Download THE CONCEPT OF LAW Prof. Dr. and

Survey
yes no Was this document useful for you?
   Thank you for your participation!

* Your assessment is very important for improving the work of artificial intelligence, which forms the content of this project

Document related concepts

Legal education wikipedia, lookup

Good Samaritan law wikipedia, lookup

Legal history of China wikipedia, lookup

Politics wikipedia, lookup

Hindu law wikipedia, lookup

Law without the state wikipedia, lookup

Religious law wikipedia, lookup

Chinese law wikipedia, lookup

Traditional Chinese law wikipedia, lookup

American Law Institute wikipedia, lookup

Jurisprudence wikipedia, lookup

Custom (law) wikipedia, lookup

Legal anthropology wikipedia, lookup

International legal theories wikipedia, lookup

Anglo-Saxon law wikipedia, lookup

Scepticism in law wikipedia, lookup

Criminalization wikipedia, lookup

Transcript
THE CONCEPT OF LAW
Compiled by
Prof. Dr.
and
Tuğrul Ansay
Associate Prof. Dr.
Adnan Güriz
Ankara-1968
(Revised version, 2003)
1
CONTENTS
1. THE NEED FOR ORDER
6-15
The Prevalence of orderly patterns in nature
6
Order in human individual and in social life
7
Anarchy and despotism
9
The normative element in law
11
2. IS LAW NECESSARY?
15-37
The nature of man
16
The law and the forces of evil
17
Is man naturally good? The anarchist’s viewpoint
19
Innate goodness and the price of civilization
22
Law and force
24
Authority
26
Charisma
28
Traditional domination
28
Legal domination
29
Force
30
Can we dispense with force?
33
Rules about force
35
3. LAW AND MORALS
37-49
Law and religion
37
Hebrew and Greek influences
39
The moral duty to obey the law
42
The relation of law to morals
44
Where law and morals diverge
46
Conflicts between positive law and the moral law
48
4. LAW AND CUSTOM
49-53
5. LAW AND PUBLIC COMPULSION
53-61
As regards its execution law is guaranteed by the state
53
Law that is not obeyed does not loose its validity as law
53
In general, law is obeyed
54
Sanction and compulsion
54
2
Punishment and compulsion
55
Variety of the forms of compulsion
56
Specific characteristics of legal compulsion
57
Special cases of legal rules without compulsion
58
Insufficiency of the formula “tendency toward compulsion”
58
Legal compulsion as the monopoly of the state
59
Special cases of private compulsion
59
Disciplinary power of private bodies
60
6. THEORIES AS TO THE ORIGIN AND THE DEVELOPMENT OF THE STATE 61-75
The Instinctive Theory
61
The Necessity and Force Theories
61
The Divine – Right Theory
62
The Contract Theory
63
The Common Consent Theory
65
The Evolutionary Theory
66
The Economic Theory
67
Society (definition)
68
Nation (definition)
69
State (definition)
69
Sovereignty (definition)
70
The Pluralistic and Monistic Theories of Sovereignty
71
7. NATURAL LAW
75-98
The Greek Period
75
The Roman Period
77
The Medieval Period
78
The Reformation and the Renaissance to the Nineteenth Century
80
Nineteenth Century Period
83
Selected Readings – De Re Publica by Cicero
84
Selected Readings – De Legibus by Cicero
85
Selected Readings – The Principles of Natural and Politic Law by Burlamaqui
89
8. THE HISTORICAL SCHOOL
98-107
Savigny
99
Selected Readings – Of the Vocation of our age for legislation and
3
Jurisprudence by Savigny
103
Selected Readings – Outlines of Jurisprudence as the Science of Right by Puchta105
9. UTILITARIANISM
107-117
Bentham’s Utilitarianism
107
John Stuart Mill
111
Selected Readings – Utilitarianism
113
10. SOCIOLOGICAL POSITIVISM
117-131
Sociological Positivism
117
Criticism
121
Selected Readings – Objective Law
124
11. ANALYTICAL LEGAL POSITIVISM
131-137
Analytical Legal Positivism
131
German Positivist Theories of Law and State
133
Selected Readings – The Nature of Law by Austin
134
12. NORMATIVIST POSITIVISM
137-149
Kelsen’s Pure Theory of Law
137
Criticism
143
Selected Readings – The Pure Theory of Law by Kelsen
145
13. FASCIST AND NATIONAL SOCIALIST LEGAL THEORIES
149-183
Fascist and National Socialist Legal Theories
149
Selected Readings – The Nazi Conception of Law
156
Selected Readings – Theories of Law and Justice in Fascist Italy by Stone
172
Selected Readings – The Speech made by Hess on the occasion of the
opening of the German Jurist’s Day
180
14. SOCIALIST AND COMMUNIST THEORIES OF LAW
183-203
Marxist Theory
183
Renner’s Analysis of Property in Capitalist Society
184
Selected Readings – The Theoretical Foundations of the Soviet Conceptions of Law by
Schlesinger
188
15. LEGAL VALUES OF MODERN DEMOCRACY
203
Rights of the Individual
204
Freedom of Contract
205
Freedom of Labour and Association
206
4
Freedom of Property
210
Freedom of Enterprise
211
Freedom of the Person
213
Equality
217
Government of the People
220
Freedom, Planning and the Rule of Law
222
5
THE NEED FOR ORDER*
The Prevalence of Orderly Patterns in Nature
The institution of law is closely related to man’s perennial search for order,
regularity, and fixity in human social relations. Although, law by no means exhausts its
significance in the quest for the realization of order, its functions and aims in society
cannot be understood in isolation from this fundamental striving of human beings.
Wherever men have created units of social organization, they have attempted to avoid
unregulated chaos and to establish some form of a livable order.
This striving for orderly patterns in human coexistence is not arbitrary or
dispensable trait of human beings. It is deeply rooted in the whole fabric of nature, of
which human life is a part. Nature exhibits approximate uniformities, repeated sequences,
recurrent associations of events. At least in those manifestations of external nature, which
affect human life on this planet most significantly and decisively, order appears to prevail
over disorder, regularity over deviation, and rule over exception. Our earth follows its
course amount the sun in a fixed orbit and under conditions, which have permitted the
existence of life for millions of years. There is a dependable alternation of seasons,
enabling men, during the food-producing seasons, to provide and store for the times of the
year in which the soil is barren. The elements of the physical universe, such as water, fire,
and chemical substances, have certain more or less unvarying characteristics, which permit
us to rely on their permanent properties and to predict their effects in utilizing them for
human purposes. Our entire control of nature is predicated on the existence of a number of
determinate, often mathematically calculable, physical laws on whose uniform operation
we rely in building tunnels, navigating ships and airplanes, controlling floods, and
harnessing electricity for industrial and other purposes. The physical processes of living
beings are likewise subject to a number of laws. The normal metabolism of the human
body, for instance, takes place according to an orderly system whereby only as many cells
are produced as are required for the replacement of worn-out or damaged ones. Most
illnesses show typical symptoms and follow characteristic courses; if this were not true, all
medical therapy would rest on guesswork or on purely fortuitous success in treatment.
*
E. Bodenheimer, Jurisprudence. The Philosophy and Method of the Law, pp. 161-173.
6
It is conceivable, on the other hand, that the normal “lawfulness” of natural events
is subject to exceptions, or breakdowns in the orderly movements of nature. While such
breakdowns may themselves come about through the operation of certain hitherto
undiscovered laws, they appear to our incomplete understanding as cataclysmic events
upsetting the normal order of things. Whole species of living creatures, like the Saurian of
prehistoric times, have become extinct without a clearly ascertainable cause. The metabolic
mechanisms of the living body may be disrupted by the disorderly, wasteful growth of
cancerous tissue, which ignores all normal bounds. Illnesses that defy classification may
befall the human body, or known forms of sickness may take an unusual and unforeseeable
course, which sets at naught long-established therapies and well-testet cures. We cannot
even reject as wholly unimaginable the notion that, over a span of many millennia, the
laws of nature themselves may be subject to change.
As long as the irregular and totally unpredictable occurrences in nature do not
predominate over the recurrent regularity of physical phenomena, human beings are able to
plan their lives in reliance on the foreseeable course of events. In order to visualize what
the effect of the opposite state of affairs would be, one need only contemplate a general
suspension of the laws of gravitation (with the result that matter would freely move around
in space in all imaginable directions), or an interruption of the regular orbit of our planet
(with the result that it would aimlessly roam around in space, perhaps colliding with other
celestial bodies, or becoming removed from its life-sustaining source, the sun). These
examples show that the predominant regularity of the processes of nature is deeply
beneficial to human life. In its absence, we would be living in a mad and deranged world,
in which we would be tossed around like puppets by a whimsical and wholly
uncontrollable fate. All human attempts to lead a rational, meaningful, and purposive life
would be thwarted and frustrated in a chaotic universe.
Order in Human Individual and Social Life
As in nature, order plays a significant role in the life of human beings. Most people
follow certain habits in the conduct of their lives and organize their work and leisure time
in a certain way. There exists, of course, also the “bohemian” type of man who disdains the
pedantic orderliness of the “bourgeois” and prides himself on the spontaneity and
unregulated impulsiveness of his mode of life. Some grate creative artists have preferred
7
this “romantic” way of existence to the planned and often routine activities of the average
citizen. But there is little doubt that the wholly “bohemian” conduct of life is and always
has been the exception rather than the rule.
In family life, too, certain patterns or customary ways are usually observed by the
members of the family group. Meals are taken at certain hours; some chores are assigned to
certain members of the family; some time is set aside for common family activities. Such
family order not only prepares the children for the highly organized and regulated activities
of professional, commercial, and industrial life in modern society, but also represents an
important demand of economy, since a constant reshuffling and rearrangement of family
schedules would be a time-consuming and wasteful affair. A certain amount of ordering
and scheduling is probably found in the majority of all family groups.
Even in aggregations of men haphazardly thrown together, there is a strong
tendency to resort to orderly forms of organization. It has been observed, for example, that
prisoners of war will rapidly establish some rules of conduct to govern life in the camp,
sometimes without any intervention on the part of the camp administration. Shipwrecked
people cast ashore on an uninhabited island will almost immediately proceed to set up
some improvised system of “government” and “law”.
Society as a whole, depending upon the coexistence and cooperation of many
different individuals and groups, is in even greater need of organization and “pattern.”
Societies have undertaken to regulate sexual relations and to determine the basic structure
of family entities. They have allocated property rights to individuals, groups, or collective
units. They have punished certain palpable manifestations of antisocial conduct, such as
murder, rape, and other severe crimes of violence. They have often lent uniformity and
direction to political and legal action by the adoption of a “basic law” defining the
fundamental elements of the political and social system. As societies progress and become
more populous, diversified, and complex, the measure of regulatory social control tends to
increase and intensify. In a modern civilized state, the number of official and unofficial
prescriptions designed to insure a smooth and ordered running of the major social
processes is exceedingly large.
Without some degree of regulation by means of legal institutions, life in society
would hardly be tolerable. If human actions were subject entirely to the vicissitudes of
chance, if no attempt were made to mitigate the impact of the numerous irrationalities and
incalculability incident to human life, progress toward the higher forms of civilization
8
would be impossible. An unregulated social life would be as unendurable as a chaotic
physical universe. The totality of our psychological and historical experiences fully
warrants the conclusion that some form of legal order holding human societies together is
an inescapable requirement of human coexistence.
Anarchy and Despotism
There are two types or social structure characterized by the absence of institutional
devices for the creation and maintenance of orderly and regular social processes. These
two types are anarchy and despotism, in their pure and undiluted forms. While we hardly
know of any societies which have (at least for any considerable length of time) operated on
either a purely anarchic or a totally despotic basis, a consideration of these extreme or
“marginal” forms of political and social existence is helpful for an understanding of the
nature and functions of law as an agency of social control.
Anarchy means a social condition in which unlimited power is given to all
members of the community. Where anarchy reigns, there are no obligatory rules which
catch individual is bound to recognize and obey. Everybody is free to follow his own
impulses and to do whatever comes to his mind. No state or government sets limited to the
arbitrary exercise of private power.1
Opinions differ as to how men would actually behave if states and governments
were abolished and anarchy were enthroned as the legitimate form of political and social
life. Men like Bakunin and Kropotkin, who adhered to a creed of collectivist anarchism,
were convinced that men were convinced that men were essentially good by nature, and
that only the state and its institutions had corrupted them. They believed that men were
imbued with a deep instinct of solidarity, and that after the forcible destruction of
organized governments they would be able to live together under a perfect system of
freedom, peace, harmony and cooperation. In place of the coercive state, there would exist
a free association of free groups; everyone would be permitted to join the group of his
choosing and to withdraw from it whenever he wished. Leo Tolstoy also believed in the
possibility of a non-coercive society in which all members would be tied together by the
bonds of mutual love. Cooperation and reciprocal aid, instead of ruthless competition,
1
See the description of anarchy in Shakespeare’s Troilus and Cressida I. iii. 116-124.
9
would become the supreme law in such a society.1
It is extremely unlikely, however, that the complete elimination of the state or other
form of governmental constraint would bring about an undisturbed, harmonious
association between men. Even if we assume that the majority of men are by nature socialminded and good, there will always be a non-cooperative minority against whom coercion
has to be used. A few unbalanced or criminal elements can easily disrupt a community.
Recent statistics have also shown that high economic prosperity-such as envisaged by the
anarchist as a foundation of their ideal society-does not in and of itself solve the problem
of criminality. Irrespective of economic conditions, “men are of necessity liable to
passions,” and even the normally rational man may, under the spell of an uncontrolled
impulse, commit an act that society will not tolerate. For these reasons, a completely free,
unregulated society without community sanctions appears to be impossible. Order in
human affairs, unfortunately, is not self-executing.
The extreme opposite of anarchy in social life would be a political system in which
one man holds an unlimited, tyrannical sway over his fellow men. If the power of this man
is exercised in a totally arbitrary and capricious way, we are confronted with the
phenomenon of despotism in its pure form.
The pure despot issues his commands and prohibitions in accordance with his free
and unrestricted will and in response to his casual whims or passing moods. One day he
will sentence a man to death because he has stolen a horse; the following day he will
perhaps acquit another horse thief because the man, when brought before him, tells an
amusing story. The favorite courtier may suddenly find himself in jail because he has
beaten the pasha at a chess game, and an influential writer may suffer the unforeseen fate
of being burned at the stake because he has written a few sentences displeasing to the ruler.
The actions of the pure despot are unpredictable because they follow no rational pattern
and are not governed by ascertainable rules or policies.
Most of the historically known forms of despotism have not exhibited these
extreme features of a purely arbitrary rule because firmly ingrained community or class
customs ordinarily have been respected by the despot, and the property and family
relations of private persons have usually not been disturbed. Moreover, in modern
totalitarian states an “inpersonal” ideological element is introduced into the social
A good survey of the various anarchist doctrines is given by Oscar Jasci in his article, “Anarchism,”
Encyclopedia of the Social Sciences, II, 46; see also C.E. Merriam and H.E. Barnes, History of Political
Theories (Recent Times) (New York, 1924), pp. 197-216.
1
10
structure, which slightly mitigates its arbitrary character and makes possible a limited
amount of prediction of official action in the light of general policies announced
beforehand. In Soviet Russia after the Revolution of 1917 a despotic power was exercised
for the purpose of liquidating the bourgeoisie and promoting the revolution of the
proletariat. In Fascist Italy, undiluted power was exercised for the glory and
aggrandizement of the nation; in National Socialist Germany racial policies determined the
actions of the government in many areas. It should be realized, however, that power may
be arbitrary even though its holder is actuated by ideological objectives. We know as a
matter of experience that in a modern totalitarian state many acts of a purely arbitrary and
capricious nature are justified and sanctioned in the name of the sacred purpose. A German
National Socialist statute authorizing the judge to punish “according to the healthy
sentiment of the people”1 rests in him, in the name of a general and abstract principle,
latitude, which can easily be abused in an irresponsible fashion.
Instances of arbitrary rule, which to a greater or lesser degree will be found in all
totalitarian states, promote a feeling of danger and insecurity among the people.
It is decisive for the behavior of the subjects within a despotic power structure that
they cannot count on the behavior of the dominators as being in conformity with the
general commands; for these commands do not bind their authors, and strict obedience to a
general order issued yesterday may, today or tomorrow, call forth anger and revenge on the
part of the dominators. Every individual must be aware of the passing whims of the
dominators and try to adjust his conduct to them. Troubled and insecure must be the
ordinary state of mind of the subjects in a power structure of this type.*
But there is a way to avoid such a condition. It is the way of the law.
The Normative Element in Law
Law, being essentially a restraint upon the exercise of arbitrary power, is hostile to
anarchy as well as to despotism. To avoid the anarchy of numerous conflicting wills, law
limits the power of private individuals. To avoid the tyranny of an arbitrary government,
law curbs the power of the ruling authorities. It seeks to maintain a mean or balance
between the two extreme forms of social life which we have described by introducing
1
*
Statute of June 28,1935, German Official Legal Gazette, 1935, pt. I, p.839.
N.S. Timasheff , Introduction to the Sociology of Law (Cambridge, Mass, 1930), p. 216.
11
order and regularity into the dealings of private individuals as well as the operations of
governmental organs. A complete and fully developed system of law would be equidistant
from the two opposite poles of anarchy and despotism. By an effective system of private
law, it would attempt to delimit the spheres of action of private individuals or groups so as
to avoid or combat mutual encroachments, aggressive interferences with the liberties or
possessions of others, and social strife. By an effective system of public law, it would
endeavour to define and circumscribe the power of public officials in order to prevent or
remedy improper tampering with guaranteed private spheres of interest and to forestall a
tyrannical rule of whim. Thus, law in its purest and most perfect form would be realized in
a social order in which the possibility of an arbitrary or oppressive use of power by private
individuals as well as the government has been reduced to naught.
The attempt of the law to introduce ordered relations into the dealings of private
individuals and groups as well as into the operations of government cannot be
accomplished without norms, generalized pronouncements relating to human actions and
conduct.* A certain degree of generality is the hallmark of legal regulation. This does not
mean, however, that legal norms must apply with equal force to the whole population or to
a substantial portion of it; they may apply to a narrowly limited circle of persons as long as
they purport to establish patterns of conduct or frameworks of organization rather than
merely to regulate single or particular situations and acts.
Although it has been asserted that “if the leader of a small community decided each
case not by rules but by his subjective sense of justice, few would go so far as to say that
there was no law in the community,” this statement cannot be accepted without
qualification. If the leader’s “subjective sense of justice” manifested itself in such a way as
to produce uniform decisions in essentially similar cases, a normative content would in fact
have been imparted to his adjudications, and the standards of decision followed by him
would soon become known to the community. If, on the other hand, the leader’s subjective
approach to the administration of justice resulted in irrational, whimsical, and totally
unpredictable decisions, it is likely that the community would view this condition of affairs
as the antithesis of an order of law. Law and arbitrariness, as we have seen, are opposites.
As Sir Frederick Pollock correctly pointed out, “An exercise of merely capricious power,
however great in relation to that which it acts upon, does not satisfy the general conception
of law, whether it does or does not fit the words of any artificial definition. A despotic
*
“Norm” is derived from the Latin word norma meaning rule or yardstick.
12
chief who paid no attention to anything but his own whim of the moment could hardly be
said to administer justice even if he professed to decide the disputes of his subjects.”
The close connection between law and the notion of generality has often been
noticed by philosophers and legal authors. “Law is always a general statement,” said
Aristotle. Cicero emphasized that law was a standard by which justice and injustice are
measured. Several famous Roman jurists quoted in Justinian’s Corpus Juris expressed
similar opinions. Papinian described law as “a general precept.” Ulpian pointed out that
legal prescriptions are not made for individual persons but have a general application. Paul,
cognizant of the normative nature of law, observed that “to that which happens only once
or twice, the legislators pay no attention.” Jean Jacques Rousseau remarked that “the object
of laws is always general.” Friedrich Carl von Savigny likewise emphasized the generality
inherent in the concept of law.
Several English and American legal thinkers have taken the same position. Thomas
Hobbes understood by “civil law” those rules which the Commonwealth had imposed on
its subjects. John Austin held that only a command which “obliges generally to acts or
forbearances of a class” is a law. He pointed out that, if Parliament prohibited the
exportation of corn, either for a given period or indefinitely a law would be established.
But an order issued by Parliament to meet an impending scarcity, stopping the exportation
of corn then shipped and in port, would not be a law, though issued by the sovereign
legislature. Sir Frederick Pollock said: “The sum of such rules as existing in a given
commonwealth, under whatever particular forms, is what in common speech we
understand by law.”
To the extent that these definitions seek to restrict the notion of law to those general
precepts and norms that have received express recognition in a formal source of the law,
they may be open to challenge and criticism. It should be conceded that in all legal
systems the numerous gaps in the positive law are filled by the application of general
policies or social norms, which supply at least subsidiary standards for the decision of legal
controversies. But such general policies or social norms possess the same distinctive trait
which in the opinions of the aforementioned authors characterizes the institution of law as
such. They are designed to furnish general yardsticks for shaping or judging human
conduct rather than transient or particular directions for the solution of specific problems.
In this sense, the nonformalized sources of law, which are indispensable to a proper
administration of justice, are endowed with normative character in the same manner and to
13
the same extent as the formal and technical rules of the law.
For two chief reasons, it seems desirable to hold that the element of generality is an
important ingredient of the concept of law (in the sense of a system of norms). First, this
approach produces a semantic uniformity in the use of the term law. In the physical
sciences, the word law is reserved for the description of uniform patterns or at least
statistical regularities in the operations of nature, and it is not applied to unusual events
inexplicable in terms of repetitive experience. There is a great deal of merit in preserving
the basic connotation of a linguistic symbol for all or most of the uses of the term. Tolstoy
pointed out, “The only means for the mental intercourse of men is the word, and to make
this intercourse possible, words have to be used in such a way as to evoke in all men
corresponding and exact concepts. But if it is possible to use words at random, and to
understand by them anything we may think of, it is better not to speak at all but to indicate
everything by signs. Although this goal of semantic uniformity can seldom be reached in
full measure, there appears to exist no convincing reason why the term law should be
employed in the social sciences in a sense which differs very materially from its meaning
in the natural sciences. We should fully concur in Justice Cardozo’s statement that “as in
the processes of nature, we give the name of law to uniformity of succession.”
Second, in imparting to human-made laws a meaning coterminous with that of
physical laws, we not only retain consistency in the use of a linguistic term but also
impress upon the mind one of the most important functional characteristics of societal law.
By applying a uniform standard of adjudication to an indefinite number of equal or closely
similar situations, we introduce an element of stability and coherence into the social order
which guarantees internal peace and lays the groundwork for a fair and impartial
administration of justice. Without this necessarily imperfect striving for stability, law
cannot exist. As Morris Cohen has well said, “The law cannot abandon the effort at
consistency. We must remember that the law always defeats the expectation of at least one
party in every lawsuit. To maintain its prestige, in spite of that, requires such persistent and
conspicuous efforts at impartiality that even the defeated party will be impressed.”
Furthermore, because of the generality of law, “men can be enabled to predict the legal
consequences of situations that have not yet been litigated, and hence can plan their
conduct for a future which is thereby rendered less uncertain.” In a large community where
the task of adjudication is usually entrusted to a great number of officials -whose views as
to what constitutes the just and proper solution of a legal controversy may be at
14
considerable variance- there would be great danger of capricious and subjective
administration of justice in the absence of a normative system.
Is Law Necessary?*
It may seem strange that at the very outset of our inquiry into the Idea of Law the
question should be raised whether law is really necessary at all. In fact, however, this is a
question of primary significance, which we ought not and indeed cannot take for, granted.
For it arise out of an uneasy and perplexing doubt not only whether law may be
“expendable” as being unnecessary to the creation of a just society, but also whether law
may not perhaps be something positively evil in itself, and therefore a dangerous
impediment to the fulfilment of man’s social nature. Fantastic though this viewpoint may
seem to the members of a well-ordered democratic society -whatever its particular
shortcomings or imperfections may be- it is useful to remember that in many less wellregulated societies the operation of law may appear in a more unfavourable guise.
Moreover, the feeling that law inherently is or should be necessary for man in a properly
ordered society receives little encouragement from the long succession of leading we stern
philosophers from Plato to Karl Marx who, in one way or another, have lent their support
to the rejection of law. Hostility towards law has also played an important part in many of
the great religious systems of East and West, and was a crucial element in the ideology of
the Christian Church in its formative period. And, apart from Marxists, there are still to be
found other serious supporters of a doctrine of anarchism as an answer to man’s besetting
personal and social problems. Every age -and certainly our own is no exception- produces
individuals or groups who feel a general restlessness against all authority and who respond
to this feeling by giving went to various acts or demonstrations against the forces of law
and order. No doubt such people are often sincerely motivated by the vague notion that in
some mysterious way their demonstrations will lead to a better and happier life for
mankind, but such sporadic outbursts have generally had little influence on the main
currents of human thought and feeling. We must therefore look deeper than the external
manifestations of social restiveness in trying to explore the ideological foundations of
dissatisfaction with the very idea of law in order to find out what it is that has urged so
many, in civilizations geographically and culturally so far apart, and throughout human
*
“The Idea of Law” by, Dennis Lloyd, Penguin Books; pp. 11-45.
15
history, either to reject law altogether or to regard it at best as a necessary evil suited only
to an utterly imperfect state of human society.
The nature of man
When we talk of some idea or concept as being “ideological” in character, we mean
that it forms part of our outlook upon the world, upon the relation of man to the world and
society in all its manifestations. The idea of law certainly partakes of this ideological
character so that our view of it will inevitably be coloured by our general thinking about
man’s place in the world, the view we may adopt of the nature of man, or of the “human
condition”, as some modern writers, prefer to call it, and the aims or purposes which man
may be called upon or required to fulfil. When we assert that law either is, or is not
necessary to man, we are clearly not just trying to state a simple physical fact, such as that
man cannot live without food and drink - we are engaged in a process of evaluation. What
we are really saying is that man’s nature is such that he can only attain a truly human
condition given the existence or non-existence of law. Such a statement contains implicit
within it an assumption as to man’s goal or purposes, as to what is good for man, and what
he needs for the attainment of those objectives.
It is no doubt because of man’s perennial and intense preoccupation with such
issues that of all ages and societies have been drawn into the interminable dispute as to the
ethical quality or potentiality of man’s nature. This dispute may indeed be thought by
many today to be not only interminable but also senseless, but whether this is so or not, the
position taken up has formed the major premises in leading to the deduction whether, or to
what extent, law is necessary for man, and so its importance for this purpose remains
undeniable. For those who see in man either the incarnation of evil or at best an amalgam
of good and bad impulses constantly in conflict, the bad tending repeatedly to prevail over
the good, it seems evident that here are dark and dangerous forces implanted in man’s very
nature which need to be sternly curbed and which, if not curbed, will lead to the total
destruction of that social order in whose absence man’s state would be no higher than that
of the animals. Law then, in this view, is the indispensable restraint upon the forces of evil,
and anarchy or the absence of law the supreme horror to be warded off. On the other hand,
those who view man’s nature as inherently good seek to find the sources of the ills of
man’s present condition in situations external to man himself and hence look for some
fundamental defect in man’s social environment as the true cause of the evils which afflict
16
him. And as the most conspicuous features of this environment are of course the
government of the reigning powers and the legal system through which they exert their
political authority, it is hardly surprising that criticisms centre upon these as the true source
of human tribulations.
The Law and the Forces of Evil
Two very different starting-points were taken by those who looked upon law as a
means of attaining social harmony by the curbing of the evil passions of man. On the one
hand, soma postulated that man’s nature was intrinsically evil and that no social progress
could be attained without the restraints of penal laws. On the other hand were those who
held that man was originally created good by nature but that due to sin, corruption, or some
other internal weakness, such as avarice, man’s original and true nature had become
distorted and thus required for its control the rigours of a punitive system of law. Those
who favoured this more optimistic assessment of human failings tended to look backwards
to an earlier Golden Age of primeval innocence when men lived simple, happy, and well
ordered to restrain their impulses, which were wholly unselfish and directed to the
common good of mankind. Such was the idyllic primitive scene as depicted by many
writers from Seneca to Rousseau and even in our own day, and this roseate view of man’s
remote past has often served as a pattern for a movement towards a return to nature, in the
sense of man’s primitive, unspoiled nature, and therefore opened up a future prospect of a
happier society in which uncorrupted natural impulse will replace a coercive regime of
law.
Examples of both these ideological views of man’s nature and destiny can be drawn
from very widely scattered sources. Only a few need be mentioned here. In ancient China
of the third century B.C. we find, for instance, the important school of so-called “Legists”,
who argued that man’s nature was initially evil and the good ways in which men often
acted were due to the influence of the social environment, particularly the teaching or
rituals and the restraints of penal laws. “A single law, enforced by severe penalties, is
worth more for the maintenance of order than all the words of all sages,” was one of their
governing maxims. About the same period the shastra writers in India were asserting that
men are by nature passionate and covetous and that if left to themselves the world would
resemble a “devil”s workshop, where the “logic of the fish” would reign, that is, the big
17
ones would eat up all the little ones. Comparable views are not difficult to locate among
some of the seminal writers of modern Western Europe. Thus for Bodin the original state
of man was one of disorder, force, and violence, and Hobbes’s descriptions of the life of
primitive man as a state of perpetual warfare, where individual existence was “brutish,
nasty, and short” has become classical, For Hume, too, without law, government, and
coercion; human society could not exist and so in this sense law was a natural necessity for
man. Machiavelli based his celebrated advice to princes to disregard their pledges when
these conflicted with their own interests on the argument that men “are naturally bad and
will not observe their faith towards you, so you must, in the same way, not observe yours
to them.”
The hypothesis of a primitive Golden Age has in one form or another also played
an important role in the history of Western ideology. Two of the best-known statements of
this hypothesis in classical antiquity are to be found in the pages, of Ovid and of Seneca.
Seneca’s celebrated account, as befitted philosopher, was more circumstantial:
In this primitive state men lived together in peace and happiness, having all things
in common; there was no private property. We may infer that there could have been no
slavery, and there was no coercive government. Order there was of the best kind for men
followed nature without fail and the best and wisest men were their rulers. They guided
and directed men for their good, and were gladly obeyed as they commanded wisely and
justly. … As time passed, the primitive innocence disappeared; men became avaricious and
dissatisfied with the common enjoyment of the good things of the world, and desired to
hold them in their private possession. Avarice rent the first happy society asunder … and
the kingship of the wise gave place to tyranny, so that men had to create laws, which
should control their rulers.
Although Seneca asserts that this primitive innocence was rather the result of
ignorance than of virtue, he attributes the later social evils and the necessity for the
introduction of a régime of law to the corruption of human nature from its initial state of
innocence, and this corruption he explains as due specifically to the development of the
vice of avarice. This idea of vice and corruption as the reason for the establishment of
coercive institutions became a key feature of Western thought for many centuries.
This theory of law and government attained its classic restatement in the writings of
Augustine. State-law and coercion were not in themselves sinful but were part of the divine
order as a means of restraining human vices due to sin. Hence all the established legal
18
institutions and the state powers were legitimate and coercion could properly be used to
enforce them. Augustine saw the future hope for mankind, not in the sphere of social
reform by promoting a juster social régime on earth, but rather by the attainment of a
commonwealth of God’s elect, a mystical society, which would ultimately, in God’s good
time, replace the existing regime dominated by men’s sinful nature.
Augustine’s assertion that law was a natural necessity to curb man’s sinful nature
held the field for many centuries. Augustine wrote at a time when the great system of the
Roman Empire was on the point of disintegration and there seemed but little prospect of a
rise of an orderly, let alone a just, society by mere human dispensation. But gradually life
became more settled and provided scope for social and economic advancement. Moreover,
by the thirteenth century, some of the more scientific and philosophic reflections of
classical antiquity upon man’s social condition, especially those of Aristotle, had filtered
through to Western Europe. The time was ripe for a change of emphasis. Man’s nature
might be corrupt and sinful but he still possessed a natural virtue, which was capable of
development of the state from man’s social impulses. Aquinas held that the state was not a
necessary evil but was a natural foundation in the development of human welfare. Aquinas,
as a pillar of orthodoxy of the medieval Catholic Church, strove to reconcile this position
important basis for the later secular view of law as at least potentially a beneficent force,
not merely for restraining the evil impulses of man but also for setting him upon the path
of social harmony and welfare. In this way law came to be envisaged not as a purely
negative force, for the restraint of evil, but as a positive instrument for realizing those goals
towards which man’s good or social impulses tend to direct him.
Is Man Naturally Good? The Anarchist’s Viewpoint
We have seen how the attempt to regard law as a natural necessity directed to
restraining, in the only way possible, the evil instincts of man gave way to a new view of
law as a means of rationalizing and directing the social side of man’s nature is and remains
basically good, but it is the social environment which is responsible for the evils of man’s
condition, and above all the existence of regime of law imposed by force from above.
A mood of wistful primitivism, a nostalgia for a primeval Golden Age, has
coloured a good deal of what may be termed anarchist thought from ancient to modern
times. Plato, for instance, showed strong leanings towards primitivism as is illustrated by
19
his assertion that “the men of early times were better than we are and nearer to the Gods”.
Yet this approach tends to be an altogether more sophisticated one, concentrating far less
on a mythical past than on men’s potentiality in the future for an ideally just society.
Moreover, such a society is not to be one with an ideally conceived legal regime but, on
that contrary, one free from all legal rules in which rational harmony will prevail as a result
of the good sense and social impulses of its members.
An idealist picture of a state without law, …is presented by Plato in his Republic.
Plato pins his faith upon a system of education, which will not only produce adequate
rulers but will also serve to condition the rest of the population to the appropriate state of
obedience. Modern experience certainly supports Plato in his belief that education or
“brain washing” may condition people to subservience but remains divided on the notion
that any system of education can provide a royal road to wisdom, or that there is any
foolproof manner of selecting or training persons who are naturally preordained for
rulership.
It may be said that Plato’s leanings were not so much towards anarchism as towards
what we should today term “totalitarianism”, as his proposals for an inflexible and
rigorously enforced legal system in his late dialogue, The Laws, sufficiently demonstrate.
Again, though there was unquestionably an anarchic flavour about certain aspects of
primitive Christianity this was manifested in a contempt for, rather than a rejection of
human law, and indeed the injunction to render unto Caesar what was Caesar’s became
accepted as conferring a divine legitimacy on the established powers. At the same time the
cult of non-violence appeared to many opponents of the early Christians as a threat to state
authority and has afforded a base for the anarchistic doctrines of some influential modern
writers, such Bakunin and Tolstoy.
The modern period from the seventeenth century has been marked by the rise of
science and technology and with this has developed the ideology of human progress, a
world-view which rejects the belief in a primitive paradise and looks forward to an ever
brighter future for mankind. For long this doctrine was wedded to the notion that the social
evolution of man could be left to the free play of economic forces which, if not interfered
with, could be assumed to work towards ultimate social harmony. This was the theory of
laissez faire, which, though applied by Adam Smith especially to economic affairs, carried
with it the broader doctrine that all government and law were in principle evil in so far as
they constricted or distorted the natural development of the economy and of society. Far
20
from being anarchist, however, this theory strongly favoured the use of coercive law for
the protection of private property, which it regarded as an indispensable feature of a free
market.
The nineteenth century represented perhaps the heyday of the more sophisticated
anarchist writers, though Godwin’s celebrated contribution, Political justice, first appeared
in 1793. Godwin argued that the evils of society arose not from man’s corrupt or sinful
nature but from the detrimental effects of oppressive human institutions. Man is inherently
capable of unlimited progress and only coercive institutions and ignorance stand in the
way. With touching faith in human reason and perfectibility Godwin held that voluntary
cooperation and education would enable all law to be abolished. Such moral and social
norms as were required for maintaining social order and progress would be made effective
in that their violation would incur the moral censure of the free individuals of which
society would consist. This type of philosophic anarchism was further expounded by the
leaders of the Russian school of anarchists, Bakunin and Kropotkin, for whom the state,
law, coercion, and private property were the enemies of cooperation happiness and
welfare. These writers stressed the beneficent role of cooperation in human history and
believed that in the inevitable course of evolution the principle of mutual aid would replace
the miseries of the coercive community. Tolstoy, on the other hand, propounded a form of
anarchy based on his conception of the simple Christian God-inspired life led by the early
Christian communities. Many of his enthusiastic supporters attempted to set up ‘Tolstoy
colonies’ on these lines in various parts of the world, but the results were hardly inspiring.
Another such colony came to a rather drastic end. The property of the colony was
bought in the name of a member who held it for the use of his fellow-members. One day
eccentric individual appeared on the scene and after some discussion with the colonists
suddenly rose and made the following announcement. 'Gentlemen. I have to inform you
that from today your colony will have neither house nor land. You are astonished? Then I
will speak more plainly. Your farmhouse, with its outbuildings, gardens, and fields, now
belongs to me. I allow you three days to go! The colonists were thunderstruck but none of
them resisted and they all cleared out of the place. Two days later the legal owner
presented the property to the local Commune.
A cynic might well chuckle at this vindication of his disbelief in the natural
goodness of man, but the out come of these naïve anarchist exercises undoubtedly points to
the fundamental dilemma which must face those who believe that human society can
21
function without the external cement of coercive law. As Maude remarks: ‘Remove the
law, and induce men to believe that no fixed code or seat of judgment should exist, and the
only people who will be able to get on at all decently will be those who, like the Russian
pre-Revolutionary peasantry, follow a traditional way of life…. The root evil of
Tolstoyism is that it disdains and condemns the result of the experience gained by our
forefathers, who devised a system which, in spite of the many defects that still hamper it,
made it possible for men to cooperate practically and to carry on their diverse occupations
with a minimum of friction.’
Perhaps the most remarkable of the theses of the modern anarchists, and certainly
the most influential, is that of Karl Marx. Marx envisaged the overthrow of the capitalist
society by a violent revolution of the oppressed proletariat. Law was nothing but coercive
system devised to maintain the privileges of the property-owning class; by the revolution a
classless society would be brought into being, and law and the state would ‘wither away’
as being no longer needed to support an oppressive regime. The Marxist looks forward
rather than backward to a Golden Age when social harmony will be attuned to the natural
goodness of man unimpeded by such environmental snares as the institution of private
property. Such a social paradise cannot, however arise overnight and therefore we have the
paradox that during an interim period - likely to be of indefinite duration - there is need for
a vast increase of state activity supported by all the apparatus of legal coercion so
abhorrent to the anarchist. More will be said of the Marxist of law later on in this work, but
it seems incontestable that the introduction of Marxist socia1ism has so far entailed more
and more law and legal repression rather than its abolition.
Innate Goodness and the Price of Civilization
Despite these discouraging experiences there still remain distinguished exponents
of the view that man at the primitive level is innately good and that it is the social and
political organization of civilized life, which has introduced the seeds of violence and
disorder and which in their turn have led to systems of legal coercion. One of the main
theses of Elliot Smith’s book on Human History, first published in 1930, is the innate
goodness and peacefulness of mankind. ‘The evidence is so definite and abundant that it
becomes a problem of psychological interest to disowns why men persist in denying the
fact of Man’s innate peacefulness. Each of us knows from his own experience that his
22
fellows are, on the whole, kindly and well-intentioned. Most of the friction and discord of
our lives are obviously the result of such exasperations and conflicts as civilization itself
creates. Envy, malice, and all uncharitableness usually have for the object of their
expression, some artificial aim, from the pursuit of which Primitive Man is exempt.
Few will deny that numerous ills from which we suffer are the direct result of the
stresses, tensions, and conflicts characteristic of a civilized complex mode of existence. All
the same Elliot Smith’s contrast between natural and civilized man seems one-sided and
oversimplified. Readers of Mary Shelley’s Frankenstein will recall how Frankenstein
creates a monster in human form, which, though possessed of human feelings, eventually
turns upon and slays its creator. The romance seems symbolic of the duality of human
nature. Man may well possess innate tendencies towards what we call ‘goodness’, namely
those relationships which arise out of sympathy and cooperation, for without these all
social life -the distinctive character of man- would be impossible. But there is also a
dynamic side to human nature, which may be directed to either creative or destructive
ends.
The well-meaning philosophic anarchist, even when he is most concerned to give
scope to man’s creative impulses, is apt to gloss over or ignore the darker side of the nature
of man. Sir Herbert
Read, for instance, argues that human group have always
spontaneously associated themselves into groups for mutual aid and to satisfy their needs,
and so can be relied upon voluntarily to organize a social economy, which will ensure the
satisfaction of their needs The anarchist, he tells us conceives society as a balance or
harmony of groups. The only difficulty is their harmonious interrelation. But is not the
promotion of such harmony a function, which must be conferred on some state
organization? Sir Herbert Read’s answer is two-fold. In the first place, he believes that this
function would largely disappear with the elimination of economic motivation from
society. Crime, for example, is largely a reaction to the institution of private property. And
secondly, matters such as infant education and public morality are matters of common
sense, to be solved by reference to the innate good will of the community. With the
universal decentralization of authority and the simplification of life, including the
disappearance of ‘inhuman entities’ like the modern city, and disputes can be resolved on a
local basis. ‘Local associations may form their courts and these courts are sufficient to
administer a common law based on common sense. It will be noted that Read differs from
some anarchists in recognizing the need for some kind of general law and insists only on
23
rejecting the coercive apparatus of centralized control. ‘Anarchism,’ he explains,’ means
literally society without an arkhos, that is to say without a ruler. It does not mean a society
without law and therefore it does not mean a society without order. The anarchist accepts
the social contract, but he interprets that contract in a particular way, which he believes to
be the way most justified by reason.’
The recognition that even in the simplest from of society some system of rules is
necessary seems almost inevitable. In any society, whether primitive or complex, it will be
necessary to have rules which lay down the conditions under which men and women may
mate and live together; rules governing family relationships; conditions under which
economic and food-gathering or hunting activities are to be organized; and the exclusion of
acts which are regarded as inimical to the welfare of the family, or of larger groups such as
the tribe or the whole community. Moreover, in a complex civilized community, even if
simplified to the degree dear to the heart of an anarchist like Read, there will have still to
be a large apparatus of rules governing family, social, and economic life. The idea that
human society, on whatever level, could ever conceivably exist on the basis that each man
should simply do whatever he thinks right in the particular circumstances is too fanciful to
deserve serious consideration. Such a society would not be merely, as Read puts it, ‘a
society without order’, but the very negation of society itself.
At this point then, the discussion can move over from the necessity of law in human
society to the closely related question: whether the idea of law can be divorced from a
regime of coercion.
Law and Force
In the pantheon of ancient Mesopotamia two deities were singled out for special
reverence. These were Anu, the god of the sky, and Enlil, the god of the storm. The
universe was regarded as a state in which the gods ruled, but a crucial distinction emerged
between the role of the two principal deities in the hierarchy. On the one hand the sky god
issued decrees, which commanded obedience, by the very fact of emanated from the
supreme divinity. Obedience was thus an ineluctable necessity, a categorical imperative,
which admitted of no questioning. Anu was the very symbol of authority in the cosmic
order. Yet even so these ancient worshippers of divine authority, absolute and unqualified
as it might be, recognized that there was no guarantee of compliance with the orders from
24
on high. Thus provision must be made for chastening the recalcitrant, whether gods or
mortals. Hence the power of the storm was invoked, the power of compulsion, the god of
coercion, who executes the sentences of the gods and leads them in war.
If we penetrate below the surface we may find in mythology much that is
fundamental in human attitudes and purposes. The myths of Anu and Enlil reveal deeply
felt human need for order and the concomitant belief that such order, whether on a cosmic
or a terrestrial level, demands the combination of two essential elements, authority and
coercion. Without the recognition of some authority whose decrees and sentences
determine the structure of order in the world there can be no organized society and
therefore the authority of divine rule makes possible the functioning of the universe as a
social whole. But without the element of force to ensure obedience to the divine decree the
universe could never attain the role of statehood. So on the broad canvas of the whole
universe the ancient Mesopotamians saw reflected the essential preconditions of their own
human society and sought to provide a cosmological foundation for the linking of
legitimate authority with force here on earth.
The idea that even the gods themselves need to invoke force to impose their
authority is a familiar enough phenomenon in the earlier and less sophisticated stages of
religion. Zeus, as readers of Homer will recollect, is not sparing of his thunderbolts against
either his fellow Olympians or lowly mortals who disregard his injunctions or otherwise
incur his displeasure. But we have chosen here to emphasize this feature of human thought
in the less familiar guise of early Mesopotamian mythology because it seams to bring out,
with exceptional clarity, the two elements of authority and force without which no order,
divine or human, can survive. It is now necessary to say something more of each of these
conceptions in the context of legal theory.
25
Authority
There is much more involved in the idea of law than simple obedience, but the
factor of obedience is nevertheless a crucial one. We must, however, distinguish the kind
of obedience, which is characteristic of legal relation ships. The victims of a bank robbery
may respond speedily enough to the commands of gangsters armed with revolvers but such
compliance has little connexion with the obedience of a vassal to his feudal overlord, of a
citizen to the directions of a police officer, or of an unsuccessful litigant to the order of the
court, which tried his case. This contrast is not just between willing and unwilling
compliance, for the vassal, the citizen, and the defeated litigant may all be as reluctant to
yield to the superior authority, either in the particular instance or even more generally, as
are the bank officials to hand over the valuables to their assailants. The distinction must
therefore be looked for in some deeper kind of motivation.
What is entailed in the notion of authority is that some person is entitled to require
the obedience of others regardless of whether those other persons are prepared to find the
particular order or rule enjoined upon them as acceptable or desirable or not. Of course the
person so entitled to obedience need not be a simple individual human beings, as in the
case of an absolute monarch, but may in some orders of society be conceived as a
supernatural entity or as some collective human organization, such as the Queen in
Parliament in England, or Congress in the United States. However, for the convenience of
the present discussion we will confine ourselves to the case of the single individual who is
entitled to obedience.
It is obvious when we consider the instances given above that the vassal regards his
overlord as entitled to his obedience, and the same assumption can also be made regarding
the citizen and the police officer, and the litigant and the judge. In other words there is
something, which we may call a peculiar aura or mystique investing the lord, the
policeman, or the judge which arouses a certain response on the part of the other party,
namely that he feels that superior party (for so we may call him for this purpose) can
legitimately give orders which he, the inferior party, feels in some sense obliged, willingly
or unwillingly, to obey. This feeling of legitimate subordination is clearly one of great
significance in law and calls for further explanation.
Why should one person in some curious way feel himself bound to acknowledge
the authority of another person and so constrained to obey the orders of that person? Or, to
26
put it another way, what is the source of the obligation, which is apparently imposed or
assumed to be imposed on the subject party (the obligee)?
One preliminary answer, which may be suggested, is that fundamentally the
obligation is a moral one, in the sense that what the obligee really feels is that he is under a
moral duty to obey the behests of the lord, the policeman, or the judge as the case may be.
The concept of morality and its relation to law involve many difficulties, which will call
for consideration at a later stage. What needs to be pointed out here is that clearly there is a
very definite connexion between the idea of legitimate authority, which has to be obeyed
because of its very legitimacy, and moral obligation, which imposes a rule which calls for
voluntary adherence by virtue of its intrinsic rightness. Both are treated, as binding because
of something in them which without any force or physical necessity seems to require
obedience. Hence the feeling that there is a moral duty to obey the law because the law
represents legitimate authority.
There are however considerable dangers in seeking to carry this argument too far,
as it may lead to the erroneous belief that legitimacy and morality can in some way be
equated. In some societies indeed this conclusion has been fully drawn, and the divine right
of kings has been held to entail the necessary corollary that the king can do no wrong.
When we come to examine later, and in detail, the relation of law to morality we shall see
that there are compelling reasons for rejecting this monolithic view and for acknowledging
that the two spheres of lawful authority and morality, while closely interconnected, are
none the less separable and distinguishable. All we are emphasizing here, therefore, is that
the notion of authority, which is acknowledged as legitimate, derives much of its strength
from its link with moral obligation. So much is this so that in rebellions against established
authority the rebels have usually sought to reinforce their case by proving that the authority
is in fact illegitimate for some reason, so divesting the rulers of either legal or moral claim
to obedience. Such arguments were particularly common and effective in the sixteenth and
seventeenth centuries, when government was regarded as established by a social contract
and where a fundamental breach of that contract by the ruler, as in the case of James the
Second, could be represented as releasing his subjects from their obligations to yield to his
authority.
27
Charisma
The most illuminating analysis into the ways in which authority establishes itself in
human society has come from the leading German sociologist, Max Weber, who died in
1920. Authority, or legitimate domination, as Weber describes it, may take one of three
forms, namely, charismatic, traditional, or legal. The word “charismatic” is formed from
the Greek word charisma, meaning “grace”, and is used by Weber to refer to that peculiar
form of personal ascendancy which an individual may acquire in a particular society, and
which confers an indisputable aura of legitimacy over all his acts. Such a position is
frequently associated with a military conqueror, of whom Alexander the Great, Julius
Caesar, and Napoleon may be regarded as the prototypes. In our own day we have seen
enough of this form of charismatic rule in the shape of dictators such as Hitler, Mussolini,
and Stalin to have little doubt both as to its reality and as to the character, which it is likely
to take in the modern technological age. No more striking illustration can be given of the
hypnotic effect that this charismatic feature possessed by certain individuals can exert, not
only on their immediate followers but on whole nations, that the extraordinary tale
revealed in Professor Trevor-Roper’s account of the last days of Adolf Hitler, virtually
impotent in the depths of his bunker and yet still giving insane orders which none dared to
question let alone disobey.
Traditional Domination
In a sense the idea of personal charisma is really the key to understanding the
conception of legitimacy because it emphasized in an extreme form the psychological
forces, which underlie this conception. The important point, however, is that while
charisma may create authority by the sheer personal ascendancy of a new leader, and
though there may be a natural tendency for this to be extinguished on his death, it by no
means follows that such charisma will attach to his person alone. As Weber points out,
authority derived in the first instance from the personality of the leader may pass, if in an
attenuated form, to his successors. This phenomenon is to be observed in the case of new
monarchies where the descendants of the charismatic founder of the dynasty derive their
legitimate authority from their descent, even though they may lack all or most of the
qualities of their ancestor. The same situation may be observed in spheres other than the
political. Founders of religions generally possess a charismatic quality which causes their
28
words to be treated as authoritative and on their death their disciples may be able to retain
and even enlarge the scope of this authority, though partaking of very little of the personal
charisma which enabled their founder to dominate his followers. If this situation continues
for any length of time the original charisma will become ‘institutionalised’, that is to say, it
will become embodied in certain permanent institutions, which will be formed largely by
traditional usages.
A clear instance of this kind of institutionalisation is an established monarchy in a
feudal order of society. The charisma still exists but it attaches not so much to the
individual king as to the kingship itself, or the “Crown”, as we still say in English
constitutional practise. Rule still remains personal in the sense that the king retains a large
field of arbitrary power, which he may exercise legitimately, but at the same time the
institutional character of the actual incumbent of the kingly office. This conception was
given its most well known expression by the medieval jurist Bracton in his dictum that ‘the
king ought to be under God and the Law’.
Legal Domination
Such a form of domination, which Weber describes as “traditional”, and which is a
complex of personal and institutional elements, may gradually merge into the more
developed form, which Weber calls ‘legal’ domination. This terminology is misleading in
that it suggests that law in the strict sense only arises in the latter type of authority. This is
not so, and the implication is not intended by Weber himself. Even under a reign of a
purely charismatic kind there is no reason why there should not be rules which we could
reasonably regard as legal though they may depend wholly on the will of the charismatic
leader. In this connexion it may be recalled that the codification of Roman Law by
Justinian, which has been of such vast influence in the development of modern European
law, occurred under a regime of which the basic constitutional maxim was that ‘what the
Emperor willed was law’. A traditional system of domination will not lack legal rules
either, though those rules may be customary rather than legislative. What Weber desires to
emphasize by applying the word ‘legal’ specifically only to the third type of domination is
that under this system legitimate domination has become impersonal and legalistic, so that
the institutional character of authority has largely if not wholly displaced the personal one.
For instance, the modern democratic state has largely abandoned charismatic authority in
favour of an institutionalised legislation, bureaucracy, and judiciary which operate
impersonally under a legal order to which is attached a monopoly of the legitimate use of
29
force.
In such a state of affairs legal domination can dispense with personal charisma but
it still rests on a belief in its legitimacy. For without such a belief, so widely disseminated
as to be largely unchallenged or unchallengeable, the automatic and impersonal operation
of legal authority would cease to function and would be replaced by anarchy and disorder.
It will be appreciated that this belief in legitimacy, which is as fundamental to the
working of the modern state as it was to the empire of Charlemagne, is not really a logical
one in the sense that it can be justified in logical terms. This may be sufficiently
demonstrated by bearing in mind that the belief in the legitimacy of legal domination
involves a circular agreement: laws, we are told, are legitimate if they are enacted; and an
enactment is legitimate if it conforms to those rules which prescribe the procedures to be
followed. We need not perhaps go so far as Weber when he says that this circularity is
intentional in order to allow for a belief in legitimacy divorced from any particular ideals
or value judgments. What seems more pertinent is the fact that human society rests on
beliefs which may be rational or irrational but which need to be understood clearly in their
functioning. Much thought has been given by modern jourists to whether some ultimate
formula can be devised or demonstrated as the logical or necessary foundation of legal
domination in a given society, or indeed on the international level, and we shall consider
this fundamental problem in its due place. For the present it is enough to say that authority,
both in its broadest and in its specially legal context, rests on a firm belief in its legitimacy.
Force
We have now discussed in general terms the element of legitimate authority, which
is so essential to the functioning of law in any community - the role of Anu in the
Mesopotamian legend. We have still to say something of his counterpart, force,
symbolized in that legend by Enlil, the storm god.
And first, we may bring out the relation of force to authority by drawing attention
to societies where fully effective ‘domination’ occurs but without any belief, on the part of
the subjects at any rate, in its legitimacy. This does not necessarily apply to all societies
composed to a large extent of subject or slave populations as, for instance, ancient Sparta
and its helots or the Roman Empire with its enormous slave population. For even in such a
society, despite all the miseries that it entailed, the legitimacy of the authority wielded by
30
the state may still have been widely believed in by the populace as a whole.
Societies may, however, exist which without being in a state of anarchic disruption,
still lack, so far as the bulk of their population is concerted, a belief in the legitimacy of the
authority that controls them. For instance, during the occupation by Nazi forces many
European countries during the Second World War, it is clear that the Nazis possessed the
power to enforce their will on the population even when the occupied peoples entirely
rejected the legitimacy of the domination of their Nazi oppressors. It is true that this was
given victory the Nazis might eventually have induced a belief in the legitimacy of their
rule as did the Norman conquerors of Angle-Saxon England. It is indeed questionable how
far domination may be maintained by sheer brute force and fear alone without the element
of legitimacy; that, in certain circumstances and for limited periods, it may be achieved is
beyond question.
Does this therefore imply that in the last resort law can be explained in terms of
force alone and that, as Thrasymachus argued in Plato’s Republic concerning justice, it is
simply ‘the rule of the stronger’? Is it true that law is nothing more than those rules which
coercion can impose?
There are many objections to such a view but perhaps the most cogent is that to rest
such a view upon the case of the Nazi occupation forces is to try and force law into the
pattern of a marginal and altogether exceptional situation rather than comprehend it in its
typical and characteristic pattern. Indeed some have argued that rules enforced under the
conditions of the Nazi occupation, looking as they did any foundation of morality or
legitimacy, were not entitled to rank as laws at all, but were more equivalent to rules
imposed by gangsters or terrorist organizations such as the Mafia in Sicily. But be this as it
may -and we shall return later to this form of argument- it is enough at this stage to point
out that the fact that, in exceptional periods of war or revolution, a society can temporarily
be dominated by sheer force or terror is not a reason, certainly not a compelling reason, for
treating law as in the last analysis nothing but force incarnate.
Yet, on the other hand, is law really conceivable, or at least possible in any practical
sense, when it is not ultimately backed by effective force? Certainly the force of law is and
seems always to have been linked with rules, which are capable of being enforced by
coercion; the hangman, the gaoler (jailer), the bailiff, and the policeman are all part of the
seemingly familiar apparatus of a legal system. This popular view is well embodied in the
dictum of an English judge that the best test of whether a person alleged to be insane was
31
legally responsible for his act was whether he would have done what he did if a policeman
had been standing at his elbow.
One argument against the essentially coercive character of law deserves
consideration here: it is affirmed by people of undoubted sincerity that any force or
violence is wrong in itself and that law which rests ultimately on violence must therefore
offend the principles of true morality. Such people are apt to assert that force is the very
negation or breakdown of law and that recourse to violence therefore lies outside the law
itself as an extraneous element, which is invoked when the rule of law has broken down. It
is evident, however, that this sort of approach, however well-meaning, involves confusions
which, far from contributing to our understanding of the functioning of law, merely serve
to blur important distinctions without which the operation of law in human society can
hardly be grasped.
In the first place what some of the proponents of this viewpoint may be urging is
that the only law which they recognize as being really law at all is the moral law, and that
for them such moral law is one which eschews all coercion and appeals only to the
conscience of humanity. Such an approach may be merely a semantic one in the sense that
all this may come down to a refusal to accept any definition of law other than one which
extends only to the moral law, understood as a rule based not on force but on conscience,
or whatever else is appealed to as the mainspring of morality. More fundamental is the
view that no system of rules is entitled to quality as law unless it coincides with, or can at
least be subsumed under, the rule of morality. Those who wish to argue that force is the
antithesis of law still need to go a step further than this and establish that the rule of
morality excludes coercion. The fact remains that this type of argument is clearly directed
to establishing a particular kind of relationship between law and morality, and the question
of the role of force in a legal system thus becomes a subsidiary issue in that main question.
Subsidiary, that is, not in the sense of being relatively unimportant, but technically
subsidiary. For what has first to be shown is that law necessarily entails a certain relation
to morality, and only if this hurdle can be overcome will the further question arise as to
what is the content of morality as affecting law, and whether that content extends to the
content of morality as affecting law, and whether that content extends to the use or non-use
of violence. This aspect can thus be reserved until the later discussion of the relation of law
to morals, when it will be seen that very great difficulties lie in the path of those who seek
to establish a necessary link between these two and that even if it can be established,
32
perhaps even greater difficulties confront any attempt to establish a necessary content of
morality, whether as to a rule of non-violence or anything else.
Not all the opposition to the coercive approach to law comes from the moralist.
Another relevant attitude is to assert that any emphasis on coercion in the operation of law
is entirely to misunderstand it’s functioning. For, it is argued; people obey the law not
because they are constrained to do so by force but because they consent or at least
acquiesce in its operation and it is this consent rather than any threat of force, which causes
the legal system to work. Such a view was in the past particularly associated with the idea
of society and it’s law being based on a social contract underlying the consent of free men
in a state of nature who thereby agreed to submit to law and government. In this form the
“consent” was very largely, if not entirely, a legal fiction and at the present day, since the
fiction of a social contract has been abandoned, it has been replaced in democratic societies
by the idea that universal suffrage and majority rule is the means by which the individual
can, from time to time, manifest his adhesion to the operative system of government.
Leaving aside the question whether this latter position in its way does not involve as much
fiction as the older social contract theory, it will be seen that what this mode of thought is
seeking to achieve is not to eliminate force in the legal process, but rather to move the
emphasis from coercive subordination to voluntary consent or acquiescence. More
particularly, what is aimed at is a demonstration that law, far from depending upon the
successful and regular applications of force to subjects who defy or disregard its dictates,
in the last analysis exists in its own right regardless of whether force can or cannot be
brought to bear upon offenders against its rules. Thus the existence of legal coercion is
related to a matter of incidental procedure, not in any way essential to its existence.
Can We Dispense With Force?
The question remains as to what justification there may be at the present day for
insisting on the inclusion of the element of coercion in our model of the law. In the
international sphere coercion, plays a small part, and even in national law it is generally
recognized that people usually obey the law because it is the law, and not just because they
are afraid of being punished if they disobey. Why then all this emphasis on force, which
seems to many to be a feature of tyranny rather than law, and which may be regarded as
liable to undermine the moral authority of the last itself. Here it is important to bear in
33
mind that while our model, or ‘ideal’ pattern of law, may not exactly correspond to the law
actually found in an given society, it must nevertheless be constructed out of elements
which do correspond to human experience, for otherwise the model would be as useless as
it would be irrelevant. What then does experience show? Surely that at all levels of society
human law has depended for it’s ultimate efficacy on the degree to which it is backed by
organized coercion. Primitive society may see to repudiate this, but this belief, once firmly
held, is now, as we shall see later in our study of customary law, generally rejected by
modern anthropology, which has carefully explained and elucidated the role of sanctions in
many primitive communities of the past and the present. Again, when we company the
relative anarchy of a feudal society, dependent for its law enforcement largely on kinship
groups supplemented by the strong arm of feudal barons, with the centralized machinery of
a modern state, we can see how much the authority of the law gains by the availability of
machinery of regular enforcement.
But the explanation of the role of coercion in human law lies perhaps at a deeper
level. Psychoanalysis has taught us of the unconscious factors in man’s psychological
make-up. Among these unconscious factors are to be reckoned, not only forces which
make for social cooperation and which exemplify Aristotle’s famous dictum that man is a
political animal, but also powerful aggressive drives which require to be effectively
repressed in order to subject man to the needs of social discipline. Hence the need, as
Freud himself fully recognized, for coercion. Freud believed that these aggressive urges
could be repressed and sublimated but not eliminated, so that civilization would always
involve a struggle between the social impulses and the basic drives towards aggression.
Referring to the possibility of eliminating the latter altogether, Freud wrote: ‘that would be
the Golden Age, but it is questionable if such a state of affairs can ever be realized. It
seems more probable that every culture must be built up on coercion and instinctual
renunciation.’ And later he writes as follows: ‘Men are not gentle, friendly creatures…
Who simply defend themselves if they are attacked …; a powerful measure of desire for
aggression has to be reckoned with as part of their instinctual endowment. Moreover the
very process of repressing the antisocial urges itself sets up frustrations, which are an
important causal factor in many of the familiar malaises of a developed civilization; A
recent commentator referring to the role of ethical rules
in human society summarizes
Freud’s attitude in these words: ‘these ethical precepts had been indispensable -without
them civilization could never have been built- but at the same time they had grievously
34
thwarted man’s deepest urges. It was for this reason that Freud insisted so strongly on the
necessary connexion between civilized society and coercive social order.’ It may be added
that recent history has so emphasized the existence and the power of those aggressive urges
as well as the fundamental frustrations which beset our civilization that Freud’s diagnosis,
gloomy though it may be, cannot be brushed aside, though it cannot be said to be
established in a fully scientific sense.
It is true that it is always open to us to hope that human nature may change and that
a new and more harmonious social order may eventually prove practicable. ‘Even if de
Maistre were right and the structure of civil society had always been founded on the
hangman, it was always possible to reply that it need not be so, that it would not always be
so. Things being as they are, and from what we know of human history, a model of law as
an operative factor of social control which ignored or discounted the element of coercion
would have but little relevance to present-day society. Of course if we believe that a new
order of society will ultimately dawn, which will banish the need for repression then our
model may call for radical revision. For the present, however, a strong measure of
scepticism seems justified.
Rules About Force
An important section of our ‘model’ legal system will thus comprise rules
governing the use of violence as a mode of enforcing other sections of the system, in which
are laid down rules governing the conduct of those subject to that system. This section may
be said to contain the rules about force and may vary from a primitive order, where they
may contain little more than rule for regulating a blood-feud; an international order, where
they may contain no more than rather rudimentary provisions empowering some body such
as the United Nations to raise an international force ad hoc to try and control a situation
which involves a threat to peace, as for instance the recent disorders in the Congo; to a
highly developed state system with all it’s regulated apparatus of courts, officials,
policemen, bailiffs, and so on.
It has been a characteristic of developed state law that as the use of force has
become more closely regulated and more efficiently brought to bear upon the recalcitrant it
has been pushed further and further into the background. And so the bureaucratised state
tends to resemble, in this respect, the order from which it theoretically differs most, namely
35
the charismatic personal rule, where the element of authority overshadows the need for
force. This in time leads to the view, which we have already discussed, that force never
was or at least has ceased to be an essential feature of law. This has been described, by a
modern jurist, as ‘a fatal illusion’, in a passage which deserves citation here:
Actual violence is, however, kept very much in the background. The more this is
done, the smoother and more undisturbed is the working of the legal machinery. In this
respect many modern states have been successful to an extent, which is something of a
miracle, considering the nature of man. Under suitable conditions the use of violence in the
proper sense is so much reduced that it passes almost unnoticed.
Such a state of things is apt to create the belief that violence is alien to the law or of
secondary importance. This is, however, a fatal illusion. One essential condition for
reducing the application of violence to this extent is that there is to hand an organized force
of overwhelming strength in comparison to that of any possible opponents. This is
generally the aim in every state organized on modern lines. Resistance is therefore known
to be useless. Those who are engaged in applying force in criminal and civil matters of the
ordinary kind are few in number, it is true, but they are thoroughly organized and they are
in each case concerned with only a single individual, or a few individuals.
Two final points need to be made before leaving the subject of this chapter. The
first is that, in the case of force developed legal system, what we have designated rules
about the use of force may be properly broadened to cover all the procedural apparatus of
the law. For the rules which govern the ultimate use of violence in the state, such as
imprisonment or the infliction of the death penalty, represent purely the final stage -and
one which in any cases, and in civil matters in practically all cases, is hardly ever reachedof a long procedural process whereby proceedings are instituted, regulated, and adjudicated
upon, and orders are made in respect of which the forces of the state may be brought to bar
upon designated individuals. Such procedures are not necessarily judicial or purely
judicial, for under state law coercion may result from the executive or administrative
process, for instance, in England when the Home Secretary orders an illegal immigrant to
be detained and deported. The rules about force may thus be regarded as forming merely a
chapter, though a very vital chapter, in the larger book of rules setting out the procedural
apparatus through which primary rights and duties are translated into effective action. This
is not to say that legal systems in fact are to be found with their rules neatly categorized in
this way but such distinctions are of value for the purpose of forming an effective view of
36
that ‘ideal type’ of law to which actual systems correspond, to a greater or less degree.
The second point is that the importance of the element of coercion in law has
sometimes been misunderstood or stretched so as to imply that no rule whose breach
cannot entail the application of state force (or a ‘sanction’, to use the word generally
employed by lawyers) can be regarded as a rule of law. This is a view particularly
associated with the so-called ‘command theory of law’, expounded by the jurist John
Austin, which has had much influence in common-law countries, and especially in
England. That theory can be left to be dealt with in its proper place; here it suffices to
observe that though coercion may be an indispensable part of an effective system of law,
there seems to be no reason why we should insist that this necessarily entails annexing
penal consequences to every individual rule comprised in a legal system. On the contrary,
the increasing tendency of modern systems, as we shall see, is to define important duties to
which no sanctions are annexed; it would be strange if we were forced to treat these
obligations as non-legal.
LAW and MORALS
Law and Religion
We have become accustomed in modern times to the purely secular conception of
law as made by man for man and to be judged accordingly in purely human terms. Very
different was the attitude of earlier ages when law was regarded as having a sanctity, which
bespoke a celestial or divine origin. Law, morality and religion were treated as inevitably
interrelated. Some laws, indeed, might be traced directly to a divine lawgiver, as in the
case of the Ten Commandments; others, while clearly owing their direct origin to human
sources, would be given an aura of divine sanctity by attributing a measure of divine
inspiration to the human lawgiver. Moreover, lawgivers in ancient times tended to be
treated as mythical, semi-divine, or heroic figures.
This elementary feeling that law is in some way rooted in religion, and can appeal
to a divine or semi-divine sanction for its validity, clearly accounts to a considerable
degree for that aura of authority which law is able to command and more particularly for
the belief, to which we have referred, in the moral duty to obey the law. No one who is
persuaded that the gods on high have themselves directly, or indirectly through human
37
agency, decreed the very content of the laws in imperishable letters of fire would be much
impressed by the view of a modern jurist such as Austin that the law depends for its
validity on having some legal penalty or sanction duly annexed to it. Not that human
penalty were lacking in importance in the early stages of law; quite the contrary, for
ancient systems displayed a rich ingenuity in devising and inflicting penalties of the most
appalling kind, from various forms of torture and dismemberment to such curious
inventions as the Roman penalty of launching parricides into the sea bound in a sack and
accompanied to their doom by a dog, a cock, a viper, and an ape. And even if the offender
were to escape the vigilance of human penalties the gods could be relied upon to inflict
punishment in their own way and in their own time. The familiar story of Orestes, so
dramatically expounded in the works of the ancient Greek dramatists, sufficiently
illustrates the belief in divine intervention for offences against the laws. Orestes, to avenge
his murdered father, kills his mother and her lover. The divine Furies then appear and
relentlessly pursue Orestes for the murder, though finally they allow themselves to be
appeased by the intervention of Athena. Such a story also emphasizes the degree of
flexibility in the administration of divine justice, which might result from a system of
polytheism, where one god might be set off against another and so mitigate the full rigour
of the law. With the development of the Hebrew notion of monotheism the stern inflexible
will of God presented far less scope for the easy moral compromises of other faiths based
on a belief in a pantheon of squabbling deities.
Although religion thus played a key role in investing the law with its peculiar
sanctity it must not be thought that the whole of the law governing a particular state would
be necessarily regarded as either directly or indirectly God-given. A distinction would
normally be made between those parts of the law which were regarded as fundamental and
virtually unchangeable since they embodied the very structure of society and the relation of
its members to its rulers and the universe at large, as compared with other laws which were
clearly man-made in character and lacking in cosmic significance. No doubt in a society
such as that of ancient Egypt where the ruling pharaoh was regarded as the incarnation of
God on earth, this distinction would not easily emerge, for every decree of the reigning
monarch, however trivial its subject matter, would carry divine authority. For the most part
however, ancient societies did not identify their rulers with the gods and so there was a
clear-cut distinction between the divine and the merely human in the sphere of law.
38
Hebrew and Greek Influences
Of the peoples of the ancient world the Hebrews and the Greeks in particular can be
said to have brought this contrast between divine and human life into prominence in ways
which have influenced the Western concept of law even since. The Hebrews rejected all
systems of polytheism and of divine rulers and set up in their place an unswerving
monotheism in language of unsurpassed sublimity, tirelessly reiterated the imperative
character of God’s law; the obligatory character of that law upon rulers and people a like;
and the condign punishment that God would inflict upon those who disregarded his
decrees. Human rulers there might be -and the Hebrews recognized kings who were
regarded as lawfully anointed of the Lord and therefore enjoying divine sanctity- and these
kings could and did impose laws upon their people by virtue of their kingship. But what if
those laws were in conflict with God’s will? And how in any event was God’s will to be
ascertained?
During the great prophetic period of the Hebrew religion, as recorded in the later
books of the Old Testament, there is little doubt as to the answer to these questions. Kings
might propose but God disposed; no more kingly decree could prevail against the will of
Almighty God as embodied in the Laws of Moses, and the Old Testament is fully of stories
of the condign punishment meted out to kings and people alike who repudiated those laws
in favour of other gods or alien modes of life. Again, God’s will, when it was not to be
detected directly in the divine scriptures themselves, was declared by the prophets- as
remarkable a body of men as any that have emerged in human history. These men, entirely
lacking in any official standing either in the hierarchy of the state or the priesthood, by the
sheer force of their personal charisma and their burning sense of religious communion with
the will of God, were able, ultimately, to established the idea of a divine order of moral law
in the universe, whose scope and decrees rested not on the affirmations of rulers and priests
but on the inspiration or intuition of God-intoxicated individuals whom God had chosen as
humble instruments to convey his messages to mankind. That the moral law had to be
revealed in this way showed plainly enough that the laws laid down by human rulers could
and frequently did conflict with the divine decrees that God had laid down for the
governance of mankind. It also showed that any merely man-made laws could not stand or
possess any validity whatever in the face of divine laws which the rulers themselves were
not competent to reveal or to interpret.
39
The possibility of the laws of man, even where emanating from rulers ordained of
God, conflicting with God’s own laws brought to a head the moral dilemma in which man
finds himself. Law on the one hand and morality and religion on the other may speak with
divided voices, and for all the aura that man-made law may enjoy and for all the moral
authority that it may wield, it may yet be opposed to the very morality upon which much of
it’s own authority rests….
In the first place the Hebraic view of divine law really resulted in equating law with
morality. For the only true law was that which embodied the decrees of God’s will and any
other man-made decrees were not entitled to rank as law at all. Law therefore really means
simply the moral or religious law, which is laid down by God or developed by divinely
inspired human beings, and the way is thus opened for that theocratic form of rule, which
is found in the post-prophetic Jewish state and in the early stages of Calvinism, where law
and morality are one and no recognition can be granted to any laws which are lacking in
divine inspiration. Hence the possibility of conflict between human and moral laws is
resolved draconically by treating all valid human laws as nothing but expressions of the
moral law. The dangers inherent in this situation may be stressed by referring to our second
observation on the Hebraic conception. This is that the source of the moral law, save in so
far as it is contained directly in divinely inspired scriptures, rests on the authority of those
who can persuade themselves and others of their personal inspiration. Moreover, even the
established scriptures will be full of doubts and obscurities of language, and these will
need to be authoritatively interpreted if they are to be treated as legislative in character.
Hence there is limitless scope for personal interpretations as faith or fanaticism compete to
impose their will upon their followers and denounce (and punish if they can) those whose
inspiration or inclinations favour other interpretations of the law. Further, as every
rejection of an approved construction of the law is to be regarded as a renunciation of the
will of God, it is clear that differences of opinion on disputed points will assume a gravity
of offence which no dispute on more man-made law is likely to achieve. Such an approach
is likely to result either in the triumph of a rigid orthodoxy imposing its moral tenets on
every aspect of the life of the community, as in the Geneva of Calvin, or in a virtual
anarchy of individuals each interpreting the law according to his own moral inspiration.
This latter situation, indeed, was of frequent occurrence in many places in Germany in the
early days of the Reformation when fanatical leaders of such sects as the Anabaptists
attempted to impose their passionate convictions upon whole communities, seized by the
40
religious ferments of the period.
The Hebraic approach to the moral law, with its appeal to personal inspiration and
the divine afflatus, inevitably stressed the irrational and mystical elements of faith. God’s
ways were mysterious and not fully understandable by man, as the Book of Job
demonstrates, but man must submit lovingly to the divine will even if it passes
understanding. ‘Though he slay me, yet will I trust in him.’ Such an attitude, far from
presupposing a rational moral order intelligible to human reason, rather appeals to the very
incomprehensibility of the universe as a justification for resort to faith alone.
It is at this point that the Greek form of faith in a rational order of the universe,
governed by intelligible laws ascertainable by rational investigation, provided so important
a countervailing force to that of moral mysticism. Certainly there were strong mystical and
irrational elements in both Greek religion and philosophy. Also, fate played a mysterious
role in cosmic and human affairs, deciding human destiny in an inscrutable fashion
(witness, for instance, the Oedipus legend), and it was beyond even the power of the gods
to alter it. But in contrast to these factors in Greek thought there developed a very powerful
attachment to rationalism, a belief that both the physical and the moral order of the world
were based on rational principles, and that man’s reason shared in this rational nature of
the universe and was thus capable of understanding it. To this approach is owed much of
the modern belief in scientific laws and in the possibility of a rational philosophy, which
can elucidate the ultimate principles of the physical structure of the world and of the moral
order governing human conduct, and also the relation of human beings to one another and
to the universe. Such a belief in human reason in the moral sphere clearly entails the idea
of a moral law of a rational kind whose imperative character derives from the fact that
man’s reason must necessarily accepted the rational solution as the moral or true one. For
the universe being itself ordered rationally, reason requires the acceptance of rules which
stand the test of rationality.
The Greek philosophers were aware that human laws which actually operated in
different societies differed greatly from one another and that many of these laws were
either against reason or certainly not fully justifiable on rational ground. Necessary identity
on the Hebrew pattern could not be asserted between the laws of God and of man, there fore, nor did the Greeks affirm that the validity or existence of man-made law was directly
controlled or affected in some way by a higher law of reason. We shall have more to say
later about the development of natural-law ideas in Greek speculative thought; here it
41
suffices to point out that the tendency of Greek thought was to recognize that human law,
whether or not it might owe its origin in part to divine or semi-divine sources, possessed an
autonomous position in human society. It did not depend for its validity on any divine
origin, though where this existed it naturally would give the law a peculiar sanctity. At the
same time human law, autonomous though it might be, could be subjected to moral
scrutiny, and such scrutiny meant, in the last resort, comparing it with the touchstone of
ideal rationality believed to be inherent in the universe as a whole.
The Moral Duty to Obey The Law
The Hebraic and the Greek conceptions of law had this important feature in
common, that they underlined in their different ways the need to face a possible conflict
between the obligations imposed by mere man-made law and that required by the moral
law and that required by the moral law. …
Less simple was the Greek position, for here there was obviously a very intensely
felt sense of the moral obligation of a man to obey the law of the state even when he
believed it to be wrong or immoral. Moreover this view was not weakened, … by a belief
in the necessary identity of law and morality, nor by any clearly felt assurance that human
law, even if contrary to reason, was any the less operative on that account. This is well
brought out in that familiar passage of Plato’s Crito where Socrates explains to his
companion why, though his condemnation may have been unjust, he must abide still by the
state’s decision and would be acting wrongly by trying to escape the penalty:
SOCRATES: … Ought a man to perform his just agreements or may he shuffle out of
them?
CRITO: He ought to perform them.
SOCRATES: Then consider. If I escape without the state’s consent, shall I be injuring
those whom I ought least to injure, or not? Shall I be abiding by my just agreements or
not?
CRITO: I cannot answer your question, Socrates. I don’t understand it.
SOCRATES: Consider it in this way. Suppose the laws and the commonwealth were to
come and appear to me as I was preparing to run away and were to ask, ‘Tell us, Socrates,
what have you in your mind to do? What do you mean by trying to escape, but to destroy
us the laws, and the whole city, so far as in you lies? Do you think that a state can exist and
42
not be overthrown in which the decisions of law are of no force, and are disregarded and
set at nought by private individuals?’ How shall we answer questions like that, Crito?
Much might be said, especially by an orator, in defence of the law, which makes judicial
decisions supreme. Shall I reply, “But the state has injured me: it has directed my cause
wrongly?’ Shall we say that?
CRITO: Certainly we will, Socrates.
SOCRATES: And suppose the laws were to reply, ‘Was that our agreement? Or was it that
you would submit to whatever judgment the state should pronounce?… Since you were
brought into the world and educated by us, how can you deny that you are our child and
our slave, as your fathers were before you? And if this be so, do you think that your rights
are on a level with ours?… Do you think that you may retaliate on your country and its
laws? If we try to destroy you, because we think it right, will you in return do all you can
to destroy us, the laws, and your country, and say that in so doing you are doing right, you,
the man, who in truth thinks so much of virtue? Or are you too wise to see that your
country is worthier, and more august, and more sacred, and holier… than your father and
mother and all your other ancestors; and that it is your bounden duty to receive it and to
submit to it… and either to do whatever it bids you to do or to persuade it to excuse you;
and to obey in silence if it orders you to do or to persuade it to excuse you; and to obey in
silence if it orders you to endure stripes or imprisonment?… That is what is your duty… In
war, and in the course of justice, and everywhere you must do whatever your city and your
country bid you do, or you must convince them that their commands are unjust. But it is
against the law of God to use violence to your father or to your mother; and much more so
is it against the law of God to use violence to your country,’ What answer shall we make,
Crito? Shall we say that the laws speak truly, or not?
CRITO: I think that they do.
Such was the painful dilemma presented to the citizen of fourth-century Athens by
the idea that to live according to the laws was the highest unwritten law, for this might, as
Plato himself showed in the case of Socrates, result in those laws requiring the justest man
to die. To this dilemma Plato himself later propounded his own solution, that only when
the state itself embodied the idea of the good could the life of the individual properly be
sacrificed to the state. In other words Plato argued for an identity of law and morality, but
an identity based not on blind faith but on human wisdom and reason. Of this more will be
said later, but for the present those points in the Greek position, which emerge from the
43
Crito deserve emphasis. The first is that it is recognized that obedience to the law of the
state is itself a principle of the highest morality; and for this purpose it is not very material
that Socrates bases his argument largely on a kind of agreement (an early form of the social
contract) between the citizens and the state to observe these laws whatever may be the
consequences to a particular individual. At the same time, the second point arises that there
is a moral law, independent of state law, by which a particular decree of the state may be
shown to be immoral or unjust. Thirdly, however, this moral law in no way overrides the
law of state so far as the individual citizen is concerned, for his duty is confined to trying
to persuade the state of its moral error, and if he fails then his inexorable duty is to obey
the law of the state. For the law of God itself requires obedience even to an unjust law.
Nothing could indicate more vividly the contrast with the Hebraic idea that not only must
the law of the state yield to the law of God, but that God’s decrees, however inscrutable,
cannot uphold injustice against justice.
The Hebrew view than insists that human law is to be obeyed only when it
corresponds with divine law; the Greek view, on the other hand, is that human law may
conflict with moral law but the citizen must still obey the law of his state though he may
and indeed should labour to persuade the state to change its law to conform with morality.
The Relation of Law to Morals
Of these two views, the Greek seems nearer to the prevailing opinion of the modern
world, with certain modifications. Certainly there are those who argue that the duty to obey
the state is in all circumstances overriding. In the philosophy of Hegel (which has proved
so influential in relation to later totalitarian doctrines) the individual is treated as
submerged in the higher reality of the state, whose superior wisdom could hardly be
expected (as Socrates thought) to be open to the persuasion of an individual citizen that it
was in error, or that its courts were unjust or immoral, since the state itself represents the
very embodiment of morality. But among democrats and anti-totalitarians generally, while
they might go some part of the way with Socrates in recognizing a moral duty to obey the
law, greater emphasis would be placed on the limitations of this doctrine in those cases
where morality was in conflict with the provisions of positive law. For although even in
many such conflicts the overriding moral duty might be to obey the law (as Socrates
thought) until persuasion is effective to bring about legislative changes, there may still be
44
extreme situations where the law dictates acts of such patent immorality that, whatever the
position in positive law, the moral duty is that of rejection of rather than obedience to the
law.
The distinctive feature of this approach is the recognition that while law and
morality may, and normally do, occupy much ground in common there is no necessary
coincidence between the dictates of law and morality. And though there is a moral duty to
obey the law, whether its specific content is or is not in accordance with morality, in the
case of an acute and fundamental conflict of principle between the two, morality both
requires and justifies disobedience. The implications of this approach, which raises issues
of the first importance, not only for lawyers and moralists but for ordinary citizen
everywhere, will be discussed in the next chapter. For the present it will be in place to say
a little more about the respects in which law and morals may be expected to coincide and
the reasons why modern jurists are justified in rejecting the idea of a total identity between
these two spheres.
The relation of law to morals is sometimes described as two intersecting circles, the
part inside the intersections representing the common ground between the two spheres and
the parts outside representing the distinctive realm in which each holds exclusive sway.
This picture however is misleading in so far as it suggests that where there is common
ground between the two, there is a kind of identity. This is not generally the case. The law
of murder may be said, for instance, to concern prohibitions rooted in common morality
but none the less there may be considerable divergences between what the law and
morality would regard as amounting to murder. In English law if death supervenes more
than a year and a day after the act which causes the killing there is no murder, yet morally
it may be said there is no valid distinction between acts resulting in death in 366 and 367
days later. Yet legal systems may be justified in drawing distinctions, and even in some
cases arbitrary lines, on grounds of practical expediency whatever may be the precise
dictate of morality to the contrary.
Still the reason why there remains a broad territory common to law and morality is
not far to seek. For both are concerned to impose certain standards of conduct without
which human society would hardly survive and, in many of these fundamental standards,
law and morality reinforce and supplement each other as part of the fabric of social life. If
we do not refrain from physical assault on others and from misappropriating what belongs
to others there can be no security of life or of the transactions which further life and well-
45
being in human society. Moral codes, by recognizing that we ought generally to refrain
from such acts, supplement the force of the law which equally forbids them. And the moral
reprobation which such acts inspire is reinforced by the criminal and other sanctions
imposed by the law. The moral code itself largely presupposes the existence of a legal
system underlying its precepts, for a moral rule requiring respect for the property of others
necessarily, assumes that there are rules of law which define in what circumstances
property exists (for ‘property’ is a legal conception implying rules as to what is capable of
ownership; how one becomes or ceases to be owner; how ownership is transferred; and so
forth). And because it is a presupposition of legal systems that they exist, broadly
speaking, to uphold the moral standards of the communities to which they apply, the moral
duty to obey the law is generally accepted, and plays an important role in establishing the
authority of the law and ensuring obedience to it, in the majority of cases without actual
recourse to coercive measures.
The close parallelism between codes of morals and of law is sufficiently brought
out by the similarity of normative language that each employs. Both are concerned to lay
down rules or ‘norms’ of conduct for human beings and this is expressed both in moral and
legal language in terms of obligations, duties, or of what is right or wrong. Both laws and
morals lay down that it is my duty to do this or that, or that I ought to do so and so, or
refrain from doing something else, and that I have a right to act in a certain way, or that it
is wrong to do so. This correspondence of language, though it brings out the interrelation
of the two spheres, is also dangerous in that it tends to trap the unwary into thinking that
law must necessarily connote moral obligation (there seems something of this confusion in
Socrates’ speech quoted above) or that moral obligation needs must be translated into law.
Where Law and Moral Diverge
This leads us naturally, therefore, into a consideration of the divergences between
law and morals and the reasons for such divergences. Let us start with one or two simple
examples which may indicate how law and morals, even where starting from similar
premises, may yet develop along different and indeed contrary paths. The law may
condemn and even punish sexual immorality in various forms, but it may refrain from
attaching legal consequences to some kinds of immorality such as prostitution, the keeping
of a mistress, fornication lacking in any element of violence between adults of opposite
sex, and so forth. Again the moral duty to save or preserve life may in many instances not
46
give rise to an equivalent legal duty. A parent may be under a legal duty to care for and
protect his infant child, but under no legal duty to go to the rescue of another person who is
drowning even though this might be done without risk to himself. And a person who has
borrowed a knife from a friend may not have the ‘right’ in law to refuse to return it on
request, even though he has good reason to suspect that his friend intends to use it later to
make a violent assault upon a third person. In all such cases, the law shrinks, for one
reason or another, from pursuing what may nevertheless be recognized as the authentic
path of morality.
The reasons for such discrepancies are various and not all may be of equal validity.
There are many instances where the higher ethical attitude may not be sufficiently
embodied in popular sentiment to be productive of legal action in conformity with it. Here
law may reflect popular morality though the latter is slowly being made to yield to a more
refined or humanitarian approach. Much of the activity of the early criminal law, with its
savage penalties for trivial offences and the gradual move (still far from complete) towards
a more humane penal system, reflects this kind of relation of law to popular feeling and the
gradual improvement of both moral and legal standards, each reflecting and interacting
upon the other.
On the other hand there may be fields of human activity where the law deliberately
prefers to abstain from supporting the moral rule because it is felt that the machinery is too
cumbersome to engage upon the particular task and that more social evil may be created
than prevented by its intervention. Examples in modern times are the refusal to penalize
fornication or drunkenness in private. In fact in some places (as in certain states of the
United States) where adultery is treated as a criminal offence the law is virtually a dead
letter and so tends to do harm by bringing the law generally into disrepute. Much of the
argument propounded recently by the Wolfenden Committee urging that the offence of
homosexual relations between consenting male adults in private should be removed from
the statute book was based on the belief that such a law is exceedingly difficult to enforce,
and when enforced is likely to do more harm than good by encouraging other evils such as
blackmail. Reliance was also placed on a further and more abstract argument in favour of
the non-intervention of the law in such cases: namely the libertarian proposition, traceable
to John Stuart Mill, that the law should not intervene in matters of private moral conduct
more than necessary to preserve public order and to protect citizens against what is
injurious and offensive. In other words there is a sphere of morality which is best left to the
47
individual conscience, as for instance in the case of liberty of thought or belief.
Conflicts Between Positive Law and the Moral Law
What, it is suggested, emerges from the foregoing discussions is that law and
morality are inter-related and interact upon one another in a highly complex way.
Moreover there remains always the possibility of serious divergency between the duty
imposed by law and morality in given situation. We have seen that there are three main
attitudes which may be adopted towards the possibility of such divergency and these may
conveniently be recapitulated here.
In the first place, it may be said that law and morals must necessarily coincide
either because the moral law dictates the actual content of human law, as in the case of the
Hebrew or Calvinist theocracies, or alternatively because morality is itself merely what the
law lays down. The first alternative leads to the proposition that in effect ony the moral law
is valid and that nothing which does not conform to the moral law itself can properly be
regarded as effectively binding law. The second alternative has been propounded by
various philosophers. Thomas Hobbes, for instance, argued that morality really means
nothing more than obeying the law, so that an unjust law is a contradiction in terms.
Hegel’s mystical theory of the moral superiority of the state over the individual also
recognized that the individual could claim no higher right than to obey the law of the state
of which he formed an insignificant part.
The second attitude is to recognize that man-made law and the moral law each
enjoys a realm of its own, but that the moral law is a higher law and thus provides a
touchstone for the validity of merely man-made law. Conflicts therefore need to be
resolved, at least in the last resort, in favour of the moral law, though the consequences
which may be drawn from this solution very a good deal. For instance, it may be suggested
that the human law is, in case of conflict, certainly nullified and so the citizen is relieved of
his moral duty of obedience. On the other hand, it may be said that this is a matter which
must be left between God and the unjust ruler, but that the citizen’s duty is still one of
simple obedience. Obviously there are many other variants which may be and have been
propounded at different times with a greater or less display of logic or authority. Broadly
speaking, however, this theory of the two laws, has, from the time of the Hellenistic
Greeks up to the present day, been discussed in Western jurisprudence mainly in terms of a
48
so-called law of nature, or natural law, which is regarded as containing precepts of a higher
order, whether ordained by God or part of the natural order of the world. This doctrine at
various times, and particularly in the modern period, has been linked with the important
idea of the ‘natural rights’ of man, which have played so large a role in democratic thought
since the days of the American and the French Revolutions.
Thirdly, there is the approach which treats the autonomy of each of the spheres of
law and morality as exclusive, so that neither can resolve questions of validity save in its
own sphere. This theory is commonly referred to at the present day as ‘legal positivism’. It
insists that the validity of a legal rule can depend solely on legal criteria, just as moral
validity must be ascertained by applying such criteria as are necessary or appropriate in
relation to a system of morality. Those who support this view generally take a pragmatic
view of the moral law, basing it on some such principle as utility, expediency, tradition, or
social custom. For them any conflict between the two spheres cannot impugn the legal
validity of man-made law or alter duty of legal obedience, though it gives rise to the moral
problem whether the law as it stands ought to be changed. And, in extreme cases, a conflict
between legal and moral duty may have to be resolved in accordance conflict between
legal and moral duty may have to be resolved in accordance with the dictates of the
conscience of the individual and his moral courage to defy a law which he believes to be
contrary to what is morally right or just….
LAW and CUSTOM
Customs are habits of action or conduct which are generally observed by classes or
groups of people. They may relate to dress or to etiquette or to rites surrounding important
events of life, such as birth, marriage, or death. They may pertain to the conclusion of
transactions or the fulfilment of obligations.
There exist customs in every society which are concerned with the less important
aspects of social life. Most societies have certain usages with respect to the kind of dress
one is expected to wear on various occasions. It is the custom in many countries to give
wedding presents to friends and relatives. Well-established customs are observed at burials
and other solemn ceremonies. When a custom of this type is violated, society usually reacts
by showing social displeasure or disapproval; and if the norms of social intercourse are
repeatedly or constantly violated by some person, he may soon find himself outside the

