OF LAW law as something found by experience, or a metaphysical theory of law as an idea of right or of liberty realizing in social and legal de velopment, has tended to be dominant. For jurists and philosophers do not make these theories as simple matters of logic by inexorable development of philosophical fundamentals. Having something to explain or to expound, they endeavor to understand it and to state it ra tionally and in so doing work out a theory of what it is.
The theory necessarily reflects the institution which it was devised to rationalize, even though stated universally. It is an attempt to state the law, or the legal institution of the time and place in universal terms. Its real utility is likely to be in its enabling us to understand that body of law or that institution and to perceive what the men of the time were seeking to do with them or to make of them. Accordingly analysis of these theories is one way of getting at the ends for which men have been striving through the legal order. For one thing, each shows us a picture of some ultimate basis, beyond reach of the individual human will, that stands fast in the whirl of change of which life is made up.
This steadfast ultimate basis may be thought of as the divine pleasure or will or reason, revealed immediately or mediately through a divinely ordained immutable moral code. It may be put in the form of some ultimate metaphysical datum which is so given us that we may rest in it forever. It may be portrayed as certain ultimate laws which inexorably determine the phenomena of human conduct. Or it may be described in terms of some authoritative will for the time and place, to which the wills of others are subjected, that will deriving its authority ultimately and absolutely in some one of the pre ceding forms, so that what it does is by and large in no wise a matter of chance.
This fixed and stable starting point is usually the feature upon which the chief emphasis is placed.
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The details may come from this starting point through divine revelation or a settled authoritative tradition or record, or an inevitable and infallible philosophical or logi cal method, or an authoritative political machin ery, or a scientific system of observation, or historically verifiable ideas which are logically demonstrable to be implications of the funda mental metaphysically given datum.
Third, we shall see in these theories a picture of a system of ordering human conduct and adjusting human relations resting upon the ultimate basis and derived therefrom by the absolute process. In other words, they all picture, not merely an ordering of human conduct and adjustment of human relations, which we have actually given, but something more which we should like to have, namely, a doing of these things in a fixed, absolutely predetermined way, excluding all merely individual feelings or desires of those by whom the ordering and adjustment are carried out.
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Certainly the nineteenth-century jurist had this conception. But is this because the function of law is limited to satisfaction of that one want, or is it because that want has been most conspicuous among those which men have sought to satisfy through law, and because the ordering of human conduct by the force of polit ically organized society has been adapted chiefly to satisfying that one want in the social order of the past?
If we turn to the ideas which have obtained in conscious thinking about the end of law, we may recognize three which have held the ground suc cessively in legal history and a fourth which is beginning to assert itself. The first and simplest idea is that law exists in order to keep the peace in a given society; to keep the peace at all events and at any price. This is the conception of what may be called the stage of primitive law. So far as the law goes, other individual or social wants are ignored or are sacrificed to this one. Accordingly the law is made up of tariffs of exact compositions for every detailed injury instead of principles of exact reparation, of devices to induce or coerce sub mission of controversies to adjudication instead of sanctions, of regulation of self-help and self- redress instead of a general prohibition thereof, and of mechanical modes of trial which at any rate do not admit of argument instead of rational modes of trial involving debate and hence dispute and so tending to defeat the purpose of the legal order.
In a society organized on the basis of kin ship, in which the greater number of social wants were taken care of by the kin-organizations, there are two sources of friction: the clash of kin-interests, leading to controversies of one kindred with another, and the kinless man, for whom no kin-organization is responsible, who also has no kin-organization to stand behind him in asserting his claims.
Peace between kindreds and peace between clansmen and the growing 73 THE END OF LAW mass of non-gentile population is the unsatisfied social want to which politically organized society must address itself. The system of organized kindreds gradually breaks down. Groups of kins men cease to be the fundamental social units. Kin-organization is replaced by political organi zation as the primary agency of social control.
The legal unit comes to be the free citizen or the free man. In this transition regulation of self- redress and prevention of private war among those who have no strong clan-organizations to control them or respond for them are demanded by the general security. The means of satisfying these social wants are found in a legal order con ceived solely in terms of keeping the peace. Greek philosophers came to conceive of the general security in broader terms and to think of the end of the legal order as preservation of the social status quo.
