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THREE

Law and Morals

Throughout the world today law, legal institutions, and justice according to law have been under attack for a generation. People are dissatisfied with law and have been willing to try experiments in government without law because they have felt that the law was not operating lawfully. Especially in dealing with the many new questions and providing for newly pressing interests involved in a changing economic and social order, law has been falling short of what was expected of it. We see clearly enough that the received idea which governed in the last century and had been taking form since the sixteenth century is not a true picture of the society of today. But we have not as yet been able to draw an exact picture of that society to take the place of the old one. Perhaps the change has not gone far enough so that we can expect to draw the new picture with assurance. In consequence solution of new legal problems comes to be too much at large. With no well-understood ideal to guide exercise of the force of a politically organized society its exercise becomes personal to those who wield it and arbitrary and so at variance with the very idea of law. A regime of force is substituted for a regime of law. If we are inclined to think badly of the regime of law as it operated in the latter part of the last century, we must nevertheless admit that it achieved much more toward civilization than the regimes of force have been achieving today.

The idea of civilization, the raising of human powers to constantly greater completeness, the maximum of control over external or physical nature and over human or internal nature, of which men are for the time being capable, seems to me the starting point for understanding the social sciences. These two sides of civilization are interdependent. Without the control over internal nature which men have developed, they could have done little toward the conquest of external nature. If men had to go about armed in fear of attack, if they could not assume that others will commit no intentional aggression upon them and will exercise due care not to cast unreasonable risk of injury upon them, it would not be possible to carry on the research and experiment and investigation which have made possible the harnessing of so much of physical nature to man’s use. Thus control over internal nature has made it possible for enormous populations which now occupy the earth to maintain themselves. It has enabled man to inherit the earth and to maintain and increase that inheritance. What this mastery over internal nature is, how it has been achieved, and above all how it may be maintained, furthered and transmitted are the subject matter of the social sciences.

Immediately control over internal nature is maintained by social control; by the pressure upon each man brought to bear by his fellow men in order to constrain him to do his part in upholding civilized society and to deter him from conduct at variance with the postulates of the social order. The major agencies of social control are religion, morals, and law. In the beginnings of law these are not well differentiated. They are increasingly differentiated with the development of politically organized society and after the sixteenth century law becomes more and more the paramount agency.

But organized religion is by no means the least of the three agencies. For a long time in the history of civilization it carries the greater part of the burden of social control. Much of the beginnings of law took over religious institutions and religious precepts and put the force of the state behind them. In the beginnings of English law we find one of the Anglo-Saxon kings exhorting his people as Christians to keep the peace instead of commanding them to do so as subjects.¹ On the downfall of the Roman empire in the West the church was the chief agency of social control for some six centuries, and in the later Middle Ages the courts of the church and the law of the church divided jurisdiction over adjustment of relations and ordering of conduct not unequally with the courts of the state. Religion still has an intimate relation to the ideal element in law. One of the leading jurists of today tells us that for our measure of values, which he considers philosophy cannot give us, we must turn to religion.²

There has been no such effective organization behind morals as an agency of social control as there has been everywhere behind religion. But in kin-organized societies the kin-group disciplined the kinsman whose conduct brought reproach upon his kindred. At Rome a power of censorship over morals, which had belonged to the king as patriarchal head of the Roman people, passed to one of the magistrates of the republic and left remnants in the law which came down to the modern world. If such things as kin-group discipline and official censors of morals no longer exist in a politically organized world, yet trade and professional associations, trade unions, social clubs, and fraternal organizations, with their codes of ethics, or their law or their standards of conduct or canons of what is done and what is not done, exercise, although in subordination to the law of the state, an increasing measure of control of individual conduct.

In the modern world political organization of society has become paramount. It has, or claims to have and on the whole maintains, a monopoly of force. All other agencies of social control are held to exercise disciplinary authority subject to the law of the state and within limits fixed by that law. The English courts will review disciplinary expulsion from clubs or associations for want of conformity to “natural justice.”³ Also English and American courts have decided whether property given in trust for church purposes was being used according to the tenets of the church for which it was given.⁴ The household, the church, the associations which serve to some extent to organize morals in contemporary society, operate as agencies of social control within legally prescribed limits.

Nevertheless it would be a mistake to assume that politically organized society and the law by which it brings pressure to bear upon individuals are self-sufficient for the tasks of social control in the complex society of the time. The law must operate on a background of other less direct but no less important agencies, the home and home training, neighborhood opinion, religion, and education. If these do their work properly and well the task of the law is greatly lightened. Much of ill-adjusted relations and antisocial conduct is obviated by bringing up and training and teaching leading to life measured by reason. But conditions of urban life in industrial communities have seriously affected home training. Moreover the general secularization, distrust of creeds and dogmas, and hard boiled realism of the present time have loosened the hold of religious organizations. Education is thought to be our main reliance for the background of social control. But that, too, is secularized and has not found itself equal to training in morals. The problem of enforcing the precepts of morals has become acute as law more and more takes the whole field of social control for its province.

When law is the paramount agency of social control it means that the main reliance of society is upon the force exercised by its political organization. Relations are to be adjusted and conduct is to be ordered through the orderly and systematic application of that force. But if law as a mode of social control has the strength of force, it has also the weakness of dependence on force. That something resting on ascertained and declared moral duty very like law can exist and prove effective without any political organization behind it and so without any backing of force, is shown by the achievements of international law from the seventeenth century to the first World War.

Neither ethics nor jurisprudence can give a complete and self-sufficient system of social control. In their beginnings they were not differentiated. Ethical customs, laws, and usages unrelated to social control might be covered in Greek by the one word we translate as “law,” so that Socrates could speak of a cookbook as the laws of cooking and a gardener’s manual as the laws of horticulture.⁵ Even after differentiation has gone on there have been times in the development of jurisprudence in which jurists have sought to identify law and morals. At other times some have sought to make law achieve its task taking no account of morals. If neither of these extreme positions is taken, the relation of morals to the ideal element of law is nonetheless manifest. If we look on law and morals as co-equal co-workers in the task of social control, we shall need to inquire how they co-operate with or affect each other, what are their respective provinces, whether exclusive or overlapping or coincident. Such questions have troubled jurists from the beginnings of a science of jurisprudence. The relation of law and morals was one of three subjects chiefly argued by the contending schools of jurists in the nineteenth century.⁶

Jhering said that the relation of law and morals was the Cape Horn of jurisprudence.⁷ The juristic navigator must round it, but in doing so he ran great risk of fatal shipwreck. Commenting on this Ahrens said that the question called for a good philosophical compass and strict logical method.⁸ But Jhering showed later that if the philosophical compass had often been untrustworthy, the linguistic charts had also been deceptive.⁹ The root of the difficulty lay in juristic and ethical vocabulary. There was poverty of terms which required one word which we translate as “law” to carry many meanings. To compare with it there was in German an abundance of words of different degrees of ethical connotation with meanings not always clearly differentiated.¹⁰ He points out that the Greeks had but one word on the ethical side of the relation (δικη). The Romans had two (ius, mores). German has three (Richt, Sitte, Moral).¹¹ English has two: morality, morals. But morality and morals are not thoroughly distinguished in general English usage. It is, however, a useful distinction to use “morality” for a body of accepted conduct and “morals” for systems of precepts as to conduct organized by principles as ideal systems. Thus “morals” would apply to “the broad field of conduct evaluated in terms of end, aims, or results,” while “morality” would refer to a body of conduct according to an accepted standard. So conventional morality would be a body of conduct approved by the custom or habit of the group of which the individual is a member. Christian morality would be conduct approved by Christians as in accordance with the principles of Christianity.¹² In this way of putting it, “morality” would not be an ideal but an actual system. As jurists would say, it is “positive” while morals are “natural,” that is, according to an ideal, not necessarily practiced nor backed by social pressure as to details. Systems of morals, however, are likely to be in the main idealizings of the morality of the time and place.