“Jurisprudence” by Bodenheimer, Harvard University Press; 1962, pp.251-255.
49
pale of society. But it is characteristic of social customs of this type that sanctions directly
affecting the liberty, property, or status of the offender (such as imprisonment, fines, or
loss of civil rights) are not employed.
There may be other kinds of customs which in a more definite and stringent sense
are regarded as the specific duties and obligations of men (women). Such customs may
regulate the obligations or marriage and the upbringing of children, the transmission of
property at death, or the modes of consummating and fulfilling agreements. Such customs
do not pertain to the sphere of social formalities, outward decorum, or aesthetics; rather,
they are concerned with the serious business of society, the work that must be
accomplished in order to secure and guarantee satisfactory conditions for collective life.
There is every likelihood that such customs will become absorbed and incorporated into
the body of the law, and that their violation will eventually be met by the typical sanctions
employed by the legal order, including perhaps the use of direct constraint by
governmental authorities. The term customary law will hereafter be used to designate
customs which, although they have not been authoritatively promulgated by a legislative or
judicial body, have become transformed into rules or arrangements to which a legal
character is attributed.
It has often been asserted that law and custom were entirely undifferentiated in
early society, and that the drawing of a line between social custom and customary law was
the product of a long and gradual legal evolution. The anthropologist Bronislaw
Malinowski disputed this view. He attempted to show that even in early society some rules
of custom stood out from other social rules in that they were felt to represent the definite
obligations of one person and the rightful claims of another. “On close inquiry,” he said,
“we discover a definite system of division of functions and a rigid system of mutual
obligations, into which a sense of duty and the recognition of the need of cooperation enter
side by side with a realization of self-interest privileges, and benefits.” He pointed out that
it is not the sheriff who stands ready to enforce such rights and obligations in primitive
society; they are usually self-enforcing because men need the good will and the services of
others. A man requires a boat in order to fish, but he can obtain it only if he delivers part of
the catch to the owner of the boat. The native who shirks his obligation knows that he will
suffer for it in the future.
Thus it is Malinowski’s thesis that primitive society recognized the distinctive
character of legal rules, that is, rules invested with a definite binding obligation. He
50
maintained further that these rules were not necessarily enforced by modes of constraints
resembling modern legal sanctions; the psychologically dictated necessity of reciprocal
observance was the chief guaranty of compliance. There is much in Malinowski’s
argument which is highly suggestive and persuasive. Whether the rules of law in primitive
society formed as well-defined a category within the general body of custom as he seems
to assume may to some extent remain subject to doubt and debate.
There is substantial agreement among legal historians that primitive law was to a
large extent based on customary rules which were not promulgated by a legislator or
formulated in written form by professionally trained judges. With regard to the origin of
this primitive customary law, however, a number of different points of view have been set
forth.
According to an influential opinion, customary law arises as soon as certain usages
and customs felt to be legally obligatory are generally and continuously observed among
the members of a family, group, tribe, or people. No formal recognition or compulsory
enforcement of these usages and arrangements by a superior authority is regarded as
necessary for the formation of customary law. In this view, law in early society arose out
of the nonlitigious customs of everyday life which were approved by public opinion. “It is
not conflicts that initiate rules of legal observance, but the practices of every-day directed
by the give and take considerations of reasonable intercourse and social cooperation.” This
view rests upon a theory of law which draws its chief support from the jurists of the
historical school, especially from Savigny and Puchta. The historical school of law
assumed that in early society rules of law were not imposed from above, but grew from
below as a result of the physical and mental collaboration and the mutual relationships of
the members of a community. According to Savigny, customary law arose from the social
arrangements of the people, consolidated by tradition and habit and conforming to the legal
consciousness of the people; it did not, in his opinion, originate through the decrees of a
governmental authority.
The general correctness of this view may in some respects be open to doubt. It
presupposes a democratic structure of primitive society, in the sense that only those rules
of conduct which arose out of the legal consciousness of the entire group attained the force
of law. Modern research into primitive society has revealed that, at least in numerous
instances, its structure was patriarchal rather than democratic. It is very likely that many
sibs or gentes, especially in the Indo-European world, were ruled in an authoritative and
51
patriarchal manner by one man, who sometimes had the power of life and death over the
members of his group. If we believe in the existence of such ancient patriarchal authority,
we have to assume that the rules of conduct in primitive society were often determined by
its autocratic chief, or at least that only those customs and usages which met with his
approval could become part of the legal fabric.
In many instances, the early monarchic system gradually gave way to the rule of a
caste or aristocracy. It may have been a council of chiefs or elders or a college of priest. It
is likely that this aristocracy became to some extent the agent for the administration of
customary law. Some customs might have been unsettled or in conflict, and the uncertainty
or conflict would have had to be resolved by some authoritative decision. Even
Vinogradoff, who was, by and large, and adherent of the Savigny-Puchta theory, admitted
that “we are… driven to assume… that there was a conscious activity of elders, priests,
judges, witans, or experts of some kind directed towards the discovery and declaration of
what is right and just.” This aristocratic caste tended to monopolize the knowledge of the
law. Since writing was not known, some other effective means for the preservation of the
customs of the community had to be employed. By confiding the recognized modes of
conduct to the memory of a small group of men who transmitted their experience from
generation to generation, a certain stability and continuity in the development of customary
law was insured.
In one important respect, however, the historical school was right. Only such
customs as suited the general way of life of early society and the economic requirements of
the epoch could be administered by the chief or ruling aristocracy. No authority can, for a
long time, enforce rules or arrangement which are contrary to the social necessity of the
time and place. If we look at the problem from this point of view, Savigny’s opinon that
law arises from the legal consciousness of the people contains an important element of
truth. In order to function successfully, the administration of rules of conduct requires
some degree of cooperation and support from the community in which the rules are
operative. “Laws repugnant to the notions of right of a community or to its practical
requirements are likely to be defeated by passive resistance and by the difficulty of
constant supervision and repression.” Thus, it may be assumed with good reason that there
was a continuous interaction between popular sentiment, usage, and practice on the one
hand and the activity of authoritative interpreters on the other in the operation of early
customary law.
52
Some writers have taken the view that only those customs and usages which were
enforced by some governmental authority can be considered as legal rules. Others have
gone further, regarding as law only those rules of conduct whose observance was
guaranteed by the infliction of penalties affecting the person or his property.
LAW and PUBLIC COMPULSION
As Regards its Execution, Law is Guaranteed by the State.
The rule of the social discipline of the state, which is laid down and promulgated by
the state, is also guaranteed by the state, in the sense that the state institutes certain means
designed to realize its rule effectively and to carry out what that rule prescribes as exactly
as possible.
This necessarily follows from the idea of a rule or discipline that is social. If the
rule were not carried out, the end pursued would not be attained. Now, by hypothesis, it
ought to be attained volens nolens (willy-nilly), since the social order, the very authority of
the lawmaking state is at state. The life of the law is in its being carried out: Law that is in
no way active is dead law. True, the codes contain rules which are not applied or are no
longer applied, which are dead branches of legislation. But such cases can only be rare:
Normally, obedience should follow the precept and does in fact follow it. Consequently, if
the law wants to succeed, if it wants to live, it should be fashioned so as to get itself
obeyed, morally by a certain adaptation to common opinion, materially by a complex of
measures of execution that may go as far as the use of compulsion.
Law that is Not Obeyed does not Lose its Validity as Law.
This is not to say, however, that a rule that is not obeyed would cease to exist and
that disobedience would have the power to abrogate law. There are those who define the
law, at least as positive law, by speaking of “law generally obeyed”. By that they mean
that, lacking sufficiently general obedience, law lacks efficacy and, in that sense, reality:
This is what they call “positiveness”. But the validity of a rule must not be confounded
with its efficacy. No matter how necessary the effective realization of the legal rule may

The Legal Philosophies of Laski, Radin and Dabin, p.250 ff.
(Cambridge – Hass 1950).
53
be, that rule is nonetheless valid as soon as it has been laid down in the correct manner: Its
relative or even total lack of efficacy destroys neither its existence nor its validity. If the
contrary were true, the subjects of a law would be promoted to masters of that law, which
would mean not only anarchy but the overthrow of the order. Again, how would one
recognize and measure the degree of efficacy upon which the obligatory character of a law
is to depend? The truth is that a law is valid, of objective validity, independently of the
opinio juris (Conviction of rightness) of the subject. It is quite another question to know if
it is good to lay down or maintain a rule that would only receive disobedience. But that is a
matter of legislative prudence, concerning only those who govern. Inasmuch as the rule is
laid down, it is not for the disobedience of the subjects to strike it down with invalidity,
indeed with sterility. This is precisely why compulsion is instituted: To insure the
observance of the rule against disobedience…
In general, The Law Is Obeyed. Ordinarily, obedience to the law comes about
spontaneously, without state intervention, though not always without reluctance. No matter
how numerous infractions may appear in the case of laws fettering human passions or
imposing pecuniary sacrifices, they represent but a rather small percentage in the total of
the unnumbered acts of social life: In general, property and life are respected; debtors pay
their debts, tax-payers pay their taxes… In short, law on the whole is doubtless obeyed
more often than it is disobeyed.
Should disobedience be general, compulsion would be powerless, the law would
cease to act and hence to live. It matters little, though what motive actually dictates
obedience. A rule of social discipline is entitled to require only conformity of action,
independent of the rectitude or purity of intentions: Speaking socially, and thus juridically,
it is the result that counts and that, by hypothesis, is attained. But clearly the fear of the
sanction figures among the most active motivations of obedience to laws, whether as a
stimulant for laws containing prohibitions. The entire criminal law is founded upon the
idea of the intimating force of punishment: The laws threaten force so as not to have to use
it or, at least, to have to use it only as a last resort.
Sanction and Compulsion. Where voluntary execution fails, compulsion thus
enters the arena. What does this mean? The two notions of sanction and of compulsion
must not be confused to the point of never distinguishing them. On the one hand, every
54
rule of conduct ordinarily implies a sanction as such having the character of compulsion
that inheres in law: The moral rule has its sanctions -sure sanctions of the life beyond, and
more doubtful earthly sanctions, consisting in the reactions of tormented conscience, of
outraged nature, of shocked public opinion. As for the rule of social manners, it is
sanctioned by the approval or disapproval, manifested or perceptible, of the public
environment. Now those diverse reactions have nothing substantially in common with the
sanction of legal compulsion. On the other hand, there are in law sanctions that fully
deserve that name yet do not in themselves constitute compulsion. In fact, the state can
decree plenty of measures that tend to bring about the execution of its rule, specifically if
possible, or else by an equivalent. Among these measures, some are preventive, others
compensatory or repressive. Now nothing prevents us from calling these latter measures,
which presuppose the violation of the rule, by the name of sanctions. Thus, refusal to
discharge the obligation to do a certain act (facere) is subject to “sanction” by contractual
damages or by dissolution of the contract; violation of matrimonial obligations is subject to
“sanction” by divorce or judicial separation; injury unlawfully inflicted upon another, to
“sanction” by damages in tort; theft, to “sanction” by restitution of stolen goods; illegal
contracts are subject to “sanction” by nullity, and unlawful associations, by dissolution; the
incompetent or malfeasant official is dismissed; the parent betraying his trust is deprived
of parental power, etc.
Yet, to speak precisely, it is necessary that these sanctions themselves, like
preventive measures if any and like the precept that is guaranteed by all such measures, be
translated into reality. Now they will be so translated, in the absence of voluntary
execution, by enforced execution. Contractual and tort damages and restitution will be
executed against the goods of the debtor by means of various seizures (executory or
conservatory), the dissolved association that tries to reconstitute itself will be dislodged
and disintegrated by physical compulsion. Thus the law does not limit itself to providing
sanctions; it undertakes their effective realization, and this is equivalent to the enforced
execution of the violated precept. In other words, execution is always susceptible of being
attained by force, whether directly, in mind, or indirectly, by the equivalent of sanctions. In
this, compulsion consists.
Punishment and Compulsion. Sometimes, in the gravest or most urgent cases, the
law provides a kind of sanction whose character is one purely of satisfaction, tending to
55
average the attack upon the law and to prevent its recurrence. This is punishment in its
multifarious technical forms: punishment in its proper sense, civil penalty, fiscal penalty,
and so on. It is no longer a matter of compelling the effective observance of the violated
precept, of going back to the infraction, effacing its result and somehow annulling it, or in
short, of enforced execution, in kind or by equivalent. It is rather a matter of prosecuting
offenders: The violation remains accomplished, but the outrage inflicted upon the rule by
the very violation is compensated for by a reestablishment of the authority of the law,
which is indicated by the punishment. Forced execution will intervene with regard to the
punishment but no longer with respect to the violated obligation. In relation to the
execution of the precepts, the role of the punishment is only psychological and preventive:
Acting by way of threat, it tends to create a motive favourable to spontaneous execution in
the future. Then, too, nothing stands in the way of punishment being cumulative with the
forced execution of the precept; in other words, the infraction may give rise to both forced
execution and punishment, the latter then subjecting to sanction the failure of voluntary
execution and itself giving rise to forced execution.
Variety of the Forms of Compulsion. Of course, the forms of compulsion and of
the procedure of its application vary with the times, the places, and the civilization. The
best compulsion being that endowed with maximum efficacy, and efficacy depending upon
contingent circumstances, it will be understood that determination of the procedure of
compulsion is subject to the law of variation. It will also be understood, since compulsion
comes to grips with the persons of the subjects, that the ideas current about the human
personality, its rights and its dignity, influence the régime of compulsion so as eventually
to temper solutions deduced from the single viewpoint of efficacy. There was a time when
the defaulting debtor was sentenced to imprisonment or handed over to the creditor, where
as in our days execution against the person is replaced with execution against property.
The principle Nemo potest cogi ad factum (Nobody can be compelled to do a thing), which
no doubt is necessary, physically necessary where execution of the obligation is not
physically possible without the concurring will of the obliger, has been extended at least in
civil matters to the case where violence would have to be done to the person in order to
obtain his concurrence in the execution: Specific execution is then replaced by money
equivalents. In some countries the death penalty has been abolished, and mutilations of the
body -cutting off the hand or the tongue, or castration- are now in use only among
56
barbarous peoples. A more refined sentiment of justice has introduced the idea of a
necessary proportion between the gravity of the infraction and the penalty, has banished
from the law books the system of collective punishments, and so on.
Similarly, the mechanics of invoking the sanction vary with the jurisdictions and
subject matters of legislation. Sometimes compulsion is set in motion motu proprio
(spontaneously) and the police organs see to it that the law is respected without waiting for
an order or permission to that effect; sometimes an action is required, ordinarily judician
action, instituted by the particular injured individual or by any citizen whatever (popular or
taxpayer’s action) or by a prosecuting organ of the state (the state attorney). This is not to
say that obedience would be optional, but simply that the working of compulsion is subject
to special rules, depending upon the nature of the protected interests.
Specific Characteristics of Legal Compulsion. But beyond the diversities of
foundations or details, legal compulsion is distinguished, on the one hand, by its material
character. It is not only psychological, it is physical. The manus militaries (armed force)
exerts pressure upon the individual’s body or property, he is affected in his liberty, in his
estate, or in certain capacities to at (prohibitions against activities in commerce or
management). On the other hand, legal compulsion is distinguished by its organized and
technical character: At least in states worthy of that name, pressure results from a
machinery preconstituted under precise rules, functioning in an impartial objective, and
sure manner. From a formal point of view, that capacity for exaction by force most neatly
defines the legal rule, and especially the legal rule of the state. It justifies the designation of
“public power” that has been given to the state: The state is power not only because it has
the right to sanction its orders by force, but also because it has, and must have, the
implements of that power. The order of the state, at the border line and in case of need, is
the order of compulsion, of armed force. To satisfy the requirements of compulsion it is
not sufficient, therefore, that the ordinance be sanctioned by public opinion reacting in its
own diffuse and incoherent manner. A discipline abandoned to the sanction of opinion is
discipline disarmed and consequently deficient from the legal point of view.
This is not to say, though, that force would always succeed in all cases or even with
regard to all rules. Despite the power of the state, there are always smart people who
contrive to violate the laws without incurring the rigors of compulsion; or, again, certain
rules are psychologically or technically awkward to apply, so that the machinery
57
compulsion lends them but insufficient aid. In any case, actual inefficacy or impotence of
compulsion can affect the validity of the rule even less than disobedience: That validity
binds, and continues to bind, by virtue of the very dispositions made by the rule.
Special Cases of Legal Rules Without Compulsion. Sometimes, it is true, one
finds in the codes leges imperfectae (imperfect laws) which, by design or otherwise, are
diversed of compulsion and even of sanction. But what do those anomalies matter? Do
they not say by designation that they represent “imperfect” law - imperfect by the lack of
compelling sanction? In pure logic, compulsion and generally, measures of execution are
but an adventitious element with regard to a rule, adding to it without becoming an integral
part of it. The rule is complete and it obliges as soon as it disposes and prescribes; the rest
is a matter of execution, which does not touch upon the precept. But in law it is otherwise.
The execution is tied to the precept because it is, the function of law as social discipline to
act up on society and hence to realize it self. It is not merely for the individual to realize
the law; the law itself must prepare and attain that realization by measure of execution, and
especially of compulsion.
As for the obligations called “natural” in civil law, they are essentially foreign to
the law: Legally, they do not oblige, since he who is subject to them is free not to carry
them out. These obligations are not legal and, in this sense, they concern the law only by
reason of the effects which laws attach to their voluntary execution (denial of rescission,
denial of the character of a gift) or to their acknowledgment (transformation into an
obligatory civil indebtedness), and no less by reason of their origin, since they derive from
degenerated civil obligation (nullity, prescription). Yet, even though consecrated by the
law, the natural obligations remain, obligations that, in law, do not oblige.
Insufficiency of the Formula ‘Tendency Toward Compulsion’
The foregoing considerations enable us to understand why it is impossible to define
the legal rule simply by a ‘tendency toward compulsion’. According to that conception, it
would suffice that the rule be susceptible of sanction by compulsion without such
compulsion having to be positively organized. The motive that dictates the solution is
evident. One seeks in that fashion to safeguard the idea of a “natural” law distinct from the
moral rule and lacking compulsion;… to add effective compulsion would be the work,
precisely, of positive law. Yet, apart from that attempt to justify natural law, one must
58
confess that ‘tendency toward compulsion’ is a rather strange answer. From the viewpoint
of compulsion, that is, in distinguishing rules from that viewpoint, two solutions are
possible: Either the rule is sanctioned by compulsion or it is not. …. Effective compulsion
alone provides the answer. The “tendency toward compulsion” leaves the rule without
compulsion; and hence that rule, with regard to a rule sanctioned by compulsion, remains
but a rule of another category or, at best, an imperfect legal rule.
Legal Compulsian as the Monopoly of the State. Instituted for the ends of
protecting the rule of the law of the state, compulsion, and especially the right to punish,
belongs only to the state and its competent organs in this sense, compulsion is, and cannot
but be, public. It would be the reign of war and of anarchy if every citizen -or private
groups of citizens- had the right to employ force in order to guarantee the execution of the
laws laid down by public power, even under the pretext that those laws would consecrate
their own personal interests. Private compulsion is at times excessive and at times
insufficient: Insufficient on the part of the feeble against the strong; excessive, or in danger
of being so, on the part of the strong against the feeble. In any case, it is disorderly and it
provokes disorder. Historically, it was one of the first tasks of the state, in its formative
stage to substitute its justice and its compulsion for private justice and compulsion and
gradually to monopolize the coercive power. That was the logic of its role. As for
punishment in particular, one conceives the right to punish only as the prerogative of a
superior authority and not as a right of an equal. When one speaks of a private penalty, one
deals not at all with a penalty inflicted by a private person but simply with a penalty - or a
reparation - called forth to sanction a private wrong, an injury done to a private interest.
True punishment can only be public, since only the authority that has laid down the rule is
qualified to exact vengeance for its transgression.
Special Cases of Private Compulsion. It does happen, however, that private
individuals find each other recognizing a certain right to use material pressure -physical or
economic force - in order to safeguard the rights they hold by the rule of social discipline
(private compulsion). The classical case is that of legitimate self-defense: An indivudal
under attack against his life of his property has the right to defend by force his right to life
or his right of ownership…. In any case the right of legitimate self-defence plays a
subsidiary part: It is admitted only in the case of necessity, given the inability to have
59
recourse to public force. On the other hand, there are means of economic pressure
consecrated by the social rule itself: Such are the right of retention and the exceptio non
adimpleti contractus (Plea of non-performance of the contract by the other party). The
thing that is due will be delivered only if the opponent in turn has performed his obligation.
But, again, there is here not so much a means of compulsion put at the service of the legal
rule (notwithstanding its compulsive value, which is by the way rather psychological) as
the application of an elementary idea of reciprocity, postulated by justice and good faith.
Do we have to point also to the boycott and the blacklist? On cases where they are used
legitimately, they represent the exercise of a right of contractual freedom that is no longer
put at the service of other or of a law, but of more interests in the field of the competition
of life, so that the process no longer offers any analogy to the idea of legal compulsion.
Disciplinary Power of Private Bodies. Let us add that the rule of the law of the
state alone is susceptible of sanction by compulsion, and above all by punishment. The
inferior and subordinate groups may well enjoy what is called “disciplinary” power,
authorizing the application of so-called disciplinary penalties on the part of the group
against members who have offended against the rule of its internal law. But that
disciplinary penal power differs from the power of the state in extent and character. Not
only is it limited as to the kind, of offences and the kind of penalties; but even where the
authority of the group is competent to step in, there is always reserved an appeal to the
state as the judge of last resort. Thus, controversies between husband and wife, parents and
children, even in the field subject to the exercise of material or parental authority, are
susceptible to judgement by the state. Little would it avail the father of the family to
oppose to it his disciplinary power, which indeed derives from the authority over his
family that the state recognizes. That disciplinary power does not withdraw him beyond the
control of the public authority, which is superior to it. The same, mutatis mutandis, goes
for the rights of the authority of a corporate body over its members. Where the state exists,
the whole legal system of those groups, including the disciplinary power, is in certain way
subordinate to the legal system of the state, whose mission it is to pare down possible
abuses of the authority and disciplinary power of the groups over their members.
60
THEORIES AS TO THE ORIGIN AND THE DEVELOPMENT OF THE STATE
Various theories have been formulated and advanced by political thinkers as to the
incentives which have drawn men together and have led them to submit to a common
regulation of the various relationships which individuals bear to one another. Chief among
the theories which have been advanced are (a) the instinctive theory, (b) the force and
necessity theory, (c) the divine-right theory, (d) the social-contract theory, (e) the
evolutionary theory, and (f) the economic theory.
The Instinctive Theory. Since the time of the Greeks there have been those who
have traced the origin of political institutions to the natural instinct of man. Aristotle, one
of the first exponents of this theory, presented the view in the first book of The Politics that
man is by nature a political animal. While the state is an association of human beings and
has been preceded by the family relation and the village, the instinct for political
association is, he maintained, inherent in man. All forms of association, simple and
complex, are but the outward expression of his inherent quality. Cicero also set forth the
same conception in his Commonwealth. The first cause of an association of the entire
people for the purposes of justice and utility, he thought, is not so much due to the
weakness of man as to a certain spirit of congregation which naturally belongs to him.
When a consciousness of mutual rights and duties existed in a community, it was thought
that there likewise existed at that time the element necessary to create an organized state as
an outward expression of this consciousness. The universal instinct of human society is
toward external organization of the common activities of man. Greek philosophers thus
considered political authority as a “necessity arising from the social life of man …”. To
them the essential psychological element of unity in action existed subjectively in the
minds of people and became objective when expressed in law and political institutions. But
this subjective idea of unity was thought to have been the essential element of the state and
necessarily antedated the objective bond as manifested in the body politic.
The instinctive theory has an element of truth which has let to its acceptance and
exposition by certain modern political thinkers.
The Necessity and the Force Theories. To other thinker the necessity of selfprotection appears to have been the primary motive for the formation of political societies.