They came to think of main taining the general security mediately through the security of social institutions. The virtue on which they insisted was sophrosyne, knowing the limits which nature fixes for human conduct and keeping within them. The vice which they denounced was hybris, wilful bondbreaking wilful transgression of the socially appointed bounds. This mode of thinking follows the substitution of the city-state political organization of society for the kin- organization. The organized kindreds were still powerful.
An aristocracy of the kin-organized and kin-conscious, on the one hand, and a mass of those who had lost or severed their ties of kinship, or had come from without, on the other hand, were in continual struggle for social and political mastery. Also the politically ambitious individual and the masterful aristocrat were continually threatening the none too stable polit ical organization through which the general security got a precarious protection. The chief social want, which no other social institution could satisfy, was the security of social institu tions generally.
Transition from the idea of law as a device to keep the peace to the idea of law as a device to maintain the social status quo may be seen in the proposition of Heraclitus, that men should fight for their laws as for the walls of their city. In Plato the idea of maintaining the social order through the law is fully developed.
The actual social order was by no means what it should be. Men were to be reclassified and everyone as signed to the class for which he was best fitted. But when the classification and the assignment had been made the law was to keep him there. It was not a device to set him free that he might find his own level by free competition with his fellows and free experiment with his natural powers. It was a device to prevent such disturb ances of the social order by holding each indi vidual to his appointed place.
As Plato puts it, the shoemaker is to be only a shoemaker and not a pilot also; the farmer is to be only a farmer and not a judge as well; the soldier is to be only 76 THE END OF LAW a soldier and not a man of business besides; and if a universal genius who through wisdom can be everything and do everything comes to the ideal city-state, he is to be required to move on. Aristotle puts the same idea in another way, asserting that justice is a condition in which each keeps within his appointed sphere; that we first take account of relations of inequality, treating individuals according to their worth, and then secondarily of relations of equality in the classes into which their worth requires them to be as signed.
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Paul exhorted wives to obey their husbands, and servants to obey their masters, and thus everyone to exert himself to do his duty in the class where the social order had put him, he expressed this Greek conception of the end of law. Roman lawyers made the Greek philosophical conception into a juristic theory.
For the famous three precepts to which the law is reduced in Justinian's Institutes come to this: Everyone is to live honorably; he is to "preserve moral worth in his own person" by conforming to the con- 77 THE END OF LAW ventions of the social order. Everyone is to re spect the personality of others; he is not to inter fere with those interests and powers of action, conceded to others by the social order, which make up their legal personality.
Everyone is to render to everyone else his own; he is to respect the acquired rights of others. The social system has denned certain things as belonging to each individual. Justice is denned in the Institutes as the set and constant purpose of giving him these things. It consists in rendering them to him and in not interfering with his having and using them within the denned limits. This is a legal develop ment of the Greek idea of harmoniously main taining the social status quo.
The later eastern empire carried it to the extreme. Stability was to be secured by rigidly keeping everyone to his trade or calling and his descendants were to fol low him therein. Thus the harmony of society and the social order would not be disturbed by individual ambition. But the study of Roman law presently taught the Roman version of the Greek conception and the legal order was thought of once more as an orderly maintenance of the social status quo.
This conception answered to the needs of medieval society, in which men had found relief from anarchy and violence in rela tions of service and protection and a social or ganization which classified men in terms of such relations and required them to be held to their functions as so determined. Where the Greeks thought of a stationary society corrected from time to time with reference to its nature or ideal, the Middle Ages thought of a stationary society resting upon authority and determined by cus tom or tradition.
To each, law was a system of precepts existing to maintain this stationary so ciety as it was. In the feudal social order reciprocal duties involved in relations established by tradition and taken to rest on authority were the significant legal institutions. With the gradual disintegra tion of this order and the growing importance of 79 THE END OF LAW the individual in a society engaged in discovery, colonization and trade, to secure the claims of individuals to assert themselves freely in the new fields of human activity which were opening on every side became a more pressing social want than to maintain the social institutions by which the system of reciprocal duties was enforced and the relations involving those duties were pre served.
Men did not so much desire that others perform for them the duties owing in some rela tion, as that others keep hands off while they achieved what they might for themselves in a world that continually afforded new opportuni ties to the active and the daring. The demand was no longer that men be kept in their appointed grooves. Friction and waste were apprehended, not from men getting out of these grooves, but from attempts to hold them there by means de vised to meet the needs of a different social order whereby they were made to chafe under arbi trary restraint and their powers were not utilized in the discovery and exploitation of the resources of nature, to which human powers were to be So THE END OF LAW devoted in the succeeding centuries.
