ymj

STORRS LECTURES ON JURISPRUDENCE

YALE LAW SCHOOL, 1963
 THE
MORALITY
OF
• LAW jr

Revised edition

BY LON L. FULLER

NEW HAVEN AND LONDON, YALE UNIVERSITY PRESS

Copyright © 1964 by Yale University.
Revised edition copyright © 1969 by Yale University.
All rights reserved. This book may not be reproduced, in

whole or in part, in any form (beyond that copying

permitted by Sections 107 and 108 of the U.S.

Copyright Law and except by reviewers for the public

press), without written permission from the publishers.

ISBN: 0-300-00472-9 (cloth), 0-300-01070-2 (paper)

Library of Congress catalog number: 72-93579

Designed by Sally Hargrove Sullivan,

set in Times Roman type,

and printed in the United States of America by

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Fredericksburg, Virginia.

35 34 33 32 31 30 29 28
 PREFACE TO
THE SECOND EDITION

In this new edition of The Morality of Law the first four chapters
have been reprinted from the type as it was originally set, with
only a minor correction or two. The only change of substance
consists, therefore, in the addition of a fifth and final chapter
entitled "A Reply to Critics."
The fact that the first four chapters remain virtually unchanged
does not imply complete satisfaction with either the form or the
substance of the presentation achieved in them. It means simply
that I have not proceeded far enough in my rethinking of the
problems involved to undertake any substantial reformulation
of the views I first expressed in lectures delivered in 1963. It

means also that basically I stand by the positions taken in those

lectures.
I hope that the new fifth chapter will not be viewed simply as

an exercise in polemics. For many decades legal philosophy in the

English-speaking world has been largely dominated by the tradi-
tion of Austin, Gray, Holmes, and Kelsen. The central place their
general view of law has occupied does not mean that it has ever
been received with entire satisfaction; even its adherents have
PREFACE
often displayed discomfort with some of its implications. In the
new concluding chapter of this book I have achieved, I think,
a better articulation of my own dissatisfactions with analytical
legal positivism than I had ever achieved before. For this I am
deeply indebted to my critics, and particularly to H. L. A. Hart,
Ronald Dworkin, and Marshall Cohen. Their strictures have not
always been softly phrased, but by the same token they have not
been blunted by the self-protective obscurities often found in
polemic attacks. By laying bare the basic premises of their
thought, they have helped me to do the same with mine.
Since the first edition of this book has been found of some
value by scholars whose primary interests lie in legal sociology
and anthropology, it might be well to offer a suggestion to those
first approaching the book from the standpoint of similar interests.

My suggestion is that they begin by reading Chapters II and V in

that order, skipping for the time being the others. This mode of
approaching the book will serve the dual purpose of suggesting
whatever of value it may have for their special concerns, at the
same time offering some notion of the basic differences in view-
point that divide legal scholars in the task of defining their own
subject.
In closingwant to express a word of appreciation for the con-
I

tribution madeto this book (and to my peace of mind) by Martha

Anne Ellis, my secretary, and Ruth D. Kaufman of the Yale Uni-
versity Press. Their diligence and perception have largely lifted
from my concern the time-consuming and anxiety-producing de-
tails that always accompany the conversion of a manuscript into

final printed form.

May 1,1969 L.L.F.

VI
 PREFACE TO
THE FIRST EDITION

This book is based on lectures given at the Yale Law School in

April 1963 as a part of the William L. Storrs Lecture Series.
Though the present volume expands the original text several times
over, I have preserved the lecture form as congenial to the subject
matter and as permitting the informal and often argumentative
presentation I preferred. The result is a certain incongruity be-
tween form and substance; even the polite patience of a Yale
audience would hardly have enabled it to sit through my second
it now
"lecture" as appears.
As an appendix have added something that I wrote long
I