“Principles and Problems of Government” By Charles G. Haines and B. M. Haines; Harper and Brothers
Publishers, New York and London, pp. 36-57, 1921.
61
The necessity theory recognizes that men, because of their many wants, are mutually
dependent, and are compelled by them to seek aid through political association. Plato in
The Republic says “that owing to our many wants, and because each seeks the aid of others
to supply his various requirements, we gather many associates and helpers into one
dwelling place and give to this joint dwelling the name of city.” It was though by other
theorists that civic subordination was originally established by violence and submitted to
under the pressure of force. Self-defence and aggression then occasioned the centralization
of control in a common political agency whose power extended over a definite territory or
community. Along with the concept of necessity as a basis for organized community life
came the growth of the force theory, and with it the idea that might makes right. The best
account of this theory is to be found in Machiavelli’s The Prince, where force and
expediency, as the prime motives in state control, are succinctly set forth. Advocates of the
force theory are to be found chiefly in Germany. To quote one of its influential
expounders, force can be found only among people possessed of a strong vitality and of a
progressive civilization. Progress makes for victory. If it were not for war, we should
probably find that inferior and degenerated races would overcome healthy and youthful
ones by their wealth and numbers. The generative importance of war lies in this, that it
causes selection, and thus war becomes a biological necessity. It becomes an indispensable
regulator, because without war there could be neither racial nor cultural progress.
The Divine-Right Theory. Probably no concept as to the origin of government has
held so prominent and enduring a place in the political evolution of society as the divineright theory. The basis for this theory can be traced to the period of development when the
control of civic association was synonymous with the execution of what were considered
by primitive peoples the dispensations of the deities. In the earl history of the Orient can be
found the idea of the divine origin of civic mandates, when the ruler was high priest as well
as king and military leader. The foundations of the civic institutions of the Orient, as well
as the despotism of those in authority, supposedly rested upon the divine sanction of the
community god. In Oriental countries the divine will was evoked and executed by the king
or ruler, who was looked upon as the spokesman of the tribal god.
The close union of priestly, civic, and military functions, likewise, existed
everywhere in Europe in the earlier development of political institutions. Thus, in ancient
times, government and religion were inseparably associated. And it was largely through the
religious fear and superstition which the ancient peoples had for an unseen will expressed
62
through what was supposed to be a divinely appointed agent that the barbarous elements of
liberty and licence in man were brought into check by a common agreement or political
mandate.
Alexander reinforced the idea of the divine right of rule when, during his series of
conquests, he made a visit to the ancient sacred shrine in Egypt and claimed to have
received there the divine sanction for the campaigns which followed in Europe as well as
in Asia. Later throughout Europe further progress in political organization was effected on
the theory of a close union of kingship with a divine being, just as had been the case with
the despots of Asia. Support of the theory that the king or ruler obtained his power and
authority from a divinity to whom alone he is responsible has continued throughout the
ages.
Adherence to this idea was manifested by Charlemagne when he accepted
coronation from the Pope of Rome and thus recognized a union of civil and religious
authority. Such a recognition helped to restore order and political unity amid the chaos
which prevailed through Europe during the later medieval period. After the long and bitter
struggles which followed between the Church and the state, the temporal ruler gained
undisputed control over things temporal, while the Church was recognized as supreme over
things spiritual. Although this contest ended by establishing the authority of the king as
independent of that of the Pope, the former, whenever it was advantageous, still harked
back to the divine origin of royal edicts. In the rise of modern nations, kings have often
resorted to the time-honoured theory that their power in an inheritance from God. Such
was the case with the despotic rulers of England, James I, Charles I, and Charles II, and
Louis XIV of France. In the words of James I, “that which concerns the mystery of the
king’s power is not lawful to be disputed; for that is to wade into the weakness of princes,
and to take away the mystical reverence that belongs unto them that sit on the throne of
God.” Louis XIV held a similar idea as to the divinity of kingship and expressed it in the
following statement, “It appears from all this that the person of the king is sacred, and that
to attack him in any way is a sacrilege-kings should be guarded as holy things, and
whosever neglects to protect them is worthy of death.”
The Contract Theory. During the latter part of the Middle Ages and up to the
early eighteenth century, a new theory was advanced as an explanation for the political
association of man. This idea, known as the contract theory presupposes an original state of
nature. From this condition, individuals emerged into political organization by mutual
63
agreement whereby they bound themselves to submit to an external authority. The theory
was definitely formulated in continental Europe during the fourteenth and fifteenth
centuries, and was later carefully developed and elaborated by Hobbes, Locke and
Rousseau. Each conceived a somewhat different notion of the contract through which
political society was formed.
To Hobbes, man was essentially selfish and lived in a state of nature in which was
inclined to join his fellows in forming a common sovereign who might establish peace and
order. The state was thus based upon a compact between individuals whereby each of them
gave up a part of his own natural liberty in order that all might be protected by the strength
of all. When a number of persons had so delegated their individual rights to a common
authority, a commonwealth was thought to be formed. The contract, one entered into, was
regarded as eternally binding and the sovereign which was formed and in whom political
authority was concentrated was absolute. To the people there was no alternative but to
submit to this authority, for the right of revolution was forever lost and submerged in the
original contract which created a political society. It may readily be seen that Hobbes
became a champion of an absolute monarch such as the Stuarts were trying to establish in
England and Louis XIV was laying the basis for in France.
The state of nature, according to John Locke, was peaceful in character, and
mankind was getting on fairly well without civic association.
The state of nature (said Locke) has a law of nature to govern it, which obliges
everyone; and reason, which is that law, teaches all mankind who will but consult it, that
being equal and independent, no one ought to harm another in his life, health, liberty, or
possessions.
But the individual in the state of nature found it desirable, in order to secure better
protection for his rights and liberties, to form a political association. The origin of
government is, then, conceived by Locke as a compact wherein the individual voluntarily
surrendered into the hands of a general authority certain rights and powers by which his
remaining liberties and rights should be protected and preserved. The state is thus created
to protect rights already in existence. Moreover, these rights remain in the individual even
after the contract is formed and have the same binding force as in the state of nature. In
other words, the governing power created is in no case absolute, but is limited by these
rights. The power of the ruling authorities is a fiduciary one and, when abused, may be
revoked by people who granted it. The belief that government is thus based upon the
64
consent of the governed, and that the right of revolution against an arbitrary and abusive
sovereign in an inalienable right - both of which are forcibly expressed in the Declaration
of Independence - represent, to a great degree, the fundamental principles of the contract
theory as expounded by John Locke. These principles were also embodied in large part in
American state constitutions.
Rousseau began his Social Contract with the striking epigram, “Man was born free
and everywhere is in chains.” Here was suggested the doctrine of a state of nature which he
had previously developed - that is, that man lived in a condition of freedom and bliss, and
that he lost much of his freedom as the conventions of society grew and as political
authority was asserted over him. Although man is naturally free, Rousseau believed his
freedom might be protected and even improved upon by the formation of a democratic
political society. The problem with him was “to find a form of association which shall
defend and protect with public force the person and property of each associate, and by
means of which each, united with all, shall obey, however, only himself and remain as free
as before.” This difficult problem is solved by the formation of government based on the
volonté générale, or general will. The general will is not always the will of a majority; it
represents rather the will of those who conceive and work for the best food of the entire
society. This general will brings into being the sovereign, which, resting upon the
agreement and consent of the people, is regarded as inalienable and indivisible. Since it has
its source and sanction in the voice of the people, there need be no fear of creating an
absolute authority. According to this theory, the government and officers of the state are
the mere agents of the sovereign, and they must look to the people for their mandate. In
putting the authority of the people uppermost and in placing the sanction of government
entirely upon their will, Rousseau formulated the democratic ideal which was embodied in
the political philosophy of the French Revolution, and which, through that great upheaval,
profoundly influenced the growth of popular government in all countries.
The Common-Consent Theory- In contrast with the force and divine-right
theories, there has been a new development of the contract theory toward an ideal of
government based on common consent. The ideal of common consent was formulated in
the Declaration of Independence, where it was affirmed that
We hold these truths to be self-evident, that all men are created equal, that they are
endowed by their Creator with certain inalienable rights, that among these are life, liberty,
and the pursuit of happiness. That to secure these rights, governments are instituted among
men, deriving their just powers from the consent of the governed, that whenever any form
65
of government become destructive of these ends, it is the right of the people to alter or to
abolish it, and to institute new government, laying its foundation on such principles and
organizing its powers in such forms as to them shall seem most likely to effect their safety
and happiness.
The sentiment of the Declaration as exemplified in the government of the United
States was forcefully expressed in the terse phrase of Abraham Lincoln as a “government
of the people, by the people, and for the people.”
The Evolutionary Theory- The foregoing theories as to the incentive which led to
man’s association with his fellow-beings for civic purposes have been found to be at best
only partially correct. Though there is an element of truth in each, they are now felt to be
but a part of the modern theory of the evolution of political institutions. It is granted that
the instinctive theory explains how at the very beginning of this evolutionary process the
inherent qualities or characteristics of man caused him to associate with others, and that he
is by his very nature a political animal. All along the line of this development it is obvious
that he has, on the grounds of necessity, established his authority by force and then has
sought justification for his action. Then, too, it was advantageous for those who succeeded
in gaining an ascendancy over others to employ and rely on the idea of a direct personal
connection with a divinity to reinforce their power and authority. And while it is generally
conceded that the social-contract theory cannot account for the origin of the state, it has
without question served man’s purpose in bringing about changes in the existing order of
political institutions and in justifying the formation and exercise of political authority.
Upon examining, then, the evolutionary theory, which includes the other theories
within its scope, it is found that modern complex political institutions represent a growth
extending through many centuries. Just as the biologist maintains that plants and animals,
as found today, had rudimentary beginnings in the past, that present-day species of both are
the result of actions and reactions resulting from environmental influences, so the student
of politics find that political institutions represent the outcome of man’s struggle to adjust
himself to his environment and to use the same in meeting the new conditions which are
ever arising. This development from the primordial civic association to our present
complex political institutions has been previously discussed. The earliest forms of
concerted action were there traced in the family, the clan or gens, and the tribe. It was
found that tribes united with tribes to form city-kingdoms, and city-states, and still later
more complex and comprehensive systems of organization arose in the military nations of
66
the Orient and of Europe. It has been shown, too, that with the growth of individual
freedom in local provinces a strong centralized power dominating large areas becomes less
and less possible. With the rise of the mediaeval state and the modern nations, the
complexity of modern political institutions has increased. This has resulted largely from
the political consciousness which has been gradually awakened in man, not only in a few
leaders, but in the great masses of mankind. The intricacies of modern government, then,
have not arisen suddenly, nor have they been artificially imposed upon mankind by the
ingenuity of a few of their number. Rather they are the results of the broadening
intellectual outlook and the awakening of an increasing political consciousness within man
in his attempt to adjust himself to a changing environment. The process begun ages ago
when man was a primitive animal, has continued to the present day, when he is found
adjusting himself anew to the conditions of modern civilization.
The Economic Theory- A phase of the evolutionary theory which requires brief
consideration is the economic interpretation of the state. Attracting attention during the
middle of the nineteenth century and gaining favour the latter part of that century, the
economic interpretation of man’s, political development continues to claim an increasing
number of adherents. Stated very briefly, it may be said that the main feature of the
economic theory of the state is that political organization had as its chief incentive the
necessity of man’s economic struggle for existence. In the evolution from his primitive
conditions to his present status in society, the satisfaction of his increasing wants has
occasioned the development of the control of one person over the life and working power
of another; or, in the usual phraseology, it has resulted in the economic exploitation of man
by man. The consequent exploitation of one class by another and the struggles which
necessarily ensued were, according to this view, the important factors in the formation of
the political machinery which is now called the state with its laws, courts, and numerous
agencies by which the ruling classes and later the owners of large industries have sought
greater power and protection. Beginning with the first subjugation and ownership of slaves
by primitive peoples and ending with the grant industrial systems of modern times, the
advocates of the economic theory of the state interpret the various political developments
as but steps in the history of the economic struggle between classes. The national state,
with all its organization and administrative machinery, according to this view, has been
evolved as a means by which the more powerful class exploits the results of the labour of
67
the less powerful. Tough it has gained many adherents, the economic interpretation of the
state which regards the chief motive of political organization as self-preservation and the
dominance of selfish interests, backed at first by brute strength and military power and
later by political institutions based on laws and courts, has at the same time been adversely
criticized.
Critics of this theory have attacked it on the ground that progress in political
development would have been impossible had class struggle and class hatred been the
dominant elements in man’s evolution from primitive conditions, Then, too, it is
maintained that in emphasizing the economic motive in progress there has been a tendency
to read into the past forces and conditions which did not exist and which have developed in
more recent years through changes resulting from the industrial revolution which rendered
it possible for a few individuals to control the work and results of the labour of many.
Furthermore, instead of a deliberate attempt to form and control political institutions for
the subjugation of one class by another, the interpretation and application of laws have at
times seemed to work to the advantage of one class and the disadvantage of another. But
when such interpretation of the laws is carried to an extreme, the result has usually been a
change in political institutions, which has alleviated the wrongs of the oppressed class.
Though the economic theory of the state has thus served a useful purpose in calling
attention to the influence of some of the fundamental factors in political progress, it is
apparent that this theory, like some of the others briefly discussed, serves as only a partial
explanation of the grounds for political obligation and control.
DEFINITIONS
For the purpose of clearness and accuracy, brief definitions of a few of the terms in
general use in political science are necessary. Subsequent chapters will amplify and render
these more definite. The terms to be defined are society, nation, state and sovereignty.
Society- Society is the word commonly used to designate a group of persons who
are bound together in relations more or less permanent and who share a common life. It is
used frequently to comprise the social groups through which the common life of a people
is carried on. In calling attention to life in society, sociology has given us a view of the
individual as a socious -that is, a unit whose ideas and opinions are formed in large part by
68
the groups in which he lives, moves, and has his being. It may be going too far to hold, as
did Gabriel Tarde, that virtually all of the life of the individual is the result of imitating the
acts and thoughts of his fellows, but sociology and psychology are both combining to
demonstrate how completely the life of the individual is a reflex of the groups to which he
belongs.
Though the consideration of the influences that mould individual life in the major
part of these groups belongs to sociology and psychology, in so far as these groups
participate in and influence political action, they become of interest to the student of
government in the growth of democratic government and in the increasing influence of
public opinion in politics such groups take a larger part in the determination of political
action. It becomes imperative, therefore, to give consideration to the activities of social,
political, and other groups as participants in the formation of public opinion and in the
direction of the affairs of government. Society, then, as organized groups which assist in
the direction of public affairs, becomes an integral part of the study of government.
Nation- Nation has two rather distinct meanings. According to one, it refers to a
collection of individuals who speak the same language, have similar customs, and are
bound together by ties sentimental and psychological…..
The American nation …
comprises all of the people who live under the political jurisdiction of the government
United States. From this standpoint the criterion of nation is political and not racial. Nation
in the latter sense designates people under a single political jurisdiction and is practically
synonymous with the more common and specific term state.
State. The terms most common in the description and discussion of political affairs
are state and government. Since they are often vaguely and loosely understood, it is
necessary to define them in a specific manner. State is sometimes used in an abstract sense
to denote the universal phenomenon, which appears in all types of political life.
We recognize, however (says Mr. Willoughby), that no matter how organize, or in
what manner their power be exercised, there is in all states a substantial identity of
purpose; and that underneath all these concrete appearances there is to be found a
substantial likeness in nature. If now we, disregard all non-essential elements, and
overlook inconsequential modifications, we shall be able to obtain those elements that
appear in all types of state life, whether organized in monarchical or republican, the
69
despotic or limited, the federal or unitary form.
It is in this abstract sense that the state is conceived as the political activities of
mankind wherever manifested. To some, the state is regarded as beginning only when a
supreme power is created, such as that exercised by, the patriarch in Judea, Greece, and
Rome. To others, the state begins with the social and political life of man, and its origins
are lost in the long recesses of the post when men first began to live in groups.
The more general use of the term state is to denote the permanent political
organization of a particular portion of mankind. It designates, then, in a concrete sense, the
organization through which the political life of a community functions. Though the
manifestations of public power vary greatly, four essentials have come to be associated
with the concept state, namely:
(a) A group of persons with common interests and common aims.
(b) A determinate portion of the earth’s surface - a territorial basis.
(c) Independence of foreign control.
(d) A common supreme authority.
Political control in primitive communities does not, of course, exhibit all of these
essentials. In fact, all four are distinctly manifested only in the modern nationalized state.
In the pastoral tribes of the Orient and among the American Indians, the territorial basis of
political authority was not well defined. In neutralized states, semi-sovereign states and
protectorates complete independence of foreign control is lacking, and with the growth of
international comity and international law complete independence of foreign control is
lacking, and with the growth of international law complete independence of foreign
influence and control is possible only for an international outlaw. With the establishment
of a court of arbitration and an international court of justice, independence of foreign
control will be even further curtailed. Moreover, while the organs of the state may possess
authority to render final legal decisions, it is well known that the supremacy of the state is
not absolute and not without limitations. Recognizing such limitations and restrictions, we
may define the state roughly as a permanent political organization, supreme within a given
territory, and at the present time, for most purposes, independent of legal control from
without.
Sovereignty- Sovereignty, or as it is often called supreme power, is considered the
essence of the state. It is indeed the factor without which there can be no state. About this
70
term, the political theorists have waged a long controversy. According to one school of
theorists, sovereignty is unlimited, inalienable, indivisible, and absolute. To another
school, such an unlimited, absolute power is inconceivable, it is contended that all public
powers are limited, and, in so far as public authorities rule by law, they are of necessity
restricted in authority and action.
Part of the difficulty in defining the word comes from a failure to distinguish
various meanings. At one time, political sovereignty is thought of as the vague force at
work through public opinion and the electorate, which are regarded as the ultimate power
in democratic societies. At another time, the concrete expression of public power in
constitutional conventions or constituent assemblies is considered as the exercise of
sovereignty. The supreme power acting in this constituent manner, in the process of
constitution making, is that alone to which some would apply the term sovereignty. What
is ordinarily meant when the word is used in a governmental sense is more accurately
called legal sovereignty. Legal sovereignty is the aggregate of powers possessed by the
ruling bodies of a political society. It is made up of two features:
(a) Internal sovereignty -legally paramount authority over all individuals and
authorities within the state.
(b) External sovereignty -independence from legal control from without. In a
general sense the sovereign is regarded as incapable of legal limitations, but public power
is, as a rule, exercised through public organs, which are required to keep within certain
spheres of action and are almost invariably limited in authority .
The Pluralistic and Monistic Theories of Sovereign.- A controversy in which
many political thinkers are new interested is involved in the nature of sovereign power and
its significance in society. The two views, which are defended by opposing groups, are the
monistic theory and the pluralist theory of the state. According to the monistic theory,
which has been for a long time the accepted theory of political science, the state is defined
as a political organization which can enforce its will, if need be, by the use of physical
force. To the major physical force, which is the basis of this organization, is given the
name of sovereignty. Among the essential characteristics of such political organizations
according to the monistic school are:
1. A territorial basis over which the sovereign power may be exercised.
2. Unity -there can be only one such sovereign in a territory.
71
3. The sovereign is absolute, unlimited, unalienable, and indivisible.
4. Individual liberty depends upon the protection and guaranty of the state.
By the advocates of the monistic theory attention has been directed chiefly to
“direct and absolute power over each individual subject as well as over all groups of
subjects.”
To the pluralists, the underlying facts of political organization deny the unity and
absolutism of the state, which is characterized in the monistic concept of sovereignty. They
do not regard the state as a social group as distinct from all other groups and paramount to
them, but the state is merely one among many groups or associations into which mankind
is divided and to which allegiance is accorded. Thus it is contended men form themselves
into groups and societies and communities of various kinds, religious, cultural, social,
economic. They have churches, the bank clearing house, the medical association, the tradeunion, and wheresoever there is an interest strong enough to form a nucleus you will find
men gathering around it in an association.
To certain of these associations, it is maintained, the individual gives allegiance and
loyalty not differing either in degree or kind from that recorded to the state. The pluralistic
conception of society in the words of one of its chief advocates denies the oneness of
society and the state. It insists that nothing is known of the state-purpose until it is
declared; and it refuses, for obvious reasons, to make a priori observations about its
content. It sees man as a being who wishes to realize himself as a member of society. It
refers back each action upon which judgment is to be passed to the conscience of the
individual. It insists that the supreme arbiter of the event is the totally of such consciences.
It does not deny that the individual is influenced by the thousand associations with which
he is in contact; but it is unable to perceive that he is absorbed by them. It sees society as
one only in purpose; but it urges that this purpose has in fact been differently interpreted
and is capable of realization by more than a single method. In such an analysis the state is
only one among many forms of human association. It is not necessarily any more in
harmony with the end of society than a church or a trade-union, Freemasons’ lodge. They
have, it is true, relations which the state controls; but that does not make them inferior to
the state. The assumption of inferiority, indeed, is a fallacy that comes from comparing
different immediate purposes. Moral inferiority in purpose as between a church and state
there can hardly be; legal inferiority is either an illegitimate postulation of Austinian
sovereignty, or else the result of a false identification of state and society. The confusion
72
becomes apparent when we emphasize the content of the state. When we insist that the
state is a society of governors and governed, it is obvious that its superiority can have
logical reference only to the sphere that it has marked out for its own and then only to the
extent to which that sphere is not successfully challenged.
To one of the best known exponents of the pluralist theory the chief problem of
political science is whether principles or rules (une régle de droit) are superior to the state
and limit state action. The problem is to learn whether these are obligations of a legal kind,
positive or negative, which bind the state, considered by itself, delimiting the power of its
several departments with the result of imposing, duties of action or inaction upon its
several departments, legislative as well as executive.
According to Duguit the answers to the problem take chiefly one of two forms
which for convenience have been described as the metaphysical and realistic doctrines.
With the metaphysical school are classified all those who regard the state as a personality
distinct from that of individuals and who consider the basic element of the state “a personal
being possessing a will which is by nature superior to individual wills, having no other will
superior it. The name ordinarily given to this concept is sovereignty.”
From the standpoint of the realistic doctrine the state as a person is distinct from
the individuals that compose it. There is a state in human society when an individual or
group of individuals has succeeded in monopolizing the power of constraint in that society
and within definite boundaries; or in other words, when there is in a given society
permanent differentiation between those governing and those governed. Instead of the will
of the state there are merely the individual wills of those governing. The metaphysical
group of Duguit’s analysis corresponds to the monists who believe in an obsolete
sovereign, and the realist group corresponds to those who see political society groups of
individuals who divide their loyalty and allegiance among various social groups, of which
the state is one of the most important.
Undoubtedly there are merits in the contentions of each school. The monists set up
as an ideal to work for in human society political organizations which exercise a supreme
control over the political and social activities of the individual. Of course not all social
activities are controlled by this all-powerful sovereign, but there is none which may not be
subjected to political control when the interest of the group so requires. On the other hand,
the pluralist rightly protests against an unlimited sovereign with a corresponding legal
omnipotence and asserts that states as well as other groups must keep within limits of the
73
moral law and other requirements necessary to maintain social solidarity. In this respect the
pluralist becomes an advocate of the theory of natural rights which is designed to check
over interference of the state with the affairs of individuals and groups.
Since government depends very much upon the character of the men who hold
public office and who exercise public powers, as well as upon the legal rules which are laid
down for their guidance, modern writers are inclined to think of sovereignty as the powers
and the authority which those entrusted with public office see fit to exercise. In so far as
they are free to exercise an uncontrolled discretion and render decisions with the full force
of public power back of them, they are unlimited.
74
NATURAL LAW*
Theories of natural law, as we shall see, do not afford much information about the
nature of any particular system of law. The method employed by naturalist theorists is
essentially an a priori one, and, as we shall see also, many of the assumptions that were
once accepted are now rejected as false. Furthermore, it must not be supposed that the
phrase “natural law” has had a constant meaning: it has meant different and often
contradictory things in the course of its long history. It has been utilized to justify social
organization and to condemn it, to encourage both revolution and reaction, to support a
theocratic conception of the world and to defend a militant secularism, while the “state of
nature” has been conceived of as being one of peace and happiness as well of strife and
disorder. It would appear that theories about natural law have not been evolved to explain
any given legal system, but rather to serve an ulterior end, namely, the fulfilment of the
social need of the age. To put it in another way, the emotive content of the word ‘Law’ has
been utilized to induce men to accept or change the existing state of affairs.
THE GREEK PERIOD
Two trends of thought existed among the Greek thinkers. The Sophists developed a
scepticism in which they recognized the relativity of human ideas and, rejected absolute
standards. The basis of law was the self-interest of the lawmaker, and the only reason for
obedience to law was the self-interest of the subject. Law was thus conceived of as
essentially the product of expediency. Thrasymachus believed that law was made to serve
the interest of the strong, while Callicles asserted the opposite, namely that laws served the
interests of the weak since they were in the majority. Protagoras, taught that, as law was a
matter of expediency, it was binding on men irrespective of its goodness or badness. Law
was an inconstant thing, certainly not founded on immutable principles, such as justice.
This attitude was borne out by the ever changing laws and constitutions of the numerous
Greek city states. Indeed, Timon pointed to this very fact when questioning the existence
of any universal idea of justice.
The other school of thought indulged in the belief that law was guided by uniform
principles, which could give it stability. This was the school which prevailed, and it
*
Dias and Hughes, “Jurisprudence” Butterworths, 1957; pp. 350- 362.
75
extended its influence during the succeeding centuries. The reasons why it triumphed are
possibly twofold. Foremost is the undeniable fact that it suited the great social need of the
time. The Greek city-states had only just emerged from chaos and the hard-won stability
was as yet precarious. The theory which appealed, therefore, was that which at least helped
to maintain the existing state of affairs and also held out a promise of increased stability.
Secondly, this theory offered a reason for obedience to law other than naked force or the
self-interest of the governed. Self-interest was also incompatible with social order.
The basis of this theory was somewhat as follows. Patterns of behaviour in Nature
are not controlled by those who conform to them. Thus, a flower does not choose its
location, nor is a cat called upon to make moral decisions. They may be said to lead a
“natural” way of life. Man alone has highly developed powers of will and reason, and he
can act or not as he pleases. It was an easy step to conclude that for man too there must be
some “natural” way of life, which he has distorted, or from which he has departed by exercising his power of choice. Socrates (c.470-399 B.C.) set out to urge the existence of
immutable moral principles. He refused to admit with the Sophists that human actions were
solely governed by inclinations and desires. He contended that man possesses the faculty
of “insight” into the nature of conduct, this insight being knowledge of goodness. In this
way he propounded a natural morality. He and his pupil Plato (429-348 B.C.) with their
firm assertion of the discoverability of absolute standards had started off European thought
along a road, which it still pursues. Man’s insight, the knowledge of goodness, was the
criterion by which all regulation and conduct must be examined. Herein we find, already
formulated, the classical disassociation of actual law from an ideal “natural” law. Socrates
went on to propound that one of the dictates of natural law was that authority and positive
law must be obeyed. This was a plea for security and stability, which, as already
mentioned, was one of the principal needs of the age. He did not, however, advocate a
blind acceptance of positive law; this, he said, must be subjected to critical examination in
the light of man’ s insight.
The doctrines of Socrates and Plato were elaborated by Aristotle (384-322 B.C.).
He also distinguished between natural and conventional justice, the former being invariable
in its content and the latter merely the product of changing situations. A further step, which
he took, was that, in his view, society was “natural”. Aristotle, like Socrates, was in favour
of preserving the status quo and he harnessed natural law in playing down the precept that
positive law must be obeyed, it is not perfect and it may give rise to inequities, but we
76
should aim at reforming the law, not breaking it. Slaves must accept their lot, for slavery,
he argued was a “natural” institution. He did however urge humanitarian treatment of
them.
This line of thought was further developed by the Stoic school founded by Zeno
(350-260 B.C.). Nature was identified with reason; natural law was the law of reason. The
law of nature was thus in the mind of man, and when he lives according to his reason he
conforms to natural law. The Stoics believed that in the dawn of humanity men lived in a
state of perfection, which was regulated by reason. This had been destroyed and perverted
by the selfishness and greed of men. The great aim of lawmakers was now to approximate
the laws brought about by existing conditions to the ideal natural law. The Stoic morality
also imposed upon individuals a stern duty to suppress emotion and worldly things and to
strive towards the perfection of living according to reason.
THE ROMAN PERIOD
The Roman lawyers were essentially practical, and abstract philosophy played
very little part in their outlook. They were content to take over the Aristotelian and Stoic
doctrines, for a study of them was in all probability a part of Roman education. The
principal division of Roman law was into the jus civile the civil law of Roman available to
citizens only, and the jus gentium, which was available to everyone else. The expansion of
the Roman empire and the development of Rome as the trading centre of the world brought
an influx of people from all parts of the than known world to name. The civil law was not
open to them, so a body of rules was evolved to apply to cases in which they were
concerned. This was the jus gentium the “law of nations”, applicable to persons of all
races. The evolution of these rules was entrusted to the magistrate in change of these cases,
the praetor peregrinus, and he relied largely on common sense and reason. The obvious
step, therefore, following the teachings of the Stoics, was to identify the jus gentium with
the jus naturale. Both were applicable to all men, regardless of race, and both were founded
on reason. However, the assimilation was not carried through completely, for we find sharp
distinctions drawn between institutions of the jus gentium and of natural law, especially in
regard to slavery. Tryphoninus spoke of freedom as existing at natural law and slavery as
having been introduced by the jus gentium, and the classic definition of slavery by
Florentinus and repeated in Justinian’s Institutes refers to it as an institution of the jus
77
gentium which is contrary to nature. How far there was a clear distinction drawn between
the jus civile, the jus gentium and the jus naturale, and how far the distinction was
Classical or Byzantine is a question into which it is not necessary to enter.
Lay writings provide more speculation about natural law than the texts of the
jurists. Cicero refers to it as superior to positive law. The tendency of jurists, on the other
hand, was to regard it as inferior. Thus, Ulpian equates it with animal instinct, and his
statement is quoted at the commencement of the Institutes.
The chief interest of the Roman period lies, not in the contribution of the Roman
lawyers, but of the early Christians. The most important of these is St. Augustine (354-430
A.B.). Like many of the early Christian fathers he was influenced by the last school of
pagan philosophers, known as the Neo Platonists because of their adherence to the
metaphysics of Plato. They emphasized the repression of the body and a concentration on
things of the mind and soul. St. Augustine, who had at one time been a professor of Neo
Platonist philosophy, preached that mankind was in a state of moral death from which only
Christian Grace can succour it. The tempting conclusion, which is only round the corner, is
that the state of nature is depraved and corrupt. Induced, in the centuries, which followed
nature became synonymous with corruption, and the task of man was to overcome by an
intense asceticism the nature within him. St. Augustine himself cannot be accused of any
such inference. He constantly repeated that “every creature, in so far as it is a part of
nature, is good”. The institutions of man, such as law, government, property, were the
product of sin. If human law was clearly contrary to the law of God, it could be
disregarded. The church, as the exponent of divine law, could interfere with and override
the state.
THE MEDIEVAL PERIOD
At the close of the Dark Ages and with the establishment of the Holy Roman
Empire, theories of natural law entered upon a new phase. The great social needs that
helped them were twofold. The first of these was the need to establish the authority of the
church. Secondly, as in the early Greek period, the present are marked the emergence from
a long period of chaos. Hence the need, as before, to preserve the newly won stability.
The church held the intellectual monopoly, but its philosophical material consisted
largely of the works of the Greek thinkers. To take over the heathen doctrines of natural
78
law would have been inconsistent with the claims of Christianity and of the church. The
obvious solution, which was adopted in the famous Decretum Gratianum (c.1140), was to
identify the law of nature with the law of God. There was also considerable rivalry
between the church and the Holy Roman Emperor, and the church resorted to philosophical
arguments to justify her claim to supremacy. The teachings of St. Augustine were useful in
this respect in so far as he taught that the church could interfere by virtue of superior
authority with positive law.
The most through-going attempt to harmonize the teachings of the church with
those of the ancient Greeks was that of St. Thomas Aquinas (1226-1274). He distinguished
between four kinds of law. There was, firstly, eternal law, which is the law of God;
secondly, natural law, which is eternal law revealed to man through to exercise of this
reason; thirdly, divine law, which is eternal law revealed through the Scriptures; and
fourthly, human law, or man-made law, which must be made to conform to reason and thus
to eternal law.
The outstanding implications of the Thomist system may be listed as follows. (I)
Christianity was no longer an irrational faith. The law of nature is the discovery of eternal
law by reason. Christianity is, therefore, supreme reason. (ii) There is no suggestion that
the body and things material are synonymous with corruption and a clog on the spirit. (iii)
In so far as human laws are based on reason they are a reflection of eternal law. There is,
therefore, a duty to obey them. It would follow from this that if a law was arbitrary and
unjust there is no such duty. But St. Thomas qualifies that by saying that there may be
subtle dictates of morality which enjoin us to obey even a seemingly wicked positive law,
for instance to avoid social disturbance. This is clearly a concession to the need of the time
to preserve social stability. (iv) He sought to strengthen the authority of the church by
saying that human authorities are responsible to the church in matters relation to eternal
law, and buttressed the argument with the proposition that the church was the authoritative
interpreter of divine law in the Scriptures. (v) The identification of natural law with reason
helped the separation, which came about much later, of natural law from theology.
79
THE REFORMATION AND THE RENAISSANCE TO THE
NINETEENTH CENTURY
The Reformation and the Renaissance brought about a convulsion in the existing
state of affairs. The Holy Roman Empire disintegrated and the modern municipal state
emerged. At the beginning there were two great social needs, the emancipation of the
individual and the consolidation of the power of the national sovereign. The individuals
wished to free themselves from the church and the shackles of the feudal system which had
held Europe for so long in an iron grip. The rising commercial middle class wanted
freedom to pursue their trade. The age of discovery and colonization was setting in, and
these enterprises were left to individuals who had to be guaranteed their liberty to carry on
these activities. The need to enhance the power of the national sovereign was felt in two
ways. Individuals, particularly the commercial middle classes, found that a powerful
sovereign was their best guarantee against interference; and the sovereign, for his part
needed more and more strength to maintain his independence in a precarious world filled
with bitts rivalries.
Side by side with these developments natural law assumed a more secular aspect.
This was due to a combination of factors. For one thing, theories, about natural law were
adapted to meet the above needs. Secondly, great advances were being made in knowledge
about the physical operations of the material world. Galileo (1564-1642) may be regarded
as the founder of modern physics. The Thomist system contained no scientific treatment of
the movement and measurement of bodies and forces, and its exponents found themselves
intellectually incapable of assimilating the new knowledge. The Professor of Philosophy at
Padua, for instance, refused to look through Galileo’s telescope. Such an attitude of mind
could not withstand the flood of fresh and exciting discovery which was fomenting the
intellectual world. The effect of this disintegration of the Thomust view of the world was
not a complete rejection of natural law theories, but an adaptation of them. Thirdly, the
Protestants denied that the church had any authority to expound the law of God, and in the
controversy the appeal to the law of nature as based on the reason of the individual came
more and more into prominence.
The general form which naturalist theories assumed was the “social contract”.
Subject to variations, which we shall consider, the underlying theme is that man was born
independent; he entered into society by means of an agreement with other individuals in
80
order to preserve his life and property; the individuals surrendered all or part of their rights
and freedom to the social authority, which guaranteed to each one the safety of his life,
property and a certain measure of freedom. The rights of the individual to life, liberty and
property were inalienable, since they existed before there was society; they are the “natural
rights of man”. These theories mark the inauguration of a strongly individualist epoch.
One of the first expounders of the new fashion of thought was the Protestant
Dutchman, Grotius (1583-1645). A feature of interest and significance in his writings is the
shifting of emphasis from Divine Providence to the reason of man. He believed that natural
law was rooted in the nature of man, and would exist even if there were no God. This must
not be taken to imply a denial of the Deity, but an assertion that natural law is independent
of God and is a quality of man. It is man’s reason that impels him to seek society. The state
originates in a contract, by virtue of which each individual surrenders his sovereignty to
the ruler. They thus become bound to an almost blind obedience to the ruler, and only in
exceptional situations did Grotius recognize a right in the subjects to revolt. The only
guarantee which they have against an abuse of power by the ruler is that he, too, is bound
by natural law. Grotius explained what the meant by natural law in these words:
“A dictate of right reason, which points out that an act, according as it is or is not in
conformity with rational nature, has in it a quality of moral baseness or moral necessity.”
Grotius went on from this point to argue that the state and its ruler are not
irresponsible, but are bound by natural law to enter into a society of nations, and in this
way he became the “father of international law.” All this is, however, a great step from the
doctrine of Aquinas.
In the hands of Thomas Hobbes (1588-1679) the social contract theory assumed a
much more militant form. Everything for Hobbes was material and everything material
could be weighed, measured and known by the new sciences. In his philosophy there were
more things in heaven and earth than matter and its motions. He believed that man’s life in
a state of nature was one of fear and selfishness. The life of man, to quote his own famous
words, was “solitary, poore, nasty, brutish and short”. To escape from this state of affairs
men entered into the social contract whereby they surrendered their sovereign rights to a
sovereign ruler, who was to guarantee to each his preservation. It must be remembered that
Hobbes lived through the Civil War in England, and his passionate preoccupation was with
stable and secure government. The implications of Hobbes’s doctrine were as follows. In
the first place, it sharply reflects the idea that the security of the individual is to be found in
81
the exaltation of the power of the sovereign. The menace to the individual from the
sovereign is not faced. There is a suggestion that the sovereign is bound by natural law, but
this is nothing more than morality. Secondly, since society depends on the sovereign, law
in society becomes what the sovereign commands. Thirdly, it is of great importance that
Hobbes expressed the main precept of natural law in the form of the individual’s right to
self-preservation. A writer of great authority has urged that, beyond similar terminology,
there is nothing in common between the classical, scholastic ideas of natural law as a
higher law laying down duties, and the modern idea, the seed of which is in Hobbes, of
natural law as a system of natural rights in the individual. Fourthly, in Hobbes’s scheme
the authority of the church as the interpreter of God’s law is vigorously denied. All power
is given to a severely utilitarian secular sovereign. This marked the final break up of the
Catholic international order of things.
Although the individual had been freed from the feudal system and the church, it
was not long before a new menace appeared in the shape of the national sovereign, whose
authority had been so sedulously built up. The paramount need now was to safeguard the
individual against the abuse of sovereign power; the sovereign must safeguard the security
of the individual but must not interfere with him. This was the age when the new learning
of Galileo, carried immeasurably further by the work of Newton, was triumphant, when
thinking man felt himself to be the inhabitant of a friendly world, the secrets of which
should all in time be revealed by the progress of science, this orderly structure being
topped off by a genial and well meaning Deity. It was an age, too, when the modern state
had found its feet, an age especially in England of commercial adventure and expansion, an
age of trading middle classes.
A revision of natural law theories was called for, and it found expression in the
work of Locke (1632-1794), that urbane purveyor of eighteenth century rationalism. To
Locke the state of nature which preceded the social contract was not one of anarchy, as
Hobbes had maintained. It was instead a golden age having only one defect, as Hobbes had
maintained. It was instead a golden age having only one defect, namely that property was
insecure. To remedy this flaw man entered into the social contract by which he surrendered
to the sovereign, not all his rights, but only the right to maintain order and enforce the law
of nature. The individual retained the natural rights to Life, Liberty and Estate (or
Property). The purposes of government and law was to protect these rights, and as long as
they fulfil this purpose, laws are binding. When they cease to protect or when they
82
encroach upon these natural rights, laws lobe their validity and governments may be
overthrown. In this way Locke became the champion of the revolution of 1688-1689.
Locke argued that unlimited sovereignty was a violation of natural law. What was needed
was a constitutionally limited sovereign. He himself was not very definite as to how these
limitations were to be imposed, and it was left to Montesquieu (1689-1755) to propound
the doctrine of the separation of powers.
The social contract theories were destined to undergo yet another revision. The
protection of the individual against the sovereign reached its climax in the theory of
Rousseau (1712-1778). Rousseau set out to find a form of community in which the
community as such would protect the individual, but in which at the same time the
individual would remain free. Accordingly he argued that in the social contract men did
not surrender their rights to a single sovereign, but to the community as a whole. Each
individual is not subjected to any other individual, but to the “general will”, and to obey
this is to obey himself. Law and government are thus only the reflection of the general will,
which may revoke or overthrow them. Rousseau’s teachings glorified popular sovereignty,
and it is not surprising to find that they became the philosophy of the French Revolution.
NINETEENTH CENTURY PERIOD
The nineteenth century marked a decline in the popularity of natural law theories.
For this there were many reasons. In the first place, the existence of absolute, unchanging
principles was convincingly attacked, notably by Hume... Secondly, a reaction set in
against the excessive individualism, fostered by natural law theories, which had resulted in
the French revolution. Thirdly, we find in the course of the century a new preoccupation
with society, a collectivist outlook on life, which has been gathering strength in ever
increasing measure. The natural law theories of the age immediately preceding, which
were based on the social contract, were adapted to an individualist outlook. In the dawn of
a collectivist epoch these theories began to fall into disrepute. Fourthly, the a priori
methods of the natural law philosophers were unacceptable to those nurtured in the critical
and inductive spirit of science. The postulates of natural law were subjected to analytical
examination with disastrous results. Their bases were revealed as unsubstantiated
hypotheses or else built up by means of false inferences. Where, for instance, is the
foundation for the sweeping assertion that man must always seek society, or that man is
83
necessarily selfish, etc? Again, it is a wild inference to assume that because certain
institutions in different countries are alike, that must be because they are reflecting some
universal law. Fifthly, historical investigation also helped to explode many of the a priori
assumptions of the naturalists. The social contract, in particular, came in for damaging
criticism. Research into the early history of society exposed the wholly mythical nature of
the social contract. Maine pointed out that in primitive communities the prevailing idea
was that of status, not of contract, and that the progress of societies was towards the notion
of contract. Moreover, the social contract theories did not take account of the fact that the
unit in early communities was not the individual, but the family or clan. Sixth and finally,
the increasingly complex problem of the nineteenth century demanded a realistic and
practical approach, not the easy application of abstract a priori preconceptions.
In the new climate of opinion natural law theories could not survive. In their place
we find two currents of thought, analytical positivism and the historical approach. A little
later we find the development of the sociological approach.
SELECTED READINGS
CICERO-DE REPUBLICA
Translated by C. W. Keyes
The Loes Classical Library, New York, G.P Putnam’s Sons, 1928.
The variety of laws in different States proves that these codes must be based on
utility, which differs in different places, not on justice. Changes in the laws of a single
State prove the same thing. There is no natural justice or law, but men as well as all other
living creatures are governed naturally by utility. There is therefore no such thing as
justice, or, if it exists, it is the height of folly, inasmuch as it leads us to injure ourselves to
the advantage of others. The best proof of this is found in history, particularly in that of
Rome. She has won her empire by injustice both to gods and men; a policy of justice
would make her again what she was originally, a miserable poverty-stricken village. What
is commonly called justice in States is nothing but an agreement for mutual selfrestraint,
which is a result of weakness, and is based on nothing whatever but utility. Rulers of all

