The Ideal Element in Law. Roscoe 1870-1964 Pound

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

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

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

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

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

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

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

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

      In general, in the strict law the law is quite indifferent to morals. In the stage of equity and natural law it is sought to identify law with morals. In the maturity of law it is insisted that law and morals are to be kept apart sedulously. Morality and morals are conceived