From the standpoint of the historical school in the nineteenth century law and morality have a common origin but diverge in their development. In the first stage of differentiation morality is much more advanced than law. In the beginnings of Roman law fas and boni mores do much of what becomes the task of ius, and such matters as good faith in transactions, keeping promises, performing agreements, are left to boni mores rather than to ius.¹³ There is no law of contracts in Anglo-Saxon law. In the earlier Middle Ages enforcement of informal contracts was left to the church.¹⁴ When a distinct legal development begins, since remedies and actions exist but rights are not yet worked out, rigid rules are the only check upon the magistrate. Presently law in this stage is outstripped by the development of moral ideas and has no means of sufficiently rapid growth to keep abreast. Interpretation of the Twelve Tables could not provide a better order of inheritance based on blood relationship when succession of the agnates and the gentiles became out of accord with moral ideas. There are no generalizations in the earlier stages of law and the premises are not broad enough to allow of growth by interpretation beyond narrow limits. Common-law ideas of property could not give effect to the purely moral duties of a trustee. No development of the common-law writs could give equitable relief against fraud. On the other hand, in a later stage the law sometimes outstrips current morality, as in the case of the duty of disinterested benevolence exacted of directors and promoters of corporations by Anglo-American equity.

Four stages in the development of law with respect to morality and morals may be recognized. First, there is a stage of undifferentiated ethical customs, customs of popular action, religion, and law; what analytical jurists would call the pre-legal stage. Law is undifferentiated from morality.¹⁵ Second, there is a stage of strict law, codified or crystallized custom, which in time is outstripped by morality and has not sufficient power of growth to keep abreast. Third, there is a stage of infusion of morality into the law and of reshaping by morals, in which ideas of equity and natural law are effective agencies of growth. Fourth, there is a stage of conscious, constructive lawmaking, the maturity of law, in which it is urged that morals and morality are for the lawmaker, and that law alone is for the judge.

As soon as morality and law are differentiated a progression begins from moral ideas to legal ideas from morality to law.¹⁶ Thus in Roman law by the strict law manumission could only be made by a fictitious legal proceeding, by entry on the censor’s register, or by a formal provision in a will.¹⁷ An irregular manumission was void. The rise of ethical ideas as to slavery gave rise to equitable freedom, in case of manumission by letter or by declaration before friends (i.e., witnesses), recognized and protected by the praetor. This was made a legal freedom by the lex Iunia. In the common law, seisin of estates in land was protected by real actions which became obsolete, possession of land by ejectment and trespass, and of chattels by trespass de bonis and trover. All this left gaps which could not be filled by fictions or interpretation. Moral ideas were later taken up by equity and gave rise to a doctrine of constructive trusts. Again, at common law easements could only be created by grant or by adverse user. The enforcement of restrictive covenants in equity against purchasers with notice gave rise to equitable easements or servitudes. At length zoning laws made such restrictions legal.¹⁸

This progress goes on in all stages of legal development. In what I have noted above as the third stage, however, there is a wholesale taking over of purely moral notions under an idea that law and morals (more or less identified with morality) are identical. The historical jurist, therefore, taught that morality was potential law. That which started with a moral idea became an equitable principle and then a rule of law, or later became a definite precept of morality and then a precept of law.

In general, in the strict law the law is quite indifferent to morals. In the stage of equity and natural law it is sought to identify law with morals. In the maturity of law it is insisted that law and morals are to be kept apart sedulously. Morality and morals are conceived of as for the legislator or the student of legislation, the one making laws out of the raw materials of morality, the other studying how this is done and how it ought to be done. But it is urged that they are not matters for the judge or for the jurist. It is held that the judge applies (or ought to apply) the rules that are given him, while the jurist studies these rules, analyzes and systematizes them and works out their logical content. This assumes that law in the second sense is a body of rules. Such was Austin’s first assumption, taken from Bentham.¹⁹ Analytical jurists continue to insist vigorously on this separation of law and morals, even after the law has definitely passed into a new stage of development.²⁰ They are zealous to point out that a legal right is not necessarily right in the ethical sense; that it is not necessarily accordant to our feelings of what ought to be. They are zealous to show that a man may have a legal right which is morally wrong, and to refute the proposition that a legal right is not a right unless it is right. This could stand as an analysis of legal systems in the nineteenth century. But, as will be seen presently, the sharp line between making or finding the law and applying the law which the analytical jurist drew cannot be maintained in this connection. Whenever a legal precept has to be found in order to meet what used to be called a “gap in the law,” it is found by choice of an authoritative starting point for reasoning from among competing starting points, a choice governed by considering how far application of the result reached from one or another will comport with the received ideal. Thus morals were a matter for judge and jurist as well as for legislator. Yet it was necessary for sound thinking to perceive that moral principles are not law simply because they are moral principles.

On the other hand, the circumstance that “a right” and “law” and what is “right” in the ethical sense were expressed by the same word in Latin, and that “a right” and what is “right” in the ethical sense are expressed by the same word in English, has had not a little influence in the history of law in bringing rights and law into accord with ideas of right.

In the nineteenth century philosophical discussions of the relation of jurisprudence and ethics, of law to morality and morals,²¹ were much influenced by German discussions of the relation of Recht to Sitte. Neither of these words translates exactly into a single English word. Recht does not mean law as the precepts which the courts recognize and apply but means more nearly what the courts are seeking to reach through judicial decision. Sitte might be rendered “ethical custom.”²² So the question which German philosophers of the last century were debating came to this: Is what the courts are trying immediately to attain identical with morality or a portion of the broad field of morals or is it something which may be set over against them?

Philosophical jurisprudence arises in the stage of legal development in which attempt is made to treat legal precepts and moral precepts as identical; to make moral precepts as such legal precepts. Hence at first philosophers of law assumed that jurisprudence was a branch of ethics and that legal precepts were only declaratory of moral precepts. They assumed that a norm or pattern of decision in the courts could not be a legal precept unless it was a moral precept; not merely that it ought not to be a legal precept if it ran counter to a moral precept. They assumed also that moral precepts as such were legally obligatory. This was derived from the treatment of jurisprudence as a department of theology before the Reformation.