From “Readings in Jurisprudence” by Jerome Hall, Indianapolis The Bobs Merril Company Publishers
1938, pp.18-19.
84
sorts rule for their own advantage solely, not in the interest of the governed.
CICERO-DE LEGIBUS
Translated by C.W. Keyes
The Loeb Classical Library, New York, G. P. Putnam’s Sons, 1928.
(Marcus.) *** Well then, the most learned men have determined to begin with Law,
and it would seem that they are right, if according to their definition, Law is the highest
reason, implanted in Nature, which commands what ought to be done and forbids the
opposite. This reason, when firmly fixed and fully developed in the human mind, is Law.
And so they believe that Law is intelligence, whose natural function it is to command right
conduct and forbid wrongdoing. They think that this quality has derived its name in Greek
from the idea of granting to every man his own, and in our language I believe it has been
named from the idea of choosing. For as they have attributed the idea of fairness to the
word law, so we have given it that of selection, though both ideas properly belong to Law.
Now if this is correct, as I think it to be in general, then the origin of Justice is to be found
in Law, for Law is a natural force; it is the mind and reason of the intelligent man, the
standard by which Justice and Injustice are measured. But since our whole discussion has
to do with the reasoning of the populace, it will sometimes be necessary to speak in the
popular manner, and give the name of law to that which in written form decrees whatever
it wishes, either by command or prohibition. For such is the crowd’s definition of law. But
in determining what Justice is, let us begin with that supreme Law which had its origin
ages before any written law existed or any State had been established.
Marcus. *** I will not make the argument long. Your admission leads us to this:
that animal which we call man, endowed with foresight and quick intelligence, complex,
keen possessing memory, full of reason and prudence, has been given a certain
distinguished status by the supreme God who created him, for he is the only among so
many different kinds and varieties of living beings who has a share in reason and thought,
while all the rest are deprived of it. But what is more divine. I will not say in man only, but
in all heaven and earth, than reason? And reason, when it is full grown and perfected, is
rightly called wisdom. Therefore, since there is nothing better than reason, and since it
exits both in man and God, the first common possession of man and God is reason.
Marcus. *** Moreover, virtue exists in man an God alike, but in no other creature
85
besides; virtue, however, is nothing else than Nature perfected and developed to its highest
point; therefore there is a likeness between man and God.
Marcus. *** The next point, then, is that we are so constituted by Nature as to share
the sense of Justice with one another and to pass it on to all men. And in this whole
discussion I want it understood that what I shall call Nature is (that which is implanted in
us by Nature); that, however, the corruption caused by bad habits is so great that the sparks
of fire, so to speak, which Nature has kindled in us are extinguished by this corruption, and
the vices which are their opposites spring up and are established. But if the judgments of
men were in agreement with Nature, so that, as the poet says, they considered “nothing
alien to them which concerns mankind,” then Justice would be equally observed by all. For
those creatures who have received the gift of reason from Nature have also received right
reason, and therefore they have also received the gift of Law, which is right reason applied
to command and prohibition. And if they have received Law, they have received Justice
also. Now all men have received reason; therefore all men have received Justice.
Consequently Socrates was right when he cursed, as he often did, the man who first
separated utility from Justice; for this separation, he complained, is the source of all
mischief.
Marcus. *** But if Justice is conformity to written laws and national customs, and
if, as the same persons claim, everything is to be tested by the standard of utility, then
anyone who thinks it will be profitable to him will, if he is able, disregard and violate the
laws. It follows that Justice does not exist at all, if it does not exist in Nature, and if that
form of it which is based on utility can be overthrown by that very utility itself.
Marcus. *** Or, if a law can make Justice out of Injustice, can it not also make
good out of bad? But in fact we can perceive the difference between good laws and bad by
referring them to no other standard than Nature; indeed, it is not merely Justice and
Injustice which are distinguished by Nature, but also and without exception things which
are honourable and dishonourable. For since an intelligence common to us all makes things
known to us and formulates them in our minds, honourable actions are ascribed by us to
virtue, and dishonourable notions to vice; and only a madman would conclude that these
judgments are matters of opinion, and not fixed by Nature. For virtue is reason completely
developed; and this certainly is natural; therefore everything honourable is likewise
natural. ***
Marcus. To close now our discussion of this whole subject, the conclusion, which
86
stands clearly before our eyes from what has already been said is this: Justice and all things
honourable are to be sought for their own sake. And indeed all good men love fairness in
itself and Justice in itself, and it is unnatural for a good man to make such a mistake as to
love what does not deserve love for itself alone. Therefore Justice must be sought and
cultivated for her own sake; and if this is true of Justice, it is also true of equity; and if this
is the case with equity, then all the other virtues are also to be cherished for their own sake.
Marcus. Well, then, I find that it has been the opinion of the wisest men that Law is
not a product of human thought, nor is it any enactment of peoples, but something eternal
which rules the whole universe by its wisdom in command and prohibition. Thus they have
been accustomed to say that Law is the primal and ultimate mind of God, whose reason
directs all things either by compulsion or restraint. Wherefore that Law which the Gods
have given to the human race has been justly praised; for it is the reason and mind of a
wise lawgiver applied to command and prohibition.
Marcus. Ever since we were children, Quintus, we have learned to call “If one
summon another to court,” and other rules of the same kind, laws. But we must come to the
true understanding of the matter, which is as follows: this and other commands and
prohibitions of nations have the power to summon to righteousness and away from wrongdoing; but this power is not merely older than the existence of nations and States, it is
coeval with that God, who guards and rules heaven and earth. For the divine mind cannot
exist without reason, and divine reason cannot but have this power to establish right and
wrong. No written law commanded that a man should take his stand on a bridge alone,
against the full force of the enemy, and order the bridge broken down behind him; yet we
shall not for that reason suppose that the heroic Cocles was not obeying the law of bravery
and following it decrees in doing so noble a deed. Even if there was no written law against
rape at Rome in the reign of Lucius Tarquinius, we cannot say on that account that Sextus
Tarquinius did not break that eternal law by violating Lucretia, the daughter of
Tricipitinus! For reason did exist, derived from the Nature of the universe, urging men to
right conduct and diverting them from wrong-doing, and this reason did not first become
Law when it was written down, but when it first come into existence; and it came into
existence simultaneously with the divine mind. Wherefore the true and primal Law,
applied to command and prohibition, is the right reason of supreme Jupiter.
Quintus. I agree with you, brother, that what is right and true is also eternal, and
does not begin or end with written statutes…
87
Marcus. What of the many deadly, the many pestilential statutes which
nations put in force? These no more deserve to be called laws than the rules a band of
robbers might pass in their assembly. For if ignorant and unskilful men have prescribed
deadly poisons instead of healing drugs, these cannot possibly be called physicians’
prescriptions; neither in a nation can a statute of any sort be called a law, even though the
nation, in spite of its being a ruinous regulation, has accepted it. Therefore Law is the
distinction between things just and unjust, made in agreement with that primal and most
ancient of all things, Nature; and in conformity to Nature’s standard are framed those
human laws which inflict punishment upon the wicked but defend and protect the good.
88
THE PRINCIPLES OF NATURAL AND POLITICAL LAW
By J. J. Burlamaqui
Translated by Nugent
Seventh Edition Corrected, Philadelphia, 1832. (pp.59-68)
I. My design is to inquire into those rules, which nature alone prescribes to man, in
order to conduct him safely to the end, which every one has, and indeed ought to have, in
view, namely, true and solid happiness. The system or assemblage of these rules,
considered as so many laws, imposed by God on man, is generally distinguished by the
name of Natural Law. This science includes the most important principles of morality,
jurisprudence, and politics that is whatever is most interesting in respect as well to man, as
to society.
***
III. But man, besides the marvellous disposition of his body, has likewise a rational
soul, which eminently discriminates him from brutes. It is by this noble part of himself that
he thinks, and is capable of forming just ideas of the different objects, that occur to him; of
comparing them together; of inferring from known principles unknown truth; of passing a
solid judgment on the mutual fitness or agreement of things, as well as on the relations
they bear to us; of deliberating on what is proper or improper to be done; and of
determining consequently to act one way or other.
***
VII. We must therefore set out with acknowledging, as a fixt and incontestable
principle, that the human understanding is naturally right, and has within itself a strength
sufficient to arrive at the knowledge of truth, and to distinguish it from error; a specially in
things, wherein our respective duties are concerned, and which are requisite to form man
for a virtuous, honourable, and quite life; provided, however, he employs all the care and
attention, that lies in his power.
*** Man, who holds a considerable rank among the beings that surround him,
participates undoubtedly of this fixt and universal order. And, whether we consider him in
himself as an intelligent and rational being, or view him as a member of society, or
whether in fine we regard him as the handy work of God, and deriving from this first Being
his faculties, state, and existence; all these circumstances evidently indicate an end, a
89
destination, and consequently imply the necessity of a rule. Had men been created to live at
random without any fixt and determinate view, without knowing whether he is to direct his
course, or what read he ought to take; it is evident that his noblest faculties would be of no
manner of use to him. Wherefore, waiving all disquisitions concerning the necessity of a
rule, let us endeavour rather to discover what this rule is which alone, by enlightening the
understanding, and directing our actions to an end worthy of him, is capable of forming the
order and beauty of human life.
III. When we speak of a rule in relation to human actions, two things are manifestly
supposed; the first, that human conduct is susceptible of direction, as we have already
proved, the second, that man in all his steps and actions proposes to himself a scope or end,
which he is desirous to attain.
IV. Now let man reflect but never so little on himself, he will soon perceive, that
every thing he does is with a view of happiness, and that this is the ultimate end he
proposes in all his actions, or the last term, to which he reduces them. This is a first truth,
of which we have a continual conviction from our internal sense.
VI. And indeed, if it be natural to every intelligent and rational being to act always
with a fixt view and determinate end, it is no less evident, that this view or end must be
ultimately reduced to himself; and consequently to his own advantage and happiness. The
desire therefore of happiness is as essential to a man, and as inseparable from his nature, as
reason itself; for reason, as the very etymology of the world implies, is nothing more than a
calculation and account. The reason is to calculate, and to draw upon an account, after
balancing every thing, in order to see on which side the advantage lies. It would therefore
imply a contradiction to suppose a rational being that could absolutely forego its interest,
or be indifferent with regard to it own felicity.
But is there any other method of acquiring this discernment, but by forming just
ideas of things and their relations, and by deducing from these first ideas the consequences,
that flow from them by exact and close argumentations? Now it is reason alone, that directs
all these operations. Yet this is not all; for as, in order to arrive at happiness, it is not
sufficient to form just ideas of the nature and state of things, but it is also necessary, that
the will should be directed by those ideas and judgments in the series of our conduct; so it
is certain, that nothing but reason can communicate and support in man the necessary
strength for making a right use of liberty, and for determining in all cases according to the
light of is understanding, in spite of all the impressions and motions that may lead him to a
90
contrary pursuit.
Reason is therefore the only mean, in every respect, that man has left to attain to
happiness, and the principal end, for which he has received it. All the faculties of the soul,
its instincts, inclinations, and even the passions, are relative to this end; and consequently it
is this same reason, that is capable of pointing out the true rule of human actions, or, if you
will, she herself is this primitive rule.***
*** It is obvious that all these remarks are in a particular manner applicable to man;
so that; as soon as he acknowledges a superior, to whose power and authority he is
naturally subject, in consequence of this state, he must acknowledge likewise the will of
this superior to be the rule of his actions. This is the Right we call Law.
It is to be understood however, that this will of the superior has nothing in it
contrary to reason, the primitive rule of man. For, were this the case, it would be
impossible for us to obey him. In order to render a law the rule of human actions, it should
be absolutely agreeable to the nature and constitution of man, and be ultimately designed
for his happiness, which reason makes him necessarily pursue.***
Natural law is that, which so necessarily agrees with the nature and state of man,
that without observing its maxims, the peace and happiness of society can never be
preserved. As this law has an essential agreeableness with the constitution of human
nature, the knowledge thereof may be attained merely by the light of reason; and hence it is
called natural.***
With regard to human laws, considered strictly as such, viz. as originally
proceeding from a sovereign, who presides over society, they are all positive. For though
some natural laws are made the subject of human laws, they do not derive their obligatory
force from the human legislator; since they would oblige all the same without any
intervention on his part, because they come from God.
III. But whether there be really any natural law is the first question, that presents
itself here to our inquiry. In order to make a proper answer, we must ascend to the
principles of natural theology, as being the first and true foundation of the law of nature.
For, when we are asked whether there are any natural laws, this question cannot be
resolved, but by examining the three following articles. 1.Whether there is a God? 2.If
there is a God, whether he has a right to impose laws on man? 3.Whether God actually
exercises his right in this respect, by really giving us, laws, and requiring we should square
thereby our actions?
91
1.We have made some progress already in this research, by discovering all the
circumstances, necessary to establish an actual legislature. On the one side we find a
superior, who by his nature is possessed in the very highest degree of all the conditions
requisite to establish a legitimate authority; and on the other we behold man, who is God’s
creature, endowed with understanding and liberty, capable of acting with knowledge and
choice, sensible of pleasure and pain, susceptible of good and evil, of rewards and
punishment. Such an aptitude of giving and receiving laws cannot be useless. This
concurrence of relations and circumstances undoubtedly denotes an end, and must have
some effect; just as the particular organization of the eye shows we are destined to see the
light. Why should God have made us exactly fit to receive laws, if he intended none for us?
This would be creating so many idle and useless faculties.
2.When we consider the beautiful order, which the supreme wisdom has established
in the physical world, it is impossible to persuade ourselves, that he has abandoned the
spiritual or moral world to chance and disorder. Reason, on the contrary, tells us, that a
wise being proposes to himself a reasonable end in every thing he does, and that he uses all
the necessary means to attain it.
NATURAL LAW
Of the Principles, from which Reason may deduce the
Law of Nature
1. If we should be afterwards asked, what principles ought reason to make use of, in
order to judge of what relates to the law of nature, and to deduce and unfold it? Our answer
is in general, that we have only to attend to the nature of man, and to his states or relations;
and, as these relation are different, there may be likewise different principles, that lead us
to the knowledge of our duties.
But before we enter upon this point, it will be proper to make some preliminary
remarks on what we call principles of natural law; in order to prevent the ambiguity or
equivocation, that has often entangled this subject.
II. 1.When we inquire here which are the first principles of natural law, the question
is, which are those truths or primitive rules, where by we may effectually know the divine
will in regard to man; and thus arrive, by just consequences, to the knowledge of the
particular laws and duties, which God imposes on us by right reason?
92
2.We must not therefore confound the principles here in question, with the efficient
and productive cause of natural laws, or with their obligatory principle. It is
unquestionable, that the will of the Supreme Being is the efficient cause of the law of
nature, and the source of the obligation, thence arising. But, this being taken for granted,
we have still to enquire how man may attain to the knowledge of this will, and to the
discovery of those principles, which, acquainting us with the divine intention, enable us to
deduce from it all our particular duties, so far as they are discoverable by reason only. A
person asks, for example, whether the law of nature requires us to repair injuries, or to be
faithful to our engagements? If we are satisfied with answering him, that the thing is
incontestable, because so it is ordered by the divine will; it is plain, that this is not a
sufficient answer to his question; and that he may reasonably insist to have a principle
pointed out, which should really convince him, that such in the fact is the will of the Deity;
for this is the point he is in search of.
III. Let us afterwards observe, that the first principles of natural laws, ought to be
not only true, but likewise simple, clear, sufficient, and proper for those laws.
They ought to be true; that is, they should be taken from the very nature and state of
the thing. False or hypocritical principles must produce consequences of the same nature;
for a solid edifice can never be raised on a rotten foundation. They ought to be simple and
clear of their own nature, or at least easy to apprehend and unfold. For, the laws of nature
being obligatory for all mankind, their first principles should be within every body’s reach,
so that whatsoever has common sense may be easily acquainted with them. It would be
very reasonable therefore to mistrust principles, that are farfetched, or of too subtle and
metaphysical a nature.
I add, that these principles ought to be sufficient and universal. They should be
such, that one may deduce from them, by immediate and natural consequences, all the laws
of nature, and the several duties thence resulting; insomuch that the exposition of
particulars be properly only an explication of the principles; in the same manner, very
nearly as the production or increase of a plant is only an unfolding of the seed.
And, as most natural laws are subject to diverse exceptions, it is likewise necessary,
that the principles be such, as include the reasons of the very exceptions; and that we may
not only draw from them all the common rules, of morality but that they also serve to
restrain these rules, according as place, time, and occasion require.
93
In fine, those first principles ought to be established in such a manner, as to be
really the proper and direct foundation of all the duties of natural law; insomuch that
whether we descend from the principle to deduce the consequences, or whether we ascend
from the consequences to the principle, our reasonings require always to be immediately
connected, and their thread as though never interrupted.
IV. But, generally speaking, it is a matter of mere indifference whether we reduce
the whole to one single principle, or establish a variety of them. We must consult and
follow in this respect a judicious and exact method. All that can be said on this head is, that
it is not at all necessary to the solidity or perfection of the system, that all natural laws be
deduced from one single and fundamental maxim; nay, perhaps the thing is impossible. Be
that as it may, it is idle to endeavour to reduce the whole to this unity.
V. The only way to attain to the knowledge of natural law is to consider attentively
the nature and constitution of man, the relations he has to the beings, that surround him,
and the state thence resulting. In fact the very term natural law, and the notion we have
given of it, show, that the principles of this science must be taken from the very nature and
constitution of man. We shall therefore lay down to general propositions, as the foundation
of the whole system of the law of nature.
First Proposition
Whatever is in the nature and original constitution of man, and appears a necessary
consequence of this nature and constitution, certainly indicates the intention or will of God
with respect to man, and consequently acquaints us with the law of nature.
Second Proposition
But, in order to have a complete system of the law of nature, we must not only
consider the nature of man, such as it is in itself; it is also necessary to attend to the
relations he has to other beings, and to different states thence arising. Otherwise it is
evident we should have only an imperfect and defective system.
That natural Laws have been sufficiently notified, of their proper characteristics,
the Obligation they Produce, etc.
94
I. After what has been hitherto said in relation to the principles of natural law, and
the way we come to know them, there is no need to ask, whether God has sufficiently
notified those laws to man. It is evident we can discover all their principles, and deduce
from them our several duties, by that natural light, which to no man has been ever refused.
It is in this sense we are to understand what is commonly said, that this law is naturally
know to all mankind. For, to think with some people, that the law of nature is innate, as it
were, in our minds, and actually imprinted in our souls from the first moment of our
existence, is supposing a thing, that is not at all necessary, and is moreover contradicted by
experience. All, that can be said on this subject, is that the most general and most
important maxims of the law of nature are so clear and manifest and have such a
proportion to our ideas, and such an agreeableness to our nature, that so soon, as they are
proposed to us, we instantly approve of them; and as we are disposed and accustomed from
our infancy to feel these truths, we consider them as born with us.
II. But we must take care to observe, that when we say man may acquire the
knowledge of natural laws, by using his reason, we do not exclude the succors, he may
receive elsewhere. Some there are, who, having taken a particular are to cultivate their
minds, are qualified to enlighten other, and to supply, by their instructions, the rudeness
and ignorance of the common run of mankind. This is agreeable to the plan of providence.
God having designed man for society, and given him a constitution relative to this end, the
different helps, which men receive of one another, ought to be equally ranked among
natural means, with those, which every one finds within himself, and draws from his own
fund.
In effect all men are not of themselves capable of unfolding methodically the
principles of natural law, and the consequences thence resulting. It is sufficient, that
middling capacities are able to comprehend at least those principles, when they are
explained to them, and to feel the truth and necessity of the duties that flow from them, by
comparing them with the constitution of their own nature. But if there be some capacities
of a still inferior order, they are generally led by the impressions of example, custom,
authority, or some present and sensible utility. Be this as it will, every thing rightly
considered, the law of nature is sufficiently notified to empower us to affirm, that no man,
at the age of discretion, and in his right senses, can allege for a just excuse an invincible
ignorance on this article.
95
Let us make a reflection, which presents itself here very naturally. It is, that
whosoever attends seriously to the manner, in which we have established the principles of
the laws of nature, will soon find, that the method we have followed is a fresh proof of the
certainty and reality of those laws. We have waived all abstract and metaphysical
speculations, in order to consult plain fact, and the nature and state of things. It is from the
natural constitution of man, and from the relations, he has to other beings, that we have
taken our principles; and the system thence resulting has so strictly and so necessary a
connection with this nature and state of man, that they are absolutely inseparable.
It is not amiss to observe here, that the manner, in which we establish the
foundation of the law of nature, does not differ in the main from the principles of Grotius.
Perhaps this great man might have explained his thoughts a little better. But we must own,
that his commentators, without excepting Puffendorf himself, have not rightly understood
his meaning, and consequently have passed a wrong censure on him, by pretending, that
the manner, in which he established the foundation of the law of nature, is reduced to a
vicious circle. If we ask, says Puffendorf, which are those things, that form the matter of
natural laws? The answer is, that they are those, which are honest or dishonest of their own
nature. If we inquire afterwards, what are those things, that are honest or dishonest of their
own nature? There can be no other answer given, but that they are those, which form the
matter of natural laws. This is what the critics put into the mouth of Grotius.
But let us see whether Grotius says really and such thing. The law of nature, says
he, consists in certain principles of right reason, which inform us, that an action is morally
honest or dishonest, according to the necessary agreeableness or disagreeableness it has
with a rational and social nature; and consequently that God, who is the author of nature,
commands or forbids such actions. Here I can see no circle; for putting the question
whence comes the natural honesty or turpitude of commanded or forbidden actions?
Grotius does not answer in the manner, they make him; on the contrary, he says that this
honesty or turpitude proceeds from the necessary agreeableness or disagreeableness of our
actions with a rational and social nature.
We have already observed, that the laws of nature, though established by the divine
will, are not the effect of an arbitrary disposition, but have their foundation in the very
nature and mutual relations of things. Hence it follows, that natural laws are immutable,
and admit of no dispensation. This is also a proper characteristic of these laws, which
distinguishes them from all positive laws, whether divine or human.
96
This immutability of the laws of nature has nothing in it repugnant to the
independence, Supreme Power, or liberty of an all perfect Being. Since he himself is the
author of our constitution, he cannot but prescribe or prohibit such things, as have a
necessary agreeableness or disagreeableness, to this very constitution; and consequently he
cannot make any change, or give any dispensation in regard to the laws of nature.
We cannot finish this article better than with a beautiful passage of Cicero,
preserved by Lactantius. Right reason, says this philosopher, is indeed a true law,
agreeable to nature, common to all men, constant, immutable, eternal. It prompts men to
their duty by its commands, and deters them from evil by its prohibitions. It is not allowed
to retrench any part of this law, nor to make any alterations therein, much less to abolish it
entirely.
Neither the senate nor people can dispense with it; nor does it require any
interpretation, being clear of itself and intelligible. It is the same at Rome and Athens; the
same today and tomorrow. It is the same eternal and invariable law, given at all times and
places, to all nations; because God, who is the author thereof, and has published it himself,
is always the sole master and sovereign of mankind. Whosoever violates this law
renounces his own nature, divests himself of humanity, and will be rigorously chastised for
his disobedience, though he were to escape what is commonly distinguished by the name
of punishment.
The first reflection, that presents itself to our minds, is that the rules of conduct,
distinguished by the name of natural laws, are proportioned in such manner to our nature,
to the original dispositions and natural desires of our soul, to our constitution to our wants
and actual situation in life, that it evidently appears they were for us. For in general, and
everything well considered, the observance of those laws is the only means of procuring a
real and solid happiness to individuals, as well as to the public; whereas the infraction
thereof precipitates men into disorders prejudicial alike to individuals, as to the whole
species. This is as it were, the first sanction of natural laws.
97
THE HISTORICAL SCHOOL
The rise of the Historical School, may be regarded as a manifestation of the
reaction against the dominance of natural law theories. It is, therefore, not surprising to
find that as a matter of history the Historical School immediately preceded the
Sociological; indeed; it was one of its germs and impulses. Now, we must not imagine that
the historical approach to law burst forth into European thought in the early nineteenth
century as something new and startling. It had been familiar, in one form or another, for a
very long time. The reaction against natural law theories that was setting in about this time
only provided the stimulus that brought it out in full bloom.
The story of this historical approach to law in Europe is to a great extent the story
of the study of Roman law. England is the rare example of a nation which did not receive
Roman law as its own, and we must always remember that while for us legal history means
the study of writs and forms of actions, for Europeans it means the study of the process by
which the law of the Romans became the law of a modern state.
The rise of this school may be traced to many causes. The first of these has already
been mentioned, namely, the reaction against the unhistorical assumptions of the natural
law theorists. As these were exposed as false and hollow, so the need was felt for a more
realistic investigation into historical facts. Secondly, the attempt to found legal systems
based on reason without reference to past or existing circumstances was revolutionary in
execution. The culmination of it was the French revolution, with all its attendant
brutalities, and a reaction set in against the rationalism that had fostered such barbarity.
This was a factor which weighed particularly with Savigny, a conservative nobleman, who
acquired a deep and lasting hatred for the revolution. Thirdly, the French conquests under
Napoleon aroused the nationalism of Europe. Fourthly, the French also spread the idea of
codified law, and the reaction to anything French carried with it an aversion to a code.
Finally, the influence of certain early pioneers in the new way of thinking must not be
discounted. Montesquieu had maintained that law was shaped by social, geographical and
historical considerations; Burke had preached that law was the product of gradual growth.
All these factors, coupled with the genius of Savigny, helped to start European thought
along a new road.

“Jurisprudence” by Dias and Hughes, Butterworth. 1957, pp.386, 391.
98
Savigny
Savigny was born in Frankfurth in 1779, and was nurtured in the natural law
discipline. His interest in historical studies was kindled at the universities, first of Marburg
and then of Göttingen, and greatly encouraged when he came into contact with the great
Niebuhr at the University of Berlin. He also acquired a lasting veneration for Roman law.
In 1803 appeared his first major work, Das Recht des Besitzes (The Law of Possession). It
is in the last section of the book that Savigny’s distinctive method becomes apparent. In
this section he traced the process by which the original Roman doctrines of possession had
developed into the doctrines and actions prevailing in contemporary Europe. Savigny next
set himself the immense task of laying the foundation for future historical labours by
producing a basic history of the development of Roman law in mediaeval Europe. This
great work, The History of Roman Law in the Middle Ages, appeared in six volumes
between 1815 and 1831. Together with his other great work, The System of Modern
Roman Law, it forms an imperishable monument to his genius, learning and indefatigable
industry. He was much more than a historical research worker. He was supremely
conscious of the purpose and aims of this method, of the mission he was striving to fulfil.
He emphasized that the muddled and outmoded nature of a legal system was usually due to
a failure to comprehend the history and evolution of that system. The essential prerequisite
to the reform of German law was, for him, a deep knowledge of its history. Historical
research, therefore, was only a means, albeit an indispensable means, to the understanding
of the present.
The core of Savigny’s thesis is to be found in his essay On the Vocation. The nature
of any particular system of law, he said, was a reflection of the spirit of the people who
evolved it, the volksgeist. Law, therefore, is the manifestation of the common
consciousness. He wrote,
“Law grows with the growth, and strengthens with the strength of the people, and
finally dies away as the nation losses its nationality.”
A nation to him, meant only a community of people linked together by historical
geographical and cultural ties. He went on to elaborate the volksgeist theory by contending
that it is the broad principles of the system that are to be found in the spirit of the people.
Their first concrete manifestation is in early customary rules. From his initial premise it
followed, first, that law was a matter of unconscious growth. Secondly, system not only
99
precedes legislation, but is superior to it and legislation should always conform to the
popular consciousness. Thirdly, law is not of universal application; it varies with people
and ages.
This view of the nature of law devetails neatly with Savigny’s historical method of
work, for, if law consists of the projection of a people’s spirit, then it can only be
understood by tracing the history of the social organization of the people. It is clear, all the
same, that in his revolt against the complete lack of historical sense which unnecessary
violence in the opposite direction. Innovators rarely succeed in striking the happy mean; to
point out Savigny’s exaggerations is not to detract from the very great importance of his
contribution to the study of law.
On the idea of the volksgeist several comments must be made.
(1) There is undoubtedly an element of truth in it, but Savigny made far too much
of it. As with most pioneers, he drew too sweeping an inference from modest premises.
The whole idea of the volksgeist certainly suited the mood of the German peoples. It was a
time of the growing sense of nationhood, a desire for unification, an interest in the
dramatic marking the appearance of the Romantic movement. German thinking, also,
seems somewhat prone to personify the abstract, and to attribute a mystical coherence to
ideals. The idea of a volksgeist may be accepted in limited way. Savigny extrapolated it
into a sweeping universal. In this it would appear that his historical sense deserted him, for
it amounts, in effect, to the adoption of an a priori pre-conception. We noticed that in
dealing with possession he did much the same; he drew an inference from limited data, and
then used it as an a priori talisman.
(2) Sir Carleton Allen has pointed out that the transplanting of Roman law in the
alien climates of Europe nearly a thousand years later is inconsistent with Savigny’s idea
of a volksgeist. It postulates, if anything, some quality in the law rather than popular
consciousness. Similarly, the German Civil Code has been adopted in Turkey and Japan
without any apparent violence to popular susceptibilities, and the reception of English law
in so many parts of the world is also evidence of the same adaptability and resilience.
Indeed, the great protest in South Africa today is that far too much English law has been
allowed to overlay the “national” Roman-Dutch law.
(3)The volksgeist theory minimizes the influence which individuals, sometimes of
alien race, have exercised upon legal development. Every man is a product of his time, but
100
occasionally there are men who by their supreme genius are able to give legal development
a new direction.
(4) Many institutions have originated, not in a volksgeist, but in the convenience of
a ruling oligarchy, e.g., slavery.
(5) Many customs owe their origin to the force of imitation rather than to any innate
conviction of their righteousness.
(6) Some rules of customary law may not reflect the spirit of the whole population,
e.g., local customs. If law is the product of a volksgeist, how is it that only some people
and not all have evolved the rule? On the other hand, some customs, e.g., the Law
Merchant, were cosmopolitan in origin: they are not the creatures of any particular nation
or race.
(7) Important rules of law sometimes develop as the result of conscious and violent
struggle between conflicting interests within the nation, and not as a result of imperceptible
growth, e.g., the law relating to trade unions and industry.
(8) A different objection to the volksgeist came from Savigny’s opponents. They
pointed out that, if it was taken literally, it would thwart the unification of Germany
permanently, for it would emphasize the separateness and unique character of each
separate state.
(9) An inconsistency in Savigny’s work was that, while he was the protagonist of
the volksgeist doctrine, he worked at the same time for the acceptance of Roman law as the
law of Germany. There was in Germany in Savigny’s day a vigorous school of jurists who
strongly advocated the resuscitation of ancient Germanic laws and customs as the
foundation of a modernized German system. The leader of this school, Eichorn, was a
fellow professor with Savigny at the University of Berlin. It might have been thought that
Savigny would have placed himself at the head of this crusade. But, though he never
opposed the work of Eichorn and, indeed, co-operated with him to the extent of teaching
German law in the universities, the expulsion of Roman law was never his intention. One
explanation of this was his devotion to Roman law. Another was that his common sense
urged him to argue against the expurgation of three centuries of settled legal development
in Germany.
Such are the objections to the exaggerated importance which Savigny attached to
the volksgeist. Other aspects of his work must also be considered. His veneration for
Roman law, for one thing, led him into making questionable statements. We find in Roman
101
law a strict adherence to the doctrine of privity of contract with very few exceptions, i.e. no
one other than parties to a contract can be entitled or obliged under it. The law of
negotiable instruments, of course goes completely against this. Savigny condemned
negotiable instruments as “logically impossible”. This adoption of the Roman principle is
nothing more than the application of an a priori preconception, quite out of keeping with
the historical method.
The volksgeist, according to Savigny, only formulates the rudimentary principles of
the legal systems. He saw clearly enough that it could not provide all the detail that is
necessary for the working out of system. He accordingly maintained that as society, and
consequently law, becomes more complex, a special body of persons is called into being
whose task it is to give technical, detailed expression to the volksgeist in the various
matters with which the law has to deal. These people are called lawyers, and their task is to
reflect accurately the volkgeist. Now this is nothing but a fictitious assumption, in no way
related to reality, in order to cover up an obvious weakness in his principal contention.
Consistently with his theory, Savigny maintained that legislation was subordinate to
custom. It must at all times conform to the volksgeist. It would be quite wrong to suppose
that he opposed legislation altogether, for he said quite clearly:
“The existing matter will be injurious to us so long as we ignorantly submit to it;
but beneficial if we oppose to it a vivid creative energy obtain the mastery over it by a
through grounding in history and thus appropriate to ourselves the whole intellectual
wealth of preceding generations.”
In this connection we must consider Savigny’s view on the project of a code,
which, as we have seen, was the inspiration for his declaration of faith. He opposed the
idea on two grounds. In the first place, he pointed to the defects of contemporary codes
which, to his mind, preserved adventitious subsidiary and often unsuitable rules of Roman
law, even though they rejected its main principles. Secondly, he argued that codification,
even at its best, could not be a suitable instrument for the development of German law in
his time. He did not rule out the possibility of a code at some future time, but even of this
he was rather dubious. Now, it is only common sense that reformers should not plunge into
legislation without paying regard to the past as well as to the present. Savigny was,
perhaps, somewhat over-cautious in this respect, for as Sir Carleton Allen has observed, his
doctrines had the unfortunate tendency “to hang traditions like fetters upon the hands of
reformative enterprise.” Savigny had said that codification must be preceded by “an
102
organic, progressive, scientific, study of the law”, by which, of course, he meant historical
study. Reform must wait until historians had done their work. But the years that followed
the publication of On the Vocation brought forth little in the way of any such systematic
rubble shifting. If one waited for an imperceptible improvement in the situation, one might
have waited for ever. Drastic legislative action was needed, and only in 1900 did it come.
Savigny’s work, on the whole, was a salutary corrective to the methods of the
natural lawyers. He did undoubtedly grasp a valuable truth about the nature of law, but he
spoilt it by over emphasis.
SELECTED READINGS
HISTORICAL SCHOOL OF THE VOCATION
OF OUR AGE FOR LEGISLATION AND JURISPRUDENCE
By Frederick Von Savigny
Translated by Abraham Hayward, London, 1831.
In the earliest times to which authentic history extends, the law will be found to
have already attained a fixed character, peculiar to the people, like their language, manners
and constitution. Nay, these phenomena have no separate existence, they are but the
particular faculties and tendencies of an individual people, inseparably united in nature,
and only wearing the semblance of distinct attributes to our view. That which binds them
into one whole is the common conviction of the people, the kindred consciousness of an
inward necessity, excluding all notion of an accidental and arbitrary origin.
But this organic connection of law with the being and character of the people, is
also manifested in the progress of the times; and here, again, it may be compared with
language. For law, as for language, there is no moment of absolute cessation; it is subject
to the same movement and development as every other popular tendency; and this very
development remains under the same law of inward necessity, as in its earliest stages. Law
grows with the growth, and strengthens with the strength of the people, and finally dies
away as the nation loses its nationality.

From “Readings in Jurisprudence”, by Jerome Hall, Indianapolis The Bobbs-Merril Company Publishers,
1938, pp.89-91.
103
*** With the progress of civilization, national tendencies become more and more
distinct, and what otherwise would have remained common, becomes appropriated to
particular classes; the jurists now become more and more a distinct class of the kind; law
perfects its language, takes a scientific direction, and, as formerly it existed in the
consciousness of the community, it now devolves upon the jurists, who thus, in this
department, represent the community. Law is henceforth more artificial and complex since
it has a twofold life; first, as part of the aggregate existence of the community, which it
does not cease to be; and secondly, as a distinct branch of knowledge in the hands of the
jurists.
*** The sum, therefore, of this theory is, that all law is originally formed in the
manner, in which, in ordinary but not quite correct language, customary law is said to have
been formed: i.e. that it is first developed by custom and popular faith, next by
jurisprudence, -everywhere, therefore, by internal silently-operating powers, not by the
arbitrary will of a law-giver.
*** The historical spirit, too, is the only protection against a species of selfdelusion, which is ever and anon reviving in particular men, as well as in whole nations
and ages: namely, the holding that which is peculiar to ourselves to be common to human
nature in general. Thus, in times past, by the omission of certain prominent peculiarities, a
natural law was formed out of the Institutes, which was looked upon as the immediate
emanation of reason. There is no one now who would not regard this proceeding with pity;
and yet we meet with people daily, who hold their juridical notions and opinions to be the
offspring of pure reason, for no earthly reason but because they are ignorant of their origin.
When we lose sight of our individual connection with the great entirety of the world and its
history, we necessarily see our thoughts in a false light of universality and originality.
There is only the historical sense to protect us against this, to turn which upon ourselves is
indeed the most difficult of applications.
History, even in the infancy of a people, is ever a noble instructress, but in ages
such as ours she has yet another and holier duty to perform. For only through her can a
lively connection with the primitive state of the people be kept up; and the loss of this
connection must take away from every people the best part of its spiritual life.
104
OUTLINES OF JURISPRUDENCE AS THE SCIENCE OF RIGHT –
A JURISTIC ENCYCLOPEDIA
By G. F. Puchta
Translated by W. Hastie, Edinburg, 1887.
The Peoples are themselves to be regarded as different individualities, dissimilar
and unequal in nature and tendency. This individuality forms what we call the national or
popular character. Hence the Rights of peoples are different; and the peculiar
characteristics of a nation are exhibited in its System of Right, just as in its Language and
Customs.
*** A principle of Right becomes a fact by being recognised as such in the
common conviction of those to whom it is applicable. Right is the common will of the
persons or members who are included in a sphere of Right. Through this common
consciousness of Right, as by a common Language and a common Religion, the members
of a people are bound together in a definite union. This union rests upon a certain
relationship of body and mind; it extends beyond the intimacy of the inner family bond,
and arises out of an actual division of the race of mankind. The consciousness which
permeates the members of a people in common is born with them and makes them
spiritually members of one whole. It constitutes, in a word, the national mind or spirit of
the people; and it is the source of human or natural Right, and of the convictions of Right
which stir and operate in the minds of the individuals.
The consequence of this mode of origination, induces a diversity of Right among
the various peoples. Peculiarities in their views of Right, belong not less to the
characteristic marks of different nationalities than do the peculiarities of their Languages.
As the fellowship of Right is one of the spiritual bonds which hold a people together, so
the peculiar development of the consciousness of Right is one of the elements which
distinguish any one people from all others. If a people splits up into several divisions the
relationship between them in Right, as in Language, will continue to remain visible; and,
on the other hand, each of the new nationalities will pass through a peculiar development
in both connections. This phenomenon we may, for instance, perceive most distinctly
among the peoples that have arisen out of the Germanic stem. In like manner, even in one
people, without its being parted into independent sections, there arise national divisions
105
distinguished into certain tribes, and these again into smaller branches. These divisions of a
people are distinguished from each other in their views of Right by certain idiosyncrasies;
especially in those points in which their individuality works most decisively. Nevertheless,
the peculiarities thus arising, are maintained in harmonious co-operation by means of those
views of Right which are common to the whole people, under which these peculiarities
appear but as individual and partial deviations. Thus every people has its own form of
Right corresponding to the national characteristics, which, like its Language, is the
property of all the tribes and branches into which it is divided. And along with this
common possession of Right, we find among the different divisions of the people, certain
peculiarities in Right, as well as in Language, which indicate a peculiar local and limited
origination. Right, as well as Language, has its provincialisms.
The Conviction of the People, as reflected in the Consciousness of its members, is
the first of the modes in which Right arises, because it stands nearest to the primary source
of all human Right, and is immediately connected with it. The complete externalization of
this Conviction, is effected by the members of the people acting in conformity with their
conviction of Right, and thus recognising it in practice. This usage or practice by the
individuals, owing to its being founded upon a common conviction, is uniform in similar
circumstances. It has thus the property of a common practice or Custom; and hence the
Right that has arisen in this form is called CUSTOMARY RIGHT.
The share which Usage has in connection with the origination of this form of Right,
is frequently represented so that Right is said to arise out of Custom; an opinion which
agrees with the materialistic notions already mentioned as to the genesis of the views of the
People. The true view is just the reverse. Usage is only the last of the process, by which the
Right, which has arisen and is living in the members of the people, completely externalizes
and embodies itself. The influence which Custom has upon Conviction, only amounts to
this, that the Conviction may be brought by it into distinct Consciousness and so
confirmed.
As a People changes throughout its whole sphere of life in the course of time, the
same condition holds true of its system of Right as a branch of that life. Right is not fixed
or stable at any particular time. It develops with the People. It attaches itself to the national
character at its different stages of culture; and it adopts itself to the changing wants and
requirements of the People.
106
This process of change, does not so alter the subjects of it that they in any way
cease to be identical and the same. The People at the beginning and at the end of their
historical career, are the same people, though they may present differences here and there.
In like manner, their system of Right becomes different, and yet it is always the Right of
the same people.
BENTHAM’S UTILITARIANISM
In one sense utilitarianism represents a reaction against the metaphysical and
abstract character of eighteenth century political and legal philosophy. Bentham, its
founder, devotes much of his work to violent attacks upon the whole natural law
conception. But if he is impatient with the vagueness and the inconsistencies of the natural
law theories, if utilitarianism represented one of the periodical movements from the
abstract to the concrete, from the idealistic to the materialistic, from the a priori to the
empirical, this movement at the same time expresses aims particularly characteristic of the
nineteenth century.
Bentham’s legal philosophy is a utilitarian individualism. His individualism
inspired his numerous and vigorous legislative efforts, all directed towards the
emancipation of the individual from the many constitutional restrictions and iniquities
which impeded, in England at any rate, the free play of forces that was to give full scope to
individual development. Once these iniquities (such as the “rotten boroughs”) were
removed and individuals had attained of position, legislation should withdraw and the free
play of forces would serve the general interest best.
The same individualism permeates Bentham’s utilitarian philosophy. To sum up the
essence of this philosophy in Bentham’s own words:
Nature has placed man under the empire of pleasure and pain. We owe to them all
our ideas, we refer to them all our judgments, and all the determination of our life. He who
pretends to withdraw himself from this subjection knows not what he says. His only object
is to seek pleasure and to shun pain… These eternal and irresistible sentiments ought to be
the great study of the moralist and the legislator. The principle of utility subjects
everything to these two motives.

“Legal Theory” by W. Friedmann, London Stevens and Sons Limited, 1960. pp. 267-277.
107
Pleasure and pain are Bentham’s Law of Nature. Utility he defines as expressing
“the property of tendency of a thing to prevent some evil or to procure some good.”
That which is conformable to the utility or the interest of an individual is what
tends to augment the total sum of his happiness. That which is conformable to the utility or
the interests of community is what tends to augment the total sum of the happiness of the
individuals that compose it.
Thus, good and evil are linked to pleasure and pain, and the task of law is to serve
the good and avoid the evil, that is to serve utility. Pleasure and pain replace, for Bentham,
such notions as justice and injustice, morality or immorality, virtue or vice. This
sensualistic evaluation of life is somewhat modified, however, by Bentham’s analysis of
the types of pleasure and pain. Sence, riches and power are among the pleasures tabled by
Bentham; but among others are friendship, good reputation, benevolence, knowledge and
association. Pains, on the whole, are the counterparts of the pleasures. The measure of
either depends above all on their extent, and the individual’s pain (therefore an evil to be
avoided) may be one caused to him because of his relationship with or interest in the first
sufferer.
Bentham is an individualist and an end in himself; every man counts for one, and
the aim of law is the creation of conditions which make possible the maximum freedom of
each individual so that he may pursue what is good for him.
But Bentham, the social and legislative reformer, is no anarchist. He knows that law
must serve the totality of the individuals in a community. The ultimate end of legislation is
to him the greatest happiness of the greatest number. The elaboration of this principle by
Bentham was bound to result in the subordination right to community needs. Bentham was
not altogether hostile to the recognition of permanent principles of law. In his essay on the
“Influence of Time and Place in Matters of Legislation” he admits that there are rules, such
as the proper proportion between offence and punishment, between merit and reward, the
classification of criminal offences, which, if they are just and proper now.
Bentham here recognises certain natural law principles not far removed from those
formulated by Aristotle and Grotius, under the thin disguise of his pleasure and pain
philosophy, but this limited concession to natural law philosophy is insignificant compared
with his insistence on the social purpose and subservience of law. This brings Bentham
much closer to modern legal thought than to his contemporaries or to the predominant legal
philosophy of the nineteenth century.
108
Is the happiness of the greatest number necessarily identical with the sum of the
pleasures of each individual? Bentham knows that the unrestrained pursuit of happiness by
each might well load to a state of affairs where “homo, homini lupus.” But his philosophy
prevents him from finding a solution in such notions as justice, duty, virtue or
subordination to the common good. The link he construes between the happiness of one
and that of all is sympathy.
Horribile dictu, we are more or less back to Kant and his definition of law. Only the
result is not derived from the categorical imperative, but from the pursuit of pleasure. The
practical problem remains: Is the individual or the legislator the best agent to produce the
maximum happiness of all? Here we come to an apparent paradox. Bentham’s faith was an
individualistic one. As a representative of the rising English middle class he believed in
individual initiative and freedom of action. He therefore was an ardent apostle of laissezfaire in economics. He believed that if everyone looked after himself, the general good,
that is the greatest happiness of the greatest number, would be secured. Bentham devoted
his life to the removal of the numerous inequalities which hampered the rising English
democracy, survivals from the age of feudalism and landed gentry. He imagined that, once
this task had been achieved, the law could withdraw, confine itself to a minimum of
restraining activity. In his Theory of Legislation Bentham defines the main functions of
law as being: to provide subsistence, to aim at abundance, to encourage equality and to
maintain security. Of these, security is the most important, and it is this emphasis on the
protective function of law which links Bentham with the analytical positivists, with whom
he has otherwise little in common. It was in order to attain the second aim, equality of
opportunity, that Bentham did so much to develop reforming legislation. He hoped that,
once this reforming legislation had removed the many obstacles in the way of such
equality, it would retire and leave the field to free individual enterprise and competition.
But, by a strange iron of history, the weapon of legislation, which Bentham had so much
helped to forge, was destined to be used more and more to restrict individual freedom in
economic matters, as social problems and evils of undreamt magnitude compelled the state
to abandon this passive attitude to economic and social problems and to introduce social
and economic reforms through the instrument of legislation.
The main weaknesses of Bentham’s work derive from two shortcomings. One is
Bentham’s abstract and doctrinaire rationalism which prevents him from seeing man in all
his complexity, in his blend of materialism and idealism, of nobility and baseness, of
109
egoism and altruism. This leads Bentham to an over-estimate of the powers of the
legislator and an under-estimate of the need for individualising discretion and flexibility in
the application of law. Bentham believed in the possibility of complete scientific
codification, once legislation was based or rational principles. So strong was his naïve
belief in the universality of the scientific principles of codification that he worked with
equal enthusiasm, and disregard for national or historical differences, on codifications for
England, France, Russia or the South American republics. The same attitude of mind,
reinforced by justified distrust of the judicial procedure in England at this time, made
Bentham an enemy of all liberal judicial interpretation. Yet the experience of codification
in all countries has shown the need for an elastic and liberal judicial interpretation in aid
rather than in defiance of the code.
The second fundamental weakness stems from Bentham’s failure to develop clearly
his own conception of the balance between individual and community interests. Bentham
believes that the interests of unlimited number of individuals are automatically conductive
to the interests of the community, but he nowhere really explains why this should be so.
Meantime, this function of interests, how can it be fixed? The nature of the case
admits of one method which is of destroying the influence and power of whatever sinister
interest the situation of the individual may expose him to the action of; this being
accomplished, he will thereby be virtually divested of all such sinister interest; remains, as
the only interest whereby his conduct can be determined, his right and proper interest, that
interest which consists in the share he has in the universal interest, which is the same thing
as to say that interest which is in accordance with the universal interest, taken in the
aggregate.
This delusion about the necessary identity of individual and communal happiness is
reflected in some of Bentham’s concrete proposals. In his Theory of Legislation Bentham
expresses the belief that freedom of enterprise will automatically lead to greater equality:
It is worthy of remark that, in a nation prosperous in its agriculture, its
manufactures, and its commerce, there is a continual progress towards equality. If the laws
do nothing to combat it, if they do not maintain certain monopolies, if they put no shackles
upon industry and trade, if they do not permit entails, we see great property divided land by
land, without effort, without revolution, without shock, and a much greater number of men
coming to participate in the modern phase of fortune… We are at no great distance from
those ages of feudalism when the world was divided into two classes: a few great
110
proprietors who were everything, and a multitude of servants, who were nothing. These
pyramidal heights have disappeared or have fallen; and from their ruins industrious men
have formed those new establishments, the great number of which tests the comparable
happiness of modern civilisation.
Tripped of all technicalities and accidentals, Bentham’s significance in the history
of legal thought seems to be in the following facts:
(1) He links philosophical premises with practical legal propositions.
(2) He places individualism upon a new materialistic basis.
(3) He relates and subordinates the rights of the self-contained individual to the
happiness of the greatest number of individuals -all with equal claims- living
in a community.
(4) He directs the aims of law to practical social purposes instead of abstract
propositions.
(5) He lays the basis for a new relativist tendency in jurisprudence which later will
be called sociological jurisprudence and relates law to define social purposes
and a balance of interests.
(6) He sees a paramount object of law in the guarantee of security, a function
developed, to the neglect of others, by analytical positivism.
(7) He stresses the need and develops the technique of conscious law-making by
codification as against judicial law-making or evolution by customs.
JOHN STUART MILL
John Stuart Mill’s part in legal theory lies in his investigations on the relations of
justice, utility, individual interests and general interest. It was too naive an assumption of
Bentham’s to believe that there was no conflict between individual and general utility.
Indeed, he half-heartedly arrives at a utilitarian version of Kant’s formula of the aim of
law, but from his point of view it remains quite unconvincing why the individual should
restrain his unfettered pursuit of happiness, in the interest of the other members of the
community. The notion of sympathy half covers an admission that there are higher and
lower values in social life and the lower has to yield to the higher. Bentham derides justice
and similar notions. Mill, on the contrary, investigates the nature of justice and its relations
111
to utility. He rightly perceives that traditionally the eternal notions of justice and injustice
are opposed to the shifting and less noble notions of utility and interest. He rightly
observes that in fact nothing has been more unstable and controversial than the meaning of
justice.
What Mill himself attempts is a synthesis between justice and utility. The link is,
somewhat surprisingly, the sentiment of justice. It means in essence the individual feeling
of right which would in itself lead the individual to resent and desire retaliation for
anything disagreeable to him, tempered and “moralised” by the social feeling:
Just persons resenting a hurt to society though not otherwise a hurt to themselves,
and not resenting a hurt to themselves however painful, unless it be of the kind which
society has a common interest with them in the repression of.
Accordingly Mill adapts Kant’s categorical imperative by saying that our conduct
should be such that all rational beings might adopt with benefit to their collective interest.
The “animal desire to repel or retaliate a hurt or damage to oneself” is widened and thereby
“moralised” so as to include all persons. Individual self-assertion and consciousness of the
general good then combine in the sentiment of justice. This association between the
individual and the general good leads Mill to a theory of punishment not very different
from Hegel’s. In thinking of the general interest the criminal himself is led to consider his
crime as an evil. For Hegel punishment is the negation of the crime and thus expresses the
rational will of the criminal himself. And natural law reminiscences come to our minds
when we read:
Our notion, therefore, of the claim we have on our fellow-creature to join in making
safe for us the very groundwork of our existence, gathers feelings around it so much more
intense than those concerned in any of the more common cases of utility, that the
difference in degree becomes a real difference in kind. The claim assumes that character of
absoluteness… which constitutes the distinction between the feeling of right and wrong
and that of ordinary expediency.
This is how Mill links justice with general utility, and it is evident that the approach
of this disciple of Bentham’s differs very much from that of his master. The emphasis
shifts from the individual to the general interest and it is in reality duty rather than right, or
self-seeking interest, or pleasure, which underlies Mill’s conception of the law. But the
conflict between self-interest and general good is eliminated (in theory) by playing of the
intellectual against the animal instinct in human nature. This means, once more, going back
112
to Aristotle and, strange bedfellows as they may seem, the utilitarian Mill and the
metaphysician Hegel reach amazingly similar conclusions in eliminating the dualism
between individual and social interest, by sublimating the individual’s will and his
sentiment for justice. Mill is not, however, led to glorify the state, like Hegel.
SELECTED READINGS
UTILITARIANISM
The main maxims of Utilitarianism were clearly and consistently laid down by Bentham.
He was also able to purify Utilitarianism from its religious ideas and to give it a separate
place among the ethical and philosophical doctrines. After the second half of the eighteenth
century, Utilitarianism became the main doctrine of Great Britain, and it dominated British
thought till the second half of the nineteenth century. When J.S. Mill’s “Utilitarianism”
appeared in 1863, the school had already started to decline, and shortly afterwards it
disappeared.
One of the essential characteristics of Utilitarianism was its success in creating a
consistent school and a creed. Great English thinkers such as Bacon, Berkeley, Locke were
not followed by many zealous adherents. But the leader of the Utilitarian school. Bentham,
was followed by many disciples and they tried to apply Utilitarian maxims to various
fields. Bentham’s School became similar to the Kantian, and Hegelian schools of the
Continent. Sorley describes the unique character of Utilitarianism by saying that “the
Utilitarian group presents an appearance unknown before in English philosophy: a simple
set of doctrines held in common, with various fields assigned for their application and a
band of zealous workers, labouring for the same, and united in reverence for their master.”
It may also be said that, after the disappearance of Utilitarianism no school of thought has
been able to take its place, and no school has been able to be as influential as it was.
Bentham and his followers are also known as Philosophical Radicals. The name
was given to them because of their unshakable determination to reform the eighteenth
century legal and social order of Great Britain. In Politics, the chief aim was to create “a
community of interest between governors and governed”, to sweep away the remnants of
the past, and to create the best conditions for the development and happiness of the people.