It is called The Problem of the

before I undertook these lectures.
Grudge Informer. It may be found useful to read and think about
this problem before turning to my second chapter. The problem
was originally conceived to serve as a basis for discussion in my
course in jurisprudence. During the past few years it has also
been used as a kind of introduction to the problems of jurispru-
dence in a course taken by all first-year students in the Harvard
Law School.
In making my acknowledgments first thanks must go to the
Yale Law School, not only for the welcome spur of its invitation,

vii
PREFACE
but for granting an extension of time so that I might more nearly

meet demands. I must also express my gratitude to the Rocke-

its

feller Foundation for helping me to gain access, during the school

year 1960-61, to that rarest commodity in American academic

life: leisure. By leisure I mean, of course, the chance to read and

reflect without the pressure of any immediate commitment to

being, or pretending to be, useful. Quite simply, without the aid

of the Foundation I would not have been able to accept Yale's
invitation. My indebtedness to colleagues runs to so many for
such diverse forms of aid that it is impossible to acknowledge it

adequately. None of them, it should be said, had any chance to

rescue the final text from those last-minute infelicities to which
stubborn authors are prone. During the early stages of the under-
taking, however, their contributions were of so essential a nature
that in my eyes this book is as much theirs as mine. Finally, in
acknowledging the very real contribution of my wife, Marjorie, I
shallborrow a conceit from another writer: she may not know
what it means, but she knows what it meant.

L.L.F.

vui
 5
3
1

CONTENTS
y
Preface to the Second Edition v

Preface to the First Edition vii

I. THE TWO MORALITIES 3

The Moralities of Duty and of Aspiration 5

The Moral Scale 9
The Vocabulary of Morals and the Two Moralities 1

Marginal Utility and the Morality of Aspiration 1

Reciprocity and the Morality of Duty 19

Locating the Pointer on the Moral Scale 27
Rewards and Penalties 30

II. THE MORALITY THAT MAKES LAW POSSIBLE 33

Eight Ways to Fail to Make Law 33
The Consequences of Failure 38
The Aspiration toward Perfection in Legality 41
Legality and Economic Calculation 44
The Generality of Law 46
Promulgation 49
Retroactive Laws 5
The Clarity of Laws 63
Contradictions in the Laws 65
Laws Requiring the Impossible 70

ix
CONTENTS
Constancy of the Law through Time 79
Congruence between Official Action and Declared Rule 81
Legality as a Practical Art 91

III. THE CONCEPT OF LAW 95

Legal Morality and Natural Law 96
Legal Morality and the Concept of Positive Law 106
The Concept of Science 1 1

Objections to the View of Law Taken Here 1 22

Hart's The Concept of Law 1 33
Law as a Purposeful Enterprise and Law as a

Manifested Fact of Social Power 145

IV. THE SUBSTANTIVE AIMS OF LAW 152

The Neutrality of the Law's Internal Morality

toward Substantive Aims 153

Legality as a Condition of Efficacy 155
Legality and Justice 157
Legal Morality and Laws Aiming at Alleged Evils
That Cannot Be Denned 1 59
The View of Man Implicit in Legal Morality 1 62
The Problem of the Limits of Effective Legal Action 168
Legal Morality and the Allocation of Economic
Resources 170
Legal Morality and the Problem of Institutional Design 177
Institutional Design as a Problem of Economizing 1 78
The Problem of Defining the Moral Community 181
The Minimum Content of a Substantive Natural Law 1 84

V. A REPLY TO CRITICS 187

The Structure of Analytical Legal Positivism 191
Is Some Minimum Respect for the Principles of
Legality Essential to the Existence of a Legal System? 197
Do the Principles of Legality Constitute an "Internal
Morality of Law"? 200
Some Implications of the Debate 224

APPENDIX: THE PROBLEM OF THE

GRUDGE INFORMER 245
Index 255

XI
THE MORALITY OF LAW
 THE TWO
I
MORALITIES
s

Sin, v.i. 1. To depart voluntarily from the path of duty prescribed by God
to man. —Webster's New International Dictionary
Die Siinde ist ein Versinken in das Nichts. 1

Sir

The content of these chapters has been chiefly shaped by a dis-

satisfaction with the existing literature concerning the relation
between law and morality. This literature seems to me to be
deficient in two important respects. The first of these relates to
a failure to clarify the meaning of morality itself. Definitions of
law we have, in almost unwanted abundance. But when law is