From the standpoint of seventeenth- and eighteenth-century jurisprudence positive law gets its whole validity from being declaratory of natural law. But conceding that this theory that the validity of a legal precept as such is to be tested by its conformity to moral principles did much service in the seventeenth and eighteenth centuries in promoting liberalization through bringing law abreast of morality and seeking to conform it to ideals of morals, the theory is tolerable only when absolute ideas of morals are held universally. If all men or most men agree in looking to some ultimate authority for decisive pronouncements on the content and application of moral principles the theory may be tolerable in practice. In practice the theory meant that each philosophical jurist made his own ethical views, largely an ideal form of the doctrine or institutions which he had been taught or with which he was familiar, the test of the validity of legal precepts. The real value of the theory was that it led each jurist to work out ideal standards which could serve for a critique. Bentham said that the natural-law exponent of ethics held himself one of the elect so that one who wished to know what was right had only to consult him as a divinely instructed authority.²³ When and where there are absolute theories of morals as to which all men are agreed it may be possible to find Bentham’s man who was one of the elect. From such a source authoritative natural law may be drawn without impairing the general security. But when absolute theories are discarded and no authorities are universally or even generally recognized, when, moreover, classes with divergent interests hold diverse views on fundamental points, natural law in the eighteenth-century sense would make every man a law unto himself. Accordingly historical jurists and analytical jurists in the nineteenth century threw over ideals of law entirely and the metaphysical jurists sought to deduce an ideal critique from some fundamental conception of right or justice given us independently and having independent validity. They held that both law and morals were deductions from the fundamental conception, but differed in that in morals the deductions had reference to the motives of conduct, while in law they had reference to the outward results of conduct.²⁴

Already at the beginning of the eighteenth century Thomasius began to insist upon distinguishing law and morals.²⁵ Kant made a clear distinction. He begins with a proposition that a man in endeavoring to bring his animal self and his rational self into harmony is presented to himself in two aspects, an inner and an outer, so that his acts have a twofold aspect. On the one hand they are external manifestations of his will. On the other hand they are determinations of his will by motives. On the one hand he is in relation to other beings like himself and to external things. On the other hand he is alone with himself. The law, says Kant, has to do with his acts in the former aspect. Morals have to do with them in the latter aspect. The task of the law is to keep conscious, free-willing beings from interfering with one another. It is so to order their conduct that each shall exercise his freedom in a way consistent with the freedom of all others, since all others are to be regarded equally as ends in themselves. So law has to do with outward acts. It reaches no further than the possibility of outward compulsion.²⁶

In the maturity of law in the nineteenth century, the same circumstances which led analytical jurists to adopt the idea of distinguishing law and morals led to philosophical attempts to express the relation between them by contrasting them. According to Hegel what we seek to attain through law is the possibility of liberty. Morals determine not what is externally possible but what internally ought to be. So law and morals are in contrast as the possible of external realization and the internally obligatory. The opposition disappears in the highest unity of the ethical social habit which obtains in an association such as the family or civil society.²⁷ This is a metaphysical way of putting what sociological jurists put by saying that law and morals are agencies of social control.

In the latter part of the nineteenth century, as abstract individualist theories begin to be replaced by theories which proceed not upon a principle of individual independence but upon a basis of the social interdependence of men, attempts to oppose or to contrast law and morals are given up and we come upon a new phase of attempts to subordinate law to morals.

This begins with Jellinek as far back as 1878. Law, he said, is a minimum ethics. The field of law is that part of the requirements of morals observance of which is indispensable in the given stage of social development. By “law” here (Recht) he meant law as we try to make it; the idea of law. The actual body of legal precepts may fall short of or in places or at times may go beyond this ethical minimum. The field of law is only a part of the field of ethical custom, namely, the part which has to do with the indispensable conditions of the social order.²⁸ As distinguished from law, morals include only the excess beyond the indispensable minimum. This excess, desirable but not indispensable, he terms an “ethical luxury.” The minimum represents what we may expect to give effect to through legal precepts.²⁹ In a broader view morality is made to embrace the whole. In this doctrine there are characteristic features of the nineteenth century. It assumes that the scope of law is to be held down to the smallest area possible. This was a postulate of metaphysical jurisprudence. Law was thought of as a systematic restriction of freedom in the interest of free individual self-assertion. It was necessary and yet was in some sort an evil, and was not to be suffered to extend itself beyond what was obviously necessary.³⁰

Turning to the social philosophical jurists of the end of the last and fore part of the present century, to Jhering the immediate task of the law is to secure interests—claims or wants or demand. We must choose what interests we will recognize, fix the limits within which we will recognize them, and must weigh or evaluate conflicting or overlapping interests in order to secure as much as we may with the least sacrifice. In making this choice, in weighing or valuing interests, whether in legislation, or in judicial decision, or in juristic writing, he maintains that we must turn to ethics for principles. Morals is an evaluation of interests. Law is or seeks to be a delimitation in accordance therewith.³¹ Thus we come back in substance to a conception of jurisprudence as on one side a branch of applied ethics.³²

Again, as Stammler, the leader of the Neo-Kantians put it, we seek justice through law. But to attain justice through law we must formulate the social ideal of the epoch and endeavor to insure that law is made to advance it and secure it in action. These ideals are developed outside of the law. They are moral ideals and so jurisprudence is dependent upon ethics so far as ethics has to do with these goals which we seek to attain and with reference to which we measure legal precepts and doctrines and institutions in order to make them agencies of progress toward the goals, while jurisprudence has to do rather with the means of attaining them.³³ Although he insists on separation of jurisprudence from ethics and that each must have an independent method,³⁴ he comes finally to the proposition that “just law has need of ethical doctrine for its complete realization.”³⁵

According to Kohler, the leader of the Neo-Hegelians, government, law, and morality are forces working toward the attainment of an ideal of civilization. So jurisprudence “must appreciate these ideal ends toward which society strives.”³⁶ Perhaps he alone of the leaders of philosophical jurisprudence in the fore part of the present century did not more or less avowedly go back in some degree to subordination of jurisprudence to ethics. Law and morals, he taught, express and also further a progressive civilization.³⁷ Hence jurisprudence and ethics are both subordinated to a universal history of civilization and to a philosophy of right and economics from which we determine the jural postulates—the presuppositions as to right conduct—of the civilization of the time and place.³⁸ More than one contemporary book on ethics, however, presupposes very nearly what he called for³⁹ and the practical result is to make jurisprudence more or less dependent on a science which a modern type of ethical philosophers would be likely to claim as theirs.⁴⁰

After the first World War the dominance of Neo-Kantian thinking in the social sciences and stress upon methodology led to a revival of the nineteenth-century contrasting of law and morals and cutting off of jurisprudence from ethics. Thus Radbruch holds that law and morals are an irreducible antinomy;⁴¹ that legal precepts and moral precepts coincide only by chance;⁴² and that the problem of values is wholly outside the science of law. Kelsen, in the same way, and from a Neo-Kantian starting point, holds that all we have to consider is “that it is laid down in a rule of law, as a condition of a specific result, that the positive legal order react to that behavior with an act of coercion.”⁴³