Dr. Adnan Güriz “Faydacı Teoriye Göre Ahlâk ve Hukuk”, Ankara Üniversitesi Hukuk Fakültesi Yayınları
No.184, 1963. pp. 189-198.
113
Because of its uncompromising attitude in its reform proposals, the movement was known
as Philosophic Radicalism. The desire for reform and the application of utilitarian
principles to life was also connected with the realistic outlook of the theory. To achieve a
scientific legal system by the application of the principle of happiness was a dominant goal
of the Utilitarians. Probably because of its vigorous reformist activities, R. Pound describes
Utilitarianism as “a school of legislators”. But despite its radical outlook, Utilitarianism
has never been accompanied by anarchism and has remained a middle-class movement.
The sway of Utilitarianism in Great Britain was so strong that it influenced the
famous classical economists. Though Adam Smith, Halthus and David Ricardo were
liberals, they also shared the proper end of government should be the greatest happiness of
the greatest number. But it should also be emphasized that Bentham and his followers were
also influenced by laissez-faire economics and believed that the application of the laissezfaire principles to the economic life of society would create the best conditions for the
happiness of the individual and society.
To a certain degree, Utilitarianism may also be regarded as an individualist
movement. Although Utilitarians assumed a fusion between the interest of society and the
individual, on the whole, they gave the first place to the happiness of the individual and
thought that the happiness of society would arise as a matter of course. Therefore
Utilitarianism shared with the liberals the strong belief in the freedom of the individual.
As regards the legal theory, Utilitarians have considered law not as an end in itself,
but as a means to achieve happiness. Therefore, they strongly opposed the idealistic
Natural Law Theory, and instead of giving an absolute validity to the notion of justice,
they replaced it with the notion of utility, which was, by its nature, relativist and practical.
The aim of law has become the protection of interests. In different fields of law, utility is
accepted as the only guiding principle. In Constitutional Law, to achieve the greatest
happiness of the greatest number and to create a harmony among the interests of the
governors and governed, have become the chief goals of the school. Similarly, in the
region of penal law, all crimes were classified according to the principle of utility. On the
contrary, the Natural Law School sought absolute principles according to which the
existing legal order could be criticized and developed. But it should be borne in mind that
Utilitarianism is firstly a moral theory and secondly a legal theory, and its maxim in both
fields is the same.
114
Bentham rejected the theory of natural law under the influence of his sensualistic
and empiricistic philosophy, and stated that nothing is natural to man, except the attraction
of pleasure and the avoidance of pain. Moving from this position, he established a legal
theory comprising two separate aspects. On the one hand, he adopted a positivist attitude
by neglecting the concept of justice and maintaining that the state cannot be controlled by
law, in so far as law is produced by the state, and on the other hand established a
metaphysical principle as the foundation of law, by accepting “the greatest happiness of the
greatest number” as the aim of the legal policy. It is needless to explain that Bentham’s
principles “the greatest happiness of the greatest number” and “the identification of interest
between the ruler and the ruled”, cannot be deduced from experiment and observation, and
bear a metaphysical character. Though it may be possible to prove that every individual
tends to secure his own happiness, it is impossible to find the principle “the greatest
happiness of the greatest number” by way of observation.
As to the relation between social interest and individual interest, it may be said that
Bentham has not reached a clear and satisfactory conclusion. For in his moral theory, he
upholds the view that the pursuance by every individual of his own interest in the way he
wishes, would bring prosperity and happiness to men. This belief has been disproved by
later events. However, it would be unfair to reduce Bentham on this account, as the general
belief current at the beginning of nineteenth century was that the liberal economy would
produce the best possible results.
Though in Bentham’s moral and economic views, individual happiness forms the
centre of gravity, in his legal considerations the idea of social happiness takes pride of
place. Doubtless, his failure to resolve this contradiction is responsible for the
inconsistency of his system.
Nor is it right to consider social interest or happiness as the sole aim of law, as the
current moral and legal feelings of society are also influential in the codification of laws.
Moreover, it is obvious that there may be conflicts of opinion about what is in agreement
with the social interest, and the principle of social happiness is not, as Bentham though it
was, a concept with clear boundaries. But it may be said that in every society the majority
of people have, whether right or wrong, a concept of social happiness or interest, and in a
democratic society this concept finds expression in periodical elections. The term “general
welfare” or “social happiness”, which Mill uses insistently, has been frequently mentioned
in our time in codification activities and in the accomplishment of the state’s social duties.
115
Among the contributions of Bentham to the science of law, are to be stressed his
analytical views concerning the problem, of what kind of social relations are represented
by legal fictions and of finding out the interests of which persons are served, and in what
manner, by legal rules and institutions. He may be said to have influenced thereby
sociological studies of law.
Bentham’s views as regards legal sanctions are equally remarkable. He does not
deny the compulsive character of law and observes that punishment is mostly used as a
legal sanction. However, he points out that in some cases the lawmaker may attain its aims
by a distribution of rewards. If we consider law as a means to the realisation of social aims,
it becomes possible to admit, that, in some cases, a reward can play a part as a sanction.
Moreover, he realises that compulsion also plays a part in the legal rules which rest on the
sanction of reward.
In a country like England, where there was a strong reluctance to codified law,
Bentham’s defence of codification activities of every kind, and his assertion that
codification is always superior to unwritten law, deserve to be noted. Though even today,
an important part of English law is still not codified, it cannot be denied that Bentham was
strongly influential in removing the suspicion against codification activities that had
previously prevailed.
Similarly, it may be said that Bentham’s reform proposals of civil and criminal laws
contain very advanced views as compared with those prevalent in his time. His views
concerning the necessity of taking into consideration the effects of the crimes on society in
determining punishments, are right but insufficient as it is also necessary to take into
consideration the requirements of justice in determining punishments.
J.S. Mill’s insistence on the dynamic character of the notion of utility is one of the
important points in which he differs from Bentham. In comparing social happiness with
individual happiness, J.S. Mill clearly expressed the superiority of social happiness. In
doing so J.S. Mill introduces the feeling of sociability in men. On the other hand, J.S. Hill
expressed clearly that liberty is an indispensable element of social happiness. The fact that
he dwells on relations between justice and utility, shows his intention to develop
Bentham’s legal theory in an idealistic direction. But Mill’s views concerning the
independence and interaction between justice and utility lacks clarity. Both Bentham and
J.S. Mill have attempted to establish an “a posteriori” legal and moral system. However,
both have, consciously or otherwise, departed from the original direction by adopting
116
metaphysical principles that cannot be confirmed by experience or observation. This
feature is more obvious in Mill’s than in Bentham’s theory. The impossibility of
establishing a theory of morality and law entirely on the observation of facts may be the
cause of this deviation. For, the error of including metaphysical values not confirmed by
experience or observation, was not only committed by English Utilitarianism. The great
majority of positivist theories of morality and law have, in the end, been confronted by the
necessity of adopting some metaphysical principles.
Sociological Positivism
The extension of scientific study to many new fields, and the belief, so strong in the
nineteenth century, that scientific progress would ultimately determine human behaviour,
influenced legal thinkers in different ways. While Spencer deduced his theories about law
from laws of biological evolution, the scientific positivism of Auguste Comte leads to a
different line of thinking which culminates in the legal theory of Duguit.
Comte’s scientific positivism is based on the empirical as opposed to the
metaphysical method. All reflections must, according to Comte, be derived from
experience and observation, from facts, not preconceived ideas. Applying this method to
the evolution of mankind, Comte divides human history into three phases: a theological
phase in which the human mind explains the force of nature by personified deities; a
metaphysical phase, in which the forces of nature are still personified, but put into causal
relations; and the scientific or positivist phase in which man regards nature objectively,
experimentally and without personification. By a parallel division of the branches of
human knowledge -all of which go through these three phases- Comte ascribes to
sociology the task of building up a real science of human society, based purely on
observation of facts and excluding all metaphysical ideology. Like his followers and most
positivists, Comte was unaware of the metaphysical and ideological element in his
interpretation of human evolution, which, like Spencer’s, is dominated by the belief in the
inevitability of human progress.
The manifold aspects of Comte’s teaching and its influence on different fields of
science and philosophy cannot be discussed here. In the field of legal theory its most
important result was the work of Durkheim which, in its turn, inspired Duguit. Durkheim,

W. Friedmann, op. cit., pp.178-186.
117
by his distinction between collective and individual consciousness, came to investigate
some of the factors of social needs and action.
Durkheim distinguishes between two kinds of needs and aptitudes of men living in
society. Both hold them together and ensure that they remain united in national societies.
There are, on the one hand, common needs satisfied by men lending each other mutual
assistance and by putting together their similar aptitudes (solidarity by similitude or
mechanical solidarity). On the other hand, men have different aptitudes and diverse needs.
They are satisfied by an exchange of services, each using his own aptitudes to satisfy the
needs of others.
This division of labour is, according to Durkheim, the preeminent fact of social
cohesion (solidarty by division of labour or organic solidarity). But the social solidarity
will be the greater, the more energetically and freely individual activities develop.
This discovery of social solidarity as a fact and necessity of social life served Leon
Duguit as the basis of a legal philosophy which, however, he was most anxious not to have
termed “philosophy.” For the great inspiration was, to Duguit, the scientific establishment
of social cohesion as an indisputable fact, beyond controversy, beyond ideology, beyond
religious or metaphysical speculation. At last, so it seemed to him, the age-old
controversies about ideals of justice could be left alone. The “constant realisation of the
social fact which is quite simply the interdependence of individuals,” could at last replace
ideological quarrels by observable facts.
Duguit rejects an idealistic tendency in Durkheim’s work, the assertion that,
immanent in the experience of social community there are objective ideals which surpass
experience and manifest themselves in objective realities.
As biological laws are founded in the fact that constitutes the organism, so social
norms are based on “the fact that is society.” Duguit transposes into the social, the idea of
biological finalities and, as a result, biological values. In effect, he envisages as a factor of
social values that finality of human activity which consists in realising solidarity… But
that solidarity is, according to him, the law of the social body, the law according to which
the life of that body is maintained and developed. Consequently, these finalities consist in
the adaptation of individuals to the maintenance and to the development of social life.
How does Duguit translate these premises into terms of law?
118
Law, as an aspect and requisite of social solidarity, is a fact. It is a rule which men
possess not by virtue of any higher principle whatever -good, interest, or happiness- but by
virtue and perforce of facts, because they live in society and can only live in society.
The duty to maintain social solidarity is also a fact, beyond discussion.
From this maxim disguised as fact, Duguit deduces many juristic conclusions. The
conviction of its unassailability supports him in the boldest attempt made by any modern
jurist to assail, at the same time, the sovereignty of the state and the rights of the
individual.
As a jurist Duguit has one object above all; to establish a rule of law absolute and
incontestable, and at the same time objective, freed from the arbitrariness of human will
and lust for power, which so often assumes the mantle of state sovereignty. A large part of
his work is devoted to an attack on the myth of state sovereignty and the theories which
personify and sometimes deify the state. To Duguit the state is not a person distinct from
individuals. The only thing in existence is the individual will of those who govern. They do
not act for any supposed collective. Since those in government are just those who exercise
preponderant force, they have a corresponding duty of fulfilling a social function: to
organise certain services, to assure their continuity and control their operation. Thus,
government and the state lose their towering status and become part of the social organism
with a particular function in the division of labour which serves the attainment of social
solidarity. “L’état est mort,” exclaims Duguit.
From this general point of view follow a number of conclusions of great
constitutional legal and social importance.
Duguit is in favour of a strong check on the abuse of state power through the
establishment of strict principles of state responsibility. Duguit’s mistrust of an allpowerful state combined with his belief in the advisability of the greatest possible division
of labour leads him to emphasize decentralisation and group government as the best way of
government. From this Duguit develops a syndicalism strongly opposed to the
revolutionary syndicalism of Sorel. Duguit defines it as a movement which tends to give a
definite juristic structure to the different social classes, that is the groups of individuals
who are already combined by community of task in the division of social labour.
These different classes co-operate with each other and at the same time protect the
individuals belonging to them against the excessive claims of other classes and against
arbitrary action of the central power. This side of Duguit’s theory, which is, of course,
119
radically opposed to the Marxist conception of perpetual conflict between capital and
labour, has provided much of the theoretical basis for the corporative theory of Fascism. At
the same time Fascism and national socialism have radically altered the basis of Duguit’s
system, by subordinating syndicalism to a state even more powerful, godlike and arbitrary
than any that Duguit had in mind and abhorred.
A further consequence of Duguit’s minimisation of the state’s function is the
rejection of the intervention of the state as the decisive factor in turning a social into a legal
norm. Duguit’s conclusions in this respect thus tally with those of the historical and some
of the sociological theories.
It is not the intervention of the state which gives the character of juridical norm to
the rule; it would be powerless to prove it if the rule did not already possess it itself. An
economic or moral rule becomes a juridical norm when there has penetrated into the
consciousness of the mass of individuals composing a given social group, the notion that
the group itself, or those in it who constitute the greatest force, can intervene to suppress
violation of the rule; in other words, a rule of law exists whenever the mass of individuals
composing the group understands and admits that a reaction against the violation of the
rule can be socially organised.
The legislator is consequently not the creator of law, but merely gives expression to
a juridical norm formed by the consciousness of the social group. This is an almost exact
restatement of Savigny, despite the vast differences in the approach and social creed of
these two thinkers.
It further follows that Duguit radically rejects any division between public and
private law. This division, all-important on the Continent and of growing significance in
English and American law, stands and falls with the distinction between public authority
and private subject. Both are, however, in Duguit’s system, parts of the social body with
certain functions to fulfil. “The notion of public service replaces the conception of
sovereignty as the foundation of public law.” Duguit’s position is, in this respect, similar to
Kelsen’s. Both distrust the arbitrariness of authority disquised under the special status of
public law and both therefore deprecate the distinction. The same ideal underlies the
English constitutional tradition to strongly praised by Dicey: that there can only be one law
to which all, government and governed alike, are subject.
In yet another direction Duguit reaches conclusions similar to those of Kelsen.
Viewing all individuals, whether exercising public functions or not, as parts of a social
120
organism with the function of helping the weal of others as well as their own, by public
service, he rejects the whole conception of private right. The idea of social function
“crowds out” the conception of subjective right. Duguit often repeats a saying by Comte:
The only right which any man can possess is the right always to do his duty.
The necessity of individual right disappears with the absence of any one that can
and must exercise it. Since all co-operate for a common end by exercising a certain
function the conception of a subjective right either of the state or the individual becomes
superfluous and dangerous.
Criticism
Duguit attacked so many positions at once that his work was bound to stir up great
controversies. It touches many problems of modern society.
Aware of the growing complexity of modern social life Duguit attacks
individualism as reflected in the conception of inalienable individual rights. But he equally
rejects the alternative, suggested by most other theories which take this line, of
strengthening the central power of the state. Instead he advocates decentralised group
government and the link between the different groups is to be an objective rule of law, the
principle of social solidarity. This savours of natural law although Duguit emphatically
rejects any such metaphysical conception as incompatible with scientific positivism; yet
his ideal of social solidarity is as strong a natural law ideal as any ever conceived. It is as
absolute and austere as the natural law of Thomas Aquinas or Kant’s categorical
imperative.
Despite Duguit’s insistence on the scientific and factual character of his rule of
social solidarity, his three rules of conduct are framed in terms of imperatives:
(1) Respect every act of individual will determined by an end of social solidarity.
Do nothing to prevent its accomplishment. Co-operate as far as possible toward
its accomplishment.
(2) Every individual ought to abstain from any act that would be determined by an
end contrary to social solidarity.
(3) Do nothing to diminish social solidarity by similitude, or social solidarity
through division of labour. Do everything materially practicable for the
individual to increase social solidarity in both its forms.
121
This problem is necessarily linked with the question which authority would decide
when the superior law has been infringed. In the scholastic system the Church is the
interpreter of eternal law. In the United States the Supreme Court is guardian of the
Constitution and enforces the superior law against legislation and Executive. Duguit was
aware of the possibility of conflict between positive law and the higher objective law of
social solidarity. In the absence of a higher tribunal he sympathised with the idea of
granting judges the right to refuse recognition to statutes not in accordance with social
solidarity, but it is understandable that Duguit found it difficult to make up his mind about
it. For the judicial right to invalidate statutes as being incompatible with so general a
principle would have given fully play to judicial prejudice and would impair what certainly
the law possesses. Even in the United States, where a complicated mechanism of checks
and balances is designed to ensure the rule of law, where a written Constitution lays down
principles much more concrete than Duguit’s principle, and where the ultimate word rests
with a court composed of carefully selected judges of high integrity and great experience,
the fact that the ultimate word rests with a court composed of nine men has lad to a judicial
despotism which for many decades, in the name of the rule of law and under the protection
of judicial independence, has retarded vital social legislation. A judicial control exercised
without such elaborate safeguards and in the name of a principle as vague as it is high
sounding would be more dangerous still. Duguit himself saw clearly that the state is an
instrument of those who have power to govern. This human weakness exists equally in
judicial personnel.
And what exactly does social solidarity mean? We may admit that the mutual
interdependence of men in society and the need to collaborate for the functioning of social
life is a scientific fact. But as many of those who have examined the comparative precision
of facts in the social and the natural sciences have observed, social facts are much less
clearly determined than natural facts, and Duguit’s social facts are, as one critic has
observed, “facts of a highly metaphysical order.” Duguit’s principle of social solidarity is
what Kelsen would call an “initial hypothesis.” Duguit’s basic norm is not, however,
hypothetical but categorical. And it is capable of very diverse interpretations. It can stand
for social progress or for social reaction, for liberty or for suppression. It may be and has
been used by whatever individuals hold power to be interpreted for their convenience.
Thus Duguit’s ideas have had considerable influence on Soviet jurisprudence but
particularly on Fascist jurisprudence. The former derived from Duguit’s notion of function
122
and duty the exclusion of individual right, the elimination of private law and the
assimilation of all law to administration; the latter used Duguit’s anti-revolutionary
syndicalism as an effective weapon against Marxist conceptions and the organisation of the
working-class in trade unions, while superimposing upon it an all-powerful state.
While Duguit saw clearly one social fact of modern life, namely the growing
complexity of society, with a corresponding increase of social tasks and needs, he
neglected another, namely the trend towards a strengthening of central authority, as being
alone capable of mastering the vital social problems of a modern community.
It is therefore not surprising that the least successful of all Duguit’s doctrines is his
belated revival of theories which minimised the function of the state and made groupconsciousness the test of the legal norm. It is a pious illusion to assume that “the rising of
an active group against the author of an act attacking social solidarity” would be a good
proof of the existence of a legal norm. This “rising” appears to be a poor relation of a
sanction and its weakness lies in the indistinct character of a social group as compared with
an order issuing from a legislative or executive authority and binding the entire
community. How, for example, can one define the “working class” today with sufficient
accuracy? Does it include the highly skilled and paid in industrial work, the occasionally
employed and the permanently employed, is it to centre round the manufacture of a certain
product or round a working unit, such as a factory? Will managing directors, office clerks
and skilled workers rise in union?
In this respect more than in any other, Duguit was a romantic. By a strange iron of
history, this romantic aspect of his theory was destined to become extremely useful for the
most unromantic, cold-blooded and cynical attempt to use this alleged social solidarity for
the suppression of the rights of the citizen, and ultimately for the satisfaction of the
unlimited power lust of a few.
Another paradox in Duguit’s system is his attack on the myth of collective
personality, while his conception of social solidarity and the close analogy of his ideas to
Claude Bernard’s biological values savours strongly of the same organic theories of state
and corporate personality which Duguit detested. Never, perhaps, has a more sincere effort
been made in jurisprudence to reconcile antinomies, the supremacy of the community with
the highest development of the individual, the rule of law with the will to power, justice
and efficiency. In this attempt Duguit has failed, but no one else has succeeded either.
123
SELECTED READINGS
OBJECTIVE LAW
The object of the social norm is the regulation of individual activity, the
determination of the acts which man is obliged to perform or not to perform. In speaking of
obligation, it is understood, as I have already explained, that it is a question, not of an
obligation modifying the substantial will of the individual, but of a purely social
obligation; that is, such that if it is not fulfilled, a certain instability is produced in the
element constituting the social group, and consequently a social reaction, that is, a
spontaneous effort for the reestablishment of equilibrium. In other words, the social norm
forbids every action or abstention which can produce a social disorder, so that when such
an agitation has been produced there is a tendency in society to reestablish order.
The fact of social solidarity was made prominent and minutely described by
Durkheim in his celebrated book, “La division du travail social” (1891).
I have tried to describe it by presenting it from a point of view slightly different
from that of Durkheim in my book, “L’etat, le droit objectif et la loi positive”, (1901) and
in the first edition of my treatise on constitutional law (1911). Here I will state only the
essentials.
Men are united in society and remain united, particularly today; they are united and
remain united in national societies because they have common needs and also because they
have different needs as well as different aptitudes.
Men have common needs which can be satisfied only by life in common. Men lend
each other mutual assistance for the realization of their common needs by putting together
their similar aptitudes. This constitutes the first element of social life and forms what
Durkheim calls solidarity by similitude or mechanical solidarity.
On the other hand, men have different aptitudes and diverse needs. They assure the
satisfaction of these needs by an exchange of services, each one using his own aptitudes to
satisfy the needs of others, in return for which he receives from them a contribution of
services. Thus there is produced in human societies a vast division of labor, which is the
pre-eminent fact of social cohesion; it is, (still following Durkheim’s terminology)
solidarity by division of labor or organic solidarity. Individual autonomy appears here as
an essential factor of social solidarity, since this solidarity will be greater the more

Hall, op.cit., pp.201-210.
124
individual activity develops. Different needs will be better satisfied, the social bond will be
stronger, social life more intense, in proportion as individual activities develop more
energetically and freely.
*** But if the fact of solidarity has not itself been disputed, it has been said that it
could not be the source of the social norm, nor even the object of this norm, because a fact
cannot be the source of an obligatory rule nor oblige a will to conform to it.
I have already replied that the objection would have some foundation if I viewed
the social norm as a rule creating an obligation which affects the very will of the subject,
creating for him a moral duty in the metaphysical sense of the word, modifying the will in
its substance. But this is not so; this norm is a rule which leaves all the wills what they are,
a rule whose violation involves a social reaction and nothing else, a rule which should not
be violated because, if it is violated, social life is disturbed, and then the social organism
reacts against the author of the violation. Nevertheless, this rule is not a biological law
because the individuals to whom it applies are conscious of their acts and of the motives
determining them.
The social norm includes, and this is the second step, a totality of moral regulations.
(The social norm in its entirety includes economic norms, moral norms, and juridical
norms, In using this expression, I do not mean a rule resting upon a superior principle
formulated a priori and expressing the criterion of what is in oneself, good or bad, and
therefore commanded or forbidden. Does morality so understood exist? This is a
considerable problem which has impassioned men ever since they began to think, but
which is beyond the reach of positive science and which I am not concerned with
discussing.
I mean here, by moral rules, those which apply to every man living in some country
at a given period, which impose upon him a certain attitude in his external manifestations,
in regard to his clothes, his dwelling, his worldly relations as well as his religious practices.
In a word, by moral rules I mean those which oblige every man to conform in his external
life to that totality of practices which are called the customs of a society. If he does not
conform to them, he meets a spontaneously produced social reaction more or less strong
but certain. These rules have by this very fact an obligatory character.
Here then is a social norm whose imperative force must be recognized.
Nevertheless, it has no foundation but the social fact itself. The objection is not raised to it
that it is founded only on a fact, not on a superior principle. Its object is the relations of
125
individuals living in society, and it is founded on the very existence of these relations. Man
is subject to it because he is man and as such is included in the bonds of social discipline
nothing more. This is a positive rule, directly derived from the social fact. Neither the
economic norm nor the moral norm are as such juridical norms. Every juridical norm is
either moral or economic; but every moral or economic norm is not necessarily juridical. It
is necessary then to determine the moment when the economic or moral norm becomes
juridical. But first of all it is necessary to say of the moral norm what has already been said
of the economic norm, that is, that if its exclusively social and positive foundation renders
it obligatory. I cannot see why, when it acquires the character of a judicial norm, it should
cease to be obligatory and why it must then be attached, to became imperative, to a
superior principle, a metaphysical doctrine.
*** I persist in thinking that the existence of a rule of law imposing itself upon all,
governors and governed, State and subjects, can be conceived without the necessity of
connecting it with a superior principle of a metaphysical nature. I believe, on the other
hand, that this rule exists without the intervention of the State; in other words, that at a
certain moment an economic or moral rule becomes a rule of law without the intervention
of the State. Assuredly, the latter often intervenes, almost always in modern nations which
have reached the legislative phase of juridical evolution. But it is not the intervention
which gives the character of a juridical norm to the rule; it would be powerless to prove it,
if the rule did not already possess it itself. An economic or moral rule becomes a juridical
norm when there has penetrated into the consciousness of the mass of individuals
composing a given social group, the notion that the group itself, or those in it who
constitute the greatest force, can intervene to repress violation of this rule. In other terms, a
rule of law exists whenever the mass of individuals composing the group understands and
admits that a reaction against the violation of the rule can be socially organized.
The rule: “Thou shalt not kill another, unless thou be attacked by him” is in itself a
rule of law, a juridical norm imposing itself upon every man living in society. It is not only
a moral rule; it is also a rule of law. It is a rule of law not because there is a superior
principle, an eternal principle of natural law obliging every man to respect the life of his
fellow, but because there is a rule which has penetrated the consciousness of men living in
the same social group who understand that the very conditions of social life demand
respect by each for the lives of others. The rule which forbids homicide become a rule of
law from the moment when it was understood that elements of the social force should be
126
set in motion in a permanent manner to furnish a sanction for this rule. This prohibition of
homicide was a rule of law long before its formulation into a positive penal law.
*** Long before the idea of positive law was formed in men’s minds and was
realized by the establishment of a written legislation, there were rules of law. Long before
the governors were asked to frame laws, they were asked to assure in a regular and
permanent manner the sanction of such and such a rule. *** It must not be said then that
the social rule became a juridical norm at the moment when the State or the governors
recognized it, ascertained it, formulated it, and provided a sanction for it, but rather at the
moment when the minds of the mass felt a consciousness more or less clear, but certain,
that the governors should normally and regularly intervene to enforce respect for this rule,
to punish its infringers, to abolish all the acts which would violate it, and to repair as far as
possible the social disorder produced by its infraction.
*** There are rules which are formulated in law and which, nevertheless, are not
yet rules of law; and there are rules of law which are not yet inscribed among the positive
laws.
*** For instance, the obligation the guarantee help to the old, the infirm and the
incurable who are without resources, evidently existed as a juridical norm before the law of
July 14, 1905, which intervened to make it certain and to ordain its sanction. This law only
made certain and furnished a sanction for an already existing juridical rule. On the other
hand, the law of April 5, 1910, has formulated to no purpose the obligation of workmen
and peasants to retire; it has not made of it a juridical norm, properly so-called. The great
majority of peasants and more than two-thirds of the workmen affected by the law, have
not obeyed it. This obligation of retirement has not yet entered into the consciousness of
the masses and the governing power would be powerless to put into play the legal
processes created by this law to assure its execution. The rule of obligatory retirement will
become a juridical norm only when the consciousness of the masses is filled with the idea
that the governors must really impose the execution of such an obligation by force.
*** The sentiment of sociality and the sentiment of justice these are the two
elements which cooperate in forming in men’s mind, at a given moment, the consciousness
that a certain rule is a juridical norm.
*** The idea of what is just or unjust is infinitely variable and changing. But the
sentiment of the just is a permanent element in human nature. It is found in all periods and
in all degrees of civilization, in the souls of all men, in the wisest as in the most ignorant.
127
I say the sentiment of justice as I said the sentiment of sociality, and not the idea of
justice any more than the idea of sociality, to show that in my thought it is not a question
here any more than previously of an a priori notion, of the conception of a superior
principle. Man has the sentiment that he is responsible to other men because he is a social
being; this is the sentiment of sociality. Justice is not a rational, absolute idea, revealed by
reason. It is a sentiment belonging to human nature. The activity of man is always
dominated by the double sentiment of his social character and of his individual autonomy.
This last is in reality the sentiment of justice. Every act which attacks it directly, while at
the same time attacking social solidarity, appears to man contrary to the fundamental social
norm. The entire group rises against the author of such an act, and the norm which it
violates then acquires the juridical character.
*** I say now that for a rule to be a juridical norm, it is not enough that it be in
conformity with the feeling of social solidarity, it must also correspond to the sentiment
which the mass of minds have of justice.
*** Sociologists and lawyers who wish to place behind the conscious activities of
individuals (which in fact are usually the results of reciprocal reactions of individuals
belonging to the same group) a collective consciousness as the foundation of those
individual activities, proceed exactly as the ancient physiologists who placed an imaginary
entity which they called the vital principle behind the vital phenomena of organic cells; or
again as the psychologists who place behind directly observable physical phenomena an
assumed thinking substance, the soul, in which men can doubtless believe if they feel the
need, but whose existence cannot be scientifically admitted because it is unproved and
unprovable.
The foundation of social norms in general, and of the juridical norm in particular,
can be only the consciousness of the individuals, until there be the proof to the contrary,
proof which it can be said without presumption will never be made.
It is not custom which, at a given moment, created the norm forbidding murder or
theft in a society. Custom only created the measures used to furnish this prohibition with a
sanction. *** Custom creates the measures used to give sanction to a norm which existed
before custom and which is obligatory in itself; it receives all its force from the norm to
which it tends to give a sanction.
*** Indeed I cannot repeat too often that the adhesion, even the unanimous
adhesion, of jurists, cannot make a rule into a juridical norm. They can only bring to light a
128
rule already existing in the popular consciousness and give it a precise formula. If they
have been able to help form the state of consciousness from which it is derived, it is always
the adhesion alone of the individual consciousness of a social group which gives to a rule
its juridically obligatory character.
*** Tribunals before which a litigation has been brought should strive to discover
the juridical norm according to which the litigation should be decided and to do this they
should proceed as do the jurists: examine the facts, seek out the aspirations and tendencies
of the time, the needs of social solidarity and the solution which the sentiment of justice
demands. When the same litigious question has been brought before them several times,
judges will reach the same decision and will naturally apply the same rule. Their decisions
will appear to the superficial observer like the creation of a new juridical norm. It is not
this at all. Judges are only interpreters; it is true that they have brought to light a rule of
law; but this rule existed before their decisions; it imposed itself upon them; it receives its
obligatory force, not from the formula repeated by the judge, but from the more or less
obscure individual consciousness in which it was formed. If these decisions of the judge
are applied without resistance, and if the mass of individuals bow before them, it is proof
that they are in conformity with the true juridical norm. Often also the decision of the
judge will hasten and complete the formation already taking place in the consciousness of
the social group. Judges can be inspirers and initiators; they are never and can never be
creators.
If it is really true that law is a spontaneous production of individual consciousness,
inspired at the same time by social necessity and the sentiment of justice, this and only this
can be the norm of law. This product of individual consciousness is the juridical norm and
the only juridical norm… No juridical norm, except this production, can exist. There
cannot exist at the same time a rule of law arising spontaneously from individual
consciousness and imposing itself because it corresponds to a social necessity and to the
sentiment of justice, and another rule of law imposing itself because it emanates from a
commanding, sovereign, will. There cannot be a juridical duality, a spontaneous juridical
norm and an imposed juridical norm.
This being so, legislation can only be conceived of as a means of expression of
rules of law. The legislator does not create it, he defines it; and legislation imposes itself
only in proportion as it is in conformity with this rule. Obedience is not owed to laws as
such, but only to the laws giving expression to or putting into practice a juridical norm.
129
If custom and jurisprudence are means of defining objective law, they are
incontestably rather inexact and vague means. Again, custom and jurisprudence, to assure
the realization of a juridical norm, can only organize quite imperfect technical processes.
Even then, they only reach them after a long series of gropings. Those technical processes,
which are sometimes fairly rapidly crystallized, more often on the contrary remain for a
long time uncertain, fragile and changeable. Legislation has the advantage of being able to
formulate clearly the juridical norms whose realization it tends to assure and of being able
to organize immediately in a complete and precise manner, the technical processes which
will assure its sanction. It marks out: immediately a rule of conduct for individuals and
particularly for the agents of jurisdiction and administration whose duty it is to intervene.
This question brings us to the point of knowing how, in an essentially legislative
period like the one we have reached, the doctrines of jurisprudence behave as regards
written law, when the text of written law is mute or obscure. I think that in fact the
spontaneous production of law never stops, and that the judge is absolutely free in his
judgment and that he cannot be impeded or hindered because anything is claimed to me the
real, though unexpressed, thought of the legislator. The written text is what it is. There is
no need to seek for what the private and unexpressed thought of the legislator may have
been. The text should be taken by itself; it limits the public agent to the extent of its
specific terms but not beyond them.
*** The obligatory force of the juridical norm does not imply in the least the
existence of a superior will imposing itself upon a subordinate will; it only implies in the
mass of minds the consciousness of its obligatory character, and what I have called briefly,
juridical consciousness. Neither does the rule of international law imply the existence of a
super-State imposing its will upon subordinate States; it only implies an international
juridical consciousness; that is, the idea in the mass of minds belonging to different state
groups which have relations with each other, that it is just for a certain moral or economic
rule to be furnished with an energetic sanction by the use of force if there is need, the
consciousness that respect for this rule is indispensable for the maintenance of international
solidarity. Whether the force intended to realize this sanction is organized or not, whether
it even can be organized, is of little importance. There is an international juridical norm
from the moment when the international consciousness exists that a certain rule must be
respected, that it is just for it to exist, and that this necessary for the maintenance of
international solidarity.
130
Analytical Legal Positivism
The work of the English jurist John Austin (1790-1859) remains the most
comprehensive and important attempt to formulate a system of analytical legal positivism
in the context of the modern state.
Austin’s most important contribution to legal theory was his substitution of the
command of the sovereign (i.e., the state) for any ideal of justice in the definition of law.
Austin defines a law as a rule laid down for the guidance of an intelligent being by an
intelligent being having power over him.
Law is thus strictly divorced from justice and, instead of being based on ideas of
good and bad, is based on the power of a superior. This links Austin with Hobbes and other
theorists of sovereignty; but it was left to Austin to follow up this conception into the
ramifications of a modern legal system.
The first division of law is that into laws set by God to men (law of God), and laws
set by men to men (human laws). The former class of laws is of no real juristic significance
in Austin’s system, compared, for example, with the scholastic teaching which establishes
an organic relation between divine and human law. In Austin’s positivist system, which
refuses to relate law to goodness or badness, the law of God seems to fulfil no other
function than that of serving as a receptacle for Austin’s utilitarian beliefs. The principle of
utility is the law of God. This proclamation of Benthamite faith has no influence
whatsoever on the main principles of Austin’s doctrine.
Human laws are divisible into law properly so called (positive law) and laws
improperly so-called. The former are either laws set by political superiors (either
“supreme” or “subordinate”) to political subordinates (such as statutes and by-laws), or
laws set by subjects, as private persons, in pursuance of legal rights granted to them. As an
example, Austin gives the rights of a guardian over his ward. But since the legal nature of
such rights derives from the indirect command of the superior who confers such right on
the guardian, it is obvious that every enforceable private right must fall within this
category. Laws improperly so-called are those which are not set -directly or indirectly- by
a political superior. In this category are divers types of rules: rules of clubs, laws of
fashion, laws of natural science, the rules of so-called international law. To all these Austin

W. Friedmann, op.cit., pp.211-214.
131
gives the name of “Positive Morality,” thus describing both their closeness to and their
difference from positive law.
The positive law, or “law properly so-called,” which remains, is characterised by
four elements, command, sanction, duty and sovereignty:
Laws properly so-called are a species of command. But, being a command, every
law properly so-called flows from a determinate source...whenever a command is
expressed or intimated, one party signifies a wish that another shall do or forbear; and the
latter is obnoxious to an evil which the former intends to inflict in case the wish be
disregarded…. Every sanction properly so-called is an eventual evil annexed to a
command…. Every duty properly so-called suppose a command by which it is created…
and duty properly so called is obnoxious to evil of the kind….
The science of jurisprudence is concerned with positive laws, or with laws strictly
so-called, as considered without regard to their goodness or badness.
All positive law is deduced from a clearly determinable law-giver as sovereign.
Every positive law, or every law simply and strictly so-called, is set by a sovereign
or a sovereign body of persons, to a member or members of the independent political
society wherein that person or body is sovereign or supreme.
The sovereign is thus defined by Austin:
If a determinate human superior, not in a habit of obedience to a like superior,
receive habitual obedience from the bulk of a given society, that determinate superior is
sovereign in that society, and the society (including the superior) is a society political and
independent.
Austin explains that the superior may be an individual or a body or aggregate of
individuals.
The sovereign is not himself bound by any legal limitations, whether imposed by
superior principles or by his own laws. Any higher principles or self-limitations are merely
guides which the sovereign may discard.
Austin’s conception of sovereignty as an element of law clearly presupposes a prelegal element, which cannot be deduced, but must be assumed or proved as existing in fact:
the habit of obedience from the bulk of a given society.
132
GERMAN POSITIVISTIC THEORIES OF LAW AND STATE
In so far as Austin’s theory is based upon the command of the sovereign -the
sovereign being the modern state- his teaching was accepted and further developed by the
leading German nineteenth century jurists, notably Rudolf von Ihering and George
Jellinek.
Ihering, apart from being the forerunner of sociological jurisprudence, is also the
principal German exponent of the coercive or imperative theory of law. A substantial part
of his Law as a Means to an End is devoted to the demonstration that law is dependent
upon coercion and that the right to coerce forms the absolute monopoly of the state.
Ihering’s influence is apparent in the dominant trend of the German doctrine of the
state as represented by Jellinek. Thus Jellinek gives the following three essential marks of
a rule of law:
(1) They are norms for the external conduct of men towards one another.
(2) They are norms which proceed from a known external authority.
(3) They are norms whose binding force is guaranteed by external power.
To this purely imperative conception of law Jellinek gives, however, a
psychological turn by adding to these three requisites the effectiveness of the rule in action.
The authority which has prescribed it must be so backed by social and psychological power
as to be in a position to give effect to it.
Altogether, Ihering’s insistence on force, concentrated in the state as the essential
element of law, combined with the state glorification and anti-internationalist bias of Hegel
to give German doctrines of public constitutional and international law an intensely
nationalist turn.
133
SELECTED READINGS
THE NATURE OF LAW
LECTURES ON JURISPRUDENCE
By John Austin
Third edition by Campbell, London, 1869
*** 1. Laws properly so-called are a species of commands. But, being a command,
every law properly so-called flows from a determinate source, or emanates from a
determinate author. In other words, the author from whom it proceeds is a determinate
rational being, or a determinate body or aggregate of rational beings. For whenever a
command is expressed or intimated, one party signifies a wish that another shall do or
forbear: and the latter is obnoxious to an evil which the former intends to inflict in case the
wish be disregarded. But every signification of a wish made by a single individual, or
made by a body of individuals as a body or collective whole, supposes that the individual
or body is certain or determinate. And every intention or purpose held by a single
individual, or held by a body of individuals as a body or collective whole, involves the
same supposition. 2. Every sanction properly so-called is an eventual evil annexed to a
command. Any eventual evil may operate as a motive to conduct: but, unless the conduct
be commended and the evil be annexed to the command purposely to enforce obedience,
the evil is not a sanction in the proper acceptation of the term. 3. Every duty properly so
called supposes a command by which it is created. For every sanction properly so-called is
an eventual annexed to a command. And duty properly so called is obnoxiousness to evils
of the kind.
Now it follows from these premises, that the laws of God, and positive laws, are
laws proper, or laws properly so-called.
The laws of God are laws proper, inasmuch as they are commands express or tacit,
and therefore emanate from a certain source.
Positive laws, or laws strictly so-called, are established directly or immediately by
authors of three kinds: -by monarchs, or sovereign bodies, as supreme political superiors:
by men in a state of subjection, as subordinate political superiors: by subjects, as private
persons, in pursuance of legal rights. But every positive law, or every law strictly so-called,

Hall, op. cit., pp.395-398.
134
is a direct or circuitous command of a monarch or sovereign number in the character of
political superior: that is to say, a direct or circuitous command of a monarch or sovereign
number to a person or persons in a state of subjection to its author. And being a command
(and therefore flowing from a determinate source) every positive law is a law proper, or a
law properly so-called.
Of laws properly so-called which are set by subjects, some are set by subjects as
subordinate political superiors. But of laws properly so-called which are set by subjects,
others are set by subjects as private persons: Meaning by “private persons,” subjects not in
the class subordinate political superiors, or subordinate political superiors not considered
as such.
-Laws set by subjects as subordinate political superiors, are positive laws: they are clothed
with legal sanctions, and impose legal duties. They are set by sovereigns or states in the
character of political superiors, although they are set by sovereigns circuitously or
remotely. Although they are made directly by subject or subordinate authors, they are
made through legal rights granted by sovereigns or states, and held by these subject authors
as mere trustees for the granters. -Of laws set by subjects as private persons, some are not
established by sovereign or supreme authority. And these are rules of positive morality:
they are not clothed with legal sanctions, nor do they oblige legally the parties to whom
they are set. But of laws set by subjects, as private persons, others are set or established in
pursuance of legal rights residing in the subject authors. And these are positive laws or
laws strictly so-called. Although they are made directly by subject authors, they are made
in pursuance of rights granted or conferred. Sovereigns in the character of political
superiors: they legally oblige the parties to whom they are set, or are clothed with legal
sanctions. They are commands of sovereigns as political superiors, although they are set by
sovereigns circuitously or remotely.
A law set by a subject as a private person, but in pursuance of a legal right residing
in the subject author, is either a positive law purely or simply, or is compounded of a
positive law, and a rule of positive morality. Or (changing the expression) it is either a
positive law purely or simply, or it is a positive law as viewed from one aspect, and a rule
of positive morality as viewed from another.
The person who makes the law in pursuance of the legal right, is either legally
bound to make the law, or he is not. In the first case, the law is a positive law purely or
135
simply. In the second case, the law is compounded of a positive law and a positive moral
rule.
For example, a guardian may have a right, over his pupil or ward, which he is
legally bound to exercise, for the benefit of the pupil or ward, in a given or specified
manner. In other words a guardian may be clothed with a right, over his pupil or ward, in
trust to exercise the same, for the benefit of the pupil or ward, in a given or specified
manner. Now if, in pursuance of his right, and agreeably to his duty or trust, he sets a law
or rule to the pupil or ward, the law is a positive law purely or simply. It is properly a law
which the state sets to the ward through its minister or instrument the guardian. It is not
made by the guardian of his own spontaneous movement, or is made in pursuance of a duty
which the state has imposed upon him. The position of the guardian is closely analogous to
the position of subordinate political superiors; who hold their delegated powers of direct or
judicial legislation as mere trustees for the sovereign granters.
The superiority which is styled sovereignty, and the independent political society
which sovereignty implies, is distinguished from other superiority, and from other society,
by the following marks or characters. -1. The bulk of the given society are in a habit of
obedience or submission to a determinate and common superior: let that common superior
be a certain individual person, or a certain body or aggregate of individual persons. 2.That
certain individual, or that certain body of individuals, is not in a habit of obedience to a
determinate human superior. Laws (improperly so-called) which opinion sets or imposes,
may permanently affect the conduct of that certain individual or body. To express or tacit
commands of other determinate parties, that certain individual or body may yield
occasional submission. But there is no determinate person, or determinate aggregate of
persons, to whose commands, express or tacit, that certain individual or body renders
habitual obedience.
Or the notions of sovereignty and independent political society may be expressed
concisely thus. – If a determinate human superior, not in a habit of obedience to a like
superior, receive habitual obedience from the bulk of a given society, that determinate
superior is sovereign in that society, and the society (including the superior) is a society
political and independent.
To that determinate superior, the other members of the society are subject: or on
that determinate superior, the other members of the society are dependent. The position of
its other members toward the determinate superior, is a state of subjection, or a state of
136
dependence. The mutual relation which subsists between that superior and them, may be
styled the relation of sovereign and subject, or the relation of sovereignty and subjection.
Of all the larger divisions of political powers, the division of those powers into
supreme and subordinate is perhaps the only precise one. The for.former are the political
powers, infinite in number and kind, which, partly brought into exercise, and partly lying
dormant, belong to a sovereign or state: that is to say, to the monarch properly so-called, if
the government be a government of one: and, if the government be a government of a
number, to the sovereign body considered collectively, or to its various members
considered as component parts of it. The latter are those portions of the supreme powers
which are delegated to political subordinates: such political subordinates being subordinate
or subject merely, or also immediate partakers in those very supreme powers of portions or
shares wherein they are possessed as ministers and trustees.
NORMATIVIST POSITIVISM
KELSEN’S PURE THEORY OF LAW
Positivism has been restated, developed and put on a theoretical philosophical basis
in our own time, by the very influential theory of Kelsen and his followers collectively
known as the “Vienna school.” Basically, Kelsen’s thought is remarkably akin to that of
Austin, although Kelsen, when he began to develop his theories was, as he later
acknowledged, quite unaware of Austin’s work.
Stammler becomes involved in insuperable difficulties when he attempts to
establish a pure theory of law, universally valid, cleansed of all that is changeable, and yet
able to give ideals which guide the lawyer in search of justice. Kelsen clearly sees the
weakness of this attempt as much as the open or hidden political or ethical ideology in
other legal philosophies. His cure is more radical one. No theory of justice can form part of
a pure theory of law. Ideals of justice must be a matter of political science. A pure theory
of law must be uncontaminated by politics, ethics, sociology, history. Its task is knowledge
of all that is essential and necessary to law and therefore freed from all that is changing and
accidental in it. The Vienna school represents within the realm of legal theory the quest for
pure knowledge in its most uncompromising sense, for knowledge free from instinct,

W. Friedmann, op.cit., pp.228-240.
137
volition, desire. Kelsen and his followers reject any legal idealism as unscientific. The
theory of law must be purely formal. On the other hand law is different in essence from
nature.
The science of law is a hierarchy of normative relations, not a sequence of causes
and effects, like natural science. This, the most important foundation of Kelsen’s theory, is
essentially Neo-Kantian, in so far as Kant had made the already often-quoted distinction
between man as part of nature -subject to the laws of causation- and as a reasonable being
which regulates its conduct by imperatives. This produces the essential difference between
“Ought” and “Is”.
Whereas Kant himself had confined this distinction to his theory of knowledge,
Kelsen and his school extend this theoretical knowledge to law. Kelsen does not attempt to
extend a theory of law to what the law ought to be. Science, according to Kelsen, can never
be volition, it is only knowledge.
His sole object is therefore to determine what can be theoretically known about law
of any kind at any time and under any conditions. The essential foundations of Kelsen’s
system may be enumerated as follows:
(1) The aim of a theory of law, as of any science, is to reduce chaos and
multiplicity to unity.
(2) Legal theory is science, not volition. It is knowledge of what the law is, not of
what the law ought to be.
(3) The law is a normative not a natural science.
(4) Legal theory as theory of norms is not concerned with the effectiveness of legal
norms.
(5) A theory of law is formal, a theory of the way of ordering, changing contents in
a specific way.
(6) The relation of legal theory to a particular system of positive law is that of
possible to actual law.
From these premises it is comparatively easy to follow the cardinal points of
Kelsen’s pure theory. In his determination of the legal as distinguished from the moral
norm, Kelsen is in agreement with the principal teaching of the analytical school…. The
threat of a sanction which shall be imposed if a certain things is done or not done
characterises the legal relation. Such sanction must be threatened by an authority, and thus
138
the question of the source of the legal norm arises. This is Austinian, but there is a
significant difference. For Austin, law is a command, for Kelsen, the imperative would
introduce a psychological element, foreign to the law. The legal norm does not constitute a
command, but a relation of condition and sequence. “If A is done, B ought to happen.”
Only in this sense is the law an “ought.” The relation thus constituted is one of
subordination, and any given legal system constitutes a hierarchy of norms, each of which
must be derived from a superior source. Now all knowledge is the endeavour to establish
unity out of chaos. In the realm of natural knowledge it is also established that there must
not be contradiction. If A is equal to B, A cannot also be equal to non-B. The same applies
to the normative sciences, including law. Legal norms cannot be derived from conflicting
authorities. A judgment, for example, derives its authority from an Order in Council, the
Order from an Act of Parliament, the Act of Parliament from the Constitution; between
these sources of legal authority there is a relation of subordination. Ultimately every legal
norm in a given legal order deduces its validity from a highest fundamental norm
(Grundnorm). This fundamental norm itself is not capable of deduction, it must be
assumed as an “Initial Hypothesis.” That Parliament is sovereign in England is a
fundamental norm, no more logically deducible than that the command of the Führer
(leader) was the supreme legal authority in Nazi Germany or that native tribes obey a
witchdoctor.
The task of legal theory is to clarify the relations between the fundamental and all
lower norms, but not to say whether this fundamental norm itself is good or bad. That is
the task of political science, or of ethics, or of religion.
Between conflicting fundamental norms, as between the legal sovereignty of
dictatorship or representative assembly, a choice must be made. Kelsen’s legal theory thus
leads to a relativism which he and his followers have not pursued any further, but which
has been made the basis of an elaborate legal philosophy by Radbruch. Theoretically it
thus does not matter for the pure theory of law which fundamental norm is adopted, but at
one point it cannot help facing political reality. Can the pure theory of law take note of a
revolutionary change which establishes a new “Grundnorm” in defiance of the former one?
Could a legal command for instance still be based, with any claim to theoretical validity,
on the Czarist Constitution or on the German Weimar Constitution? Neither has ever been
abrogated by a legal process, reducible to anything but a conflicting Grundnorm. Kelsen
here is forced to introduce an element which is neither formal nor normative. No
139
fundamental norm can be recognised which has not a minimum of effectiveness, that is,
which does not command a certain amount of obedience. “The efficacy of the total legal
order is a necessary condition for the validity of every single norm of the order.” How this
minimum of effectiveness is to be measured Kelsen does not say, nor could he do so
without going deep into questions of political and sociological reality. On the character of
the state the Vienna school has developed some of its most characteristic theories. State
and law it declares to be identical, for the state is nothing but a system of human behaviour
and order of social compulsion:
This compulsive order is not different from the legal order, for the reason that
within one community only one and not two compulsive orders can be valid at the same
time.
It is impossible to distinguish between law and state, because an act of state can be
such only by virtue of a legal norm which qualifies it as such. Source and contents of this
norm are, of course, irrelevant for the pure theory. The uncontrollable will of a despot is as
valid a legal norm as a democratic form of government. Only in so far as an act can be
deduced from such a superior norm can it be legally qualified as a state’s act.
Thus the Vienna school rejects any dualism, such as follows from subordinating
either the law to the state or the state to the law. The former would be the deification of a
personified state, the latter a natural law ideology. Nor does Kelsen admit any distinction
between a legal and a sociological notion of the state.
This at first may seem surprising in view of the sharp distinction drawn between
law and sociology. But to Kelsen the state is nothing but a legal construction, and to admit
a sociological side of it would open the door to biological conceptions of the state which he
rejects, like any personification of the state. This leads to the next part of his theory, the
denial of any legal difference between physical and juristic persons. Law is a system of
norm-relations and it uses personification merely as a technical device to constitute points
of unification of legal norms. The difference between natural and artificial persons is
irrelevant, since all legal personality is artificial and derives its validity from superior
norms. It is remarkable how the pure theory of law here reaches conclusions similar to
those reached by modern sociological theories and modern judicial treatment of the
problem of corporate personality.
It follows also from the conception of law as a system of norm relations that Kelsen
and his followers recognise no individual right, except as a technical device which the law
140
may or may not adopt in order to carry out legal transactions. Legal duties are of the
essence of law, for law is a system of “oughts,” but legal rights are only an incident, and
the law may dispense with them. This detaches the law from any association with political
theory of the law, such as those which affirm inalienable rights of the individual. Another
consequence of this system of a formal hierarchy of norm relations is Kelsen’s attack upon
the distinction between public and private law, much more familiar and important to
Continental systems than to Anglo-American law, where it has only begun to develop as a
consequence of recent constitutional and social evolution. Public law regulates the
relations between the state and public authorities on the one hand and the subject on the
other, private law regulates relations between superior and inferior, and it is only through a
process of self-limitation that the state submits to a kind of legal relation between itself and
a subject, a development which has produced administrative law and a corresponding
system of tribunals in Continental countries. This very division of law into spheres is
attacked by the Vienna school as emphatically as by Duguit, but from an entirely different
angle. The attack is made on theoretical grounds and follows naturally, once the theory of
the law as a system of relations, all deducible from an ultimate superior authority and each
subordinate to the next higher one, is accepted. But the attack is supported by examples
from social and political reality. The traditional division is based on the twofold argument:
(1) that obligations in public law arise from an unilateral command, but obligations in
private law arise from mutual agreement; and (2) that the organs from which the order is
issued can also enforce it, whereas a sanction in private obligations is provided by the state
which stands above the parties.
The Vienna school objects (1) that the will of the parties never constitutes of itself a
legal obligation, but is only the condition which the legal order stipulates for giving it legal
sanction; and (2) that administrative organs which create legal relations must appeal to a
higher state organ for legal sanction.
Behind the division of public and private law Kelsen suspects, not without reason, a
political ideology which wishes this sphere of private law to appear as being beyond
politics, whereas in reality private law institutions embody political ideology as strongly as
public law institutions and relations. In this respect the Vienna school is impressed by the
Marxist thesis, developed in particular by Karl Renner, of the delegation of public powers,
under the form of private law, to the owner of the means of production.
141
For the division of law into private and public law the Vienna school substitutes a
different theory, first established by A.Merkl and later adopted by Kelsen. This theory of
the “concretisation” of law, sees the legal system as a pyramidal structure. The law unfolds
in a gradual process from the highest norm, which is also the most abstract, general and
purely norm-giving, to the lowest, which is completely individualised, concrete and
executive. Between these two poles each norm does not only give law, but also applies and
thus partakes in the process of concretisation of the law. Thus if a statute established by the
Grundnorm, but it is abstract in relation to the private contract or to the company by-laws
which are made between individuals or groups of them within the framework of the statute.
Each such transaction not only applies law, but also creates law by individualising the
general terms of a superior norm in relation to particular circumstances and parties. The
judgment, which authoritatively interprets the terms of the transaction, marks a further
stage in the process of concretisation. It at once applies and creates the law. The freedom
of creative function is progressively narrowed down in each successive stage, although it
never quite ceases. Every judgment contains an act of creation in choosing one of several
possibilities of interpretation which the statute, or whatever the superior norm in question
may be, permits. In that process the whole of public administrative law takes part. That
each administrative act, such as the assessment of rates, concretises the general authority
given by the law is obvious. Administration is thus necessarily law. But it further follows
that the distinction between judicial and administrative acts is relative. The administrative
organ usually has a wider amount of discretion, but also acts within the framework of a
superior norm. But it regulates a particular legal situation as does the judicial organ. If the
creative function is often more marked with an administrative act and the deciding function
more marked with judicial acts, this lies mainly in the difference of the subject-matter.
This point is well illustrated by the increasing assimilation in totalitarian states of
administrative and judicial functions. Both judges and administrators take their orders from
superior personalities, and the difference between public and private law becomes
correspondingly more and more meaningless. The Soviet Russian jurist Pashukanis can
argue that in socialist states all law becomes a matter of administration for the benefit of
the public. It might also be noted that similar conclusions as to the relation between
judicial and administrative law are reached by Jennings, from the point of view of the
British constitutional lawyer, and by Duguit.
142
The Vienna school sees a similar process of creative concretisation in the
application of “law” to “facts” in the judicial process. Facts in any legal case are not selfevident, but are sifted, weighed, stated and subsumed. They are thus as much part of the
law as the rules which are applied to them. For example, a statute makes disorderly
conduct or driving under the influence of drink an offence, and lays down maximum and
minimum punishments. The practices which magistrates develop in regard to the scales of
punishment are not only an application of the law but part of the law-making process.
Criticism
The merciless way in which Kelsen has uncovered the political ideology hidden in
the theories which profess to state objective truth has had a very wholesome effect on the
whole field of legal theory. Hardly a branch of it, whether natural law theories, theories of
international law, of corporate personality, of public and private law has remained
untouched. Even the bitterest opponents of the Vienna school have conceded that it has
forced legal theory to reconsider its position.
Genuine criticsm should keep two questions clearly distinct: (1) The question how
far legal theory can be content with the task that Kelsen has outlined for it.
The specific character of social science in general and legal science in particular is
now widely recognised by scientists, sociologists and jurists. The particular distinction,
however, between natural science as dominated by causation, and social science as
dominated by volition, has been criticised from many quarters. On the one hand realist
jurisprudence has stressed the importance of scientific observation as an essential element
of the law defined as a functional science. On the other hand, modern scientists seem to
move further and further away from the belief in the certainty of observation of physical
facts, and are stressing the dependence of science on hypotheses based on selection and
weighing of facts, and expressing probability rather than certainty. Further, the social
character of natural science is more and more emphasised by modern scientists and
sociologists alike. It would, however, be possible to justify the specific definitions of the
Kelsen school for legal science, even if its theory about natural science were not absolutely
correct.
As for this particular legal theory, strong opposition has been raised against the
thesis of the Grundnorm as being a fiction incapable of being traced in legal reality. Thus
143
Allen points out that there are concurrent sources of law, like custom, statute, precedent,
none of which can be said to have supremacy over the other.
The chief merit of Kelsen’s pure theory would seem to lie in the elucidation of the
relation between the initial hypothesis (which might less abstractly be described as the
basic political faith of the community) and the totality of legal relations derived from it.
The conception of the law as a dynamic process of concretisation is a very fruitful one, and
it gives a logical justification to conclusions which Gray and American realists on the one
hand and continental exponents of the modern sociological theories on the other hand have
reached from very different angles. Modern political and juristic developments have lent
point to the relativity of the distinction between justice and administration, of physical and
juristic personality, of public and private law, of the creative and executive function of the
judge. Many of the accepted juristic distinctions are thus disclosed as particular to political
and social conditions of the nineteenth century which do not form any necessary part of the
law. Under National Socialism and Fascism the will of the leader is the fundamental norm
from which the legal order derives its validity. But below this norm there is no clear
hierarchy between statute, administration, judicial decision, etc. Low courts are directed to
disregard the expressed norm of a statute, if it sees incompatible with the political ideals of
National Socialism. Administration, judicial decision and other manifestations of law are
all supposed to be inspired by the will to realise National Socialism as personified by the
leader. In this task they rival with each other, but are not superior to one another. The very
notion of a fixed formal structure is anathema to this conception of state and society.
There remains the second question: what value has the pure theory to the lawyer
assuming it to be correct within its own premises? It will help him to clear his mind of
crypto-ideologies and inarticulate major premises. While the pure theory of law points out
the situations which leave a choice between alternative ideologies, such as conflicting
interpretations of statutes, it refuses to give any guidance for the solution of such conflicts.
At this point, the lawyer must turn to legal philosophy.
144
THE PURE THEORY OF LAW
The law, or the legal order, is a system of legal norms. The first question we have to
answer, therefore, is this: What constitutes the unity in diversity of legal norms? Why does
a particular legal norm belong to a particular legal order? A multiplicity of norms
constitutes a unity, a system, an order, when validity can be traced back to its final source
in a single norm. This basic norm constitutes the unity in diversity of all the norms which
make up the system. That a norm belongs to a particular order is only to be determined by
tracing back its validity to the basic norm constituting the order. According to the nature of
the basic norm, i.e. the sovereign principle of validity, we may distinguish two different
kinds of orders, or normative systems. In the first such system the norms are valid by virtue
of their content, which has a directly evident quality compelling recognition. This
contentual quality the norms receive by descent from a basic norm to whose content their
content is related as particular to universal. The norms of morals are of this character. Thus
the norms: Thou shalt not lie, Thou shalt not deceive, Thou shalt keep thy promise, etc.
derive from a basic norm of honesty. From the basic norm: Thou shalt love thy fellowmen, we can derive the norms: Thou shalt not injure thy fellow, Thou shalt accompany him
in adversity, etc. The question as to what, in a particular system of morals, is the basic
norm, is not here under consideration. What is important is to recognize that the many
norms of a moral system are already contained in its basic norm, exactly as particulars in a
universal, and that all the individual norms can be derived from the basic norm by an
operation of thought, namely, by deduction from universal to particular.
With legal norms the case is different. These are not valid by virtue of their content.
Any content whatsoever can be legal; there is no human behaviour which could not
function as the content of a legal norm. A norm becomes a legal norm only because it has
been constituted in a particular fashion, born of a definite procedure and definite rule. Law
is valid only as positive law, that is, statute (constituted) law. Therefore the basic norm of
law can only be the fundamental rule, according to which the legal norms are to be
produced; it is the fundamental condition of law-making. The individual norms of the legal
system are not to be derived from the basic norm by a process of logical deduction. They
must be constituted by an act of will, not deduced by an act of thought. If we trace back a
single legal norm to its source in the basic norm, we do so by showing that the procedure