Accordingly the end of law comes to be conceived as a mak ing possible of the maximum of individual free self-assertion. Transition to the newer way of thinking may be seen in the Spanish jurist-theologians of the sixteenth century. Their juristic theory was one of natural limits of activity in the relations of individuals with each other, that is, of limits to human action which expressed the rational ideal of man as a moral creature and were imposed upon men by reason.
This theory differs signifi cantly from the idea of antiquity, although it goes by the old name. The Greeks thought of a system of limiting men's activities in order that each might be kept in the place for which he was best fitted by nature the place in which he might realize an ideal form of his capacities and thus to preserve the social order as it stands or as it shall stand after a rearrangement.
The sixteenth-century jurists of the Counter-Ref ormation held that men's activities were natu rally limited, and hence that positive law might 81 THE END OF LAW and should limit them in the interest of other men's activities, because all men have freedom of will and ability to direct themselves to con scious ends. Where Aristotle thought of inequali ties arising from the different worth of indi vidual men and their different capacities for the things which the social order called for, these jurists thought of a natural i.
Hence law did not exist to maintain the social status quo with all its arbitrary restraints on the will and on employ ment of individual powers; it existed rather to maintain the natural equality which often was threatened or impaired by the traditional restric tions on individual activity. Since this natural equality was conceived positively as an ideal equality in opportunity to do things, it could easily pass into a conception of free individual self-assertion as the thing sought, and of the legal order as existing to make possible the maxi mum thereof in a world abounding in undis- 82 THE END OF LAW covered resources, undeveloped lands and un harnessed natural forces.
The latter idea took form in the seventeenth century and prevailed for two centuries thereafter, culminating in the juristic thought of the last generation. Law as a securing of natural equality became law as a securing of natural rights. The nature of man was expressed by certain qualities pos sessed by him as a moral, rational creature. The limitations on human activity, of which the Spanish jurist-theologians had written, got their warrant from the inherent moral qualities of men which made it right for them to have certain things and do certain things.
These were their natural rights and the law existed simply to pro tect and give effect to these rights. There was to be no restraint for any other purpose. Except as they were to be compelled to respect the rights of others, which the natural man or ideal man would do without compulsion as a matter of reason, men were to be left free. In the nine teenth century this mode of thought takes a meta physical turn. The social problem is to reconcile conflicting free wills of conscious individuals independently as serting their wills in the varying activities of life. The natural equality becomes an equality in freedom of will.
Kant rationalized the law in these terms as a system of principles or universal rules, to be applied to human action, whereby the free will of the actor may co-exist along with the free will of everyone else. Hegel rationalized the law in these terms as a system of principles wherein and whereby the idea of liberty was realizing in human experience. Bentham rational ized it as a body of rules, laid down and enforced by the state's authority, whereby the maximum of happiness, conceived in terms of free self- assertion, was secured to each individual.
Its end was to make possible the maximum of free individual action consistent with general free individual action.
Spencer rationalized it as a body of rules, formulating the "government of the living by the dead," whereby men sought to promote the liberty of each limited only by the 84 THE END OF LAW like liberty of all. In any of these ways of putting it, the end of law is to secure the greatest possible general individual self-assertion; to let men do freely everything they may consistently with a like free doing of everything they may by their fellow men. This is indeed a philosophy of law for discoverers and colonizers and pioneers and traders and entrepreneurs and captains of industry.
Until the world became crowded, it served well to eliminate friction and to promote the widest discovery and utilization of the natural resources of human existence. Looking back at the history of this conception, which has governed theories of the end of law for more than two hundred years, we may note that it has been put to three uses. It has been used as a means of clearing away the restraints upon free economic activity which accumulated during the Middle Ages as incidents of the system of relational duties and as expressions of the idea of holding men to their place in a static social order.
The English utilitarians in sisted upon removal of all restrictions upon indi vidual free action beyond those necessary for securing like freedom on the part of others. This, they said, was the end of legislation. Again it has been used as a constructive idea, as in the seventeenth and eighteenth centuries, when a commercial law which gave effect to what men did as they willed it, which looked at intention and not at form, which interpreted the general security in terms of the security of transactions and sought to effectuate the will of individuals to bring about legal results, was developed out of Roman law and the custom of merchants through juristic theories of natural law.