Nineteenth-century analytical views of the relation of law and morals were strongly influenced by the assumption of the separation of powers as fundamental for juristic thinking, not merely a constitutional device. Accordingly assuming an exact, logically defined separation of powers, the analytical jurist contended that law and morals were distinct and unrelated and that he was concerned only with law.⁴⁴ If he saw that their spheres came in contact or even overlapped in practice, he assumed that it was because while in a theoretically fully developed legal system judicial and legislative powers are fully separated, this separation has not been realized to its full extent in practice. So far as and where this separation was still incomplete there was confusion of or overlapping of law and morality and morals. He saw four such points of contact: (1) in judicial lawmaking or law finding, (2) in interpretation of legal precepts, (3) in application of legal standards, and (4) in judicial discretion. At these four points, he considered, there was a border zone, where the separation of powers was not complete. So far as the separation of judicial and legislative functions was complete, law was for courts, morals and morality were for legislators; legal precepts were for jurisprudence, moral principles were for ethics. But so far as the separation was not yet complete, and in what he took to be the narrowing field in which judges must make as well as administer legal precepts, morality had to stand for the law which ought to but did not exist as the rule of judicial determination.⁴⁵

It was natural that Austin should have thought of judicial decision as turning precepts of “positive morality” into legal precepts since he could see some such process actually taking place in the work of the Judicial Committee of the Privy Council in appeals from newly settled areas in which the British were setting up courts for the first time.⁴⁶ A like situation arose later in a case where a succession was governed neither by English nor by Hindu nor by Mohammedan law. Lord Westbury said that it must be determined “by the principles of natural justice.”⁴⁷

With such cases before them we may understand how the first English analytical jurists like the historical jurists, thought that judicial making or finding of law was no more than a reaching out for precepts of positive morality and in the absence of authoritative grounds of decision giving them the guinea stamp of precedent. But the doctrine that morals were to be looked to only in an immature stage of legal development before the separation of powers is complete involves two other false assumptions, one, the possibility of a complete analytical separation of powers, the other, the possibility of a complete body of legal precepts which will require no supplementing and no development by judicial action.

Yet granting that these two assumptions are not well taken we do not wholly dispose of the contention of the analytical school. For there is a difference of the first moment between legislative lawmaking and judicial lawmaking. The legislative lawmaker is laying down a rule for the future.⁴⁸ Hence the general security does not require him to proceed on predetermined premises or along predetermined lines. He can take his premises from whencesoever expediency or his wisdom dictates and proceed along the lines that seem best to him. On the other hand the judicial lawmaker is not merely making a rule for the future. He is laying down a legal precept which will apply to the transactions of the past as well as to the future, and he is doing so immediately with reference to a controversy arising in the past.⁴⁹ Hence the social interest in the general security requires that he should not have the same freedom as the legislative lawmaker. It requires that instead of finding his premises where he will or where expediency appears to him to dictate, he finds them in the authoritatively recognized legal materials or by a process recognized by the legal system. It requires that instead of proceeding along the lines that seem best to him, he proceeds by using the authoritative legal technique upon authoritative legal materials.⁵⁰

Thus the proposition that a judicial decision is only evidence of the law, the doctrine that judges find the law and do not make it, are not purposeless dogmatic fictions. If they are dogmatic fictions, they do more than enable us to arrange the phenomena of the administration of justice in a convenient, logically consistent scheme. They express a sound instinct of judges and lawyers for maintaining a paramount social interest. They serve to safeguard the general security by requiring the grounds of judicial decision to be as definite as is compatible with the attainment of justice in results. They serve to make judicial action predictable so far as may be. They serve to hold down the personality of the magistrate. They constrain him to look at causes objectively and try them by reasoned development of legal materials which had taken shape prior to and independent of the cause in hand. Hence where rules are laid down for the future only, the lawmaker is given entire freedom, subject in America to a few reservations in bills of rights. Where, as in judicial lawmaking, rules are laid down for past as well as for future situations, the lawmaker is held to traditional premises or traditional lines and modes of development to the end that those who know the tradition and are experienced in the technique may be able within reasonable limits to forecast his action.

A second point of contact between law and morals is to be found in interpretation. Interpretation has been thought of as including the process of finding or making rules for new cases or reshaping them for unusual cases considered above. This is called interpretation by a dogmatic fiction because in the analytical theory of the last century the law was complete and all cases were at least covered by the logical implications of pre-existing rules or the logical content of legal principles. Austin set it off under the name of “spurious interpretation.”⁵¹ Here the contact between law and morals is obvious since the process is in substance one of lawmaking. But in what Austin called “genuine interpretation”⁵²—search for the actual meaning of the one who prescribed a rule admittedly governing the case in hand—the final criterion, when literal meaning and context fail to yield a satisfactory construction, is found in the “intrinsic merit” of the various possible meanings.⁵³ The court or jurist assumes that the lawmaker’s ideal and that of the tribunal or the writer are in substantial accord; that each holds to the same ideal pattern of law or ideal picture, moral, political, or social, of the end of law. But the political and the social ideals have a predominant moral element. Thus, however much the analytical theory of “genuine interpretation” may purport to exclude the moral ideas of the court, and to insure a wholly mechanical logical exposition of a logically implied content of legal precepts, two doors are left open. The court must determine whether the criteria of the literal meaning of the words and of the text read with the context yield a “satisfactory” solution.⁵⁴ If the court finds they do not, it must inquire into the “intrinsic merit” of the competing interpretations. In practice “satisfactory” will almost always mean morally satisfactory. “Intrinsic merit” will always tend to mean intrinsic moral merit.⁵⁵

Another point of contact is in the application of standards. Analytical jurists have liked to think of the application of legal precepts as a purely mechanical process. Such things as the margin of discretion in the application of equitable remedies, the appeal to the ethical in the maxims of equity, and the ethical element in such equitable doctrines as those with respect to hard bargains, mistake coupled with sharp practice, and the like, were distasteful to them. Partly under their influence and partly from the same spirit of the maturity of law that led to the analytical way of thinking, in the last quarter of the nineteenth century, some American courts sought to eliminate, or at least minimize the scope of these doctrines and to make equitable relief, once jurisdiction was established, as much a matter of course as damages at law.⁵⁶ But this equitable or individualized application of legal precepts is called for more and more in the law of today. It is the life of administration, whether executive or judicial. The lack of power of individualization in judicial administration in the nineteenth century has contributed to a multiplication of administrative agencies and tribunals and a transfer to them of matters formerly of judicial cognizance which is sufficient testimony to the futility of the attempt in the last century to make the courts into judicial slot machines.⁵⁷

In fact, the ethical element in application of law was never excluded from the actual administration of justice.⁵⁸ It will suffice to note two aspects of application of law in which the ethical element has always been decisive: The application of legal standards and judicial exercise of discretion. A great and increasing part of the administration of justice is achieved through legal standards. These standards begin to come into the law in the state of infusion of morals through theories of natural law.⁵⁹ They have to do with conduct and have a large moral element. The standard of due care in the law of negligence, the standard of fair competition, the standard of fair conduct of a fiduciary, the Roman standard of what good faith demands in a particular transaction, the Roman standard of use by a prudent usufructuary and of how a prudent and diligent head of a household (i.e., person sui juris) would act under the given circumstances, all involve an idea of fairness or reasonableness. Like all moral precepts they are individualized in their application. They are not applied mechanically to a set of facts looked at in the abstract. They are applied according to the circumstances of each case, and within wide limits are applied through an intuition of what is just and fair, involving a moral judgment upon the particular item of conduct in question.⁶⁰