Hall, op.cit., pp.653-658.
145
by which it was set up conformed to the requirements of the basic form. Thus, if we ask
why a particular act of compulsion -the fact, for instance, that one man has deprived
another of his freedom by imprisoning him- is an act of law and belongs to a particular
legal order, the answer is, that this act was prescribed by a certain individual norm, a
judicial decision. If we ask, further, why this individual norm is valid, the answer is, that it
was constituted according to the penal statute book. If we require as to the validity of the
penal statute book, we are confronted by the State’s constitution, which has prescribed
rules and procedure for the creation of the penal statute book by a competent authority. If,
further, we ask as to the validity of the constitution, on which repose all the laws and the
acts which they have sanctioned, we come probably to still older constitution and finally to
an historically original one, set up by some single usurper or by some kind of corporate
body…. Compulsion is to be exercised according to the method and conditions prescribed
by the first constitutional authority, or its delegated power. This is the schematic
formulation of the basic norm of a legal order.
The Pure Theory of Law operates with this basic norm as with a hypothesis.
Presupposed that it is valid, then the legal order which rests on it is valid also. Only under
this presupposition can we systematize as law (i.e. arrange as a system of norms) the
empirical material which presents itself for legal recognition.
(a) This analysis of the function of the basic norm brings to light also a special
peculiarity of the law - the law regulates its own growth and its own making. The unity of
the legal order is a law-making unity. The law is not a system of equal, side-by-side norms:
it is a hierarchy with different layers. Its formal pattern is roughly the following.
At the highest point of the individual State’s legal order is the constitution – in the
material sense -- the essential function of which is to determine the organs and procedure
for the setting up of general law, to determine legislation. The next stage consists of the
general norms, set up by legislation, whose function, in turn, is to determine not only the
organs and procedure (Courts and administrative tribunals) for the individual norms, but
also the content of the latter. The general norm, which links an abstract condition of fact to
an equally abstract consequence, if it is to have any meaning, needs to be individualized. It
must be know definitely whether there is present in concreto a condition of fact which the
general norm in abstracto regulates, and for this concrete case a concrete act of
compulsion must be prescribed and carried out - this also according to the abstract general
norm. The agent in this is the judicial decision, the judicial power. The judicial power is by
146
no means of a purely declaratory nature, such as the terms “laying down” and
“ascertaining” the law suggest, as if in the statute, that is, the general norm, the law were
already prepared and complete, simply waiting for the Courts to find it. The function of
laying down the law is a properly constitutive one, it is a making of law in the real sense of
the word. The relationship between the concrete condition of fact (and the discovery of its
correspondence with the abstract condition) and the concrete legal consequence is
specifically set up by the judicial decision. Just as at the general stage condition and
consequence are joined by the judicial decision. The judicial decision is itself an individual
legal norm. It is the individualization or concretisation of the general, abstract norm, the
individual stage of the law-making process. This conclusion is hidden only from those who
see in the general norm the repository of all law, wrongly identifying law with statute.
One this hierarchic character of law is grasped, it becomes clear that the distinction
between law-making, or legislation, on the one hand, and execution or application of the
law on the other, has not the absolute character which traditional legal theory attributes to
it. The majority of legal acts are at once legislative and judicial acts. With every such act a
norm of superior degree is put into execution and a norm of interior degree set up. Thus the
first form of the constitution, that is, a law-making act of the highest degree, is execution
of the basic norm; legislation, that is, the making of general norms, is execution of the
constitution; judicial decision and administrative act, by which the individual norms are set
up, are execution of statute, and the compulsive act is execution of the administrative order
and the judicial decision.
The relation between a norm of superior and one of interior degree –between
constitution and statute, statute and judicial decision- is a relation of regulation or
determination. The norm of superior degree determines the act by which the interior norm
is to be made. It determines not only the procedure for the making of the norm, but
eventually also its content. As regards the relation between constitution and statute
determination of procedure is primary, although determination of the content of future
statutes is not excluded. The constitutional affirmation of fundamental rights is such an
attempt to determine in advance, at least negatively, the content of statutes, in that certain
contents -interference with freedom and property- are excluded. As regards the relation
between statute and judicial decision or administrative act, determination of content and
determination of procedure are equal. The individual norm is determined alike as to its
147
content, material, civil, penal, administrative, and as to the procedure under which it is
made.
This determination, however, is never complete. The norm of superior degree
cannot regulate in all directions the act by which it is to be put into effect. There must
always be a varying degree of free discretion. The superior norm, in relation to the act
which is to put it into effect, has for the most part only the character of a frame into which
the act is to fit. Even the most detailed order must leave open a multitude of provisions to
be filled in by the executive agent. If the organ A decrees that organ B shall imprison the
subject C, than organ B must use its own discretion to determine where, when and how the
imprisonment shall be carried out - provisions which depend on external factors, which
organ A has not and, for the most part, could hot have foreseen.
The Pure Theory of Law views the State as a system of human behaviour, an order
of social compulsion. This compulsive order is not different from the legal order for the
reason that with one community only one and two compulsive orders can be valid at the
same time. Every expression of the life of a State, every act of State, is a legal act. A
human act is only designated an act of State by virtue of a legal norm which qualifies it as
such; on the basis of the norm the act is imputed to the State, is related to the unity of the
legal order. The State as person is simply the personification of the law; as force, it is its
efficacy. The dualism of State and law is one of those tautologies which double the object
of knowledge - the mind first constitutes the object into a unity and then the unity itself is
envisaged as a separate object. There is here an exact parallel, from an epistemological
point of view, with the equally contradictory dualism of god and world. The legal dualism
is simply a reflection of and substitute for the theological, with which it has substantial
identity. When we have grasped, however, the unity of State and law, when we have seen
that the law, the positive law (not justice), is precisely that compulsive order which is the
State, we shall have acquired a realistic, non-personificative, non-anthropomorphous view;
which will demonstrate clearly the impossibility of justifying the State by the law, just as it
is impossible to justify the law by the law unless that term be used now in its positive
sense, now in the sense of right law, justice. The attempt to justify the State by law is vain,
since every State is necessarily a legal State. Law, says positivism, is nothing but an order
of human compulsion. As to the justice or morality of that order, positivism itself has
nothing to say. The state is neither more nor less than the law, an object of normative,
juristic knowledge in its ideal aspect, that is, as a system of ideas, the subject-matter of
148
social psychology or sociology in its material aspect, that is, as a motivated and
motivating, physical act (force).
To resolve the dualism of State and law in this way, however, is also completely to
destroy the present, very significant ideology of justification. Hence the passionate
resistance offered by traditional theory to the Pure Theory of Law thesis as to the identity
of law and the State.
In rejecting a justification of the State by the law, the Pure Theory of Law does not
imply that no such justification is possible. It only denies that legal science can perform
that office. Indeed, it denies that it can ever be the task of legal science to justify anything.
Justification implies judgment of value, and judgment of value is an affair of ethics and of
politics, not however, of pure knowledge. To the service of that knowledge legal science is
dedicated.
FASCIST AND NATIONAL SOCIALIST
LEGAL THEORIES
PERIODS of great social crisis are apt to throw up systems of political dictatorship.
They are favourable to the ambitions of individuals who combine limitless lust of power
with an immediate appeal to the bewildered people and an instinct for the shape of things
to come. The characteristic feature of the recrudescence of dictatorship in our own days
seems to be that it is a highly self-conscious phenomenon, very different from the way in
which power is acquired and used in more primitive societies. Dictatorship today appears
to need theoretical confirmation; its buoyancy is not really youthful but artificial and
organised; in short, it is a product of an ageing civilisation.
This explains the astonishingly large part which political and legal theory has
played in the making and, in particular, the propagation of National Socialism and
Fascism. Legal theory here has not been used as the result of genuine reflection on the
relations of man and universe, but entirely as a cloak to cover the nakedness of the will to
power and domination and in order to maintain the appearance of continuity of a
civilisation which these movements at heart deny.

W. Friedmann, op.cit., pp.347-355.
149
On the whole, German National Socialism and Italian Fascism are phenomena of
the same order and can be largely explained by very similar foundations. Certain
differences can be mainly traced to the difference of national conditions. The exaltation of
the German nation and its mission by Fichte and Treitschke has its counterpart in the
exaltation of the mission of the Italian nation by Giovanni Gioberti in the last and Gentile
in the present century. Greater emphasis is given Italian Fascism to the theory of the
corporate state, mainly under the influence of Duguit and Sorel, whereas in National
Socialist Germany emphasis is given Italian Fascism to the theory of the corporate state,
mainly under the influence of Duguit and Sorel, whereas in National Socialist Germany
legal theory has gone much farther in the justification of absolute state supremacy, the wor
ship of leadership, the myth of “people’s community,” as the supreme tests of legal
interpretation and the racial conception of law. Apart from that, the background is the
same. The thoughts of a number of modern legal philosophers have been combined,
twisted and adapted to one overriding political purpose.
The following are the principal legal theories which Fascism and National
Socialism have used:
(1)Neo-Hegelian theories appear to be the most powerful of all influencing factors,
because they give the halo of inexorable necessity to despotism. The principal methods by
which Neo-Hegelians, Binder and larenz may be mentioned as the most representative. The
basic theme of their work is the fight against all theories which, in any form, conceive the
individual atomistically, Kantianism, Neo-Kantianism, Positivism, Natural Law. Because
the individual is real only in so far as he thinks and acts the universal, he has no rights as
such, but rights only in so far as he is conscious of his universality. Accordingly, he has no
rights or safeguards against the state which is the law, because law is the embodiment of
the individual’s rational and free will and the state is that embodiment. This implies a task
for the state. It shall aspire to be the true embodiment of the individual’s reason, it shall
make right, not wrong, but to give the individual any right against the state would
undermine the authority of the state.
(b) The state is not the will of the majority, it is the true, rational will of the
individual, expressing itself in the community.
(c) The community, which integrates the individual, is always and, of necessity, the
nation constituted in the state and forget together by blood, race and spirit. That the
integration could be that of the individual in humanity does not occur to these jurists any
150
more than to their master Hegel. Humanity is no reality. That determines, of course, their
attitude towards international law.
(d) For Hegel there is no antinomy of will and thought, because the individual
becomes rational, thinks himself, by willing himself as part of the universal. It is clearly
noticeable how National Socialist thought, in close interdependence with the political
development of National Socialist Germany, has gradually transformed this identity into a
definite prevalence of will over thought. One of the older Neo-Hegelians, trained in the
tradition of German idealistic philosophy, has belatedly warned against this “voluntarism”,
from which, however, his own doctrines on State, law and individual are not far remote.
No philosophy can more easily be turned into voluntarism than Hegel’s. There is no test,
no criterion to determine when the will may or may not be a realisation of the idea and thus
express the true freedom of the individual. Moreover, since the integration of the
individual in the universal is realised through the Führerstaat, the Führer, who represents
that rational will, must alone be judge. Consequently any subjective right of the individual
against the state, and any right of the judges to examine the legal validity of acts of state
(legislation and administration having merged into one) is denied. “The judge is not
installed as the representative of the sovereignty of the state over the citizen, but he stands
as part of the living community of the German people.. As against the decisions of the
Führer, which are clothed in the form of statutes or of degrees, the judge has no power of
examination. The judge is bound by any other decisions of the Führer, provided they
express unambiguously the will to establish law.” The right of judicial examination of the
validity of statutes had, however, been discovered by the German Supreme Court and
found much support in legal literature, under the Weimar Republic, although there was no
provision in the Constitution conferring such power upon the courts.
(2) Duguit’s legal theory was of great value to Fascism because, with the principle
of social solidarity, it provided a powerful weapon against the Marxist conception of
society and could be used to persuade the people to co-operate, regardless of class
differences, to abandon revolution and to accept their position in society. Both the Italian
Carta di Lavoro and the German Labour Law of 1934 were influenced by Duguit, although
the influence is much more direct in the case of the former. Article 2 states: Labour in all
its forms, intellectual, technical and manual, is a social duty; as such and only as such it is
safeguarded by the state. The complex process of production is unitary from the national
151
point of view, its aims are unitary and may be summed up in the welfare of the producers
and the growth of national power.
On this basis Italian Fascism developed its corporative legislation. Each industry
and branch of economic activity (like banking, shipping, insurance) was organised as a unit
with employers and employees combined and the state official as an umpire. National
Socialist labour legislation was more flavoured by teutonic conceptions of feudalism, in so
far as every employer was, by order of the state, the leader and his employees the
followers. Both syndicalist and feudalist notions were, however, mainly convenient forms
of organisation under the absolute leadership and supremacy of central authority,
represented by the state. At this point, Duguit’s theory was entirely reversed.
The state, deprived by Duguit of any personality, reduced from an object of
worship to one of many organs serving the norm of social solidarity, was glorified beyond
all measure, and it came to be symbolised by one man, the inspired leader. The state is a
law unto itself and social solidarity was thus reduced to a convenient formula which helps
to keep people hard at work in the name of a higher duty. Once again, the attempt to
establish an objective rule of justice was perverted so as to serve a particular authority.
Duguit’s life work has had the bitter fate of helping towards the glorification of the new
despotic state.
(3) Such a state, guided by a single political will and pitched to highest efficiency in
production, demands unquestioning obedience; no objective rule of law can be tolerated.
On the other hand, both Italian Fascism and German National Socialism for tactical
reasons have preferred the appearance of legality to open revolution. There was no
wholesale break with the existing law. The republican constitution of Germany was never
formally abolished: instead its principal provisions were suspended, and it just ceased to
operated. The civil, commercial and criminal codes of both Germany and Italy remained in
force, subject only to partial and gradual revision. But all this was possible only because
the interpretation of all law was made subservient to the new political creed, and all written
law was thus made relatively unimportant.
(4) In order to attain this end, it was first of all necessary to abolish all systems of
checks and balances (separation of power) which would slow down the enforcement of
political will in all spheres. Judicial independence in particular had to be abolished. This
was achieved partly by legislation, but especially by a system of supervision and selection
which made it impossible for any but politically pliable judges to attain and retain office.
152
Judges who are under the control of the executive can be turned more easily into political
instruments without any need for open interference. At the same time, judicial impartiality
could be preserved in the numerically large number of cases which are of a predominantly
unpolitical character. Those who, for political reasons, had to fear unequal treatment, like
Jews or political opponents, were frightened out of court or eliminated.
(5) The judge, whose position has thus been changed, could be trusted to administer
the law with greater independence from the written law. The “healthy instinct of the
people” could be allowed not only to influence the interpretation of statutes but even to
supersede them, as has been advocated by National Socialist jurists and done by National
Socialist law courts.
Alternatively these principles may be embodied in a new statute which, like the
German statute of June 28, 1935, empowered the judge to punish acts which deserve
punishment, according to the “healthy instincts of the people.”
Divorce on the ground of different race, or the termination of tenancies without
notice by the Aryan landlord of the Jewish tenant, has been upheld by National Socialist
German law courts by means of a spurious interpretation of the civil code (although it
exhaustively enumerated all possible grounds of divorce or nullity of marriage). The judge
became the sovereign organ of popular justice in his attitude towards statutes, precedent
and custom, but this justice was prescribed to him by the political will of the state.
Under such a system the distinction between public and private law loses almost all
significance. All law tends to become public law, its interpretation governed by
considerations of political expediency.
In the practice of National Socialist law this meant not only the distortion of
existing codes and established legal interpretations by purely political arguments; it meant,
above all, that the Gestapo’s roving power to arrest anyone without trial, to imprison
persons acquitted by the court and to flout all written law and procedure, was judicially
recognised as legitimate before a statute formally sanctioned it complete liberty of
discretion.
(6) The guidance given by the political programme of National Socialists is
reinforced in the juristic field by racial theories. In their more scientific aspects these
theories build on the work of the historical school and of modern Germanistic theories; in
their less scientific aspects, which prevail by far, they become just wildly anti-romanistic,
anti-intellectual, anti-capitalistic, and in particular anti-semi tic. What little jurisprudential
153
significance there is in these theories consists in the weapon they give into the hands of
politically minded judges and administrators. They supply one of many arguments by
which the written law, especially that which has superficially been taken over from preNational Socialist days, can be ignored or overruled.
This particular weapon enabled National Socialist lawyers to attack the equality of
all before the law. Thus it became possible, for example, to dismiss actions by Jewish
landlords against National Socialist tenants for rent in arrear, regardless of their instrinsic
merit and, on the other hand, to leave unpunished an abortion committed by a Jewess as
being beneficial to National Socialist racial development, or to justify the dismissal
without notice of socialist or Jewish employees, despite contractual obligations. It was all
done in the name of “concrete order” which replaced the “legalistic” and “decisionistic”!
attitude of farmer lawyers. This is a nice formula for a purely politically directed judiciary.
It was, therefore, only a logical development when, in August 1942 the German Minister
of Justice was authorised by Hitler to abrogate any rule of law if it appeared necessary for
the execution of his programme.
The attitude towards law taken by modern totalitarian states emphasises in the most
glaring manner the inevitable dependence of the law on the political order which it serves.
It suppresses the equally strong tendency of the law towards autonomy, as symbolised by
the blind goddess of justice. Both ideals of justice and legal technique become just a
particular method of reaching political decisions in legal form. The law, in theory and
practice, gradually becomes identified with pure political will.
The Hegelian state ideal, having served its purpose in destroying any autonomy of
the individual, is itself merged in the higher idea represented by a movement which uses
the state itself only as an instrument.
Carl Schmitt reduces the state to the function of the apparatus of organisation as
being one of the three cornerstones in the National Socialistic community; the other two
are the National Socialist movement and the people, as the living source of its strength, on
whose confidence it rests and depends. The three converge and are integrated in the person
of the Führer.
This dynamic mysticism made it easy for National Socialism to shake off the
nineteenth century ideology, both of state and nation. This tendency grew stronger as
expansionist tendencies made National Socialism think more and more in international
terms. The state ceased to be, as with Hegel, the supreme end. It became useful for the
154
attainment of international supremacy. In 1939, when Germany was firmly set upon
international conquest, the obliging Carl Schmitt supplied yet another ideology. He defined
it as the nucleus of a new way of international legal thinking which starts from the
conception of a people, retains the ordering factors of the concept of the state, but can also
do justice to the real political forces, which can be plane tarisch, that is, comprise the space
of the earth, without destroying people and states and without turning, like the imperialistic
international law of the Western democracies, from the inevitable overcoming of the old
notion of state to a universalistic-imperialistic world law.
Here the disguise of nationalism is thrown off, and the state becomes the sheer
instruments of an unlimited will to domination.
Every world conqueror formulates an ideology in support of his aims. The mature
Roman Empire adopted, as Alexander’s might have done, the stoic conception of natural
law and equality of races. Such an ideology National Socialism could not accept even if it
had achieved full supremacy, since it is contrary to the idea of the world mission of the
superior Germanic race, as being alone fit to govern. Nor could it devise, in support of its
plans for international organisation, any international order which would combine the
different states or nations under a higher legal unity, be it a world state, a federation or a
League of Nations. National Socialism and Fascism must reject international sovereignty
while, on the other hand, they abandon Hegelian state nationalism. Their ideology becomes
more that of naked power. For this reason, it is Nietzche, rather than Hegel whose
philosophy is closest to the aspirations of National Socialistic and Fascist dictatorship.
The question arises how far Nazi law, at least in the last states of the Hitler régime,
can be characterised as law at all. Radbruch maintains, in some articles written after the
collapse of the Nazi régime, that some Nazi Law does not qualify as law because it did not
even attempt to give equal treatment in equal situations. In the last few years arbitrariness
pure and simple governed. Hitler’s word could override statutes, courts and other sources
of law. This, however, applies only to a relatively small sphere of Nazi law. Many lawyers
have tried to tackle the wider problem of the validity of Nazi law by applying the test of
natural justice. In practice the question has been solved by the assumption of legal
authority by the Allied Military Government of Germany which, during the years of its
unconditional power purged German law of its more blatant Nazi elements and initiated
some new laws. The authority of Allied Military Governmenthas increasingly given way to
that of the new German Republic and the new legislation aim at the restoration of the
155
authority of written law, at the embodiment and protection of certain individual rights,
many of which are catalogued in the fundamental clauses of the Constitution, and at a
return to Western and pre-Hitler standards of justice.
SELECTED READINGS
THE NAZI CONCEPTION OF LAW
The Leadership Principle
In Nazi Germany, as in Fascist Italy, the essence of the new creed is believed to be
contained in the words ‘unity’ and ‘integration’. The very notion of the State is held to
imply strength, and the State, it is believed, can only be strong where the executive power
is untrammelled by the checks which in a democracy it is the purpose of legislative
assemblies to provide. Parliaments are taken to mean parties, and internal party divisions
are assumed to be a source of weakness by expending national energy without a
compensating return in motive power. The efficiency of all political and legal machinery is
judged by the smoothness and speed which it brings to the functioning of the Nation-State.
Action, instant and overwhelming, must be the primary purpose of the State. Action,
instant and overwhelming, must be the primary purpose of the State. But the State is a
group. Therefore, State action is dependent on the existence of a Leader (Führer) and on
unquestioning faith in the creed of leadership.
But if the position is accepted that a group cannot act promptly without a Leader, it
is said to follow that leadership is thwarted unless the group is homogeneous. This
homogeneity is secured by the process of Gleichschaltung, a term which has no exact
counterpart in English but which has been defined by one German writer as ‘the method
which secures, at first perhaps only outwardly (a significant reservation), a political
homogeneity of public life’. Its justification is said to lie in ‘the necessity for removing all
conflicting social and political forces which may, in the slightest degree, impair the
domination of the unified Executive’.
First of all, there must be unity of race, and this involves the driving from public
position and public influence, i.e. from all share in government, the professions, education,

The Nazi Conception of Law; by J. Walter Jones; Oxford University Press, London: Humphrey Milford
(1939), pp. 5-32.
156
and the press, of everybody who by reason of race can be branded as ‘non Aryan’,
according to the terminology now in vogue in Germany. As a logical consequence of this
principle, German law, in theory at least, admits to be assembly of the Reichstag men of
German blood, even if they are citizens of a foreign State. It also allows Germans by race
to give their votes when plebiscites of the whole population are held, provided the voters
are temporarily in Germany or on a German ship on the high sea. Jewish blood makes
German citizenship impossible, although, at least as late as 1936, it seems to have been
held that it did not deprive a man of his German nationality in the wide sense, i.e. of
having many of the duties, if not the rights, of German citizens.
Secondly, such remnants of Federalism as existed under the Republic before 1933
have vanished. Individual “States”, if we may use the term, such as Bavaria, have lost
whatever independence they formerly enjoyed. The Weimar Constitution expressly
recognized that there were certain affairs which fell within the province of the States
composing the Republic, and outside that of the central government. Now the component
units have no autonomy whatever. They are little more than administrative areas within a
unitary system, under governors who are answerable to the Leader alone. And, as in other
despotisms, the Nazis’ determination to reduce to a common level of subjection all who are
under their sway has shown itself in hostility to all groups which may come between the
absolute State and the individual citizen. Even when the groups exist for religious, social,
or educational purposes, having no connexion with politics, their rights are regarded as
existing simply by the grace of the State, by a concession which may be withdrawn at will.
In addition, trade and financial corporations have to face the charge of having usurped
State functions and of having used the notion of corporate personality to provide a German
cloak for the manipulations of foreign and “non-Aryan” speculators.
The Leader
In the person of the Leader the two notions of authority and representation are
believed to have come together in a perfect unity. But the German idea of representation is
not that which the democratic franchise seeks to realize through election of members of
different parties and by entrusting the government to the party of group of parties which
secures a numerical majority at the polls. And in their description of the attributes and
functions of their Leader even the legal theorists surrender themselves to a sort of mystical
157
ecstasy. He is pictured as representing no concrete person or persons, nor again the
collecton of individuals forming the nation at any one specified time. He embodies some
sort of transcendent unity which soars above the desires or interests of transcendent unity
which soars above the desires or interests of a transient majority. In and through his words
and acts the Nation for the first time comes to real life. His decrees are to be respected as
expressing eternal truths rather than a compromise between divergent views. And here
writers employ an abundance of different analogies. Sometimes the Leader is the Nation’s
clenched first in which are knit all the national strength and resolution; sometimes he is the
father who stands for the family, not by vote or consent but by the authority inherent in
fatherhood; sometimes, again, he is the Pope whose words are unquestioned truth for those
who share the national faith. This, it is claimed, is still a democracy-an authoritarian as
opposed to an atomistic democracy. The people as a whole, by plebiscite or through the
Reichstag, may be called to endorse specific measures, but the essence of authoritarian
leadership is that initiative as well as decision rests with the Leader, to whom all are
answerable and who rules because the serves.
The Nazi Party
It need hardly be said that this attitude of mind cannot tolerate anything resembling
the party system of democratic States. As in Russia and Italy there is one Party only, and
for practical purposes this Party is identified with the State. Therefore, the membership of
another party, supposing one were found to exist, becomes a crime corresponding to the
crime of treason elsewhere and punishable with death. In the Nazi Party, it is asserted, the
German conception of State and Society finds its exclusive expression. Nevertheless, full
membership of the German Nazi party, as of the Russian Communist Party, is confined to
a relatively small minority of the people. The members constitute the vanguard of the
people; they are themselves leaders, and this status not only gives them peculiar privileges,
but also imposes upon them special responsibilities and obligations. In their relations to
one another the party members are regarded as bound by ties of the closest trust and
intimacy. ‘Theft from a comrade’, it is explained, ‘is not on the same footing as theft from
a stranger’, and it should be much more severely punished. To illustrate the leadership
principle, German writers sometimes go back to the old feudal days. The feudal leader had
his train of followers, which is believed to have formed a real popular aristocracy, and not
158
an exclusive class of the élite; they were united to their leader and to one another by
feelings of the most intense personal loyalty, and yet, so it is imagined, they were one in
heart and mind with the people whose mouthpiece was the leader. This is put forward as a
totally different conception from the ‘essentially anti-democratic ruling class principle’ of
parliamentary government.
Applications of the Principle
Attempts have been made to give this principle practical effect in more than one
direction. The National Labour Act, 1934, for instance, began the crusade against the
‘class-war’ by applying the leadership principle to industry. Just as there are to be no
parties in politics, so there can be no trade unions of employers or workmen. Each factory
or workshop becomes a ‘works community’. The workers are described as the
Gefolgschaft, or band of followers, who must work with the employer or ‘leader’ to
promote the interests of the establishment. They act through a number of their fellows who,
together with the leader as their president, form a confidential council. In the same way,
what are called ‘social honour courts’ have been set up, consisting of a judicial official as
chairman, with one leader and one worker member of a confidential council as assessors.
Through these courts the Party exercises a stringent control of the liberty to work and to
employ workers, and the dragooning of individuals is disguised under the cloak of the
leadership principle. The penalties, which may be inflicted for breach of the social duties
incumbent upon every member of an establishment, range up to heavy fines and may entail
dismissal from employment.
Legislation concerning companies has also used the leadership principle to increase
the powers of the board of directors at the expense of the general meeting of shareholders.
‘Irresponsible’ shareholders, it is thought, should not have the power of interfering in
matters of finance and management, which require training and experience.
159
The Nazi Attitude to Statutes
From the time when thinkers first began to discuss the nature of law, there has been
much controversy as to the precise relation of the State to law. Is the State subject to law,
or is law the creature of the State so that the rulers can make or unmake law at will?
Recently there has been much support for the view that State and law are so inextricably
bound together that it is meaningless to speak of either being above or below the other.
This notion of the indissoluble union of State and law has been expressed in Germany by
the term Rechtsstaat. The precise meaning of the word has varied from time to time and
from writer to writer, but it has in general been used to denote that the rulers of a State are
in some way, possibly through the existence of some constitutional machinery, bound by
law, at least to the extent that they cannot simply annua1 it at their pleasure.
Can there be a State which is not a Rechtsstaat, and is Germany now a Rechtsstaat?
It is significant that the Nazi lawyers have taken over the word from their predecessory and
have never expressly denied that a true State must be based upon a certain respect for law.
They have, however, fallen back on the distinction between law in general (Recht), and
that branch of law known as statute law, consisting of relus laid down in general terms for
the future by a competent legislature (Gesetz). Germany, they say, is a genuine
Rechtsstaat, but not a Gesetzesstaat-not a State in which law has been submerged by
statute. They are fond of pointing out that, even in the democracies, statute law is having to
give ground to regulations made by administrative boards, government departments, and
subordinate officials. They argue that on some matters detailed and rigid legislative
provisions are being found less adapted to modern conditions than elastic standards leaving
room for discreation in their application. Are there not even codes, such as the Swiss Code
of 1907, which have expressly admitted that it is impossible to foresee all cases which may
arise, and that to fill up gaps the judge may often have to play the part of a legislator?
From all this the Nazis deduce that respect for statute as such is just another of the
superstitions of old-fashioned Liberalism. They agree with the Soviet lawyers that the
reverence paid to statutes is little more than a bourgeois fiction. And they have still less use
for the distinction drawn in countries like the U.S.A. between constitutional laws, which
cannot be enacted or repealed by the ordinary legislature, and ordinary statutes, which can.
After all, when the law in toto is reduced to a mere expression of the will of the Leader, all
such distinctions become insignificant. Thus one reputable German writer describes the
160
German Führerstraat as der deutsche Rechtsstaat Adolf Hitlers-the German Rechtsstaat of
Adolf Hitler – because, in the last resort, law in Nazi Germany is nothing more or less than
what the Führer decrees.
Since, however, even in Germany there must continue to be laws which can only be
described as statutes, the lawyers urge that they should be general in scope and simple in
wording. They believe that statutes should usually contain a preamble or introductory part
setting out the general purpose of the statute, and that the details should be left to be
worked out by judges and officials in the spirit of this preamble. The dictators of to-day,
like Frederick the Great and Napoleon in the past, cherish the notion that, if laws were
drafted in language intelligible to the layman, it might be possible to dispense altogether
with professional lawyers; but it may be that they are thinking less of the difficulties which
technicalities place in the path of the layman than of the checks they impose on the
despotic acts of rulers and executive officials.
And the Nazis are far from being prepared to entrust to judges the powers they
refuse to legislatures. The practice of judicial review of the constituonalty of statutes, such
as it is found in the U.S.A., where the Courts may refuse to apply enactments which they
hold to be contrary to the written Constitution, never found in Germany even before 1933,
when Germany possessed a written Constitution; and there is less place for it now than
ever. Since the Leader is accepted as embodying the will of the State, no one other than the
Leader can give the final word as to the validity of any particular statute or regulation or
judicial decision. It may or may not be true that in the U.S.A. the Constitution is, in the
end, what the Supreme Court says it is. It is certain that in Nazi Germany the Leader, and
not any Supreme Court, is the ‘guardian of the Constitution’, if a Constitution can be said
to exist. The most that writers will concede is that the judge may occasionally depart from
a pre-1933 statute, but even here he is warned to proceed with the utmost caution, and
when in doubt to leave the question for decision by the political authorities.
The Permanent Revolution
Part II of the Weimar Constitution is devoted to a declaration of the “Fundamental
Rights and Duties of German”. Among these rights are the right to change one’s domicile
within the Reich, to emigrate, to speak one’s own language if it should not be German, to
assemble peaceably and unarmed without special permission, to form unions and
161
associations, and to practise one’s religion undisturbed. All Germans are declared to be
equal before the law. Their personal liberty, their place of residence, the secrecy of their
correspondence, all are guaranteed as inviolable. If any German ever reads the Weimar
Constitution nowadays, he must do so with mixed feelings. These rights were believed to
be the results achieved by the revolution of November 1918. There has never been any
place for them under the Nazi regime. It might be thought that, as the years elapsed after
the Nazi régime. It might be thought that, as the years elapsed after the Nazi revolution of
1933, the excitement which characterizes every such upheaval would have given way to
settled conditions based on measures directed to the establishment of ordered security by
respect for human personality. But it is the common feature of the despotism of Russia,
Italy, and Germany that they deliberately encourage the continuance of a revolutionary
outlook, provided, of course, that it is not directed against themselves. Political
expediency, and not legal stability is the determining factor in all questions of law or
rights.
Long after the uprooting of the old system, the rulers of Russia and Italy have
persisted in asserting that their countries are still in a state of war. Although as early as 12
July 1933 the German Führer declared that the Nazi revolution was ‘closed’, he and his
followers have continued to war the people that the seizure of power was by no means the
end of the struggle, and Germany has been constantly described by the Nazis as an armed
camp. It is significant that the theory of politics most favoured in Nazi Germany seems to
be that which regards political grouping according to the distinction between friend and
foe. Internal politics should be aimed at exterminating the enemy within the gates. When
this has been done, political leadership must be directed towards keeping the people
constantly warned of the real or supposed enemies waiting to spring from without. When
they are asked why in England government is possible without the oppressive measures
which are claimed to be necessary in Germany, the Nazis reply, somewhat
contemptuously, that when a people lives on an island it can dispense with a State (as
conceived by the Nazis). Since law is simply a ‘political act’, legal rules must be left to
take their chance in the moving quicksands of political opportunism.
And yet the Nazis are quick to insist that their accession to power in 1933 was
perfectly legal, as being within the framework of the Weimar Constitution, which indeed
has never been formally abrogated. It is not the fact that it makes a breach in legal
continuity, they say, which entitles a movement to be called a revolution, but the
162
introduction by it of a new and positive outlook upon life and the world-a new
Weltanschauung. The ‘glorious revolution of seventeenth-century England, and the French
revolution a century later, seem to the Nazi writers hardly to deserve the name. The notions
of the sanctity of individual personality, of liberty and equality, are brushed aside as
wholly negative. The English are able to afford to cherish the ideal of liberty because they
have the blessings of comparative isolation and internal homogeneity. The French ideal of
equality is dismissed as barron Liberalism. The Nazi look in vain for any new idea in the
Weimar Constitution; the disappearance of the Kaiser and his ministers was due to a revolt,
not a revolution. The Revolution, they say, did not come till 1933, with the advent to
power of men professing the new principles of leadership and race as the foundation of the
State; and this Revolution has not yet reached its end.
The Racial Theory of Law
The German craving for political unity can only be properly understood when we
remember that at the beginning of the nineteenth century Germany was divided into at least
forty sovereign states. In the same way, the German racial theory of law has its
psychological basis in the strange phenomenon of the reception into Germany in the
fifteenth and sixteenth centuries of a foreign system based on Roman Law.
One result of the German struggle against Napoleon was that certain German
jurists, who came to be known as the Historical School, began to put forward the notion
that law is essentially a national product, an emanation from what they called the
Volksgeist- the soul or spirit of the people- a psychological abstraction which they perhaps
wisely, made little attempt to elucidate further. The Nazi lawyers have found this term
admirably adapted to their somewhat nebulous ways of thought, adding the gloss that the
Volksgeist cannot be a living reality unless the Volk itself is racially pure. The Nazi State,
therefore, should not open its doors to all who may wish to enter; it must exclude those
who are suspect on account of racial origin or sympathies. Unlike the Liberal State, it must
be based on a national firmly knit together by the tie of blood as well as of soil.
In 1900 Germany embodied in the great Civil Code, containing over 2,000 sections,
the great mass of the law of property and of civil, as opposed to criminal, liability. When
the exponents of the racial theory look into this Code they find a state of affairs which they
cannot possibly square with their creed. Here is nothing resembling a native body of rules,
163
such as we have in England, continuously and almost imperceptibly developing through
the centuries without any substantial foreign importation. Instead, what they see is a
system founded in ancient Rome, worked out in detail by the Jurists under the Roman
Emperors in the second and third centuries of the Christian era, digested and to some
extent codified in the Corpus Juris of Justinian in sixth-century Byzantium, and which,
after being modified to suit the conditions of medieval Europe by Italian commentators,
was finally received into Germany in the sixteenth century through the agency of officials
who had been trained south of the Alps and were indifferent to the customs and institutions
of their native land.
Curiously enough, the founders of the Historical School, despite their belief in the
Volksgeist as the source of law, seems to have had little curiosity as to the state of German
Law before the reception of the Roman system. They reconciled their creed with the fact of
this wholesale importation of a foreign system into Germany, by dogmatically asserting
that in matters of law the professional lawyers represent the people. In the second half of
the nineteenth century, however, there appeared a group of writers who declared that the
old Germanic law had not been altogether obliterated, though it may have been drived into
obscure nooks and corners. These Germanists devoted their energies to the task of
revealing and, where possible, reviving and reintroducing, the native institutions and
concepts. Although their work was not quite without influence upon the deliberations of
those lawyers and others who finally completed the German Civil Code, many of them
continued to look askance at this document as being far too Roman and un-German. As
early as 1920 the programme of the National-Socialist Party included (in point 19) the
demand for the substitution of German law for the ‘materialistic and cosmopolitan’ Roman
law. And, since 1933, the watchword of those who have been urging the need for a pure
law has been ‘German law in place of Roman law’.
In a pamphlet which, through it was written before 1933, has been prescribed as a
text-book in the law schools of Germany, so its author proudly tells us, there is an
exposition of the racial philosophy in its application to law. ‘It is due to the German
people’, says the writer, ‘that it should have a German law: and a pure law can only
proceed from a pure race.’ In order to support the demand for as clean a sweep as possible
of the rules in the present German Code, some of the Nazi lawyers make the period of the
reception of the Roman law extend from the first half of the fourteenth century right down
to 1933. They also attack the Roman law at its fountain-head by accepting the argument
164
advanced by some Romanists, often more on a foundation of conjecture than of positive
proof, that much of the Corpus Juris of Justinian, from which the modern law proceeds,
was the product, not of the Romans at all, but of the law schools of the Eastern Empire,
particularly that of Beyrout in Syria. Thus more of the so-called Roman law, they say, was
not even Roman; it was Byzantine and to some extent Oriental. And not content with this,
they go on to hint that the late Roman law had become degenerate under Jewish influences.
Thus it is not uncommon to find the Nazi lawyers tacking on, in the German fashion, to the
term ‘Roman’ a long string of other adjectives. The Code of 1900, they complain, is called
a German Code, but in addition to being Roman, it is abstract-materialistic-cosmopolitan
oriental and, of course, Jewish.
At the time of its introduction, some of the critics of the German Code declared that
it was less genuinely German than even the French code of Napoleon; and more recently
the Swiss Code has been extolled as providing a model in some respects of what a
Germanic Code might be. Indeed, we sometimes find Nazi writers casting envious glances
at our own law for its comparative freedom from Roman influences and for the close
contact it has maintained with practical life. On the other hand, the doctrine of precedent,
according to which every English Court is bound by the decisions of Courts superior to
itself, and the highest Court, the House of Lords, is bound by its own decisions, is a
favourite subject of sneers among the Germans as a superstitious cult cramping our
national development. One writer traces what he calls our ‘realistic’ approach to legal
problems to the fact that England, as he sees it, is essentially a Führerstaat, and that the
English ‘gentleman’ is a true Führer type. The absence of a written Constitution in England
and the dislike of English lawyers for the academic treatment of constitutional questions,
he holds, bring England into line to some extent with Nazi doctrine.
During the past six years the lawyers of Germany have been persistently urged to
root out an alien legal system and to put a People’s law in place of a Jurists’ law. But, none
the less, even the Nazis have to admit that many parts of the existing code are so firmly
based in reason and common sense that to remove them would produce complete chaos.
Hese the Nazis hope to extricate from the ‘wholly Roman’ parts, for just as the theologians
have apparently found it possible to save some of the Psalms by attributing them to
‘Nordic Persians’, so the lawyers have found signs of Germanic influence even in the law
of ancient Rome.
165
The Socialist Aspect of Nazi Legal Theory
Ownership. So far at least, the purely racial approach to law has not produced many
constructive achievements; it has been mainly directed towards weakening the hold of the
Code upon German theory and practice. But since the beginning of the régime some of the
Nazis have tried to give some significance to the ‘Socialist’ as well as to the ‘National’ half
of the title adopted by the Party. Here, again, the Roman system, owing to its strongly
marked individualism, has offered an easy target to those who think that the State is
everything and the individual human being nothing. And they have been able to cite in aid
the many criticisms which have been levelled against such definitions of the notion of
ownership as were current in France and Germany during the hey-day of laissez-faire
economics, and which have been followed by the German Civil Code in the section (903)
which speaks of an owner as being ‘free to dispose of his property at his free discretion’.
Of course, the lawyers who framed these definitions knew very well that no system
of law has ever been able to dispense with restrictions placed on individual ownership in
the interests of the community at large or of other adjacent owners. But it has simplified
exposition and discussion to leave out of account public, i.e. statutory or municipal,
limitations upon ‘private’ ownership. To the Nazis, however, the principle of lendership
make the term ‘private ownership’ abhorrent; to use it is to fall back once more into
‘Liberal’ errors. They have given effect to this view by agrarian legislation restricting free
disposition of farms, punishing bad farming, and relieving good farmers of debts incurred
through no fault of their own. In the case of the so-called ‘incorporeal’ forms of property,
such as copyright and patent rights, this standpoint means that the author or invention may
only expect what the State is pleased to allow him, and that he must be satisfied that the
community should reap where he has sown.
Possession. Advancing legal systems find it necessary to draw a distinction between
ownership and possession and, within certain limits, to protect possession as such without
inquiring whether its origin has been in accordance with law. At its highest, this separation
of the notion of physical control from that of legal title can perhaps be justified on
philosophical and even ethical grounds; at its lowest, it can be defended as a practical
necessity. To the Nazi lawyers, however, it is just another instance of the tendency of
individualistic Liberalism to see in the State nothing more than an umpire of ‘night-
166
watcman’, whose function it is to remain quiescent until there is some compelling reason
for active intervention.
Contracts. It has come to be recognized as a condition of ordered social life that, in
principle, contracts, freely entered into, are binding on the parties until dissolved by mutual
consent. On the other hand, it is undeniable that, with the best will in the world, a party
may sometimes find that circumstances have made it impossible for him to carry out his
undertaking. Social stability depends upon the extent to which this plea of “Frustration” as
the lawyers term it, is allowed to weaken the general belief in the sanction of contracts. In
the realm of treaties, as all the world knowns, Nazi Germany has put the expection in the
place of the rule, and has found no difficulty in finding some sort of reason for unilateral
denunciation of its agreements. Its general attitude to international law, as will be seen
later, is incompatible with respect for international engagements. But, even in the sphere of
private as opposed to public contracts, the Nazi emphasis on the fluidity of legal relations
has tended to make the doctrine of ‘impossibility of performance’ the corner-stone of the
law of obligations.
The traditional theory has been that the terms, if not the binding force, of contracts
depend upon the intention of the parties, here this intention is express, there is usually little
difficulty. It is chiefly where the parties have thought insufficiently, or not/all, about the
matter, that the law, which in general means the judge, is called on to supply the
deficiency. In doing so, the Courts have hesitated to declare openly that they have made a
contract for the parties; they have preferred to speak of an ‘implied’ intention attributed to
the parties by the law. This fashion of speech has deceived few, but the Nazi lawyers
include it in their indictment of non-Nazi law. It is true that the German code contains two
sections requiring that the performance and interpretation of contracts should be such as
good faith demands, but it is alleged that, owing to their ‘Liberal’ proclivities, the pre-nazi
judges made too little use of these provisions.
Collective agreements in industry, so far as they are allowed, are naturally
interpreted as enacted rules of law rather than as agreements. But it is the contract of
marriage, if it may be called a contract, which offers the Nazis most scope for expatiating
upon the interest of the Nation-State in keeping watch over the ‘private’ lives of
individuals. Here as elsewhere the intentions of the parties are allowed only a secondary
place. German marriages are, in principle, assumed to be indissoluble, and their purpose to
be primarily to promote racial purity and vigour. Therefore those who are held to be
167
incurably-weak in body, mind, or character should be debarred altogether from contracting
a German marriage, and the law must refuse to recognize mixed marriages involving a
mixture of ‘Nordic’ with other blood; and not only must future marriages satisfy the test,
but existing unions are to be declared void without regard for the happiness of the
individuals who are wrenched apart.
Nazi totalitarianism also expresses itself in its attitude to arbitration. It is a feature
of modern legal systems that, even when they do not actively encourage resort to an
arbitrator, they at least put no positive obstacles in the way of those who wish to save the
cost and avoid the recrimination often involved in litigation. Apart from their general
aversion from conciliatory methods of settling disputes, whether between individuals or
States, the Nazis look with suspicion on arbitration as removing from the watchful eye of
the judges, and therefore of the Party, matters which may affect the interests of the State.
International Law
As with national, so with international law, the Nazi doctrine starts from the
assumption that the validity of any legal system implies a certain community of outlook on
the part of those whose conduct is to be regulated by it, and that this, of course, can only
arise through kinship of blood. Some of the German writers accept the conclusion that the
only international system which could be binding on Germany would be one confined to
‘Nordic’ peoples. Among the many criticisms they make of the League of Nations is that it
jumbles together advanced and semi-civilized, Christian and heathen, Western and Oriental
peoples. Any talk of a World-Union seems to them a betrayal of national faith in the
interests of ‘Jewish free-masonry’. Until quite recently, reputable text-books current in
Germany were declaring that Soviet Russia could not be a loyal member of the
international community, because its ideal was not be a loyal member of the international
community, because its ideal was not the Nation-State based on race but a proletarian
world-State based on class. Its outlook made it not merely a stranger in the family of
nations, but an enemy within the gates, and its entry into the League of Nations was seen
as a transparent device to promote the world dictatorship of the proletariat.
Within this select circle of nations there is to be equality of rights; those outside it
will have no rights at all. Thus the Covenant of the League of Nations is reviled as
conflicting with the basic principle of equality; so far is it from making law, it is itself
168
contrary to law. And naturally the Treaty of Versailles is repudiated as a Diktat rather than
a freely negotiated treaty. But Nazi Germany has also flouted treaties which were not
concluded under compulsion. To justify these breaches of faith, the Nazis resort once more
to the doctrine of race and its corollary, the doctrine of Lebensraum (living-space).
Thought they have no room for the natural rights of the individual, the Germans
make much play with the natural rights of the State-by which they mean the German
Nation-State. Hitler in Mein Kampf speaks of frontiers being defined by the ‘eternal law’
rather than by man. When, however, we look into this law, we find it simply a euphemism
for ‘the good old rule, he simple plan’ of the robber. For if the natural right of Germany is
to prevail over similar natural rights of other States, it can only be by virtue of some
peculiar superiority inherent in the German race as such. And indeed German writers have
not scrupled to proclaim that the German theory of the State, and therefore of international
law, rests ultimately on the belief in the ‘special divine mission of the German people’. But
at this point it becomes clear that what the Germans respect is not race strong in arms.
Superior races, it is said, have the right to force their will upon inferior races; and their
superiority is proved by the very act of overcoming opposition. The better is the stronger,
the stronger is the better.
Some colour is given to this identification of right with might by the doctrine of
Lebensraum. The Covenant of the League, the Briand-Kellogg Pact, and all treaties which
limit German expansion are branded as static, while the doctrine of Lebensraum is extolled
as a dynamic principle giving due recognition to changing conditions. Article 10 of the
Covenant, by which the Members of the League undertook ‘to respect and preserve as
against external aggression the territorial integrity and existing political independence of al
Members of the League’, is condemned as merely crystallizing the status quo in the
interests of the ‘haves’ against the ‘have nots’. The members of the League, say the
Germans, have never made any attempt to apply Article 19 of the Covenant, providing for
the peaceful revision of treaties or conditions which have become inapplicable or
dangerous to peace, therefore Germany has no alternative but to secure alteration by force.
Law, to the Germans, is something essentially fluid; legal relations must always be
moving-provided, of course, that they move in a direction favourable to Germany. Thus a
war for racial ends, such as to bring within the Reich people of German race on foreign soil
or to protect their interests, is not a breach of law but a method of executing the law. The
official Nazi exponent of the racial theory joyfully proclaims that whether races live or die
169
depends on their strength. ‘Against weaker races the strong can claim the right to take the
land they need for a home for themselves and their descendants.’
The Attack on Rationalism and Humanitarianism
Legal systems can never be entirely stable nor even approximately complete and
definite. Nevertheless, democracies have always cherished the ideal of a reasonable degree
of certainty in the rules of law. To the Nazis such a goal seems not merely unattainable but
undesirable. It smacks too much of an objective and rational attitude to human relations to
make it acceptable to men who fear that their own position would be jeopardized by any
relatively stable political and legal order.
This is clearly shown in their treatment of the criminal law. If the aim of the
criminal law, say the Nazis, is to protect the community against any one who threatens to
break the peace, which, so they assume, is the same as threatening the existence and power
of the State, there is no reason for treating the criminal differently from a foreign foe. The
struggle against crime must therefore be waged as ruthlessly as if it were a war. The Nazi
lawyers, with their love of the dramatic, compare the State, when administering the
criminal law, to a soldier facing an enemy. Even an official report describes the Nazi
attitude to crime as ‘heroic’. All crime is anarchy, and if anarchical elements are to be
rooted out, there must be no half-measures, for attack is always the best defence. The intent
is almost as dangerous as the deed, and the terror of State retribution must be present in the
man’s at the moment of temptation. And once the wrong is done, the aim must not be
reform but revenge. The Nazis have no patience with the doctrine that wrong-doing is the
result of environment. ‘The body of the murdered man cries aloud for vengeance.’
It is impossible for any legal system to remain constantly in such a state of high
tension, and the greater part of the German criminal law is in detail not very different from
that of the other Western States, but Nazi emotionalism frequently makes itself felt.
Modern criminal law, more than any other branch of law, has come to be associated with
statute. ‘No punishment’, said the Weimar Constitution, ‘may be inflicted for any act,
unless the act was designated by the law as punishable, before it was committed.’ Closely
allied to this are the other principles, that any new addition to the list of criminal offences
should have express statutory sanction, and that, in interpreting a statute against an accused
person, the judge should not in general go beyond the literal meaning of the words.
170
Although occasionally departed from, these checks upon judicial and executive extension
of the criminal law continue to furnish citizens of democratic countries with an effective
safeguard against arbitrary power. The Nazis, however, deride such regard for statute as
weak squeamishness and all three principles were explicitly abrogated by a law of June
1935. If the Court can find no statute directly in point, it is still to convict, if the accused’s
act seems to be covered by the general idea underlying some statute and ought to be
punished ‘according to sound popular sentiment’.
The modern judge is urged to take as his model the old German popular Courts
whose function was to express popular or racial rather than rational or technical notions of
law. Why should duelling be punished, it is asked, when refusal to accept a challenge is
looked on by general opinion as cowardly and shameful? On the other hand, since popular
sentiment is only ‘sound’ when it commends itself to the Party and in the last resort to the
Führer, the whole process in political crimes is based on the assumption that the accused is
guilty until he proves his innocence. And even after he has obtained a verdict in his favour,
he may find the Gestapo waiting on the steps of the Court itself to spirit him off to a
concentration camp, where he may linger for years after he has proved himself guiltless of
the crime charged against him. His personality may be such, it is said, that there can be no
other guarantee for his future good conduct; or the ‘protective custody’ may be defended as
necessary to protect him from popular hatred, for the question is not whether the public is
in fact indignant but whether it ought to be. In the same way, political motives may excuse
what would otherwise be criminal. ‘It is not theft’, says one university professor, ‘for the
Hitler youth to seize the banner of the Catholic Youth Organization and to keep it as
trophy’, and this is not because such an act may be little more than a childish prank but
because it shows an aggressive enthusiasm which is commendable in the eyes of the Party.
And that obnoxious person, the ‘common informer’, as we call him here, flourishes
mightily in a land where every one is encouraged to spy upon his neighbour and where the
Secret Police are an indispensable wheel in the machinery of government.
It is not surprising that the Nazis, who have called for a new and specifically Nazi
form of art and even of humour, should have claimed that they have introduced an original
conception of law. Law, they say, is not a matter of logic, nor or reason, nor of morality,
nor again of instinct; it is not a string of paragraphs, nor a theory of State and Society. It is
a new way of life. Science, in law as elsewhere, is conceived by the Nazis in terms of race.
Law is something living in the blood, and at the same time something lived by a people.
171
In their use of the terms ‘Nordic’ and ‘Aryan’ the Nazi lawyers have clearly
abandoned the realm of legal science for another in which they cannot claim to speak with
authority. They have become ethnologists and biologists. They have, none the less,
asserted that their racial assumptions will stand the scrutiny of the natural scientists. And in
this they stand self-condemned, for outside Germany the biologists have unanimously and
decisively pronounced that, whatever else it may be, the racial doctrine is bad biology.
STONE, THEORIES OF LAW AND JUSTICE IN FASCIST ITALY
An inquiry into fascist theories, whether in the juristic, political or economic fields,
is a very difficult one. The constantly repeated claim of fascist political lenders is that they
have not proceeded on any theories at all, that theirs is a philosophy of action and not of
words, that they meet each situation as it arises, and that theories with them produced by
solutions, not solutions by theories. After their policy on the particular matter is framed,
they may find that it is capable of explanation in terms of some pre-existing theory. But
that is mere coincidence, or to put it another way, the pre-existing theory was but a
prophecy of Fascism. Mussolini is said to keep a list of the prophets of Fascism, which
increases daily and has now attained a considerable length. It ranges at least from Dante to
Pareto..
This on the one hand. On the other there are few statements of policy by either
politician or theorist which do not lay down broad propositions about the end and the
nature of law and of the state. But these propositions are laid down as newly discovered
truths usually without reference to pre-existing thinking along the same lines, or at most
with an acknowledgment that propositions a little like them have been thought of before…
If face of such a situation the most that the student can do is to make his own choice
of the theories urged by Fascists that are significant for understanding what Rocco calls
“the transformation of the state” under Fascism. This paper will be constructed around four
such items.
The first is the set of ideas represented by the notion of the corporative state, that is
of a state organised on the basis of economic groups each including all factors involved in
a particular branch of production… These units or corporations are organs of the state, and
represent the power of the state in the economic sphere. They are given wide functions of

