Again the idea of authority is taking on new form and may be seen at work in juristic thought on every hand. A postulated ultimate practical source of rules and sanctions, a postulated form of law to which other guides to judicial and administrative action must be subordinated, raise questions very like those to which medieval ideas of authority were addressed. Ever since the Reformation the emphasis has been on change. The Reformation, the Puritan Revolution, the English Revolution of 1688, the American Revolution, the French Revolution, the Russian Revolution—six major revolutions in four hundred years, or roughly one in every other generation—have made violent change seem the normal course of things and stability seem stagnation. But there have in the past been eras of legal and political stability. Like our own time, moreover, they have been eras of bigness and of wide economic unification, not of self-sufficing small politically organized societies and neighborhood economic independence. If we are moving toward stress on peace and stability, shall we not turn to an ideal of authority?
Likewise there is a revival of the idea of relation.79 The nineteenth-century ideal of the abstract free individual will is manifestly giving way before a renewed tendency to think of men not as isolated in abstract ideal conditions but as in concrete relations; to think of them as in a society in which they are all in every sort of relation with their fellow men and their most significant activities for the legal order take place in or have to do with these relations.80 This revived idea of relation is connected with an ideal of co-operation, one might say of co-operative effort to maintain, further, and transmit civilization. In all parts of the world economic unification and organization of industry are affecting the received conception of the relation of man to man in society. The received ideal of free competitive activity of individual self-sufficing units is being redrawn as one of adjusted relations of economically interdependent units.
To show that such ideals are by no means wholly realized in practice in the course of judicial decision does not dispose of them. They or some of them are as much a part of the authoritative traditional legal materials by which justice is administered as the authoritative starting points for legal reasoning which are chosen by reference to them, or the authoritative rules which are selected, interpreted and applied to conform to them. An ideal of the end of law, and hence of what legal precepts should be and how they should be applied, set forth in the formative era of American law by Kent81 and Story,82 developed by Cooley,83 applied to new areas of the law by Dillon,84 and constantly recurring in the reported judicial decisions as the avowedly determining element, is too significant a phenomenon to be overlooked in a scientific account of American law. I undertake to add that as much may be said for any developed system of law. The existence of such ideals should be recognized as one authoritative form which legal materials may take. Their history should be traced as we trace the history of legal precepts. Their operation in action should be studied as we study the operation in action of legal precepts. In the past, philosophical jurisprudence has been concerned with the ethical and philosophical bases of legal institutions and legal precepts and the principles and method of criticism with reference to those bases. Today we should be employing philosophical method in jurisprudence to set off and criticize the ideal element in systems of developed law, to organize that element, as in the last century we organized the precept element, to give it definiteness, and to work out a critique no less assured and thorough than that to which the apparatus of rules and doctrines has long been subjected.
Law as a body of authoritative grounds of or guides to decision and administrative action under a legal order, as has been said in the first lecture, is made up of three elements: A precept element, a body of authoritative norms, i.e., models or patterns of decision in adjusting relations and ordering conduct, a technique element, an authoritative technique of developing, interpreting and applying the precepts, and an ideal element, a body of received and traditionally authoritative or taught ideals with respect to which the precepts are developed, interpreted, and applied.
In a developed body of law the first and the third elements, the precept element and the ideal element are of chief importance. Likewise the ideal element has a special relation to one of the two forms of legal precept. Legal precepts, as to their form, may be, on the one hand, enacted or imperative, or, on the other hand, traditional or habitual. The first is the modern element in a body of legal precepts today and, so far as the form of the law is concerned, is tending to become predominant. The second is the older or historical element upon which juristic development of the law proceeds by analogy. In the process of time consciously made and promulgated laws, legislation, becomes absorbed in the traditional material of the legal system. The enacted rule becomes a traditional principle. Thus in Roman law in its maturity the leges of the republic and the senatus consulta of the early empire have long ceased to be referred to according to their texts. “They were recognized only in the form in which they had been embodied in the writings of the jurisconsults, and were regarded as part of the ius or jurisprudential law rather than of the leges or statute law.”1 Also English statutes prior to colonization and to some extent prior to the Declaration of Independence are part of American common law in the form in which they were construed at the Revolution.2 The older English statutes are part of English common law in the way in which they were worked into it by Coke.3 There is a gradual transformation of the imperative into the traditional element of the legal system. On the other hand, as the traditional element is developed by judicial experience and juristic science and its principles are worked out into detailed rules, these rules are in time given imperative form by legislation, so that there is a gradual transformation of the traditional into the imperative. Examples may be seen in the English Bills of Exchange Act and Sale of Goods Act and the American Negotiable Instruments Law, Uniform Sales Act, and like statutes promoted by the Conference of Commissioners on Uniform State Laws.4
At first the traditional element rests upon the usage and practice of tribunals or the usage and customary modes of advising litigants on the part of those upon whom tribunals rely for guidance.5 Later it comes to rest upon juristic science and the habitual modes of thought of a learned profession. Thus the basis of its authority comes to be reason and conformity to ideals of right.6 On the other hand, the imperative element rests immediately upon enactment—upon the expressed will of the sovereign. The basis of its authority is the power of the state.7 In consequence of these two elements in a developed legal system and of the different bases upon which their authority is rested, two distinct ideas of law in the second of the three senses in which lawyers use the term, are to be found throughout the history of juristic science.
Corresponding to these ideas and corresponding to the two elements in the body of authoritative legal precepts, two distinct words, originally expressing two distinct ideas, are to be found in most languages spoken by peoples among whom law in the