1. This quotation may be purely imaginary. I think I recall it from

something I read long ago. Friends learned in theology have been unable
to identify its source. They inform me that its thought is Augustinian and
that there is a closely parallel passage in Karl Barth: "Die Siinde ist ein
Versinken in das Bodenlose." However, "das Bodenlose" implies a loss of
limits or boundaries and therefore suggests a transgression of duty. What
I have sought is an expression of the concept of sin as viewed by a morality

—
of aspiration sin as a failure in the effort to achieve a realization of the
human quality itself.
THE MORALITY OF LAW
compared with morality, it seems to be assumed that everyone
knows what the second term of the comparison embraces.
Thomas Reed Powell used to say that if you can think about
something that is related to something else without thinking
about the thing to which it is related, then you have the legal
mind. In the present case, it has seemed to me, the legal mind
generally exhausts itself in thinking about law and is content to
leave unexamined the thing to which law is being related and
from which it is being distinguished.
In my first chapter an effort is made to redress this balance.
This is done by emphasizing a distinction between what
chiefly
I call the morality of aspiration and the morality of duty. A failure

to make this distinction has, I think, been the cause of much ob-
scurity in discussions of the relation between law and morals.
The other major dissatisfaction underlying these lectures arises
from a neglect of what the title of my second chapter calls, "The
Morality That Makes Law Possible." Insofar as the existing litera-
ture deals with the chief subject of this second chapter which I —
call "the internal morality of law" — it is usually to dismiss it with
a few remarks about "legal justice," this conception of justice
being equated with a purely formal requirement that like cases be
given like treatment. There is little recognition that the problem
thus adumbrated is only one aspect of a much larger problem,
that of clarifying the directions of human effort essential to main-
tainany system of law, even one whose ultimate objectives may
be regarded as mistaken or evil.
The third and fourth chapters constitute a further development
and application of the analysis presented in the first two. The
third, entitled"The Concept of Law," attempts to bring this
analysis into relation with the various schools of legal philosophy
generally. The fourth, "The Substantive Aims of Law," seeks to
demonstrate how a proper respect for the internal morality of law
limits the kinds of substantive aims that may be achieved through
legal rules. The chapter closes with an examination of the extent
to which something like a substantive "natural law" may be de-
rived from the morality of aspiration.
 THE TWO MORALITIES

The Moralities of Duty and of Aspiration

Let me now turn without further delay to the distinction between

the morality of aspiration and the morality of duty. This distinc-
by no means new. 2 I believe, however, that its full
tion is itself

implications have generally not been seen, and that in particular

they have not been sufficiently developed in discussions of the
relations of law and morals.
The morality of aspiration is most plainly exemplified in Greek
philosophy. It is the morality of the Good Life, of excellence, of
the fullest realization of human powers. In a morality of aspiration
there may be overtones of a notion approaching that of duty. But
these overtones are usually muted, as they are in Plato and Aris-
totle. Those thinkers recognized, of course, that a man might
fail to realize his fullest capabilities. As a citizen or as an official,

he might be found wanting. But in such a case he was condemned

for failure, not for being recreant to duty; for shortcoming, not
for wrongdoing. Generally with the Greeks instead of ideas of
right and wrong, of moral claim and moral duty, we have rather
the conception of proper and fitting conduct, conduct such as
beseems a human being functioning at his best. 3
Where the morality of aspiration starts at the top of human
achievement, the morality of duty starts at the bottom. It lays
down the basic rules without which an ordered society is impos-
sible, or without which an ordered society directed toward certain

2. See, for example, A. D. Lindsay, The Two Moralities (1940); A.

Macbeath, Experiments in Living (1952), pp. 55-56 et passim; W. D. La-
mont, The Principles of Moral Judgement (1946); and by the same author,
The Value Judgement (1955); H. L. A. Hart, The Concept of Law (1961),
pp. 176-80; J. M. Findlay, Values and Intentions (1961); Richard B.
Brandt, Ethical Theory (1959), esp. pp. 356-68. In none of these works
does the nomenclature 1 have adopted in these lectures appear. Lindsay,
for example, contrasts the morality of "my station and its duties" with the
morality of the challenge to perfection. Findlay's book is especially valu-
able for its treatment of the "hortatory" abuses of the concept of duty.
3. Cf. "the Greeks never worked out anything resembling the modern
notion of a legal right." Jones, The Law and Legal Theory of the Greeks
(1956), p. 151.
THE MORALITY OF LAW
specific goals must fail of its mark. It is the morality of the Old
Testament and the Ten Commandments. It speaks in terms of
"thou shalt not," and, less frequently, of "thou shalt." It does not
condemn men for failing to embrace opportunities for the fullest
realization of their powers. Instead, it condemns them for failing
to respect the basic requirements of social living.