“Law and Society” by Simpson and Stone, Wes Publishing Co. (1949), pp. 1669-1679.
172
controlling the activities of both employers and employees. Employers’ organisations, as
well as employees’ syndicates, are in important respects subject to their supervision.. The
corporative theory of the state in short is one of social control of economic organisation.
Side by side with the economic aspect of fascist theories of the end of law, is the
nationalist aspect. Law is essentially a means of maintaining, preserving and advancing the
greatness of the Italian people. This is the second item in fascist ideology which calls for
discussion.
The word “fascist”, however, obviously connotes more than control of economic
activity and exaltation of the nation. It connotes in addition certain ideas as to the
machinery by which these ends are to be achieved. These ideas may be divided broadly
into two categories, which are respectively the third and fourth items chosen for discussion
in this article.
The third is the supreme emphasis upon “the strong state” in fascist Italy.
Beginning no doubt as a demand for efficiency in social control, the idea of the strong state
has gone far beyond this. The “strong state” has developed into the “stato etico”, the state
as an end in itself.
The fourth is the notion of a government of men and not of laws, subordination of
the entire hierarchy of government to the person who in fact wields the power of the strong
state and the freedom of that person from responsibility to the people or its elected
representatives. In short the faith in personal dictatorship.
No one of these four elements alone distinguishes Fascism from other forms of
government. The assertion of control by the state over economic activities is common to all
modern industrialized countries. Exaltation of the nation has characterized political
democracies for more than a century; it has usually gone hand in hand with the rise of
popular government. The idea of the “strong state” is found throughout history, usually
connected with personal dictatorship, in the form of royal or imperial domination. It is
obvious, nevertheless, that there is a tremendous difference between a Mussolini on the
one hand, and a Justinian, a Henry VIII, a Louis XIV, or a Maria Theresa on the other, and
this difference lies in the social and economical ideals which are professed as a integral
part of Fascism.
It is the combination of these elements in one regime that is the characteristic
feature of Fascism. Fascist theories of law are peculiar solely because the subjugation of
173
economic organisation to the state, as the outward manifestation of the nation, is achieved
by the overthrow of popular government and the establishment of a personal dictatorship.
(1) The Corporative Theory of the State
Whether or not, as Fgascists assert, the democratic system of government in postwar Italy, prior to Fascism, had proved incapable of adjusting itself to new economic
conditions, it certainly cannot be doubted that the conflict between labour and capital was
so great as to jeopardize economic production. The state on the one hand seemed unable to
control this conflict, and on the other hand, neither of the competing economic forces was
able to us the machinery of political democracy so as to resolve it in a decisive, albeit onesided, fashion. The fascist revolution cut the Gordian knot by discarding the democratic
form of government and substituting a personal dictatorship.
The dictatorship proceeded to formulate ambitious plans for the adjustment of the
legal structure of the state to the requirements of economic efficiency under modern
industrial conditions. These plans purported to encourage and assist workers’ and
employers’ organisations under the state. In its Labour Charter of 27th April, 1927,
programme was given definite form.
There can be little doubt that a major part of the driving force behind the economic
programme of Fascism proceeded from the influence of syndicalism, always strong in
Italy… There are, of course, different sets of ideas which pass under the name of
syndicalism. But the kernel of all of them is the conception that the ideal organisation of
society under modern conditions is around the associations of men bound together by
economic ties, that trade unions are the living cells of a healthy society, and that political
institutions must be modified so as to allow them to play their proper role in the body
politic. It is important to remember that Mussolini himself was once a socialist and
prominent in the labour movement which was a hotbed of syndicalism.
It was not dislike of the syndicalist idea which caused Mussolini’s defection. It was
rather the inability of the political authority to control manifestations of it injurious to the
whole economic order. In any case, whether because of his old sympathies or from
necessity, Mussolini did not set out, at any rate avowedly, to destroy the syndicates. On the
contrary he set about the creation of highly organised fascist syndicates to replace those of
the earlier regime. These he invested with privileges of state recognition; for instance, he
174
limited the right of making enforceable collective labour contracts to fascist syndicates
alone.
Fascism, however, has professed to go beyond the mere subjugation of organised
labour to the state. It has theoretically at any rate asserted the power of the state over the
whole process of production, and admitted conversely the direct role of the factors of
production in the political structure. It has extended the syndicalist notion to associations
of all the factors in a particular branch of economic activity. These extended associations
are known as the corporations, the corporative state being one in such economic groupings,
recognised as a part of state machinery. This really represents a synthesis of syndicalist
ideology with Duguit’s criterion of social solidarity. It is not the state which is to be
remodelled to give free play to associations, it is associations that are remodelled in order
to make production more efficient.
Stripped of its exaggerations, Duguit’s messafe was that in a complex economically
organised society the supreme test of well-being is efficiency for economic production. For
two reasons that message might have caught the ear of fascist statesmen and been adapted
by them to Italian needs. In the first place the building of a strong state in modern Europe
obviously required as a basis the highest possible efficiency in the economic sphere. In the
second place, this requirement was intensified by the disorderly condition of the relations
of capital and labour in pre-fascist and early fascists Italy.
(2) The Exaltation of the “Nation”.
The rise of the Hegelian philosophy of history provided a technique whereby the
sanction of inexorable development could be put behind any historical fact, or any human
aspirations. By its means it was possible to show that anything was the inevitable
unfolding of anything else.
The idea of the nation adorned and exalted into a religious idol by the Hegelian
dialectic is the ideological source of Italian nationalism.
Even as Germanism, inspired by Savingy’s Volksgeist, had turned fiercely upon the
transalpine strains in its blood, so Italianism, with the irony that only history can handle so
delicately, used the Hegelian dialectic to condemn the influence of German philosophical
and political ideas upon the reborn Italian people..
175
(3) The Exaltation of the “Strong State”
The role of the state with regard to economic organization implicit in the
corporative idea involves of necessity an efficient and centralised machinery of
government. This fact is undoubtedly one of the reasons for the emphasis placed by
Fascism upon the ideal of the Strong State. In this respect that idea has been as operative in
democratic countries as in fascist Italy. A state organised for economic efficiency and a
system of law which has that as its supreme end would still recognise the satisfaction of the
wants of human beings as the prime concern of social control. Marxian communism in
spite of its superficial anti-individualism makes the economic well-being of the individual
human being to ultimate objective of social organisation. The theory of Duguit similarly
leads to the identification of state and law with the efficienct organisation and operation of
the system of economic production.
But the exigencies of the economic programme are not the only factors contributing
to the fascist ideo of “the Strong State.” The exaltation of the nation has contributed as
much or even more. Italy is a homogeneous state from the national point of view. It is not
afflicted save in the Tyrol and Istria, and there not seriously, with the problem of
minorities. As a result the state tends to be viewed as the organ of the spiritual entity which
is the nation. All the sanctity of the nation is thus transferred to the state, and in that
transfer one further step is taken away from the democratic notion that the state and law are
but means of satisfying the wants of human beings. If the nation is an abstraction from the
nation. The Strong State as a means to economic efficiency becomes the “stato etico,” and
end in itself.
There is another aspect of this idea of the strong state which deserves special
mention. The important influence which Italian humiliation at Versailles has had both in
the whole fascist adventure and in the development of its theory is very significant. One of
the most insistently stressed ends of Fascism is to build up the nation for war. As Nietzche
recast society for the comfort of the warrior, so Mussolini has repeatedly taken the stand
that the lives of individuals must be moulded by the exigencies of war-like adventure. The
encouragement of propagation by bounties and other devices goes on side by side with the
vigorous drive for more territory upon which the increase may be settled. Only a desire for
a strong state either for its own sake, or for purposes of war, can sevelve such a paradox.
176
Such a policy can in no way be grounded upon the claims of the individual human beings
as such.
(4) Irresponsibility of the Head of the State to the People
The theory of sovereignty of the state as a theory of the omnicompetence of the
state is not a peculiarly fascist theory. The difference between Fascism and democracy in
this connection lies in Fascism’s attempt to convert formal omnicompetence into factual
omnipotence, and in the attribution of that factual omnipotence to one person free of
responsibility to and beyond the legal or the de facto control of the people. The machinery
of the fascist state consists of a hierarchy of officials is an agent, in fascist Italy he is a
superior being…
The effective political structure of Italy, including its law, has as its ultimum
mobile one human being responsible only academically speaking to the Crown. The lawmaking power of even the reformed legislature is subordinated to the law-making power of
II Duce. His decrees have the force of law and need not be laid before the legislature for
two years after promulgation. Nec sub deo nec sub lege sed sub homine.. would be a motto
which fascist theory would not repudiate, but on the contrary extol. To the efficiency and
power of the state all other ends must be subordinated, and the head of the hierarchy is the
sole judge of what that efficiency and power requires.
The general effects wrought by this ideal of personal hierarchy may be seen
admirably illustrated in the Italian Code of Criminal Procedure which went into effect on
1st July, 1931. Typical of the changes wrought by this Code are the merging of the powers
and functions of the judge d’instruction and the prosecuting official, the conditioning of
liability of the police for illegal acts upon the will of the Minister of Justice, the power of
the executive to pick the judges to sit in the grave cases tried in the Court of Appeals for
criminal matters, and serious limitations upon the facilities of accused persons to make
their defence. A learned specialist on continental criminal procedure has summarized as
follows the general effect of this new code:
“The Fascist Code is in evident contrast with the old code which was inspired by
democratic liberal principles. The new code has turned over a large field of action to agents
of authority and assigned them responsibility for the exercise of their powers. But the
Fascist have abrogate many of the checks which were present in the old code as a
177
guarantee against error or abuse in the use of powers. In place of the old checks, two things
have been substituted. First a control by the supervision of a hierarchic superior over the
acts of his subordinates, and secondly, the confidence that the agent to whom powers are
given will conduct themselves with due regard for that ‘duty of homage to truth and justice
which is characteristic of every public official in the exercise of his functions.’
It is not difficult to see how naturally these principles flow from the idea of the
personal hierarchy headed by a quasi-divine leader.
(4) Conclusion
A discussion of the origins of fascist theories of law would be but a stunted thing, if
it did not point out that the fascist economic legal programme is but one example of the
changes wrought by economic development in the scope and machinery of social control
through law the world over; that most of the changes which Fascism professes to sponsor
were sponsored long before in democratic countries; that if to-day they are proceeding
apace all over the world it is rather because the problems are increasing in their urgency,
then because fascist programmes are being copied. In short, it must be suggested that the
Italian dictatorship had to face the same problems as the government of every
industrialised country, and that its professed solutions have different in no radical respect
from those with which old-fashioned democracy was already familiar..
The modern rise in Europe of non-democratic forms of government is undoubtedly
linked with that development of social structure associated with the rise of the complex
economically organised society. Both Communism and Fascism have as the very essence
of their political philosophy the recognition of the basic role which economic
interdependence plays in social cohesion. Under both, social control through law has
sought to pervade every nook and cranny of economic organisation, and conversely has
been coloured by that organisation. In Italy and Germany as well as Soviet Russia the state
has assumed two outstanding roles in this respect, first the role of master of the economic
household assigning to each member its place and controlling the conduct of each to the
supposed end of economic efficiency, and second that of patron, lending to the struggle for
economic efficiency the encouragement and active assistance of social control through law.
If on the one hand economic organisation tends to be subjugated to political ends, on the
other hand the political structure itself takes increasingly the shape of a vast economic
178
enterprise. It is because of this common feature that it is often difficult to distinguish
between programmes superficially so diverse as those of Fascist Italy, National Socialist
Germany, or Soviet Russia. “Corporations” and “soviets” represent fundamentally the
mutual interpermeation of political and economic structure. It is not surprising that Italy
has now put the nationalisation of basic industries into its programme alongside the
corporative organisation of the state.
The Labour Charter and the corporative state are among the most vaunted
innovations of Italian Fascism. As to their effectiveness in practice, and as to the very bona
fides of the attempt to realise these programmes, well-informed students have expressed
serious reservations. But let them be taken at their face value in order to raise the issue
whether there is any vital part which a political democracy such as that of England or the
United States cannot bring into being without a complete change in its machinery of
government.
The answer is implicit in any enlightened survey of the transformation which law is
undergoing in all complex economically organised societies. There is not a single
innovation, save that of the form of government, that fascists point to with pride, that
cannot be paralleled similar developments, most of them prior in time to Fascism, in
democratic states. In these states we find that within the last fifty years social insurance has
been well developed, compulsory settlement of industrial disputeshas been put into effect,
conditions of labour have been regulated even to the extent of fixing wages (which
Fascism has not been able to do), living condition, has been developed far beyond that of
either pre-fascist or fascist Italy, all the organising technique of industry has been carried
over into government and has been used for the promotion of economic progress, basic
economic processes have been subjected to state control and been the object of close state
supervision, and in some cases have been altogether removed from the sphere of private
enterprise. Even such extreme measures as legal control of human reproduction, in the
interest of eugenics, have been found compatible with political democracy.
Thus far is has been suggested that the fascist governmental machine, by its
exaltation of the strong stat, and of the strong man as final arbiter of what the strong state
demands in the way of social adjustment, is only attempting to do what every complex
economically organised society has found it necessary to do. But the negative side of
Fascism must be pointed out if a fair picture is south. The strong state is not only a means
of making necessary adjustments. It is also an end in itself. It is the boast of Fascism that it
179
has substituted the state for the individual human being as the basic solicitude of social
control. Although over a large field this gives little difference in results, it does in certain
fields involve sacrifice of civilisation-values built up by long centuries, even millennia, of
human effort.
HESS, REDE / AMLASSLICH ERÖFFNUNGSKUNDGEBUNG
DES DEUTSCHEN JURİSTENTAGES 1936,
The Führer through me sends to you, German lawyers (Juristen), his greetings and
his wishes for a meeting bringing useful results to the German people (Volk).
The Führer takes the deepest interest in the meetings of German lawyers, especially
if it is the purpose of these gatherings, through the exchange of ideas, to coordinate to an
over-increasing extent the administration of justice with the spirit of National Socialism.
It is a matter of course, resulting from the world-view of National Socialism, that
the movement upholds the law and gives the strongest encouragement to the idea of law;
indeed, it regards the law as one of the most important servants of the community of the
people.
For in the center of the National Socialist world-view stands the Volk, whose
community life the law rules and orders. Without aw there is chaos, and from chaos comes
the downfall of the people.
In order to fulfil its mission of regulating the life of the community and of directing
the integration of its component parts into a harmonious whole, the law must be shaped out
of the community, which is the spirit of the people; it must be in accordance with the spirit
of the state, which represents the organization of community life.
With this thought in mind, I have chosen as the motto for this meeting these words
of Heinrich Treitschke:
“All administration of justice is a political activity. The judge in rendering his
decisions must be guided by the spirit and the history of a given stateb. An abstract law of
scholars, floating in the clouds, with no firm ground under its feet, should not exist in
practice.”
Now today, at last, the spirit of our state is the spirit of our German people, The
Führer has re-awakened the spirit slumbering in the subconscious mind of the people; he
has given voice to this spirit; he has expressed “what every one felt”. He incarnates the
180
spirit of our people. The National Socialism of Adolf Hitler put into: words end into
system that which had slumbered within every true German from time immemorial. The
Führer gave shape to this German spirit, and continues to shape it. He gave it new
anchorage in the consciousness of the people through the movement created by him, and
he ordered it to be cast into legally valid rules through the reform of the law.
The more the spirit of the people finds itself expressed in the new administration of
justice, the more closely will the people feel linked not only to its law but also to the state
itself. For in no other sphere does the state confront the people as impressively as in the
realm of the law. The transformation of the people must be followed by a transformation of
the law. In normal times such transformation may occur gradually; but in revolutionary
times it must be abrupt like the revolution itself.
The transformations to which the law must be subjected in the National-Socialist
state must be as deep-reaching as the spirit of the former state and its law was alien to the
true innate spirit of our people. This puts a heavy burden on the idea of law, which, it is
true, is more strongly felt by judges than by the laity. The more our enacted law takes the
shape of broad general rules, the more rarely will this difficulty be encountered, since such
laws leave room for the judges to develop the law and to adapt it to the times and the
changing needs of the people.
The more leeway is given to the discretion of the judge, the better will he be able to
follow the fundamental precept of National Socialism, which is, that the individual must
subordinate himself to the interest of the community. Wherever rigid rules and concepts
govern, a person who deliberately intends to break the law will find it easy to steer around
the clearly charted shoals of rigidly defined wrongs without wrecking his boat. The more
form dominates substance the easier it is to violate intentionally the spirit of a law without
formally breaking the law. What matters to us in the administration of justice is to lay
down the general National-Socialist line; so also, it is unessential in legislation that the
people be consulted before every provision of a law is framed-what matters is that the
spirit of the people indicates the general direction.
The legislator acts as a creative human being; hence legislation rests upon the
individual personality whose convictions it translates into terms of practical life.
In order to be a true judge for the people, a judge must not have a narrow legal
mind, but first of all must be a human being, a member of the folkish community. He must
speak the language, and rehder his written decisions in the language of the people, which
181
the people understand. His language itself must show that he is close to the people in the
exercise of his according to Treitschke- political function, just as the politician himself
must speak the people’s language.
The judge must decide according to his feeling as much as according to his
intellect; and this not so much in the sense of sympathy with those before him as in the
sense of intuitive judgment. The judge should be enabled freely to create his decision and
thereby to create the law, which after all should rest upon judicial experience.
It may well be that the legislator enacts laws which at first are not understood either
partly or entirely by the people. Here the National-Socialist movement and legislation are
called upon to complement each other, in a common service to the people. Thus the
National-Socialist movement has explained to the people new laws which perhaps they did
not quite understand at the first moment, so that the great mass of the people today not only
believe them to have been necessary but, more than that, consider them a blessing. What is
important in this process is not that such laws should be explained by newspaper articles
which in their language and their intellectual level conform to the grasp of the
intelligentsia, but that the head of the local branch of the Party in a remote village should
ultimately translate them into the language and the intellectual level of the peasants,
according to the capacity of his listeners and according to regional peculiarities. Constant
enlightenment and education of the people through the National-Socialist movement is the
reason why the people today are convinced of the necessity and, what is more, the
blessings of harsh laws. It is also the reason for the fact, often incomprehensible to the
foreign world, that our people do not feel that government by one man is a dictatorship,
while on the contrary they felt the government of the proceeding parliamentary system,
which was supposed to be a people’s government, more and more as estranged from the
people and, ultimately, as dictatorial.
In law as well as in government generally, the decisive factor is not the form but the
essence. And the essence of National-Socialist law as well as National-Socialist
government is, to serve the people and to be rooted in the people, and therefore to be falt as
a people’s law and a people’s government.
To give all-inclusive effect to this essence, to make the teis between the law and the
people ever closer-that is the task put before you by your age - a task so great and fine as is
seldom given to man. I congratulate you on this task.
182
SOCIALIST AND COMMUNIST THEORIES OF LAW
MARXIST THEORY
The contribution of theoretical socialism to legal theory has been comparatively
slight. This is largely due to two theories of orthodox socialism, both of which discouraged
thought on the constructive function that the law might exercise in socialist society. The
first is Marx’s famous pronouncement:
The totality of these relations of production constitutes the economic structure of
society, the real foundation on which rise legal and political superstructures, and to which
correspond definite forms of social consciousness.
The second is the theory that the whole idea of law is linked with the state and is
thus a means by which those who control the means of production maintain their control
over those which they have expropriated. With the passing of the ownership of the means
of production into the hands of the community, the individual will be emancipated and
state and law alike, justified only by the need of compulsion, will wither away.
In this sweeping form both theories are not only misleading but act as a bar to
constructive thinking on the function of law in a socialist community. Certain correctives
to both these oversimplified theories are found in the later work of Marx and Engels
themselves. In the first place it is important to note that Marx and Engels themselves. In
the first place it is important to note that Marx and Engels envisage the abolition of the
state as a historical institution used for the suppression of the working class by the owners
of the means of production: but they do not think of the abolition of all organisation and
government.
The government of persons is replaced by the administration of things and the
direction of the processes of production. The State is not abolished; it withers away. In the
second place Engels, in his later work, recognised the reality of the influence exercised by
ideological superstructures such as law once they are established. “Such ideological
superstructures have a tendency to detach themselves from their economic origin and react
in turn upon the economic basis of society.”
Both these factors, the necessity of organisation and direction after the abolition of
capitalist society, and the ideological importance of the social superstructures, call for
further and deeper reflections on the function of law in the socialist state.

W. Friedmann, Op., cilt. 327-333.
183
Neither Marx nor Engels found time to develop a legal theory of socialism. The
orthodoxy of the lesser pupils devayed constructive thinking for a considerable time.
The conception of law as a superstructure seemed to deprive it of any autonomy.
On the other hand, the conception of law as an instrument of suppression barred the way
for a socialist ideal of law.
Both conceptions have, to some extent, been rectified by modern socialist jurists.
Towards the end of the nineteenth century, some socialist lawyers began to investigate the
extent to which the recent Continental codifications of civil law had neglected the
recognition of the right of labour, as compared with the right of property. But by far the
weightiest contribution to the problem of the relation between economic conditions and
legal institution from a Marxist point of view has come from the Austrian Socialist, Karl
Renner.
RENNER’S ANALYSIS OF PROPERTY IN CAPITALIST SOCIETY
Renner chooses the legal institution of ownership as the basis of an investigation of
the extent to which the legal order corresponds to the social function of an institution.
Renner first corrects the orthodox Marxist position and, at the same time, rejects
Stammler’s view by contending that legal institutions are neither automatically determined
by the economic substrata nor a mere form superimposed upon it. In fact, they stand in the
middle between the process of making the law and the social function of the law. Society
produces certain ways of life in a process of permanent change and evolution. When they
have reached a certain state of definiteness, the legal institution takes shape. It maintains
itself in the rigidity inherent in the legal form, while the continuous evolution of society
produces a gradual change in the function of the legal institution. Eventually, the tension
between form and function becomes so great that the society forms new law, and the same
process starts again. Legal science accordingly has to cover three stages: the formation of
law, its formulation as a norm (the field of jurisprudence), and the social function exercised
by the norm. It is on the last that Rehner Concentrates. The following is an outline of his
deduction.
Originally, in medieval society, ownership, which the family formulate power of
disposing of a thing, symbolises a unit of which the family form is typical. It comprises a
complex of things, not only the house, the implements of work, stock, etc., but also the
184
place of work and production, the place of consumption, the market and the family. In that
stage, the legal conception of ownership represents, on the whole adequately, its economic
substratum. But economic evolution gradually alters the function of ownership. When
ownership of a complex of thing, now regarded as capital, no longer coincides with the
substrata of personal work, it becomes a source of a new power of command. Marx had
given the underlying thought:
The capitalist is not capitalist because the directs (the work), but he becomes an
industrial commander, because he is a capitalist. Industrial command becomes an attribute
of capital, as under feudalism the power of command was, in war and in the law, an
attribute of ownership of land.
By means of this power, the capitalist exercises a quasi-public authority over those
who are tied to him by the contract of service. The juristic institution is still the same as at
the time when the worker also owned the means of production, but its function has
changed. The owner of certain things can use his ownership to control other persons.
Legally this is done by the use of ownership as the centre of a number of complementary
legal institutions, such as sale, loan, tenancy, hire and, above all, the contract of service. By
means of the latter the worker agrees to hand over the substrata of work to the owner of the
capital. Formally this contract, an institution of private law, is concluded between equals.
In fact the liberty of those who do not own the means of production is confined to a certain
choice between those to whom they are compelled to transfer, by contract, their share of
the product. Behind the fiction of equality there stands the reality of the capitalist,
exercising a delegated public power of command. The real expression of this power is not
to be found in the contract of service, but in the internal rules regulating the conditions of
work.
Another change of function takes place. The unity of ownership, typical of the
former economic conditions, is broken up a specialisation in the various functions of
ownership develops.
Property now becomes a source of power (control of factories), profit (owning
shares in undertakings), interest (leading capital), rent (letting property), and so forth. At
the same time the legal ownership ceases to represent the real control of the thing. The
complementary legal institution assumes the real function of ownership, which becomes an
empty legal form. Thus the owner of a completely mortgaged property is the legal owner,
but the economic function of ownership is in the hands of a mortgage. The principal
185
shareholder in a company, who controls the undertaking legally, merely owns some
documents and certain claims against the company which formally has full ownership. In
all these cases legal institutions have taken over some of the functions of ownership. Thus
it becomes possible to expropriate without formal expropriation. Because of the
complementary functions of the contact of service, the workers’ share in the product which
according to certain legal theories, gives the title to ownership, can never be actual. By
means of the contract of service, the right to appropriate is once and for all conferred on
the owner of the material.
To sum up, ownership has ceased to be what it was. While remaining, in legal form,
an institution of private law implying the total power of doing with the thing what one
likes, it has in fact become an institution of public law (power of command), and its main
functions are exercised by complementary legal institutions, developed from the law of
obligations.
The law eventually takes account of this change of function by giving property an
increasingly public law character. Private ownership in public means of transport, for
example, develops into what in Continental jurisprudence is expressed by Anstalt, and in
English jurisprudence by “public corporation.” The conditions of work become the object
of collective agreements which are subject to public law. Renner asks socialists to abandon
their passive attitude towards the law and to create the legal norm which adequately
expresses the trend of social development. It is a significant departure from the original
Marxist thesis when he declares that socialism, the cry for conscious regulation of human
relations, demands the legal norm adequate to society.
Renner’s analysis is an outstanding contribution to what in America is often
described as functional jurisprudence, from Marxist premises. Modern developments in
industrialised countries have largely vindicated his thesis. The National Socialist German
Labour Law of 1934, which appointed the owner or managing director of a business or
industrial undertaking as leader of the workers, is an illustration. The extent to which the
controlling power of the capitalist has passed into the hands of the state marks a further
stage in social and legal development. Renner’s study has certainly contributed to the
shattering of the superficial opinion that the legal norm has no creative force of its own,
but is merely an appendix of economic conditions.
The theory that law, like the state, is an instrument of capitalist oppression and
therefore disappears in a society where ownership of the means of production has passed
186
into the hands of the community, has been developed by the Soviet Russian jurist,
Pashukanis. Pashukanis maintains that all real law is private law. It is under the guise of
civil relations, as between equals, that those in control of the means of production exercise
their power over the others.
The development of public law is nothing but an unsuccessful attempt of capitalist
legal science to transfer the notions and categories of law to an alien sphere, which does
not really tolerate law. In a socialist community there is no scope for an autonomous body
of private legal relations. All order proceeds from the community and in the interest of the
community. All law, therefore becomes administration. But the essence of administration
is discretion and utility, not a body of fixed legal rules.
In a modern socialist state, such as Soviet Russia, compulsion of the citizen is an
essential factor. As long as there is no complete identity of law and moral consciousness
legal sanctions are indispensable. On the other hand, the Soviet Constitution of 1936
recognises individual rights as the counterpart of legal duties.
Once it is recognised that the law, although a result of social forces, is at the same
time itself an active agent in the shaping of social conditions, it is obvious that a legal
philosophy can be built upon socialist ideals just as on any other political ideology. This is
clearly stated by Radbruch. The empirical aspect of Marxist analysis and, in particular, the
mental confusion caused by the belief in the inevitability of the dialectic development
towards socialism, have obscured but not altered the fact that socialism is a call for justice.
Radbruch shows that it has been prepared by what he calls “Social Individualism”, the
demand to translate more political liberty, the creation of liberalism, into the social and
economic sphere, and thus to mould the law in a way which would prevent formal equality
from producing social inequality. Social individualism or, as other would call it, social
reformism, attempts this by a mitigation of the inequality caused through capitalism, that is
by protecting the economically weaker part. The whole trend of social legislation over a
century
(social
insurance,
unemployment
assistance,
factory
Acts,
workmen’s
compensation, collective agreements about wages and working hours, etc.) is an
application of this principle. Juristically, Radbruch characterises this as a typical instance
of equity, which tempers abstract justice. We might add that the various theories which see
the balancing of social interests as the end of law, are also an application of the ideology of
social reformism.
187
Socialism, on the other hand, remands a law which eliminates the causes of social
inequality by abolishing private ownership of the means of production. Radbruch insists,
however, that in terms of legal philosophy, socialism is an individualist philosophy; for the
development of the individual is its goal. Socialism wants “an association in which the free
development of each is the condition of the free development of all.”
The function and purpose of law in a socialist society has ceased to be matter of
mere theoretical speculation. In our own generation several states are attempting to shape
and adapt their law to socialist economic planning.
SELECTED READINGS
THE THEORETICAL FOUNDATIONS OF THE
SOVIET CONCEPTIONS OF LAW
To understand the Marxist attitude towards Law, we must start by distinguishing
between Society and State after the manner inherited from Hegel and the classical liberal
theorists. “Bourgeois society” (to use the definition of Marx and Hegel) is the entity of
those social relations which men enter unconsciously and in the delusion that they are
acting on their own free individual decisions, though the latter are objectively determined
by the laws of political economy. State, on the other hand, implies compulsion exercised
consciously for the sake of enforcing certain rules. Of these two fundamental fields of
human life, Hegel insists that the State is “the realisation of morality” and, indeed, the
supreme aim of human civilisation, in strongest contrast to the liberal theorists, for whom
the State is “the realisation of morality” and, indeed, the supreme aim of human
civilisation, in strongest contrast to the liberal theorists, for whom the State is at best a
necessary evil, or rather an unreasonable police force interfering with the normal interplay
of the laws of free competition. But both of them agree in assuming that there is a
fundamental distinction between Society and State. In this, Marx was at one with them, but
he rejected their belief that the relations between these two fields were for good or for evil
respectively, dominated by the interference of the State in Society.
The original contribution of Marxism to the dispute, apart from its rejection of the
moral evaluation of such historical relationships, may be stated as follows: Firstly, the

“Soviet Legal Theory” By Rudolf Schlesinger; Routledge and Kegan Paul Ltd. (1945) pp.17-35.
188
basis of Society is precisely described in terms of the mutual relations into wich men enter
in producing their material means of subsistence, and these relations are conditioned by the
existing forces of production, i.e. by the extent to which mankind has learned to master
Nature. Secondly, these social relations are described in terms of the prevailing economic
structure of a given society. Thus, the attitude of the individual members of this society is
typified according to their relative position in the socio-economic relationship, that is to
say, their class-position. Thirdly, the general attitude of men towards social problems of
any kind is tentatively explained in terms of class as the fundamental division in social life.
Thus the history of mankind, since the rise of class-divisions, is explained as a history of
class-struggles. It follows that State is to be regarded as dependent on Society and the
latter’s fundamental class-division.
The State is by no means a power imposed on society from without, just as little as
it is “the reality of the moral idea”, “the image and the reality of reason,” as Hegel
maintains. Rather, it is a product of society at a particular stage of development; it is the
admission that this society has involved itself in insoluble self-contradictions and is cleft
into irreconcilable antagonisms which it is powerless to exercise. But in order that these
antagonisms, classes with conflicting economic interests, shall not consume themselves
and society in fruitless struggles a power, apparently standing above society, has become
necessary to moderate the conflict and keep it within the bounds of “order”; and this
power, arisen out of Society, but placing itself from it, is the State… As the State arose
from the need to keep class antagonisms in check, but also arose in the thick of the fight
between the classes, it is normally the state of the most powerful, economically ruling
class, which by its means becomes also the politically ruling class and so acquires new
means of holding down and exploiting the oppressed class.
Marxism regards Law, under modern conditions, as an emanation of the State. Thus
it acquires its general characteristics from those of the State. On the questions which most
Western legal theorists regard as the fundamentals of their science, Marx and Engels have
left only occasional utterances, but these leave no doubt that the founders of Marxism were
positivists in that they did not recognise any kind of Natural Law. Law as well as State,
they say, is a historical phenomenon. It is a superstructure upon the economic basis of
society, i.e. upon those relations which men enter in carrying on the social process of
production. Whilst the State may attempt to create the illusion of “standing above class”,
Law (at least Civil Law) cannot do so: for it has to express, within its framework, the basis
189
social relations themselves. Property relations, for example, are mere legal expressions for
existing relations of production, and social classes may be described as owning (or not
owning) certain kinds of property. But legal and political forms of social consciousness
must be distinguished from the underlying economic basis. While dependent on the latter,
they have also an independent life on their own. Thus the relations of production in one
period may influence subsequent periods. Law can never be “higher” than the particular
economic structure of society and the resultant cultural development. But it certainly can
be backward in relation to the actual stage of economic development. Unless the old forms
can be used for changing social purposes, or re-interpreted to serve new needs, they may
prove serious obstacles for the development of society, and actual political struggle may be
needed to solve the contradiction. Thus it is certainly wrong to interpret Marxism by
stating that the “superstructures”, amongst which is law, reflect economic conditions
automatically, Law not only reacts upon economics, but is also influenced by various
forms of social consciousness even more remote from economic life than Law itself-for
example by religious and philosophical conceptions. In this interaction of the various
forms of social life, economics are only dominant because men must eat before they can
theories, and because the evolution of the productive forces (i.e. of the relaions between
Man and Nature which underlie the relations of production) forms that independent
variable which makes possible a dynamic interpretation of Society.
The State, from which Law emanates, is a product of the struggle of classes and is
dominated by those classes responsible for social production. Therefore, Law is bound to
serve, and to develop with, the economic interests of those classes. The society to be
protected by Law is always the existing one, and what serves the prosperity of the class
responsible for social production serves the prosperity of the class responsible for social
production serves the general prosperity of that society. This holds true even when Law
interferes with the interests of individual members of the ruling class in the interest of the
functioning of the social order as a whole, as, for instance, legislation interfering with the
right of mine owners to employ children. And it holds true even if, within the ruling class,
there are no groups which are both willing and able to enforce the general interests of a
capitalist society individual capitalists, so that the pressure necessary to have the law
enacted must be exercised by the miners themselves. By safeguarding the health of the
younger generation of workers, and by preventing unsound methods of competition
between capitalists, the miners, in such a case, would serve the interests of the existing
190
capitalist society: in other words, their sectional interest would form part of the interest of
the existing society, although, during a struggle for reforms in themselves compatible with
capitalist society, the political consciousness and organisation of the miners might grow to
a point incompatible with its survival.
Thus the question of the extent to which interests other than those of the individual
members and sections of the ruling class can influence legislation, does not affect the
primary issue of the dependence of Law on the material interest of the ruling class, except
during periods of immediate transition from one economic system to another. It is the
inherent needs of the economic system itself that shape the framework within which
legislation has to work, and the needs it must satisfy. Should legislation-say in the hands of
a socialist majority-cease to meet the elementary needs of the society which it desires to
transform, it could form but a transitional stage to a new order of society. Once this was
achieved, the new economic foundations would limit the possibilities of legislation. In this
sense, as long as there is a class-society there will be class-justice: for, apart from any
individual or group bias due to the social origin, education and method of appointment, the
judges are simply doing their duty in preserving the existing order of society and its
functioning, and by interpreting all ambiguous formulations of laws in conformity with
their conception of the ultimate purpose of Law. The use of the term “class-justice”, in
Marxist theory, is simply a way of describing the existing state and its Law in terms of
class, although the most frequent users of the term to do because they themselves are still
bound by the ideologies upon which that Law rests, and themselves believe in the
possibility of maintaining a class-less system.
The Marxist interpretation describes a general framework within which Law
evolves and has to work, and the way by which the coercive power of the State will secure
the purposes of the society’s class-structure. But not all rules of behaviour enforced by the
State are necessary elements of that structure. And further, once a certain fundamental
approach is taken for granted, there is some variety of choice in legislation as well as in
judicial interpretation of the Law. Amongst the various factors influencing this choice
Marxism recognises also the inherent working of the legal ideology, whatever the latter’s
social origins. In his letter to Conrad Schmidt, of October 27, 1890, Engels describes how
the division of labour shapes various social bodies, which are distinct from the bulk of
society engaged in carrying on social production, and how the ideologies cultivated by
those bodies influence economics. Law is one of them. Once the division of labour makes
191
a body of professional lawyers necessary, a new and independent sphere is opened up
which, for all its general dependence on production and trade, still has its own capacity for
influencing these spheres as well. Engels, of course, does not refer to the commonplace
that laws are generally enacted with the intention of influencing economics. Speaking of
the origins of that intention he does not explain it completely by the mere economic facts:
In a modern state, law must not only correspond to the general economic position
and be its expression, but must also be an expression which is consistent in itself. And in
order to achieve this, the faithful reflection of economic conditions is more and more
infringed upon. All the more so the more rarely it happens that a code of law is the blunt,
unmitigated, unaltered expression of the domination of a class-this in itself would already
offend the “conception of justice.”
Thus to a great extent the course of the “development of Law” only consists: first in
the attempt to do away with the contradictions arising from the direct translation of
economic relations into legal principles, and to establish a harmonious system of law, and
then in the repeated breaches made in this system by the influence and pressure of further
economic development, which involves it in further contradictions.
The reflection of economic relations as legal principles.. happens without the
person who is acting being conscious of it; the jurist imagines he is operating with a priori
principles whereas they are really only economic reflexes. And it seems to me that the
inversion, which, as long as it remains unrecognised, forms what we call ideological
conception, reacts in its turn upon the economic basis and may, within certain limits,
modify it.
Thus, classical Marxism regards ideological conceptions of Justice, Natural Law,
etc., as realities in so far as men are not conscious of the social origins of their ideologies.
It regards positive law as the outcome of the continuous interaction between these
ideologies and changing social conditions, which create new needs. The basic difference
between Marxism and any idealist conception of Law is not that Marxism denies the
importance of non-economic factors in determining the content of this or that law or code
of laws, but that it tries to investigate the historical, and ultimately the socio-economic
origins of the human conception influencing law, and that it denies an ultimate validity to
any of these conceptions.
For our purposes the most important application of these principles is the discussion
of the problems of Law in the transition from a capitalist to a communist society, to be
192
found in Marx’s Critique of the Gotha Programme of German Social Democracy (1875).
To understand the emphasis laid in that document on certain aspects of the problem, and
also the direction in which it has influenced Soviet thought, it is necessary to recall the
actual polemic out of which the Critique of the Gotha Programme arose. Like Lenin’s State
and Revolution, forty years later, Marx’s critique was directed against the reformist
idealisation of the existing state (particularly if the latter should become a democratic
republic) and against the refusal to use revolutionary power once the working-classes were
confronted with bourgeois democracy. In opposition to such an attitude he stressed the
essentially coercive character of every state, and the ultimate rejection of both coercion and
the State, by Communism:
As the State is only a transitional institution which is used in the struggle, in the
revolution, in order to hold down one’s own adversaries by force, it is pure nonsense to
talk of a “free people’s state”; as long as the proletariat still uses the State it does not use it
in the interests of freedom but in order to hold down its adversaries, and as soon as it
becomes possible to speak of freedom the State as such ceases to exist.
Obviously, Engels could not ignore the fact that the State, as an institution, does not
only function in periods of revolutionary crisis, when its main purpose is to decide the
struggle for the future structure of society. But Marx and Engels found this fact irrelevant
in discussing whether their party, when the moment of revolution actually arrived, could
realise freedom. They dealt with that problem as revolutionary realist. Besides, to
emphasise the purely compulsive side of the State was very natural for nineteenth-century
thinkers accustomed to regard the organisation of the real life of Bourgeois Society, to use
the Hegelian term, as if it were automatically regulated by economic laws, with the State
playing the role of the policeman. It was especially natural in a polemic against those
Prussian Socialists who idealised the State yet could not idealise the Prussian police. More
than any others Marx and Engels have emphasised the need for replacing the automatism
of economic laws by a state playing a positive, organisational, role. But they wanted to
draw a sharp line between its functions as a future form of social life, and its hitherto
compulsive functions which they regarded as a necessary evil, to be applied ruthlessly by a
future socialist regime merely in order to dispense with them altogether. They felt such
clear distinctions especially necessary because they were apprehensive of the assumption
of positive organizational functions by the Prussian police state, and because, on the other
hand, they found compulsion most evident where it was immediately connected with the
193
existing class-structure of society. Therefore, they defined the State as an organisation of
coercion distinct from society. It would be finally applied when the victorious workingclasses used it as an instrument to expropriate the former ruling class and to break their
resistance to the establishment of the new, classless, society.
As soon as there is no longer any class of society to be held in subjection, as soon
as, along with class-domination, and the struggle for individual existence, based on the
former anarchy of production, the collisions and excesses arising from them have also been
abolished, there is nothing more to be repressed which would make a special repressive
force, a State, necessary.. The interference of State power in social relations becomes
superfluous in one sphere after another… the government of persons is replaced by the
administration of things and the direction of the processes of production. The State is not
“abolished”; it withers away”.
Clearly, what is expected to wither away is not political organisation as such,
which, on the contrary, is expected to exercise the most important functions in social life
and to administer the social process of production. If Marx and Engels had not been
handicapped by the polemic on the subject with the anarchists and by the need to prove to
the latter that theirs was the better way to get rid of the State, they could have spoken, more
correctly, of the oppressive functions of State withering away-provided that with the need
to oppress classes the need of compolling individuals would also cease in due course. In
any case, Marx and Engels never became conscious conscious of the fact that real
dissociation between economic organisation and political compulsion is much too
complicated a problem to be solved by a mere logical distinction, and by the proposal to
replace the word “State” in Socialist programme by the word “Community”. Marx wrote
that “freedom consists in converting the State from an organ standing above society into
one completely converting the State from an organ standing above society into one
completely subordinated to it”. But he never discussed how this could be realised once
Society in its organised from was identical with the new state.
In this connection Marx answered many of the most important problems of Soviet
society soviet law fifty years in advance. A “Communist society” in its first stage, having
evolved out of its capitalist predecessors, can secure general participation in social
production and maximal output only by using those incitements to which capitalism has
accustomed the workers, namely payment according to the work done. Having abolished
class distinctions such a society will give equal recompense for equal work. Unequal work
194
will be recompensed unequally. Marx would regard the Law of this society as “still in
principle bourgeois Law”, to use a phrase afterwards much quoted in Soviet legal
discussions, although principle and practice are no longer in conflict”, i.e. although formal
equality before the Law is no mere a mere ideology covering actual inequality according to
social position. Natural inequality still remains in the physical ability of various men and
women to work as well as in the needs to be satisfied out of the recompense received from
Society for work done. The right of each worker to equal payment for equal work done is a
right of inequality in its content, like every right. Law by its very nature can only consists
in the application of an equal standard. But unequal individuals (and they would not be
different individuals if they were not unequal) are only measurable by an equal standard in
so far as they are brought under an equal point of view, are taken from one definite side
only, … everything else being ignored.
Only at a higher stage of its evolution would the Communist society be able to drop
“the narrow legal point of view”, and expect everyone to participate in social work
according to this or her abilities while, irrespective of his contribution, he would be
allowed to participate in social consumption according to his needs.
From such a description of the problem – it is hardly more – two essential features
of the classical Marxian approach become evident. Firstly, the actual socialist revolution
and the State emerging from it are conceived as the ultimate consummation of the original
ideals of the bourgeois democratic revolutions. Such a conception, although never clearly
expressed, corresponds to the revolutionary tactics of Marx and Lenin, who regarded the
establishment of a working-class dictatorship as the culminating point of a social
movement, setting out, in 1848 Germany or 1917 Russia, from aims corresponding to those
of the French revolution in 1793. The “First stage of the Communist society” is a normal
state which safeguards Law. This Law secures the actual as well as the formal equality of
all citizens independent of their social origin by generally enforcing its rules, without
regard to the actual inequality of the individual citizens as regards personal abilities and
individual needs.
Secondly, for this very reason, Law, even that of the socialist state, is not regarded
as a desirable method for the ultimate organisation of social life. For the higher stage,
Communism proper, another form of social regulation is intended. This would differ from
Law in content as well as in the manner of carrying out its rules, which, instead of being
general, would take account of individual abilities and needs. They would be enforced not
195
by “a special organism separated from society through division of labour” but by Public
Opinion. According to taste, very different descriptions of this of this “higher stage of
Communist society” are imaginable, ranging from a full realisation of the ultimate ideals of
Liberalism and Anarchism to an iron discipline to the merits of the case. Marx and Lenin
certainly cherished the first conception. But for this very reason Marx, political realist that
he was, deemed “the higher stage of the Communist society” to be a mere ultimate aim (a
utopia in Mannheim’s sense of the word). Within his system it served as a limitation of the
functions of Law in general and as a basis for criticising reformist glorifications of the
existing law. Unhappily, for many revolutionary Marxist it also became an obstacle to
investigating the concrete legal problems which might confront a revolutionary state once
it was established, and attempted to shape its Law.
(b) THE PROBLEM OF LAW IN THE REFORMIST INTERPRETATION
Many misunderstandings of the Marxist attitude have arisen from the fact that
continental Social Democracy, especially the German variety, described itself as Marxist
without at any time really absorbing the tenets of Marxism. Investigations of the attitude of
active right-wing trade-unionists in Republican Germany clearly show that, in spite of all
the criticism of Lassalle by Marx and Engels, conceptions of Natural Law prevailed and
were accepted. In addition, the cult of the existing republican state, together with distrust
of the use which conservative Judges might make of greater freedom of decision, resulted
in a very formalist approach to the interpretation of the existing laws. The leading legal
theorist of post-1918 German Social Democracy was Radbruch. He represented the irealist
interpretation of Law, and even of Politics, as the realisation of certain fundamental
systems of values, and belonged to the modern revival of conceptions based on Natural
Law.
It is not mere chance that the one remarkable contribution of reformist Socialism to
our problem was made by the Austrian Renner. Austrian Social Democracy combined a
very moderate approach to issues of practical politics with a systematic defence of some of
the foundations of Marxist ideology. For the latter was the only form in which Social
Democracy might hope to withstand the threatening splits, between national groups before
1918, and between the radical and the reformist wing in post-1918 Austra. Renner rejected
the reformist delusion that an automatic transition to socialism could take place by the
196
mere working of processes of economic concentration within capitalist society. So his
opposition to the political approach of Marx and the Bolshevists might be regarded as
irrelevant for the appreciation of the theoretician Renner, had it not influenced his general
approach to the problem. His criticism of capitalist society is based upon the contradiction
between the legal ideology and the actual working of the existing institutions. He is
conscious of the fact that, with a changing social content, the social functions of the
modern legal institutions of property have been exercised, in earlier social systems, by very
different institutions, such as slavery and serfdom. But in the period investigated by
Renner, the period of transition from a society of independent small producers of
commodities to modern capitalist industry, it is not legal institutions that have changed, but
their actual social function. Although he is conscious that there is no classless “general
will” in a class-divided society, and although his approach to Law in general is clearly
positivist, he tends to appeal to the general interests of “Society” to adapt its laws to
changing social needs. In consequence, it never becomes clear whether Renner is speaking
about a capitalism which is merely reformed, with institutions adapted to the new
conditions, or a fundamentally different social system. This very failure to see the
revolutionary element in social change enabled him to see the continuity that links every
new society with its predecessors.
Renner sees the evolution of judicial institutions, under capitalism, manifesting
itself in the changes of the subject-matter with which the formally stable institutions have
to deal. Property, though in theory remaining what it was, means very different things
according to whether it is possessed by a majority or only by a small minority of those
subject to the Law. As the Law can bind only individuals the social relations between those
individuals arise largely praetor legem, so changing the actual content of the rghts and
duties of the individuals subject to the Law. With the development of capitalism Property,
formally concerned with mere things, evolves into an unofficial state, subjecting thousands
of people dependent on the property-owner to a discipline only indirectly regulated by the
Law. Institutions which originally were merely complementary to the primary institution of
property, like the contract of employment, began to dominate the lives of the majority of
the people, while the central institution of property was reduced to no more than a
distributive function as regards the profits. But still the legal content of the right of
property-total legal control over a thing a person-has remained unchanged. Renner on one
occasion remarks that a change in the content of the legal norm might have been effected
197
by the restriction of the possible subjects of certain kinds of property, and by declaring a
number of goods to be res extra commercium. He misses such a development in modern
capitalism but he does not seem to have noticed that, in fact, just such a modification of the
right of property had taken place in the Soviet Civil Code. So he restricts himself to some
general remark on the transition to socialism: Property, but not the supplementary
institutions connected with it by modern legal development, was essential for capitalism,
and there was no reason to abolish property in means of consumption or even in some
means of production (for example, those of the scientist or artist). The contract of sale and
the contract of employment would remain primary institutions in a socialist as well as in a
capitalist society, though with changed social content. It is remarkable how nearly these
observations approached the realities of the U.S.S.R., which, in fact, Renner preferred to
ignore. His dislike of the way in which Soviet institutions were established, prevented him
from sharing the delusions of the Bolsheviks who, while establishing these institutions, still
declined to accept their work as definitive. Renner’s conceptions of evolutionary socialism
in Central Europe were delusions, but they helped him to see socialism as an outcome of
its capitalist predecessors, and he was able to restrict his expectations of the new order to a
goal, which others, more hopeful and energetic, were able to achieve.
(c) LENIN’S INTERPRETATION OF THE MARXIST THEORY OF STATE
Classical Marxism has influenced Soviet conceptions of Law mainly through
Lenin’s State and Revolution, written in the late autumn, 1917, on the eve of the Bolshevist
conquest of power. Lenin believed that his own contribution was mainly a revival of
classical Marxist theories, which were obscured by the reformist evolution of Western
Social Democracy. To-day, now that most of the writings of Marx and Engels have been
published, there can be no doubt that Lenin’s interpretation was in essentials correct. This
was largely because the concrete conditions of the Russian revolution were very similar to
those out of which classical Marxism had emerged, and because both State and Revolution
and the Critique of the Gotha Programme had the same general aim: that of combating
reformist delusions that the existing bourgeois state was a fitting instrument for the
establishment of a socialist society. So Lenin had the same reasons as Marx for
emphasising the utopian element in the critique of the existing state, that is, the ultimate
hope for a stateless society. But, confronted with the immediate task of organising a
198
socialist revolution, he had to refute the reproach of utopianism, in the usual sense of the
word, by dissociating the tasks of the revolution to be achieved from the ultimate aims of
the revolutionary Labour movement. The task of the movement was, according to Lenin,
“the expropriation of the capitalists, the conversion of all citizens into workers and
employees of one ‘syndicate’ – the whole state-and the complete subordination of the work
of this syndicate to the .. state of the Soviets”. Until the higher phase of Communism is
reached, “the Socialists demand the strictest control, by Society and by the State, of the
amount of labour and the amount of consumption; but by a state of armed workers”. So far
the conception is quite clear, as is the intention of all the polemics against State in general;
Lenin demanded a strong state for carrying out the necessary reorganisation desired, but,
very instruments for executing those tasks. The logical conclusion is the need to build a
new State machinery, based on the real, that is armed power of that class which might
alone be trusted to carry throught the revolution-namely the workers.
The explanation of the role of Law in the society to be established would be
completely consistent had not the desire for utopian criticism of State and Law in general
seduced Marx and Lenin into describing also the law of the state which they desired to
establish as “bourgeois”.
In the first phase of Communist society “bourgeois Law” is not abolished in its
entirely but only in part, only in proportion to the economic transformation so far attained,
i.e., only in respect of the means of production. “Bourgeois Law” recognises them as the
private property of separate individuals. Socialism converts them into common property.
To that extent, and to that extent alone, “bourgeois Law” disappears.
However it continues to exist so far as the other part is concerned, it remains in the
capacity of regulator in the distribution of products and allotment of labour among the
members of society.
If we are not to fall into utopianism, we cannot imagine that, having overcome
capitalism, people will at once learn to work for society without any standard of Law,
indeed, the abolition of capitalism does not immediately create the needed prerequisites for
such a change. There is yet no other standard than that of “bourgeois Law”. To this extent,
therefore, there is still a need for a state which, while safeguarding the public ownership of
the means of production, would safeguard the equality of labour and equality in the
distribution of products. The State withers away in so far as there are no longer any
capitalists, any class, and consequently no class can be suppressed. But… there still
199
remains the protection of “bourgeois Law” which sanctifies actual inequality. For the
complete withering of the State complete Communism is necessary.”
This explanation seems to beg the question by simply doing away with all
oppressive functions of the State other than those needed to enforce the smooth working of
economics. But Lenin expressly rejects as utopian the assumption that excesses of
individuals would automatically cease with the abolition of class divisions. He merely
asserts, first, that to suppress such excesses, being mere Ocasses of individuals, no special
State machinery would be needed beyond the unorganised forces of society, and, secondly,
that “after the removal of the economic causes of Crime, excesses of individuals will
inevitably begin to wither away. With their withering away, the State will also wither
away.”
Socialist usually uphold the economic interpretation of the causes of crime, and this
is partly justified by the experiences of the U.S.S.R. However, this interpretation is hardly
defensible beyond a certain point; for it is impossible to demonstrate that all kinds of crime
will automatically wither away once material want is overcome. But after accepting this,
there are in State and Revolution two different explanations of the withering away of the
State and the time when it may be expected; one, when a stage of economic and social
organisation is reached where Society could afford to feed its small number of idlers
without compelling them to work, and another, when the society has eliminated all kinds of
crime (not only those, like theft, which would be senseless in a Communist society). In any
case, Lenin’s analysis means some advance on Engels’ identification of the “withering
away of the State” with the withering away of class- oppression.
Apart from the problem of protecting its internal system against external dangers, a
problem which Lenin evidently avoids, the state of the transitional period, in his
conception, no longer has any need to oppress one class in the interests of another, i.e. it is
no more “state” in the original Marxist sense. But it is still needed to enforce labour
discipline upon its citizens, to safeguard and regulate the inequality in the distribution of
the social product which results from the unequal contribution of the social product which
results from the unequal contributions which each individual makes to production, and to
prevent individual excesses, such as crimes. So it remains an instrument of oppressionalthough oppression of single individuals and not of social classes as a whole. Lenin has
stated clearly that the higher phase of Communism cannot be “introduced”. Thus, the
whole assumption of the eventual coming of that phase might be regarded as a mere
200
theoretical reservation in the sense that human progress will not come to a standstill once
socialism is achieved, and that further advance towards real individual freedom depends on
achieving such material prosperity of the socialist society that inequality of income, based
upon unequal contributions to production, is no more needed. But now, unhappily, the
double meaning of the word “bourgeois” becomes apparent. Marx and Lenin used it to
denote the fact that even in a socialist society Law protect separate individual interests, a
function which is opposed to the highest standards of social Justice. But “bourgeois”
means, primarily, a certain class within a capitalist society. When Marxists speak of
“bourgeois” in connection with the State (which is, according to Marxist theory, a classbound organisation) they are bound to regard it as a characterisation of the class-character
of the state under discussion. Thus it is simply confusing when Lenin concludes, that
“bourgeois Law in regard to distribution of articles of consumption inevitably presupposes
the existence of the bourgeois State, for Law is nothing without an apparatus capable of
enforcing the observance of the standards of Law. Consequently, for a certain time not
only bourgeois Law, but even the bourgeois State remains under Communism, without the
bourgeoisie. And herein lies much of the responsibility for later confusion in Soviet
discussions on State and Law. Marx, to whom Lenin here refers, is completely free from
responsibility for this sample of Dialectics-and Lenin himself has only occasionally used it.
He was far too able a politician to describe the state and its Law clearly showed the traces
of its predecessors. The logical mistake is evident: certainly Law needs of its predecessors.
The logical mistake is evident: certainly Law needs a state to enforce it, and, within the
Marxist system, the class-nature of a state can be described in terms of the class-nature of
the rules which it enforces. For example, a state with a Social Democrat government which
protects a capitalist order of production is, in the eyes of Marxists, a bourgeois state, ruled,
indirectly, in the interests of the bourgeoisie. But for this very reason a state without a
bourgeoisie, i.e. without the capitalist system of production, can never be a bourgeois state,
whatever terms are used to denote the fact that it is not a state of angels, and that Law in
general does not denote an angelic state of affairs.
The utopian aroma in Lenin’s thinking did little harm to the legislation of
the state which he built-apart from providing some of its less realistic legal theorists with
material for abstract discussions under a regime where the art of quotations played a large
role in discussions. But there were other more important points where Lenin appears to
have relinquished his clear conception of Socialist Law in the interests of the actual
201
political struggle. It is at these points that the conception of a “dictatorship” emerges.
Lenin has used the term “dictatorship” in two different senses. It applies primarily,
as Marx and Engels used it, to a monopoly of power exercised, at a certain stage in any
revolution, by the most consistent of the revolutionary parties for the purpose of carrying
through the struggle and defeating the counter-revolution at all costs, without regard for
legal formalities. This happened in 1648 in England and in 1793 in France. Marx hoped for
it in vain in 1848, but it happened, in consequence of Lenin’s policies, in Russia in 1917.
For a Marxist the dictatorship of his party is the dictatorship of the proletariat, in the sense
that it is exercised in the interest of and with the support of that class which can carry
through the transition to a socialist society against all obstacles. But there is nothing in
Marxist sociology to insist that “proletarian” rule (i.e. the socialist state until the
hypothetical period of its “withering away” – maybe some centuries) must function
according to the demands of such revolutionary crises as 1648, 1793, 1917 throughout the
whole of its existence. The French Radical Socialists are similar in their political platform
and social backing to the Jacobins of 1793, but, when in power, that do not exercise their
rule according to the Jacobin principles of 1793.
Secondly Lenn has used the term “dictatorship” for emphasising the general
statement of Marxist sociology that any state is ruled by a certain class, in opposition to the
Social Democrat theory that the democratic republic, especially if ruled by a coalition
government, is a classless state. In this sense Lenin’s statement is irreproachable, even for
a period (like the U.S.S.R. to-day) when certainly no social classes in the Marxist sense
can be subject to oppression. Any political regime protects some kind of socio-economic
structure against its potential opponents, and can be described as the rule of the classes
primarily interested in the maintenance of that structure. If the social interest of certain
classes is identified with the preservation, or the achievement of a certain socio-economic
structure may be described as the “dictatorship” of the social class interested in that
structure. But it is incorrect to conclude that in all cases where one of those meanings of
the term dictatorship holds true all implications of the second prove right: in short, that
class-rule contradicts legality. Marxism regards any kind of legality as a distinct form of
class-rule. It supposes that class rule can be exercised (and, as the rule, is exercised) in the
form of laws corresponding to the needs of the particular society, i.e. of its leading classes.
Lenin was the last to deny this. But, in the struggle for power, he used terms which later
could be used as weapons by people who did not wish to see the revolutionary state
202
functioning according to its own laws.
In attacking Russian Cadets in 1905 and Western Social Democrats in 1920, Lenin
defined dictatorship as “unrestricted power, beyond the law, resting on force in the strictest
sense of the word”, in order to make clear that revolutionaries, if they desire success, must
not observe the laws of the state they want to overthrow. In addition, he praised
revolutionary organs acting during the 1905 revolution for “exercising authority and
creating a new revolutionary law.” It is quite evident that the law beyond which
dictatorship ought to act, according to Lenin, is that of the system it desires to overthrow –
whilst the self-consciousness of the new system in measured by its ability and readiness to
establish new rules of its own. During the whole post-1917 period Lenin never ceased to
demand “revolutionary legality”, which meant the observation of the laws of the new order
by the individual organs created by it. Local initiative in applying the laws of the new state
to the varying local conditions was highly desirable, but local arbitrariness which, in the
name of “revolutionary initiative”, violated that uniformity which the revolutionary state
wanted to secure by its laws, was not. The fundamental position of Lenin is completely
clear, especially considering his long-term view of the State as discussed above. But this
did not prevent, enemies as well as supporters of the new system from describing it as
essentially lawless, whether this be meant as reproach or as praise.
LEGAL VALUES OF MODERN DEMOCRACY
The beliefs and thoughts that guide the legal philosophies of Socialism, Fascism are
based on certain clear-cut and essentially single-purpose principles. An analysis of the
legal values of modern democracy is a more complex task; for it is a more comprehensive
and flexible creed, the condensation of a long historical development, which comprises the
essence of most of the great legal theories of Western civilisation; and it is still in a state of
flux. The main forces in the development of modern democratic thought have been the
liberal idea of individual rights protecting the individual, and the democratic idea proper,
proclaiming equality of rights and popular sovereignty. The gradual extension of the idea
of equality from the political to the social and economic field has added the problems of
social security and economic planning. The implementation and harmonisation of these
principles has been and continues to be the main problem of democracy.

