The Ideal Element in Law. Roscoe 1870-1964 Pound

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

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

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

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

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

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

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

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

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