Finally it was used as a stabilizing idea, as in the latter part of the nineteenth century, when men proved that law was an evil, even if a necessary evil, that there should be as little law made as pos sible, since all law involved restraint upon free exertion of the will, and hence that jurist and legislator should be content to leave things legal as they are and allow the individual "to 86 THE END OF LAW work out in freedom his own happiness or misery" on that basis.
When this last stage in the development of the idea of law as existing to promote or permit the maximum of free individual self-assertion had been reached, the juristic possibilities of the conception had been exhausted. There were no more continents to discover. Natural resources had been discovered and exploited and the need was for conservation of what remained available.
The forces of nature had been harnessed to human use. Industrial development had reached large proportions, and organization and division of labor in our economic order had gone so far that anyone who would could no longer go forth freely and do anything which a restless imagina tion and daring ambition suggested to him as a means of gain.
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Although lawyers went on re peating the old formula, the law began to move in another direction. The freedom of the owner of property to do upon it whatever he liked, so he did not overstep his limits or endanger the public health or safety, began to be restricted. The power to make con tracts began to be limited where industrial con ditions made abstract freedom of contract defeat rather than advance full individual human life. The power of the owner to dispose freely of his property began to be limited in order to safe guard the security of the social institutions of marriage and the family.
Freedom of appro priating res nullius and of using res communes came to be abridged in order to conserve the natural resources of society. Freedom of engag ing in lawful callings came to be restricted, and an elaborate process of education and examina tion to be imposed upon those who would engage in them, lest there be injury to the public health, safety or morals.
A regime in which anyone might freely set up a corporation to engage in a public service, or freely compete in such service, was superseded by one of legal exemption of existing public utilities from destructive competi- 88 THE END OF LAW tion. In a crowded world, whose resources had been exploited, a system of promoting the maxi mum of individual self-assertion had come to produce more friction than it relieved and to further rather than to eliminate waste. At the end of the last and the beginning of the present century, a new way of thinking grew up.
Jurists began to think in terms of human wants or desires rather than of human wills. They began to think that what they had to do was not simply to equalize or harmonize wills, but, if not to equalize, at least to harmonize the satisfaction of wants. They began to weigh or balance and reconcile claims or wants or desires, as formerly they had balanced or reconciled wills. They began to think of the end of law not as a maximum of self-assertion, but as a maximum satisfaction of wants. Hence for a time they thought of the problem of ethics, of jurisprudence, and of politics as chiefly one of valuing; as a problem of finding criteria of the relative value of interests.
But the first question was one of the wants to be recognized of the interests to be recognized and secured. Having inventoried the wants or claims or interests which are assert ing and for which legal security is sought, we were to value them, select those to be recognized, determine the limits within which they were to be given effect in view of other recognized inter ests, and ascertain how far we might give them effect by law in view of the inherent limitations upon effective legal action.
This mode of think ing may be seen, concealed under different ter minologies, in more than one type of jurist in the last three decades. Three elements contributed to shift the basis of theories as to the end of law from wills to wants, from a reconciling or harmonizing of wills to a reconciling or harmonizing of wants. The most important part was played by psychology which undermined the foundation of the meta physical will-philosophy of law. Through the 90 THE END OF LAW movement for unification of the social sciences, economics also played an important part, espe cially indirectly through the attempts at eco nomic interpretation of legal history, reinforcing psychology by showing the extent to which law had been shaped by the pressure of economic wants.
Also the differentiation of society, in volved in industrial organization, was no mean factor, when classes came to exist in which claims to a minimum human existence, under the standards of the given civilization, became more pressing than claims to self-assertion. Attention was turned from the nature of law to its purpose, and a functional attitude, a tendency to measure legal rules and doctrines and institutions by the extent to which they further or achieve the ends for which law exists, began to replace the older method of judging law by criteria drawn from itself.
In this respect the thought of the present is more like that of the seventeenth and eight eenth centuries than that of the nineteenth cen tury. French writers have described this phe nomenon as a "revival of juridical idealism. In its earlier form social-utilitarianism, in common with all nineteenth-century philosophies of law, was too absolute.