W. Friedmann, op. cit., pp.366-399.
203
It would go beyond the compass of a book concerned with legal theory to analyse
this great problem in its full complexity. But, as has been apparent throughout our analysis
of doctrines and problems, legal theory reflects the political beliefs of a particular society,
and translates them into legal propositions and problems.
A discussion of the principal legal values of modern democracy can be grouped
round four themes of legal theory:
(1) The legal rights of the individual.
(2) Equality before the law.
(3) The control of government by the people.
(4) The rule of law.
Although closely interlinked, these four themes each describe a distinct trend of
thought in political and legal theory.
RIGHTS OF THE INDIVIDUAL
The evolution of the individual as the ultimate measure of things, and the
consideration of government and authority, not as a divine right or an end itself but as a
means to achieve the development of the individual, can be described as the basic political
and legal ideal of modern Western society, and as a universally accepted standard of
democratic society. The development of the individual to his full potentialities is an old
idea, inherent in Athenian democracy, and full potentialities in an old idea, inherent in
Athenian democracy, and fully developed in Stoic philosophy. It is given a new and deeper
foundation through the Christian conception of direct spiritual relation between God and
the individual.
But the conception of a society based on definite rights of the individual citizen is a
relatively modern one, developed in reaction, first against the medieval order of society
and secondly, against the absolutist government of the modern state, in the seventeenth and
eighteenth centuries. It finds expression in the legal philosophy of Locke, the French
Declaration of the Rights of Man, and the American Constitution. This trend of thought
postulates specific inviolable individual rights: the integrity of life, personal liberty and
property. Right, not duty, is stressed, and also the individual as a self-contained unit
resisting the intrusion of government.
But a new trend greatly modifies this uncompromising individualism. The French
204
Convention of 1793 stipulates “common happiness” as the aim of society; Kant defines
law as “the aggregate of the conditions under which the arbitrary will of one individual
may be combined with that of another under a general inclusive law of freedom,” Bentham
postulates the greatest happiness of the greatest number as the purpose of law, and this
leads him to a definition of freedom similar to Kant’s. The American Constitution, on the
other hand, preserves the unmitigated emphasis on individual rights, with results of deep
significance for American social and legal development. The relation of the rights of the
individual to those of his fellow individuals in the community has gradually led to a
profound modification of the legal values of modern democracy. It has increasingly
tempered individual right by social duty. Democracy has not accepted the elimination of
rights; it has not recognised Comte’s and Duguit’s “right to do one’s duty” as the only
right. Duguit’s postulate has, in fact, as shown before, been the forerunner of Fascist legal
principles. But democratic communities have universally, though with varying speed and
intensity, accepted the principle of social obligation as limiting individual right. On the
other hand they are in process of extending the sphere of individual rights beyond the
original trinity of life, liberty and property. This process is best described in conjunction
with the specific individual rights which constitute the legal pillars of individual freedom.
Freedom of Contract
The substitution of freedom of contract for “status” conditions, as developed by
Maine, is an essential legal aspect of individual freedom; but in this matter the need to
balance one citizen’s freedom with that of his fellow citizens became particularly urgent as
industrial development led to a glaring discrepancy between formal freedom and actual
lack of freedom on the part of “the greatest number.” The state makes protective laws and
attaches statutory obligations to the individual contract; inequality of bargaining is
mitigated by freedom of association in trade unions which contract on behalf of the
individual. But a crisis is reached when employers’ or workers’ organisations claim the
monopoly of fixing terms in an industry, to the extent of making employment dependent
on membership of the organisation and acceptance of its terms. At this point freedom of
contract gives way to equality of bargaining. The modern worker or employer, at least in
the more strongly organised industries, has very little if any individual freedom of contract
left. He is free vicariously, as a member of a powerful organisation whose strength reflects
205
his economic, political and social status. For the vast majority this is, on balance, an
improvement. They have given up a theoretical freedom for a material improvement, but,
as has been shown above, the disappearance of this freedom may become important to the
individual worker who objects to union policy, who wishes to join a rival trade union, or
who, for some other reason, clashes with union leadership. Reference has also been made
to the tentative attempts made by both legislator and judiciary to protect a modicum of
individual freedom by stronger legal supervision over the conduct of union affairs.
Another vital restriction of practical, as distinct from theoretical, freedom of
contract is the increasing predominance of the standard contract is such matters as
transport insurance and sale of the standard contract in such matters as transport insurance
and sale of mass manufactured goods. This mainly affects the ordinary and unorganised
consumer, who has not developed any counter-pressure corresponding to that of collective
bargaining in industrial relations. In certain fields, American courts have attempted to
counter such lack of equality by holding that a party which exercises a practical monopoly
of a certain service has a duty to render public service and cannot therefore arbitrarily
refuse to enter into a contract. But this judicial doctrine appears to be confined to public
utilities and compulsory insurance. Nor does the duty to enter into a contract create
equality of bargaining power about the terms. Such control as exists comes through public
law, in the form of statutory rates, administrative tribunals and other brakes put upon the
power of the stronger party to impose terms upon the weaker.
Freedom of contract is still regarded as an essential aspect of individual freedom;
but it has no longer the absolute value attributed to it a century ago.
Freedom of Labour and Association
Originally freedom of contract represented the emancipation of labour from the
fetters of status; but as freedom of contract, owing to the inequality of bargaining position,
came into conflict with freedom of labour, the law more and more emphasised the latter, if
necessary, at the expense of the former. The position is well illustrated in English law, by
the comparison between restrictive covenants made between businessmen who contract for
the goodwill as equals, and for a consideration, and restrictive covenants between
employers and employees concerning the use of the latter’s skill and labour. The former
are prima facie valid, the latter are prima facie invalid. A more far-reaching and
206
fundamental way of restoring effective freedom of labour lies in the gradual development
of collective bargaining, in substitution for individual bargaining. This presupposed the
removal of the fetters imposed on trade unions and freedom of association in general. In
English law the original inequality as between business and labour has gradually given
way to a legal recognition of their right to combine, with the result that it is increasingly
groups which contract on behalf of multitudes of individuals. As employers’ and
employees’ associations acquire an increasingly monopolistic position, this means a
lessening degree of individual freedom of contract. For the vast majority of individuals the
loss of individual freedom of contract weighs little as compared with the gain of increased
bargaining power through group membership. The loss of this freedom is no worse than
the corresponding loss of freedom suffered by millions of transport users, mortgagees,
insured, who, while retaining theoretical freedom of contract, must sign standard contracts,
the terms of which they have no power to influence.
A real dilemma arises, however, where employers’ and employees’ organisations,
sufficiently powerful to control a particular industry, agree on the “closed shop” principle.
Such a union will look with jealousy upon both rival unions and non-union labour. The
economic advantages of such indirect compulsion will generally outweigh the
corresponding loss of both individual freedom of labour and -where exclusive recognition
is given to one trade union- of freedom of association. But the small minority to whom
these freedom matter more than economic advantage are faced with a grave choice.
Although non-unionist reap many of the advantages of collective bargaining, a democratic
scale of values demands the maintenance of these basic freedoms even if they do not
matter to the majority. A well-organised trade union has little difficulty in securing a
dominant position without compulsion. The transition, from a closed shop principle and
compulsory terms bargained between monopoly organisations of employers and
employees, to the corporate state is fatally easy. Only the addition of compulsory state
arbitration is needed. For this reason public opinion in Britain has hitherto resisted any
widespread adoption of this principle.
In the United States the union which, according to a ballot conducted by the
National Labour Relations Board, can speak for the majority of workers in that industry
was until recently given the right to make a collective contract for all workers, whether
members or not. The threat to personal freedom becomes grave when a union in this
position excludes any group or individuals affected by the contract from membership (e.g.,
207
Negroes). Some states have enacted statutory guarantees against such discrimination.
Courts have granted injunctions. A democratic evaluation certainly demands that group
monopoly shall not deprive an individual of the right to work. It cannot allow a
combination of the monopoly of contracting on behalf of a group with the power to prevent
individuals from participating in contracts by which they are legally affected. The main
threat to this freedom comes at present from the almost unchecked power of the trade
unions to control the admission to, and expulsion from, membership with virtually no legal
control. The great majority of unions have very summary rules about disciplinary
procedure against a member. Some provision is made for proceedings which ensure that a
member shall be heard on any charge preferred against him, and for a fair trial, but even if
these provisions are strictly observed, there is no guarantee that those who issue the
judgment are not prejudiced; indeed, they are in many cases responsible for the charges in
the first place. Both British and American courts have for many years adhered to the rule
of non-interference with unions affairs which they regard as private associations.
With the increase of monopoly power on the part of many unions, many courts
have attempted to revise this attitude to some extent. Recent American judicial practice
aims at the enforcement of minimum standards of fairness through orders of reinstatement
or damages in the case of flagrant infringement of fair trial, of the members’ freedom of
political opinions and other offences of a similar fundamental character. But the limitations
of such judicial controls are obvious. They may be successful in reducing extreme abuses,
but no order of reinstatement or for damages can restore the excluded member to the
position he would normally occupy. Only in very few cases would a penalised member
even go to court. Legal theory must take note of the fact that many organisations which are
still in theory private, now exercise in fact public or quasi-public power. It must respond to
this change by a stronger measure of public control. As in the case of monopoly in
business and industry, this may check and slow down the trend of developments, but it
cannot reverse it or fundamentally alter its direction.
Another real threat to freedom of labour comes from the increasing practice of
governments to direct and tie people to their jobs. For Fascism, the absolute control of
labour is a principle; to democracy it is objectionable. All democratic states have
introduced compulsion of labour as a war measure. Despite her continuing economic crisis
and the threat to essential production through labour shortages, especially in mining and
agriculture, post-war Britain has, after a transition period, abolished the remaining
208
ministerial powers of compulsory labour direction, thus vindicating the superiority of
freedom of labour over maximum production in the scale of values of the controlled social
democracy no less than of its laissez-faire counterpart. It is noteworthy that in Soviet
Russia, whose system is built up on a much greater degree of power of compulsion by the
state, freedom and mobility of labour steadily increased with progressive economic
development, until the war compelled a radical reversal of policy.***
On the American continent, the principle of public responsibility for employment
has been accepted more reluctantly, but it is now clearly recognised. In Canada, national
unemployment insurance was introduced by a Constitutional Amendment in 1940. In the
United States, unemployment insurance is now virtually universal through a combination
of federal and state laws. Some recognition of public responsibility for unemployment is
found in the constitution of a council of advisers on unemployment to the President. How
far the state would go in the creation of public works and other measures to fight
unemployment has not yet been tested because there has been no major depression since
before the Second Word War. It is very improbable, however, that any government,
Republican or Democrat, would be permitted by public opinion to remain passive in the
face of a major unemployment crisis. This is the result, not only of the greatly increased
scope of legislative and administrative powers of government but also of a change in the
attitude of the public which, regardless of political philosophy, no longer condones official
passivity in the face of an economic crisis.
209
Freedom of Property
To Locke and the makers of the French and American Revolutions, to Bentham,
Spencer and the whole earlier liberal movement, freedom of property or “estate”
constituted a cardinal principle. The same, however, applies to Kant and Hegel (but not
Fichte) and to Catholic legal theory, as expressed in the Papal Encyclical... The
justification for this theory was, with all these thinkers, the mingling of man’s labour with
an object; but the ideology persisted despite the increasing dissociation of property and
labour. As Renner has shown, property has, in modern conditions, often become a means
of control over other people’s labour and life. Another aspect of the same development is
revealed by Thurman Arnold’s “myth of corporate personality,” the application of the
original American constitutional idea of inviolability of property -conceived for the
pioneer farmer and settler- to the modern company which controls vast resources and
numbers of men, but counts, in law, as an individual. The recognition of freedom of
property as a basic right would still be generally considered as a principle of democracy, as
distinct from socialism, which recognises it only in so far as it does not convey power over
the means of production, and subject to the needs of the community.
But modern democracy, by the same process which has led to the increasing
modification of individual rights by social duties towards neighbours and community, has
everywhere had to temper freedom of property with social responsibilities attached to
property. The limitations on property are of many different kinds. The state’s right of
taxation, its police power, and the power of expropriation subject to fair compensation- are
examples of public restrictions on freedom of property which are now universally
recognised and used. Another kind of interference touches the freedom of use of property,
through the growing number of social obligations attached by law to the use of industrial
property, or contracts of employment. In most countries statutes and courts have
supplemented each other in bringing about this gradual adjustment in the rights of
property. In the United States, however, the earlier conception of property as an absolute
right not conditioned by social duty has persisted longer than anywhere else. This is due
largely to the support given by the Supreme Court, as interpreter of the Constitution, to a
rigidly individualistic interpretation. Grants of title to land, and eventually all property
rights, were elevated into inalienable natural rights, and the power of taxation and other
legislative interference strictly limited. The culminating point was reached in the conflict
210
between Supreme Court and Congress over the validity of some parts of the New Deal
legislation. But this becomes essentially an aspect of the right of free enterprise, a right
associated with that of inviolability of property in the interpretation of the American
Constitution, but resting on somewhat different premises.
The last world war brought many further inroads in the inviolability of property and
restrictions on its use. Many of these were lifted with the return of more normal economic
conditions.
The degree of public control over private property depends largely on the
stringency of economic conditions. Increasing prosperity and availability of consumer
goods has led to a drastic reduction of economic controls, and a trend away from
socialisation in Europe. But in the struggling new democracies such as India, poor in
capital and developed resources, and jealous of their newly won sovereignty, public
planning and control over vital resources are regarded as essential. The Constitution of the
West German Republic of 1949, which reflects a blend of American, British and post-war
German ideas on the economic aspects of democracy, lays down that land, minerals and
means of production may be socialised or be subjected to other firms of public control by a
statute which also regulates compensation. Such compensation must balance the interests
of the community and those of the individual and leave recourse to law open to the person
affected. This still permits wide divergences of political and economic philosophy, but in
the recognition of social control over property, including socialisation as a legitimate
though not a necessary measure, it reflects the modern evolution of democratic ideas.
Between the capitalistic democracy of the United States and the social democracies of
India there are many shades and variations. But modern democracy looks upon the right of
property as one conditioned by social responsibility, by the needs of society, by the
“balancing of interests” which looms so large in modern jurisprudence, and not as a
preordained and untouchable private right.
Freedom of Enterprise
The more crucial aspect of the right of property is its use in the pursuit of
commercial enterprise. The right to develop one’s initiative and capacities in commercial
enterprise is an important aspect of the freedom of personal development. The main
problem arises from the fact that individual property, as distinct from individual labour,
211
may be the means of power over man and institutions. This is the crux of Marxist analysis,
as juristically developed by Renner. Property may become the means of domination over
fellow men, and thus the instrument of slavery. The problem of the use of freedom of
enterprise in violation of the Kantian and Benthamite principle of harmonisation of
individual freedoms is no less acute than the correction of the formal freedom of contract
which led to a new form of slavery, by the “positive” freedom postulated by T.H. Green.
There has been a wide variety of answers to this challenge. Totalitarian systems are not
greatly concerned about the problem of monopoly because they can control it sufficiently,
through direct or indirect political pressure. Soviet Russia maintains control over
production through a series of major state corporations which have juristic personality, but
operate under a general plan and are under the strict political control of the Communist
Party. The Nazi government, which did not socialise industry, favoured monopolistic
cartels in industry because the leaders of industry, voluntarily or under pressure,
collaborated with the government, and large-scale enterprises are easier to direct in a
totalitarian economy.
By contrast, modern democracies are experimenting with two very different ways
of tackling the problem of concentration of economic power in private hands.
The United States enacted the Sherman Act in 1890 as a result of widespread
agitation against the growing concentration of American industry. The Act made illegal
“every contract, combination in the form of trust or otherwise, or conspiracy in restraint of
trade or commerce” among the several states or with foreign nations. It also declared guilty
of misdemeanour every person attempting to monopolise or combining or conspiring with
others to monopolise trade or commerce among the states, or with foreign nations. A full
survey of the results of this Act, and of supplemental legislation such the Clayton Act of
1914, after more than sixty years of operation would greatly exceed the scope of this book.
On the other hand, labour organisations were generally regarded as prohibited attempts at
combination without any test of reasonableness. In both respects there have been great
changes. Labour unions have long become fully recognised as legitimate agencies of
collective bargaining. On the other hand, there has been a tendency in recent years to
prosecute monopoly concentration as such, in disregard of the judicial restriction of
“unreasonableness.” The number of prosecutions by the Department of Justice has risen
greatly. The judicial effects of this new policy have been considerable.
The legal checks on monopolies or restraint have certainly retarded, and in some
212
cases prevented, a concentration of private economic power which might otherwise have
reached unbearable proportions. In particular, the deterrent effects of publicity are
powerful as long as a general attitude of mistrust of the economic combine prevails. Yet,
concentration proceeds all the time.
Yet the importance of maintaining some public control over economic
concentration and restrictive practices is shown by the recent introduction of anti-trust
legislation in some traditionally cartel-minded countries, such as Great Britain (Restrictive
Trade Practices act, 1956), or West Germany (Wettbewerbsgesetz, 1957). Neither of these
laws is as radical as the American legislation; the objectionability of restrictive practices
and concentrations is judged by the public interest. But they indicate a definite policy of
public control over private economic power.
An alternative way of countering the abuses of economic power is the transfer of
certain basic industries into public ownership through the legal device of the statutory
public corporation, which has been done in a number of countries. The main features of
this far-reaching experiment in democratic socialisation… may now be accepted as a
permanent part of the legal and constitutional structure of Britain or France. Its most
important aspect is the unification and monopolisation of the basic public utilities (coal,
electricity, railways, gas), under public ownership and management, which has to operate
under the rules of the common law, subject to accountability and full legal liability, while
responsible to Parliament. Freedom of private enterprise has been sacrificed to the
principle of development and administration of basic necessities through the state, which
subjects itself to the forms of private law.
Freedom of trade and private enterprise thus has ceased to be an absolute and
unqualified right. In modern democratic society it is one of various alternative methods of
economic activity and it is everywhere subject to varying degrees of public control.
Freedom of the Person
Each of the freedoms discussed so far has bee subject to the influence of changing
social and economic conditions. Freedom of contract, property, trade and, to a lesser
degree, labour, appear as more or less adequate instruments in the realisation of more
essential freedom and are justified only as long as they fulfil this purpose.

Note the privatization trends of recent years (T.A)
213
There is more absoluteness about the more directly personal aspects of freedom.
First, the physical integrity of life and body is an essential aspect of all democratic
constitutions and systems of law, and even those systems which, like English law, abstain
from formulating any general constitution or catalogue of fundamental rights, are explicit
about the safeguarding of personal liberty (habeas corpus). It is in their function as
protectors of personal integrity that the independence of the judiciary and the “rule of law”
gain their most essential and least controversial meaning. Since liberty cannot be absolute,
but qualified by the requirements of public safety, criminal law and other legal restrictions,
the emphasis is on “due process of law,” as a condition of its curtailment. However strong
the reaction to interference with rights of property or trade may be, it does and ought to
take second place to the reaction against interference with the legal safeguards of personal
liberty.
Personal liberty involves more rights than individual bodily integrity. It includes, in
the law of all modern nations, the protection of personal reputation, through the law of
defamation; it includes the protection of family relations and of domestic life. But the most
important aspect of individual liberty, though, at the same time, the one most difficult to
define precisely, is spiritual and intellectual freedom. Its principal expressions are liberty
of religion and thought and, as its media, liberty of speech, writing, printing, of peaceable
association and discussion. Democracies may choose to guarantee these rights in written
constitutions, or they may, like the British legal system, choose to regard these freedoms as
understood, except in so far as they are not specifically by law, and where they are
expressed in unqualified terms they usually constitute an expression of aspirations, but not
enforceable rights.
The methods of protecting these liberties vary; but all democracies will agree on an
irreducible minimum, which is best understood by the contrast to Fascist and authoritarian
law. Some constitutions separate all religious denominations from the state;… others, like
Great Britain, grant freedom of worship, but recognise one official religion with certain
privileges; as long as this meant disqualification from office or educational advantages, as
it did until well into the nineteenth century, freedom of worship was not real. Freedom of
speech and Press is everywhere subject to the restraining laws of defamation or blasphemy,
and to the requirements of public safety, but a system of state licensing of the Press, or the
control of opinion by a Ministry of Propaganda armed with powers of coercion, is
incompatible with democracy. Freedom of meeting and association is nowhere absolute; in
214
England, for example it is subject to many statutory and other legal limitations which
greatly strengthen the preventive powers of the police. Restrictions of freedom of thought
and organisation are even more remarkable in the United States. The seemingly absolute
guarantees of the First Amendment are considerably limited by the “clear and present
danger” test.
The revolutionary upheavals of the last forty-five years have increasingly
compelled modern democracies to face the problem at what point tolerance of freedom of
opinion must give way to the defence of the democratic constitution against forces which
aim at its destruction. The German Republic, established in 1919, certainly went too far in
its tolerance of the barely disguised anti-democratic activities of the Nazi Party and its
auxiliary organisations. Hitler’s intention to destroy the democratic republic was shown
clearly in his widely-known book Mein Kampf, and underlined by the creation of paramilitary organisations, which used force and intimidation to suppress opponents while the
movement was still in opposition. Should the Republic have suppressed the Nazi Party
altogether? There was no consideration of basic democratic philosophy which prevented it
from doing so. The laws of treason and sedition are a necessary equipment of a democracy
as much as of any other state. No government can be expected to watch preparation for its
own destruction passively. The question which measures should be adopted is one of utility
and practical politics. Experience shows that revolutionary movements prosper in the
conspiratorial atmosphere of official suppression. In the circumstances, the Weimar
Republic might well have saved itself by disbanding the Stormtroopers and other semimilitary organisations of the Nazi Party without prohibiting the movement as such, or the
free expression of its opinions. For the danger point is reached when democracies proceed
from the outlawing of actions to the outlawing of dangerous or unpopular opinions. The
Bonn Constitution of 1949 (Article 5) guarantees the right of the free expression and
propagation of opinions “within the provisions of the general laws,” but Article 18
provides that freedom of opinion and association may be forfeited by anybody who
“abuses these rights to fight against the free democratic Constitution.” Such forfeiture must
be pronounced by the Federal Constitutional Court. The court also decides on the
constitutionality of parties which “in their aims, or the conduct of their followers, purport
to injure or abolish the free democratic Constitution or to endanger the existence of the
federal republic” (Article 21). In October 1952 the Constitutional Court declared a nonFascist Party unconstitutional and cancelled the parliamentary mandates of its members. A
215
similar problem arose some years ago in Australia, when an Act outlawing the Communist
Party and affiliated organisations was declared unconstitutional by the High Court of
Australia. Democracies cannot apply the same methods as totalitarian societies. They can
strike at any action directed against the state, but they must permit the expression of
opinions in a lawful framework, however unpopular or objectionable these opinions may
be.
All serious students of the problem of liberty have recognised that a degree of
coercion is not only a necessary restriction of an individual’s liberty for the sake of the
liberty of his fellow citizens, but that coercion by the state may be an indispensable
condition of effective, as distinct from purely nominal liberty.
There is no true opposition between liberty as such and control as such, for every
liberty rests on a corresponding act of control. The true opposition is between the control
that cramps the personal life and the spiritual order, and the control that is aimed at
securing the external and material conditions of their free and unimpeded development.
This indicates the true test by which to distinguish liberating from oppressive
control. Not all the freedoms discussed here are of equal value. Some are more
fundamental than others. The more fundamental aspects of liberty are those which express
and ensure “the highest and most harmonious development of man’s powers to a complete
and consistent whole” (Humboldt). The development of man’s spiritual and intellectual
faculties as a reasonable being, a creature who is not only matter but also spirit, is the
dominant theme of Western thought, from the Athenians to the twentieth century. That is
why the last-discussed personal liberties are the more essential and unchangeable aspects
of individual freedom. Freedom of labour and enterprise form, in principle, part of this
essential object of securing the maximum development of man’s personality. But those
freedoms which, because of their technical and commercial implications, have formed the
particular preoccupation of the law - freedom of contract, property and trade - are of a less
fundamental character. They are concerned with “external and material conditions” and
must therefore be tested by their capacity, at any given time, to ensure the development of
man’s essential freedom. Patently, the inalienable right of property, derived by Locke,
Kant, Hegel and the makers of the American Constitution from man’s right to the fruits of
his toil, has little to do with the right of a modern corporation, clothed with legal
personality, to control, in the name of individual liberty, the supply and price of a
commodity vital to millions of consumers.
216
The adjustment between freedom and compulsion, between the rights of the
individuals and the community, must therefore be a matter of changing needs and
conditions. Legal theory can go no farther than lay down the general hierarchy of
principles.
EQUALITY
The doctrine of legal equality goes back to the natural law doctrine of the Stoics
which, in the name of universal reason, postulates equality of individuals, races and
nations. This was accepted by Roman jurisprudence, though sometimes with a distinction
between the law of nature which postulates absolute equality, and the law of nations (jus
gentium) which recognizes slavery. Christian doctrine, too, is pledged to the fundamental
equality of men, but in the scholastic and Catholic legal system this fundamental equality
is subordinated to the acceptance of the existing social order as one ordained and to be
borne - subject to certain principles of justice and charity. The modern postulate of legal
equality dates from the eras of the French and American Revolutions.
In a formal and general sense equality is a postulate of justice. Aristotle’s
“distributive justice” demands the equal treatment of those equal before the law. This, like
any general formula of justice is, however, applicable to any form of government or
society; for it leaves it to a particular legal order to determine who are equal before the law.
Equality in rights, as postulated by the great democratic charters, means the
extension of individual rights, in principle, to all citizens as distinct from a privileged
minority. Equality can never be absolute; it is qualified by natural inequalities and, in the
formulation of Thomas Paine and the Declaration of 1789, by “public” or “common”
utility. Certain natural inequalities, such as the differences in the legal status of infants and
adults, or of insane and sane persons, do not touch the foundations of democracy. But most
of the existing democratic systems preserve legal inequalities, contrary to the ideology of
democracy.
Neither the limitation of franchise or other civic rights, nor legal inequality as
between men and women or between white and black races, nor differentiations in the
legal position of nationals and foreigners, are compatible with the basic legal ideas of
democracy; yet all these inequalities still exist, to a greater or smaller degree. French
democracy did not recognise women’s franchise until after France’s liberations from the
217
Nazi régime; Great Britain has only fairly recently abolished political and educational
disqualifications due to religion; Negroes are more or less fully disfranchised not only in
many British colonies, but despite the specific guarantee given in the Fifth and Fourteenth
Amendments of the Constitution, they are effectively disfranchised in some of the states of
the U.S.A., through the pall tax and other means. The status of married women has, in
England, reached full equality with that of their husbands only by an Act of 1935. Most
Australian states still have upper legislative houses which, through an organisation of
voting districts that greatly favours the country against the city vote, through property
qualifications and other means, perpetuate stark inequalities. Most modern democracies
grant substantial equality in civil rights to foreign nationals (subject to certain restrictions,
regarding, for example, the ownership of land or ships), but they are excluded from
political rights. This is but another way of saying that the words is organised in a number
of national states. The theoretical ideal of democracy -the equality of all men and races– is
limited by a society for which the division into national groups organised in states is still
the highest ordering principle. This discrepancy may eventually be overcome, or at least
reduced, if any when a closer organisation of international society, through common
judicial or, eventually, legislative institutions reduces the differences between nation and
nation, and thus subjects their nationals to a greater measure of common law.
It is clear, however, that the principle of absolute equality between individuals of
all classes and races cannot be understood in a rigid sense. The ideas of individual freedom
and individual equality are correlated, and both have to be understood in a dynamic, not in
a static, sense. Freedom means opening the road to the fullest development of personality,
and equality means equality of opportunity for all to participate in such development; it
means the abolition not of natural differences, which it is not within man’s power to
abolish, but of the man-made differences inherent in the organisation of society. It is these
which it is the task of law, in democratic societies, to remove.
Legislative developments in democratic societies have, during the last hundred
years, gone far to remove the many obstacles in the way of such equality of opportunity.
Equality of franchise and other civic rights is an illusion where property qualifications
govern its exercise, or widespread illiteracy would make its extension to everyone farcial.
It is the immortal merit of Bentham to have stressed the necessity for the removal of
inequalities in the opportunities of development as a condition of democratic development,
while Mill has demanded to development of a sense of responsibility as a condition of
218
equal political rights. Legislation cannot do it all, but it has a vital party to play. Such
different legislative developments as the removal of legal obstacles to trade unions, the
fight for women’s franchise, the struggle for a constitutional amendment prohibiting state
poll taxes in the United States, the British Education Act 1944 widening the basis of
general education, or recent Indian legislation directed against the rigid barriers of the caste
system, constitute steps towards the same goal. They imply, not that men are or ever will
be equal in faculties or attainments, but that the differences between them are not due to
such attributes as race, wealthy or nationality. Few men are leaders, but democracy
believes that, given facilities of material and intellectual development, leaders may spring
from any race, class or nation.
That the democratic ideal demands equality of rights can scarcely be doubted. But
the association of liberal and democratic ideals is not uncontested. In the essay discussed
below, Troeltsch traces a difference between the French and the Anglo-Saxon ideas of
progress. He includes equality of rights in the former, but not in the latter. This, according
to Troeltsch, involves a deep division: “the division between democracy proper and a
system which should be designated as liberalism rather than democracy.”
There is much force in this contention. The French idea of equality has dominated
French political development since the Revolution (though it has been considerably
modified in the Gaulle’s Fifth Republic), and deeply influenced American constitutional
and legal principles. Although … there exist in the United States many grave discrepancies
between the principle of equal rights and inequalities caused through economic domination
discrimination, state legislation and other factors, the principle of equality of rights has
never been seriously doubted.
The dominant factor in the British Constitution is the Cabinet, democratically
constituted, but much more powerful in its relation with Parliament and the people than its
American counterpart. The French constitutional revolution of 1958 has swung from a
system that produced a chronically weak executive facing powerful but paralysingly
divided parliaments, to a predominance of executive power which curtails the functions of
parliament to such an extent that contemporary France may only doubtfully be
characterised as a democracy.
Although a powerful tradition of English liberal thought, from Bentham and Mill to
Green, Hobhouse and Barker, has coupled liberal and democratic principles, an important
school of thought rejects this partnership. Burke, the greatest opponent of the French
219
Revolution, has found support among historical jurists. Maine’s theory about the evolution
from status to contract was a contribution to liberal thought, but he also derived from his
study of legal evolution an opposition to democracy which another distinguished legal
historian has more recently affirmed. In a criticism of the democratic liberal thought of
Barker, the late Sir William Holdsworth has roundly condemned the development which,
since the Reform Act of 1832, has extended franchise and other rights from what he
considers the more enlightened classes to all. Accordingly, he rejects the conception of
equal educational opportunity as a step towards political responsibility, in favour of a class
of leaders educated in Britain’s public schools.
This is not the place to discuss the political merits of this contention. The
arguments is political and historical, not legal. The implementation of this political
ideology would, however, lead to a different set of legal values from that which stresses
equality as the corollary to freedom. It would justify the division of the electorate into
classes, and discrimination as regards rights and duties and, on the whole, promote a
legislative trend contrary to that which, in the last hundred years, has increasingly
determined British political and legal development.
GOVERNMENT OF THE PEOPLE
Individual rights and equality do not sufficiently characterise democracy. They may
exist under a benevolent despotism. In modern democracy both ideals find their highest
fulfilment and justification in the citizen’s right to participation in government, the
“Government of the People” (Lincoln). This, in modern states, means representative
government through elected deputies.
The great problem of democratic political and legal thought has been the
reconciliation of popular will with individual rights and, in particular, of the rights of the
majority with those of the minority. The possibility of conflict is apparent in the social
contract theories of Locke and Rousseau. If the will of the majority or the volonté générale
is the supreme law, individual rights cannot be inalienable. The difficulty of reconciling
both has involved Locke and Rousseau in contradictions. From the many studies of the
problems of representative government, three main ideas have emerged which indicate a
away out of the dilemma; one is the idea of proportional representation, championed by
Mill and many later liberals. It ensures representation, in proportion to its strength, to every
220
group and shade of opinion, down to very small units, and it thus goes far to give every
individual a voice in the affairs of the community. Its obvious danger, as shown by the fate
of the German Constitution of 1919, is an excessive number of small parties, which
frustrates stable and effective government and encourages political blackmail. It is
significant that British constitutional law, with its traditional emphasis on representative
leadership rather than absolute equality, has so far refused to adopt the principle of
proportional representation, although this involves much injustice to any political group
other than the two principal parties which from alternative governments.
The second idea is that of a protection of minority rights, intimately linked with that
of “inalienable” individual rights. The nature and extent of these rights has been discussed
above. Most modern democracies give them legal force by incorporating them in a written
constitution. This does not make them inviolable; for no constitution is unalterable. But
amendments are usually subject to a special procedure, either a plebiscite or a qualified
majority in Parliament. Where the constitution is federal it is usually necessary for both
chambers to pass the amendment with a qualified majority. The American Constitution has
provided further safeguards for individuals and minorities, first in subjecting the
acceptance of commitments by foreign treaties to a qualified majority in the Senate;
secondly, by allowing an action before the Supreme Court to test the violation of any riht
guaranteed by the Constitution.
The British Constitution does not know any formal protection of individual or
minority rights; nothing prevents the majority from getting any law passed in Parliament
(witness the recurrent suspensions of habeas corpus); individuals and minorities are
protected by convention and tradition, backed by public opinion, and by a parliament
system which recognises an organised minority as essential (symbolised by the
appointment, in 1937, of a salaried Leader of the Opposition).
While this tradition is as effective as any formal declaration of rights in a strongly
cemented and long-established political community, formal legal protection will be
indispensable for any international legal organisation, which cannot build on such tradition
and where discrimination against national, racial and religious minorities will constitute a
formidable problem. This, indeed, was attempted, though only partly and with insufficient
legal sanctions, in the Treaty of Versailles.
The third idea is the extension of individual participation in government from the
national sphere, where, in modern conditions, it can only be indirect, through elected
221
representative, to the regional and local sphere, where it can be direct. The many new
responsibilities which, with the extension of social, health, educational and other services,
will devolve on regional and local authorities, will increase these opportunities. At present
the participation of the average citizen in government is largely confined to occasional
voting. While the Constitution of the Soviet Union is clearly undemocratic in so far as it
allows only one privileged party as the expression of organised political opinion, it is at
present ahead of many parliamentary democracies in the degree of active participation by
the average citizen of all callings and races in the manifold tasks of self-government. The
opportunities for delegated tasks of self-government are, of course, vastly increased by the
greater scope of state activity and public responsibility. Thus, the new British education
system and National Health Service, while introducing a uniform system for the whole
country, at the same time impose new delegated and executive responsibilities upon
regional and local authorities. The Acts setting up public corporations for the conduct of
nationalised industries create consumers’ advisory councils which the board or the
Minister must consult. The spirit of enterprise which, in a capitalist society, finds its main
outlet in private economic activity, is, in a socialist community, transferred to industrial
management, social work and other tasks carried out on behalf of the state. Modern
democratic societies find themselves today in an intermediate position.
FREEDOM, PLANNING AND THE RULE OF LAW
It has previously been shown that it is impossible to lay down absolute principles of
justice which under the name “rule of law” could claim universal validity. It is, on the
other hand, both possible and necessary to formulate the principles of the rule of law as it
is understood in modern Western democracy.
The democratic rule of law implies first, the principle of equality before the law. It
excludes the autocratic and totalitarian principle which, in the name of divine right, of
inspired leadership or of power pure and simple, exempts individuals and groups from the
law of the land. The creation of a privileged class like the members of Nazi organisations,
subject to party tribunals, is repugnant to democracy. The inevitable corollary of a rule of
law is a separation of judiciary and executive. But Dicey’s contention that the “rule of law”
does not permit of a separate system of administrative justice is today discredited even for
English law. As the administrative activities of the state multiply, both the multitude and
222
the character of the legal problems arising demand a type of jurisdiction and judges
qualified to deal with disputes usually fundamentally different from the private law case. In
all Continental countries this has led to a separate system of administrative tribunals which
leaves to the agencies of government a good deal of discretion, but subjects them to
liability where they infringe rights. The borderline between discretion and infringement is
not always easy, and distrust of any distinction between governors and governed has led
some Continental jurists, like Kelsen, to reject the theoretical distinction between ordinary
and administrative justice. But the alternative, in Great Britain and the U.S.A., has been the
haphazard springing up of numerous semi-judicial administrative bodies with judicial
powers which are, in personnel and method, closer to actual administration than the
Continental tribunals which, at least on the higher levels, enjoy complete judicial
independence.
Administrative justice as developed in Continental laws is far from being the last
word in democratic justice. But it cannot be maintained that the present-day common law
system in England is a more democratic alternative, even though the historic anomaly of
crown immunity from jurisdiction has at last disappeared.
Nor can any particular form of constitutional government be regarded as the true
and only embodiment of the rule of law. A written constitution as the supreme law of the
land appears as the legally clearest and most satisfactory embodiment of democratic legal
principles. It is found indispensable in federal constitutions as a safeguard of state and
minority rights; this would also apply to more closely knit international community; but
the unchecked legal supremacy of British Parliament has not led to dictatorship, while
some written constitutions have quickly crumbled before political revolutions. The
embodiment of judicially protected individual rights in the American Constitution has not
prevented restrictions on freedom of thought, speech and association more severe than in
contemporary Britain which has no such constitutional guarantees. Again, the American
Constitution regulates the relations between executive, legislature and judiciary differently
from the British. It gives to a law court a supervisory function which, as shown above,
cannot help having deep political implications, and it isolates legislative and executive
from each other, instead of the British method of constituting government as an executive
committee of the majority in parliament. Modern democracies also differ widely in the
organisation of the administration of justice. In Continental democracies, a ministry of
justice is in administrative control of the entire judicial machinery, and also the central
223
agency for the drafting of legislation. In Britain, these functions are divided between the
Lord Chancellor’s secretariat, the parliamentary draftsman and ad hoc law revision
committees. In the United States, the Attorney-General’s Department exercises some of the
functions of a ministry of justice, together with numerous congressional committees and ad
hoc commissions. Each of these national institutions has certain merits and deficiencies
and may be in need of reform, but they are all compatible with democratic ideas.
But it would be arbitrary to regard one way of constitutional government as more
democratic than the other. There are many possible avenues to the problem of reconciling
leadership with individual and popular rights, and the solutions will differ according to
experience, social conditions, history and national temperament.
The other pillar of the rule of law, cardinal to all democratic thought, is the
principle of equal individual responsibility. In Bentham’s terminology, everybody counts
for one. This does not exclude legal differences arising from the exercise of functions.
Officials are, as such, nowhere in the same legal position as individuals. It does exclude,
for example, the retrospective punishment of actions. It does exclude the exemption of
individuals or classes from legal responsibility and, on the other hand, punishment or
persecution of individuals by virtue of their membership of a specific race, religion or
other group characteristic.
The democratic conception of the rule of law balances individual rights with
individual legal responsibility. This accounts for such rules as the responsibility for
damage done by official acts to private citizens, or the principle of criminal liability based
on individual wrongdoing by a person responsible for this action. The relation between
individual right and individual duty is in constant development, and its forms vary from
system to system.
The universal increase of planning functions and of public control over a growing
range of social and economic activities compels a re-examination of the meaning of the
rule of law in modern democracy. Is the planned society compatible with a system of law
which upholds the essential foundation of the “rule of law” as characterised earlier on? Or
is there an irreconcilable conflict between the two? Must it be either planning or law?
That planning is inconsistent with the rule of law has been contended by one of the
most radical of modern anti-planners. In this opinion planning implies a method of official
action which makes it impossible for the citizen to fore see what may happen to him. This
absence of foresee ability means a denial of the rule of law, which to him means that
224
“government in all its actions is bound by rules fixed and announced beforehand-rules
which make it possible to foresee with fair certainly which authority will use its coercive
powers in given circumstances and to plan one’s individual affairs on the basis of this
knowledge.”
This assertion is based first on a questionable view of the functions of the modern
state, and secondly on illusions about foreseeability in an unplanned economic system.
There can be do doubt that effective planning does entail a degree of administrative
action which cannot be determined beforehand. The compulsory acquisition of land for the
purpose of road-making or the development of new towns, the closing down or
amalgamation of redundant industries in a certain branch or area, the prohibition of certain
transactions for overriding reasons of public policy, such as shortage of foreign exchange,
or the cancellation of government contracts because of the cessation of the original need
for making them, these and numerous other situations may and do often arise as a result of
unforeseen and do often arise as a result of unforeseen and unforeseeable conditions. To
deny public authority such powers means to deny the state the right and the instruments for
the promotion of the social welfare of its citizens.
In the words of one of the staunchest opponents of administrative arbitrariness, “to
attempt a return to pure Laissez-faire, to reduce the state to its old minimum functions of
tax-gatherer, policeman and panoplied protector is really a rejection of the whole trend of
modern civilisation.”
There will always be differences of opinion on the relative spheres of private freedom of
action and public control. But a return to the “night-watchman” state, to which Hayek’s
conception of the rule of law corresponds, is far removed from the realities of modern
democratic society, American, British, French or Scandinavian. The main problem is that
of surrounding planning and administrative discretion with the greatest amount of legal
safeguards compatible with the effectiveness of public control. Five general principles
indicate the way in which the fundamentals of the rule of law and of individual freedom
may be preserved in a planned society. In the first place there is administrative jurisdiction
designed to protect illegitimate interference or abuse of discretion by public authorities.
The alternatives are a fully-fledged system of administrative tribunals on the Continental
model, or a system which seeks protection for the citizen in the supervisory jurisdiction of
the ordinary courts or by a combination of administrative jurisdiction with appeal to the
High Court on points of law. The choice between these alternatives is a matter of positive
225
administrative law, not of fundamental legal theory. Either can protect the essential
liabilities of the citizen, as the experience of the Continental democratic systems has
shown.
Secondly, the laying down of definite standards as a test for public interference
with private rights can be extended. This applies to standards of sanitation, of factory
protection, as much as to the laying down of conditions under which government
departments and other public authorities may cancel contracts.
Thirdly, the principle of reasonable compensation for unforeseeable interference
with legitimate interests must be extended. It has in fact been fully adopted in the recent
series of British Nationalisation Acts which provide for impartial assessment of
compensation by administrative tribunals, subject to an appeal to the High Court on a point
of law.
Fourthly, the extension of governmental activities must be balanced by the removal
of the immunities of government, and of public authorities in general, from legal
responsibility corresponding to that of private subjects in similar circumstances.
Finally, there remains the supervision of public authorities exercised by higher
administrative authority and ultimately by Parliament. This supervision, working through
debate, public audits, inspection and other administrative means, is ultimately the most
important protection of the citizen, although it is certainly capable and in need of much
improvement.
It can therefore be confidently asserted that the development of a planned society
does demand a reconsideration of the adjustment between private rights and public means,
but that it does not mean the necessary elimination of fundamental democratic values and
with it of the rule of law. ***
226