The Ideal Element in Law. Roscoe 1870-1964 Pound

and third, morals, developed religious and philosophical theories.¹³² It is important for the jurist to bear in mind, what the sociologists insist upon, that the inner order of groups and associations other than the political organization of a society, and religious and philosophical ideals play a large and often controlling part in the ordering of society in comparison with law in the lawyer’s sense.¹³³ Yet Ehrlich gives us a needed caution as to morals, “a preachment or teaching, as compared with morality within a group,” and vouches the treatment of natives by the whites in every part of the world where they have come in contact, as showing “the depths to which the morality of modern man may sink where there are no associational bonds.”¹³⁴ Conflicts between morals and law in the lawyer’s sense are an old theme.¹³⁵ It is an old observation that law in the lawyer’s sense commonly lags behind morality and morals. Morals grow ahead of both morality and law and this growth is an important factor in bringing about changes in law. As Gurvitch puts it, morals are “more dynamic, more revolutionary, more mobile, more directed toward the future. . . than is the law. The latter is more attached to traditional practices than to acts of innovation, more dependent on intellectual representations and the balance of forces than is morality.”¹³⁶ Yet, he goes on to say, there have been cases where “an advanced law” has overcome current morality so that law has become a factor in moral change. This has happened at times during revolutions or major reform movements, when legislation or intuitive development of an inner order behind it, goes forward at a bound beyond the old law and the morality it expressed.¹³⁷ Such advanced lawmaking, however, has difficulty in maintaining itself.¹³⁸

      In conclusion, following Radbruch, in the making of rules of law and finding grounds of decision, in applying rules and grounds of decision, and in exercise of discretion in the judicial and in the administrative process, in each of these four tasks of the administration of justice, there are three things to be regarded: (1) Justice, the ideal relation between men; (2) morals, the ideal development of individual character; and (3) security. What is meant by security must be left to a later lecture. These three: justice, morals, security, have to be kept in balance. The answer to the proposition that there is here an irreducible antinomy is that we cannot ignore any one of them at the expense of the others.¹³⁹ Morals, which give us ideals, morality in which justice and morals are reflected in the time and place, are not to be left out of account in any of the four tasks. But in no one of them will morality or morals suffice of themselves. Security has also to be kept in mind, and if its dictates have to be tempered by morals and morality, theirs have to be tempered by those of security and measured by what is practicable in a legal order. The practical limitations on effective achievement of results by the judicial or the administrative process require us not to attempt too much by means of law (in the lawyer’s sense) but to bear in mind that there are other agencies of social control that may sometimes do better what morals and morality require.¹⁴⁰ Yet we should not be too patient under lag of the law behind morality and morals. Beyond reasonable regard for security any manifest lag should be corrected. By excluding all questions of improvement of the law (in the sense of the body of authoritative guides to determination) and of the judicial and administrative processes, a science of law may be more teachable and logically satisfying to students. But jurisprudence is a practical science. As such, it must consider the end of law, the measure of valuing interests, and the adaptability of systematic application of the force of politically organized society to achieving the end and applying the measure of values. It cannot dispense with ethics. It cannot depend wholly upon ethics.