Its teleological theory was to show us what actually and necessarily took place in lawmaking rather than what we were seeking to bring about. Its service to the philosophy of law was in compelling us to give over the ambiguous term "right" and to dis tinguish between the claims or wants or demands, existing independently of law, the legally recog nized or delimited claims or wants or demands, and the legal institutions, which broadly go by the name of legal rights, whereby the claims when recognized and delimited are secured. Also it first made clear how much the task of the law maker is one of compromise.
A complete logical development of the content implicit in each natural right would give a body of law adequate to every time and place. It is true an idea of compromise did lurk behind the theory of the metaphysical jurists in the nineteenth cen tury. But they sought an absolute harmonizing rather than a working compromise for the time and place. Conflicting individual wills were to be reconciled absolutely by a formula which had ultimate and universal authority. When we think of law as existing to secure social interests, so far as they may be secured through an ordering of men and of human relations through the ma chinery of organized political society, it becomes apparent that we may reach a practicable system of compromises of conflicting human desires here and now, by means of a mental picture of giving effect to as much as we can, without believing that we have a perfect solution for all time and for every place.
As the Neo-Kantians put it, we may formulate the social ideal of the time and place and try juristic problems thereby without 93 THE END OF LAW believing ourselves competent to lay out a social and political and legal chart for all time. As the Neo-Hegelians put it, we may discover and formulate the jural postulates of the civilization of the time and place without assuming that those postulates are a complete and final picture of ultimate law, by which it must be measured for all time.
Social utilitarianism has stood in need of cor rection both from psychology and from sociology. It must be recognized that lawmaking and ad judication are not in fact determined precisely by a weighing of interests. In practice the pres sure of wants, demands, desires, will warp the actual compromises made by the legal system this way or that.
In order to maintain the gen eral security we endeavor in every way to mini mize this warping. But one needs only to look below the surface of the law anywhere at any time to see it going on, even if covered up by mechanical devices to make the process appear an absolute one and the result a predetermined one. We may not expect that the compromises 94 THE END OF LAW made and enforced by the legal order will always and infallibly give effect to any picture we may make of the nature or ends of the process of making and enforcing them.
Yet there will be less of this subconscious warping if we have a clear picture before us of what we are seeking to do and to what end, and if we build in the image thereof so far as we consciously build and shape the law. Difficulties arise chiefly in connection with criteria of value. In these lectures, he criticized virtually every modern mode of interpreting the law because he believed the administration of justice had lost its grounding and recourse to enduring ideals.
Now published in the U. Pound argues that the theme of justice grounded in enduring ideals is critical for America. He views American courts as relying on sociological theories, political ends, or other objectives, and in so doing, divorcing the practice of law from the rule of law and the rule of law from the enduring ideal of law itself. Roscoe Pound is universally recognized as one of the most important legal minds of the early twentieth century.
Considered by many to be the dean of American jurisprudence, Pound was a former Justice of the Supreme Court of Nebraska and served as dean of Harvard Law School from to Is There an Ideal Element in Law? Natural Law 32 III. Law and Morals 66 IV. Rights, Interests, and Values V. Promotion of Free Self-Assertion: 1. Promotion of Free Self-Assertion: 2. Maintaining and Furthering Civilization IX. See All Customer Reviews. Shop Textbooks.
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Emma Rothschild. Right And Reason. Austin Fagothey. Dieter Grimm. What Is Conservatism? Frank S Meyer. Jean-Jacques Rousseau and Adam Smith. Charles L Griswold. We Hold These Truths. John Courtney Murray. Punishment and the History of Political Philosophy. Arthur Shuster. Statesmanship and Party Government.
ISBN 13: 9781584772798
General Theory of Law and State. Hans Kelsen. The Athenian Nation. Edward Cohen. Rousseau's Social Contract. Dr David Lay Williams. Precedents, Statutes, and Analysis of Legal Concepts. Scott Brewer. Natural Rights and the New Republicanism. Michael P. The Cambridge Companion to Tocqueville. Cheryl B.
Nicholas Dent. The Political Potential of Sortition. Oliver Dowlen. On the Old Saw. Immanuel Kant. Fundamental Principles of the Sociology of Law. Eugene Ehrlich.
Michael Gagarin. On Civic Republicanism. Geoffrey Kellow. The Invention of Market Freedom. Eric MacGilvray. Before Anarchy. Theodore Christov. Richard Godbeer. Christopher Bertram.