No less clearly there is a point of contact between law and morals in matters which are left to the discretion of the court. In cases where there is a margin of discretion in the application of legal precepts, as in applying or molding equitable remedies, we speak of “judicial discretion.” Here there are principles (i.e., starting points for reasoning) governing judicial action within the discretionary margin of application, although at bottom there is not a little room for personal moral judgment.⁶¹ There are many situations, however, where the course of judicial action is left to be determined wholly by the judge’s individual sense of what is right and just.⁶² The objections to any considerable scope for this element in the judicial process are obvious.⁶³ It has been said it is “the law of tyrants.”⁶⁴ But hard as we tried in the last century to reduce it to the vanishing point, there proved to be a point beyond which rule and mechanical application are impotent. The tendency today is to extend rather than to restrict its scope. We must find how to make it tolerable. The history of Anglo-American equity shows this may be done by developing through experience principles of exercise of discretion and recognizing that because there is no rule in the strict sense it does not follow that a tribunal must have unlimited power of doing what it chooses. It is to reach a reasoned decision in the light of those principles. As Kelsen has pointed out, when a legal precept leaves some matter to discretion, if the ground of decision lies outside of the body of authoritative guides to decision (law in the second sense) it does not lie outside of the legal order (law in the first sense).⁶⁵

In the analytical account of the points of contact between law and morals the matter is put as if there were three or four restricted areas in which exceptionally such contact may take place.⁶⁶ Occasionally it may happen that a case arises for which there is no applicable legal precept and the court must work one out for the case from the legal materials at hand by a certain traditional technique of analogical development of the precedents. Occasionally, too, it may happen that an authoritatively established legal precept is so ill expressed that genuine interpretation becomes necessary. In this process it may happen that as a last resort the court must pass upon the relative merit of the several possible interpretations from an ethical standpoint. Also in those exceptional cases for which ordinary legal remedies are not adequate, a court of equity may have a certain margin of power to go upon the moral aspects of a case in granting or denying extraordinary relief. In a few matters there are “mixed questions of law and fact” where the trier of fact, in adjusting a legal standard to the facts of a particular case, may find opportunity for an incidental moral judgment. Finally some matters of administration must be left more or less to the court’s personal sense of what is right. All this is put as if in its everyday course judicial justice was quite divorced from ideas of right and morals, with intrusion of morals into the legal domain only in a residuum of cases for which adequate provision had not been made, or in which an administrative element still lingered in the courts instead of being committed to the executive. But this plausible account represents juristic desire for a certain uniform, predictable justice much more than it represents the judicial process in action. In appellate tribunals the difficulty that brings the cause up for review is usually that legal rules and legal conceptions have to be applied by analogy to causes that depart from the type for which the precept was devised or given shape. Such departures vary infinitely. Hence choice from among competing analogies and choice from among competing modes of analogical development are the staple of judicial opinions.⁶⁷ The line between “genuine” and “spurious” interpretation can be drawn only for typical cases. They shade into one another and a wide zone between them is the field in which a great part of appellate decision must take place. Likewise the extraordinary relief given by courts of equity has become the everyday form of justice for large classes of controversies and legislation has been adding new classes.⁶⁸ Moreover, transition to an urban, industrial society has called increasingly for administrative justice and tribunals with flexible procedure and wide powers of discretionary action have been set up everywhere in increasing number. In fact, there are continual points of contact with morals at every turn in the ordinary course of the judicial process. A theory which ignores them or pictures them as few and of little significance is not a theory of the actual law in action.⁶⁹

Morals are more than potential material for the legislative lawmaker. Ethics can serve us more than as a critique of proposed measures of lawmaking as presented to the legislator. To that extent the analytical jurist was wrong. But in another respect to some extent he was right. When we have found a moral principle we cannot stop at that. There is more to do than formulate it in a rule of law. We must ask how far it has to do with things that may be governed by rules of law. We must ask how far legal machinery of rule and remedy is adapted to the claims the principle recognised and would secure. We must ask how far if we formulate a precept in terms of our moral precept it may be made effective in action.⁷⁰ Even more we must consider how far it is possible to give the moral principle legal recognition and legal efficacy by judicial decision or juristic reasoning on the basis of the received legal materials and with the received legal technique without impairing the general security by unsettling the legal system as a whole.⁷¹ As a fifteenth-century lawyer put it, some things are for the law of the land, some things are for the Chancellor and some things are between a man and his confessor.⁷²

Assuming that their provinces are neither identical nor wholly distinct, what sets off their respective domains? If there are two forms or modes of social control, each covering much of the same ground, yet each having ground that is peculiarly its own, what determines the boundary between them? Is it a distinction in subject matter or in application of legal precepts and moral precepts, or is it in both? Analytical jurists have maintained that it is in both.

With respect to subject matter it is said that morals have to do with thought and feeling, while the law has to do only with acts; that in ethics we aim at perfecting individual character, while law seeks only to regulate the relations of individuals with each other and with the state. It is said that morals look to what is behind acts rather than to acts as such. Law, on the other hand, looks to acts, and only to thoughts and feelings so far as they give character to acts and determine the threat to the general security which they involve.⁷³ The act with malice or dolus is more antisocial than the one with mere stupidity or a slow reaction time behind it. Hence the criminal law calls usually for a guilty mind behind the act. But in a crowded community where mechanical agencies of danger to the general security are in everyday use and many sorts of activity incidentally involve potential infringement of social interests, thoughtlessness and want of care, or stupidity, or even failure to control one’s agent or to keep in hand an agency one maintains, may be as antisocial as a guilty mind, and so a group of legal offences may be defined which take no account of intent.⁷⁴

Next it is said that as between external and internal observance of the dictates of morals the law has to do with the former only. Thou shalt not covet thy neighbor’s ox is a moral rule. But unless the covetousness takes outward form, e.g., in larceny, the law does not and indeed cannot deal with it.⁷⁵ Not that the law necessarily and wholly closes its eyes to the internal. But law operates through sanctions; through punishment, substitutional redress, specific redress, or forcible prevention. Hence it must have something tangible upon which to go. Prosecution of Mr. Pecksniff for hypocrisy would achieve more harm than good. The story of the schoolmaster who said, “Boys be pure in heart or I’ll flog you,” is in point.⁷⁶ Purity in speech and act is the most the penalty of flogging can insure. The lawmaker must have in mind the practical limitations involved in application and administration of laws. He must not suppose he can bring about an ideal moral order by law if only he can hit upon the appropriate moral principles and develop them properly by legislation.