In his Theory of Moral Sentiments, Adam Smith employs a

figure that is useful in drawing a distinction between the two
moralities I am here describing. 4 The morality of duty "may be
compared to the rules of grammar"; the morality of aspiration
"to the rules which critics lay down for the attainment of what is

sublime and elegant in composition." The rules of grammar

prescribe what is requisite to preserve language as an instrument
of communication, just as the rules of a morality of duty prescribe
what is necessary for social living. Like the principles of a morali-
good writing, "are loose, vague,
ty of aspiration, the principles of
and indeterminate, and present us rather with a general idea of
the perfection we ought to aim at, than afford us any certain and
infallible directions of acquiring it."

It will be well at this point to take some form of human conduct

and ask how the two moralities might proceed to pass judgment
on it. I have chosen the example of gambling. In using this term
I do not have in mind anything like a friendly game of penny ante,

but gambling for high stakes —

what in the translation of Ben-
tham's The Theory of Legislation is called by the picturesque
term, "deep play." 5
How would the morality of duty view gambling thus defined?
Characteristically it would postulate a kind of hypothetical moral

4. The Theory of Moral Sentiments, 1, 442. The distinction taken by

Smith is not between a morality of duty and a morality of aspiration, but
between justice and "the other virtues." There is plainly, however, a close
affinity between the notion of justice and that of moral duty, though the
duty of dealing justly with others probably covers a narrower area than
that embraced by moral duties generally.
5. See the note to page 106 of Hildreth's translation as reprinted in the
International Library of Psychology, Philosophy and Scientific Method
(1931).
 THE TWO MORALITIES
legislator who would be charged with the responsibility of decid-
ing whether gambling was so harmful that we ought to consider
that there is a general moral duty, incumbent on all, to refrain
from engaging in Such a legislator might observe that gambling
it.

is a waste of time and energy, that it seems to act like a drug on

those who become addicted to it, that it has many undesirable
consequences, such as causing the gambler to neglect his family
and toward society generally.
his duties
our hypothetical moral legislator had gone to the school
If

of Jeremy Bentham and the later marginal utility economists, he

might find good reasons for declaring gambling intrinsically harm-
ful and not merely harmful because of its indirect consequences.
Ifa man's whole fortune consists of a thousand dollars and he
wagers five hundred of it on what is called an even bet, he has
not in fact entered a transaction in which possible gains and
losses are evenly balanced. If he loses, each dollar he pays out
cuts more deeply into his well-being. If he wins, the five hundred
he gains represents less utility to him than the five hundred he
would have paid out had he lost. We thus reach the interesting
conclusion that two men may come together voluntarily and
without any intent to harm one another and yet enter a trans-
action which is to the disadvantage of both —judged, of course,
by the state of affairs just before the dice are actually thrown.
Weighing all these considerations, the moralist of duty might
well come to the conclusion that men ought not to engage in
gambling for high stakes, that they have a duty to shun "deep
Play."
How is such a moral judgment related to the question whether
gambling ought to be prohibited by law? The answer is, very
directly. Our hypothetical legislator of morals could shift his role
to that oflawmaker without any drastic change in his methods of
judgment. As a lawmaker he will face certain questions that as a
moralist he could conveniently leave to casuistry. He will have
to decide what to do about games of skill or games in which the
outcome is determined partly by skill and partly by chance. As
a statutory draftsman he will confront the difficulty of distin-
 THE MORALITY OF LAW
guishing between gambling for small stakes as an innocent amuse-
ment and gambling in its more desperate and harmful forms. If
no formula comes readily to hand for this purpose, he may be
tempted to draft his statute so as to include every kind of gam-
bling, leaving it to the prosecutor to distinguish the innocent from
the truly harmful. Before embracing this expedient, often de-
scribed euphemistically as "selective enforcement," our moralist
turned lawmaker will have to reflect on the dangerous conse-
quences that would attend a widened application of that principle,
already a pervasive part of the actual machinery of law enforce-
ment. Many other considerations of this nature he would have
and proposing his statute. But at
to take into account in drafting
no point would there be any sharp break with the methods he
followed in deciding whether to condemn gambling as immoral.
now view gambling as it might appear to the morality
Let us
From this point of view we are concerned not so
of aspiration.
much with the specific harms that may flow from gambling, but
with the question whether is an activity worthy of man's ca-

