So much must be conceded to the analytical jurist. Yet we must not omit to note that in the last century he pressed these points too far. Thus a writer on ethics, who shows in marked degree the effects of analytical jurisprudence, says: “The law protects contracts which were made in legitimate business without regard to whether their provisions still conform to justice or not. Owing to unforeseen circumstances things may have so changed as to cause the ruin of one of the contracting parties without substantially benefitting the other party. The law is not concerned with that.”107 The proposition is true of the strict law. But if the promisee went into a court of equity for his only effective and adequate remedy (specific performance) he would encounter the chancellor’s margin of discretion in the application of that remedy and the doctrine that supervening circumstances may make a bargain so hard that the court will refuse to enforce it.108 The passage quoted sounds very like the pronouncements of lawyers in the stage of the strict law, when the line between legal and moral was drawn so sharply.109 Something of this spirit was to be seen in the last century. But in the present century administrative moratoria in the civil law, limitations on the power of creditors to exact satisfaction both in civil-law systems and in the common-law world, and the development of the doctrine of frustration,110 mitigate the enforcement of hard bargains. The law in action is not as harsh as the author would have us believe.111
Yet there are too many points, such, for example, as the Anglo-American law with respect to promises made in the course of business but without a technical consideration, where the last century did not exert itself, as it should have done, to bring the legal and the moral into accord.112 The philosophical jurist was too prone to find ingenious philosophical justification for rules and doctrines and institutions which had outlived the conditions for which they arose and had ceased to yield just results. The historical jurist was too prone to find a justification for an arbitrary rule by showing that it was the culmination of a historical development. The analytical jurist banished all ethical considerations, all criticism of legal precepts with reference to morals, from the law books. If a precept could be fitted logically into a logically consistent legal system it was enough. Such things are intelligible as a reaction from extravagances of the law-of-nature school. They are intelligible also in a period of legal development when it was needful for a time to assimilate and systematize the results of creative judicial and juristic activity. But it cannot be more than temporary. They cannot be suffered to become permanent features of a science of law.
A view of the relation between law and morals coming to a result not unlike that from the analytical approach is reached by Radbruch from a Neo-Kantian starting point. He tells us that there is an irreducible antinomy between law and morals. He thinks of justice as the ideal relation among men; of morals as the ideal development of the individual character; of the legal order as maintained security. No one of these, he says, can be carried out to a full logical development except at the expense of one or both of the others. As no logical line can be drawn and full logical development of any one negates the others, he holds that it follows that justice has to do with the formal notion of law, the end with measuring the value of the content of law, and security with the binding force of law. Law will draw its own lines as to where and how far, if at all, to recognize the other two. This is an example of Neo-Kantian logicism, putting logic much where the eighteenth century put reason. Hence, given Kantian definitions of justice, morals, and law, the next step is to develop each logically. But when this is done each conflicts with the others. Hence each must go its own path. There is, he holds, no way of reconciling them.113
Kant started with the conscious ego as something not open to challenge. The ideal relation between such egos was one permitting each the most freedom of will consistent with the like freedom of will of all others. The ideal development of each was the one which permitted that freedom. Law was the maintaining of that relation and its development by universal rule. But if we hold that no ultimate starting point can be proved logically, we have nothing to go on but the three, which cannot be carried out logically consistently with each other.
For example: The ideal relation among men would hold them liable to each other only for undertaking or for fault. But security requires us to impose liabilities without fault—crimes without a guilty mind, liability of the owner for injury by a borrowed automobile negligently operated by the borrower, and the like. Again, the ideal development of the individual calls for free self-determination, e.g., liberty of contract. But the ideal relation, made to include equality, may require limitation of free contract. The law must determine for itself which of these directions to take in different typical situations. Again, security carried to a full logical development might require us to allow summary convictions after administrative criminal investigation, or to extort confessions by the “third degree,” or to procure evidence by unreasonable searches and seizures. Thus each one, if it is carried out logically, is independent of the others. Kelsen, also from a Neo-Kantian standpoint, makes this the basis of a complete ignoring of morals in a pure science of law.114 I shall endeavor to show in another connection how the three ideas may be reconciled.115
It remains to speak of the sociological view—the approach and point of view of the sociologists.116
In sociological jurisprudence all social control taken as a whole is looked at functionally. So law in the lawyer’s sense and morality are forms of social control; simply different levels of social control or of what the sociologist calls law in its widest sense. This is a development in the light of sociology of the doctrine of the historical school in the nineteenth century. But it has been chiefly a development in sociology rather than in jurisprudence and so is not wholly satisfying from a juristic standpoint. Recent sociologists have drawn their juristic ideas from the historical jurists and so have left out of account the overlappings and points of contact in some connections and the distinct fields in others which have been brought out in analytical jurisprudence. Max Weber follows Vinogradoff, much more historian than jurist, as to law and “custom,” i.e., ethical custom or morality.117 The latter, however, is speaking of the Middle Ages and of the words used in the languages of Continental Europe derived from the Middle Ages and the religious-ethical ideas of that time. Hence he tells us of “the derivation of law from moral habits,”118 rejecting, along with Ehrlich, Maine’s theory that the judge precedes the law.119 He points out how this is connected with the words used to express the medieval conceptions; words which go back to an undifferentiated social control. Recht “means what is right in social relations, what should be established and supported as right by social organization.”120 Droit (Latin directum) “is the direction of social relations in the right way. Pravo in the Slavonic group stands for both iustum and dextrum.”121 He adds: “All these terms and notions are not simply juridical, they belong also to the domain of morals, and the expressions pointing to right are clearly allied to words used to designate moral habits.”122 Furthermore, he proceeds, “In the term right itself the personal claim [subjective right] and social order [objective right] have their root in moral sense—in the ethics of social intercourse.”123 Accordingly sociologists in writing on law usually adopt the view of the historical jurists as to sanction.124 Ehrlich distinguishes norms for decision from rules for conduct, the latter including morality.125 Tönnies distinguishes true moral precepts—rules of behavior recognized and imposed by social groups—i.e., law and positive morality as Austin would put it—from individual ideas of what should be moral precepts, individual ethical theories, i.e., morals.126 To show how far this may be carried, what Jhering calls customary rules of politeness,127 Petrazycki calls “rules of unofficial law.”128 It is significant that while Jhering distinguishes law and morality, although seeing their relation, sociologists have commonly used the discussion of morality in the second volume of Der Zweck im Recht as the basis of discussion of law as something including both.129 By making the term “law” so all-inclusive, sociologists revert to much of the confusion in the books on the law of nature from which analytical jurists reacted to the other extreme.130 If Austin and Kelsen have gone too far, it has not been without provocation. How confusion can result from the words used is well brought out by Llewellyn.131