But nineteenth-century jurists were inclined to carry this too far and to ignore moral considerations simply on the ground of a distinction between the legal and the moral. Because it is impracticable to make the moral duty of gratitude into a legal duty, it does not follow that the law is to deal only with affirmative action and not seek to enforce tangible moral duties not involving affirmative action, even though enforcement may be practicable.

For example take the case of damage to one which is clearly attributable to willful and morally inexcusable inaction of another. Suppose a case where there is no relation between the two except that they are both human beings. If the one is drowning and the other is at hand and sees a rope and a life belt in reach and is inert, if he sits on the bank and smokes when he could act without the least danger, the law has generally refused to impose liability. As Ames put it, “He took away nothing from a person in jeopardy, he simply failed to confer a benefit upon a stranger. . . . The law does not compel active benevolence between man and man. It is left to one’s conscience whether he will be the good Samaritan or not.”⁷⁷

What difficulties are there here to make legislatures and courts and jurists hesitate? To some extent there are difficulties of proof. We must be sure the one we hold culpable was not dazed by the emergency.⁷⁸ Again he who fails to act may assert some claim which must be weighed against the claim of him whom he failed to help. In the good Samaritan case⁷⁹ the priest and the Levite may have had cause to fear robbers if they tarried on the way and were not at the inn before sunset. Also it may often be difficult to say upon whom the legal duty of being the good Samaritan shall devolve. If a woman has a fit in a bank, does the duty fall upon the bank as a corporation or on the bank officers and employees present, as individuals, or on the bystanders? Or, take a case where a man was severely injured, without fault of the employees of a railroad company, while attempting to cross ahead of a moving car.⁸⁰ Why should the moral duty to be good Samaritans fall upon the employees as servants of the company rather than upon them as individuals? However, the case of an athletic young man with a rope and life belt at hand who sits on a bench in a park along a river bank and sees a child drown does not present these difficulties. Yet the law has made no distinction. Practical difficulties are not always or necessarily in the way. In the case put there is nothing intrinsic in the moral principle which should prevent legal recognition of it and the working out of appropriate legal precepts to give it effect. Indeed, a cautious movement in this direction may be seen in American decisions. In most of the cases there was a relation—husband and wife,⁸¹ employer and employee,⁸² or carrier and passenger.⁸³ One case, master or owner and seaman, has been settled from of old in the sea law.⁸⁴ But there are cases in which there was no relation.⁸⁵ We must reject the opposition of law and morals when pushed so far as to justify ignoring the moral aspects of these cases where no practical difficulty is in the way. The cases which make the notion of a necessary contrast or opposition between law and morals appear well founded are cases in which the practical limits of effective legal action, the exigencies of enforcement through the judicial process, preclude not so much legal recognition as legal sanctioning of particular moral precepts.⁸⁶

We are not so sure of the opposition of law and morals with respect to application as we were in the nineteenth century. Thus, in illustrating the distinction, Sheldon Amos said: “The same penalty for a broken law is exacted from persons of an indefinite number of shades of moral guilt.”⁸⁷ He says this as if it showed conclusively that law would not take cognizance of shades which morals would recognize. No doubt Amos’s generation took the statement that the law does not recognize shades of guilt as axiomatic. But today, through probation, parole, administrative agencies and more enlightened penal treatment, the legal order is coming more and more to fit the treatment to the criminal and to do for individual offenders what had been assumed to be beyond the competency of legal administration of justice.⁸⁸ We have always had some degree of individualization of legal precepts in courts of equity.⁸⁹ Today the rise of administrative tribunals and the tendency to commit subjects to them that were once committed to the courts bear witness to a demand for individualized application at many points. The administrative process is not outside of the legal order and can be and should be carried on so that its individualized applications nonetheless apply and give effect to the body of authoritative grounds of decision which is commonly meant by the term “law.”⁹⁰

Nineteenth-century science of law assumed that all legal precepts were potentially in the jurist’s head and were discovered by a purely logical process. With the breakdown of this notion of the absolute finality of legal premises and logical existence of all legal precepts from the beginning, much of the significance of the distinction in application between legal precepts and moral principles disappears. Rules of property, rules as to commercial transactions, the rules which maintain the security of acquisitions and security of transactions in a society of complex economic organization, may be and should be of general and absolute application. But such rules are not the whole of the law nor may they be taken for the type of all legal precepts as the analytical jurist sought to do. Precepts for human conduct, precepts determining for what conduct one shall respond in civil proceedings and how he shall respond, may admit of a wide margin of individualized application. Indeed, in this connection, the law often employs standards rather than rules. In case of negligence the law applies the standard of the conduct of a reasonable, prudent man under the circumstances and puts it to a jury, largely in effect as a moral proposition, to decide (within limits) on their individual notions of what is fair and reasonable in the particular case. So in Roman law, where a standard of what a prudent husbandman would do is applied to a usufructuary, or the standard of a prudent and diligent head of a household is applied to the parties to a transaction of good faith. The opposition between law and morals with respect to application is significant only in the law of property and in commercial law, subjects which were to the fore in the nineteenth century, and tends to disappear in the law as to civil liability for action injurious to others, the subject in which growth is going on today.

It is equally a mistake to separate wholly law and morals, as the analytical jurists sought to do, and wholly to identify them, as the natural-law jurists sought to do. For granting all that has been said as to the analytical distinction between law and morals with respect to subject matter and application, there remain three points at which ethical theory can be of but little help to the jurist and with respect to which important areas in the law will have at least a non-moral character. In the first place, in order to maintain the social interest in the general security, to prevent conflict, and to maintain a legal order in place of private war, the law must deal with many things which are morally indifferent. In many cases in the law of property and in the law of commercial transactions the law might require either of two alternative courses of action or patterns of decision with equal justice, but must choose one and prescribe it in order to insure certainty and uniformity. In such cases developed legal systems often exhibit the greatest diversity of detail. Usually the only moral element here is the moral obligation attaching to the legal precept merely as such because of the social interest in the security of social institutions, among which law is fundamental. Aristotle saw this in drawing his distinction between that which is just by nature or just in its idea and that which derives its sole title to be just from convention or enactment.⁹¹

Again, the law does not approve many things which it does not expressly condemn. Many injuries are out of its reach. They are not susceptible of proof or they are inflicted by means too subtle or too intangible for the legal machinery of rule and sanction. Many interests must be left unsecured in whole or in part because they require too fine lines in their delimitation, or they are infringed by acts too intangible to admit of securing them by legal means. Such things as the long hesitation of American courts to deal adequately with nervous illness caused by negligence without any bodily impact, using language of the past which was belied at every point by modern physiology and psychology,⁹² or the reluctance of some courts to give adequate legal security to personality, especially to the individual claim to privacy,⁹³ demonstrate the practical importance of insisting that our science of law shall not ignore morals. So long as for good reasons we cannot deal with such things legally, we must fall short of the moral order. But we must not allow an analytical distinction between law and morals to blind us to the need of legal treatment of such cases whenever the onward march of human knowledge puts it in our power to deal with them effectively.

Thirdly, law has to deal with incidence of loss where both parties are morally blameless.⁹⁴ In such cases it may allow the loss to remain where it falls or it may seek to secure some social interest by changing the incidence of the loss. A large part of the legal difficulty arises from the very circumstance that the parties may be equally blameless.⁹⁵ This is notable in what was at one time called “the insurance theory of liability,” a theory I shall consider at length in a later lecture. Here it is enough to say that it presupposes that we all of us should bear the losses incident to life in civilized society instead of leaving many, at least, to be borne by the one who happens to be injured. There has been a growing tendency in this direction. Juristically these liabilities thus far have been incident to some relation. Also the reasons for legislative imposings of them have been primarily economic. Very likely the juristic and economic considerations may be given an ethical formulation. Nevertheless one may suspect that in this case ethics has followed jurisprudence and that ethical theory does not help us here beyond recognizing the moral quality of obedience to the legal rule. Thus respondeat superior is not a universal moral rule.⁹⁶ Shifting the burden to the employer under the Workmen’s Compensation Acts, no matter how careful and diligent he may have been and how free from fault, proceeds on the basis of the social interest in the general security, which is maintained best by holding those who conduct enterprises in which others are employed to an absolute liability for what their servants do in the course of the enterprise. Such, at any rate, was the reason formerly given. But with the coming of collective bargaining, closed shops, and employee control of conditions, this reason is ceasing to obtain. Evidently the basis of liability may have to be found in the so-called insurance theory. The law is to pass the burden back to all of us by imposing liability upon some one who is in a position to bear it in the first instance and impose it ultimately upon the public in the form of charges for services rendered. But this proposition will be considered in a later lecture.

Such cases require definite rules in order to prevent arbitrary action by the magistrate. They differ from cases, such as negligence, where the moral quality of acts is to be judged with reference to a legally fixed standard applied to the circumstances. In the latter, within wide limits each trier of fact may have his own ideas. In the former, this could not be tolerated. The most we may ask in the former is that our measure for maintaining the general security be not ethically objectionable. Whenever we make a rule for a case of the former type, we are not unlikely to provide a legal which is not a moral rule.

A closely related situation which has given much difficulty arises where both parties to a controversy have been at fault and the law must fix the incidence of loss in view of the culpability of each. It might be allowed to rest where it falls (contributory negligence)⁹⁷ or the whole might be cast on the one more culpable (comparative negligence)⁹⁸ or the one last culpable (last clear chance)⁹⁹ or the loss may be divided¹⁰⁰ or apportioned¹⁰¹ (as in the civil law and in admiralty) or recovery may be abated in view of the negligence of the complaining party,¹⁰² or, without regard to contributory negligence of the injured person the whole burden may be put upon an enterprise conducted for public advantage which is in a position to pass the loss on to the public at large.¹⁰³ If we had any machinery for accurate quantitative or qualitative measurement of culpability in such cases the rule of the civil law would be required on ethical grounds. It is because all apportionment in such cases is theoretical, and at best arbitrary, that the law is troubled what to do.¹⁰⁴ The fact that seven doctrines have obtained on this subject speaks for itself.¹⁰⁵

In addition there is a characteristic of law that makes for a certain opposition or at least contrast between the legal and the moral. The very conception of law, whether as legal order or as a body of laws or as the judicial process, involves ideas of uniformity, regularity, and predictability. In other words, it involves rule, using that word in the wide sense. Administration of justice according to law is administration of justice in accordance with legal precepts and largely by rules in the strict sense. But even the most flexible of mechanisms will operate more or less mechanically, and it is not easy to make legal machinery flexible and at the same time adequate to the general security. The requirements of particular cases must yield more or less to the requirements of generality and certainty in legal precepts and of uniformity and equality in their application. Hence even though in general the law tends to bring about results accordant with the moral sense of the community, the necessarily mechanical application of legal rules will in particular cases produce situations where the legal result and the result demanded by the moral sense of the community are out of accord. When such things happen it is often because some particular legal precept has survived the social or economic conditions to which it was shaped. But to a certain extent they are an inevitable by-product of justice according to law.¹⁰⁶

So much must be conceded to the analytical jurist. Yet we must not omit to note that in the last century he pressed these points too far. Thus a writer on ethics, who shows in marked degree the effects of analytical jurisprudence, says: “The law protects contracts which were made in legitimate business without regard to whether their provisions still conform to justice or not. Owing to unforeseen circumstances things may have so changed as to cause the ruin of one of the contracting parties without substantially benefitting the other party. The law is not concerned with that.”¹⁰⁷ The proposition is true of the strict law. But if the promisee went into a court of equity for his only effective and adequate remedy (specific performance) he would encounter the chancellor’s margin of discretion in the application of that remedy and the doctrine that supervening circumstances may make a bargain so hard that the court will refuse to enforce it.¹⁰⁸ The passage quoted sounds very like the pronouncements of lawyers in the stage of the strict law, when the line between legal and moral was drawn so sharply.¹⁰⁹ Something of this spirit was to be seen in the last century. But in the present century administrative moratoria in the civil law, limitations on the power of creditors to exact satisfaction both in civil-law systems and in the common-law world, and the development of the doctrine of frustration,¹¹⁰ mitigate the enforcement of hard bargains. The law in action is not as harsh as the author would have us believe.¹¹¹

Yet there are too many points, such, for example, as the Anglo-American law with respect to promises made in the course of business but without a technical consideration, where the last century did not exert itself, as it should have done, to bring the legal and the moral into accord.¹¹² The philosophical jurist was too prone to find ingenious philosophical justification for rules and doctrines and institutions which had outlived the conditions for which they arose and had ceased to yield just results. The historical jurist was too prone to find a justification for an arbitrary rule by showing that it was the culmination of a historical development. The analytical jurist banished all ethical considerations, all criticism of legal precepts with reference to morals, from the law books. If a precept could be fitted logically into a logically consistent legal system it was enough. Such things are intelligible as a reaction from extravagances of the law-of-nature school. They are intelligible also in a period of legal development when it was needful for a time to assimilate and systematize the results of creative judicial and juristic activity. But it cannot be more than temporary. They cannot be suffered to become permanent features of a science of law.

A view of the relation between law and morals coming to a result not unlike that from the analytical approach is reached by Radbruch from a Neo-Kantian starting point. He tells us that there is an irreducible antinomy between law and morals. He thinks of justice as the ideal relation among men; of morals as the ideal development of the individual character; of the legal order as maintained security. No one of these, he says, can be carried out to a full logical development except at the expense of one or both of the others. As no logical line can be drawn and full logical development of any one negates the others, he holds that it follows that justice has to do with the formal notion of law, the end with measuring the value of the content of law, and security with the binding force of law. Law will draw its own lines as to where and how far, if at all, to recognize the other two. This is an example of Neo-Kantian logicism, putting logic much where the eighteenth century put reason. Hence, given Kantian definitions of justice, morals, and law, the next step is to develop each logically. But when this is done each conflicts with the others. Hence each must go its own path. There is, he holds, no way of reconciling them.¹¹³

Kant started with the conscious ego as something not open to challenge. The ideal relation between such egos was one permitting each the most freedom of will consistent with the like freedom of will of all others. The ideal development of each was the one which permitted that freedom. Law was the maintaining of that relation and its development by universal rule. But if we hold that no ultimate starting point can be proved logically, we have nothing to go on but the three, which cannot be carried out logically consistently with each other.

For example: The ideal relation among men would hold them liable to each other only for undertaking or for fault. But security requires us to impose liabilities without fault—crimes without a guilty mind, liability of the owner for injury by a borrowed automobile negligently operated by the borrower, and the like. Again, the ideal development of the individual calls for free self-determination, e.g., liberty of contract. But the ideal relation, made to include equality, may require limitation of free contract. The law must determine for itself which of these directions to take in different typical situations. Again, security carried to a full logical development might require us to allow summary convictions after administrative criminal investigation, or to extort confessions by the “third degree,” or to procure evidence by unreasonable searches and seizures. Thus each one, if it is carried out logically, is independent of the others. Kelsen, also from a Neo-Kantian standpoint, makes this the basis of a complete ignoring of morals in a pure science of law.¹¹⁴ I shall endeavor to show in another connection how the three ideas may be reconciled.¹¹⁵

It remains to speak of the sociological view—the approach and point of view of the sociologists.¹¹⁶

In sociological jurisprudence all social control taken as a whole is looked at functionally. So law in the lawyer’s sense and morality are forms of social control; simply different levels of social control or of what the sociologist calls law in its widest sense. This is a development in the light of sociology of the doctrine of the historical school in the nineteenth century. But it has been chiefly a development in sociology rather than in jurisprudence and so is not wholly satisfying from a juristic standpoint. Recent sociologists have drawn their juristic ideas from the historical jurists and so have left out of account the overlappings and points of contact in some connections and the distinct fields in others which have been brought out in analytical jurisprudence. Max Weber follows Vinogradoff, much more historian than jurist, as to law and “custom,” i.e., ethical custom or morality.¹¹⁷ The latter, however, is speaking of the Middle Ages and of the words used in the languages of Continental Europe derived from the Middle Ages and the religious-ethical ideas of that time. Hence he tells us of “the derivation of law from moral habits,”¹¹⁸ rejecting, along with Ehrlich, Maine’s theory that the judge precedes the law.¹¹⁹ He points out how this is connected with the words used to express the medieval conceptions; words which go back to an undifferentiated social control. Recht “means what is right in social relations, what should be established and supported as right by social organization.”¹²⁰ Droit (Latin directum) “is the direction of social relations in the right way. Pravo in the Slavonic group stands for both iustum and dextrum.”¹²¹ He adds: “All these terms and notions are not simply juridical, they belong also to the domain of morals, and the expressions pointing to right are clearly allied to words used to designate moral habits.”¹²² Furthermore, he proceeds, “In the term right itself the personal claim [subjective right] and social order [objective right] have their root in moral sense—in the ethics of social intercourse.”¹²³ Accordingly sociologists in writing on law usually adopt the view of the historical jurists as to sanction.¹²⁴ Ehrlich distinguishes norms for decision from rules for conduct, the latter including morality.¹²⁵ Tönnies distinguishes true moral precepts—rules of behavior recognized and imposed by social groups—i.e., law and positive morality as Austin would put it—from individual ideas of what should be moral precepts, individual ethical theories, i.e., morals.¹²⁶ To show how far this may be carried, what Jhering calls customary rules of politeness,¹²⁷ Petrazycki calls “rules of unofficial law.”¹²⁸ It is significant that while Jhering distinguishes law and morality, although seeing their relation, sociologists have commonly used the discussion of morality in the second volume of Der Zweck im Recht as the basis of discussion of law as something including both.¹²⁹ By making the term “law” so all-inclusive, sociologists revert to much of the confusion in the books on the law of nature from which analytical jurists reacted to the other extreme.¹³⁰ If Austin and Kelsen have gone too far, it has not been without provocation. How confusion can result from the words used is well brought out by Llewellyn.¹³¹

It is to more purpose that Timasheff points out three stages or levels in social control: first, morality or ethical custom, with diffuse sanctions, second, law, organized power with organized sanctions, but not necessarily sanctions of a politically organized society, and third, morals, developed religious and philosophical theories.¹³² It is important for the jurist to bear in mind, what the sociologists insist upon, that the inner order of groups and associations other than the political organization of a society, and religious and philosophical ideals play a large and often controlling part in the ordering of society in comparison with law in the lawyer’s sense.¹³³ Yet Ehrlich gives us a needed caution as to morals, “a preachment or teaching, as compared with morality within a group,” and vouches the treatment of natives by the whites in every part of the world where they have come in contact, as showing “the depths to which the morality of modern man may sink where there are no associational bonds.”¹³⁴ Conflicts between morals and law in the lawyer’s sense are an old theme.¹³⁵ It is an old observation that law in the lawyer’s sense commonly lags behind morality and morals. Morals grow ahead of both morality and law and this growth is an important factor in bringing about changes in law. As Gurvitch puts it, morals are “more dynamic, more revolutionary, more mobile, more directed toward the future. . . than is the law. The latter is more attached to traditional practices than to acts of innovation, more dependent on intellectual representations and the balance of forces than is morality.”¹³⁶ Yet, he goes on to say, there have been cases where “an advanced law” has overcome current morality so that law has become a factor in moral change. This has happened at times during revolutions or major reform movements, when legislation or intuitive development of an inner order behind it, goes forward at a bound beyond the old law and the morality it expressed.¹³⁷ Such advanced lawmaking, however, has difficulty in maintaining itself.¹³⁸

In conclusion, following Radbruch, in the making of rules of law and finding grounds of decision, in applying rules and grounds of decision, and in exercise of discretion in the judicial and in the administrative process, in each of these four tasks of the administration of justice, there are three things to be regarded: (1) Justice, the ideal relation between men; (2) morals, the ideal development of individual character; and (3) security. What is meant by security must be left to a later lecture. These three: justice, morals, security, have to be kept in balance. The answer to the proposition that there is here an irreducible antinomy is that we cannot ignore any one of them at the expense of the others.¹³⁹ Morals, which give us ideals, morality in which justice and morals are reflected in the time and place, are not to be left out of account in any of the four tasks. But in no one of them will morality or morals suffice of themselves. Security has also to be kept in mind, and if its dictates have to be tempered by morals and morality, theirs have to be tempered by those of security and measured by what is practicable in a legal order. The practical limitations on effective achievement of results by the judicial or the administrative process require us not to attempt too much by means of law (in the lawyer’s sense) but to bear in mind that there are other agencies of social control that may sometimes do better what morals and morality require.¹⁴⁰ Yet we should not be too patient under lag of the law behind morality and morals. Beyond reasonable regard for security any manifest lag should be corrected. By excluding all questions of improvement of the law (in the sense of the body of authoritative guides to determination) and of the judicial and administrative processes, a science of law may be more teachable and logically satisfying to students. But jurisprudence is a practical science. As such, it must consider the end of law, the measure of valuing interests, and the adaptability of systematic application of the force of politically organized society to achieving the end and applying the measure of values. It cannot dispense with ethics. It cannot depend wholly upon ethics.