^
it

pacities. Wewould recognize that in human affairs risk attends

all creative effort and that it is right and good that a man engaged
>l
v" /VjXin creative acts should not only accept the risks of his role, but
cd^ rejoice in them. The gambler, on the other hand, cultivates risk
>^y for own sake. Unable to face the broader responsibilities of
its

* ne numan r °l e ne discovers a way of enjoying one of its satis-

^
'V0^v >

kOt Wtions without accepting the burdens that usually accompany

\V\5r\.cN*- Gambling for high stakes becomes, in effect, a kind of fetishism.
^^t£Jy The analogy to certain deviations in the sex instinct is readily

& apparent and has

psychiatric literature
been exploited to the full in an extensive
in fact
on obsessive gambling. 6
The final judgment that the morality of aspiration might thus
pass on gambling would not be an accusation, but an expression
of disdain. For such a morality, gambling would not be the vio-
lation of a duty, but a form of conduct unbefitting a being with
human capacities.

6. See the bibliography listed in Edmund Bergler, The Psychology of

Gambling (1957), note 1, pp. 79-82.
 THE TWO MORALITIES
What bearing would the judgment thus passed have on the
law? The answer is that it would have no direct bearing at all.

There isno way by which the law can compel a man to live up
to the excellences of which he is capable. For workable standards
of judgment the law must turn to its blood cousin, the morality
of duty. There, if anywhere, it will find help in deciding whether
gambling ought to be legally prohibited.
But what the morality of aspiration loses in direct relevance
for the law, it gains in the pervasiveness of its implications. In one
aspect our whole legal system represents a complex of rules de-
signed to rescue man from the blind play of chance and to put
him safely on the road to purposeful and creative activity. When
in transacting affairs with another a man pays money under a
mistake of fact, the law of quasi contract compels a return. The
law of contracts declares void agreements entered under a mutual
misapprehension of the relevant facts. Under the law of torts a
man may become answer for injuries
active without having to
that are the fortuitous by-product of his actions, except where
he enters upon some enterprise causing foreseeable risks that may
be reckoned as an actuarial cost of his undertaking and thus
subjected to rational calculation in advance. In the early stages
of the law, none of these principles was recognized. Their accep-
tance today represents the fruit of a centuries-old struggle to
reduce the role of the irrational in human affairs.

But there is no way open by which we can compel a man

to us
to live the life of reason. We can only seek to exclude from his
life the grosser and more obvious manifestations of chance and

irrationality. We can create the conditions essential for a ra-

tional human existence. These are the necessary, but not the
sufficient condititons for the achievement of that end.

The Moral Scale

As we consider the whole range of moral issues, we may con-

veniently imagine a kind of scale or yardstick which begins at
the bottom with the most obvious demands of social living and
THE MORALITY OF LAW
extends upward to the highest reaches of human aspiration. Some-
where along this scale there is an invisible pointer that marks the
dividing line where the pressure of duty leaves off and the chal-
lenge of excellence begins. The whole field of moral argument is
dominated by a great undeclared war over the location of this
pointer. There are those who struggle to push it upward; others
work to pull it down. Those whom we regard as being unpleas-
antly— or at least, inconveniently — moralistic are forever trying
to inch the pointer upward so as to expand the area of duty. In-
stead of inviting us to join them in realizing a pattern of life they
consider worthy of human nature, they try to bludgeon us into a
belief we are duty bound to embrace this pattern. All of us have
probably been subjected to some variation of this technique at
one time or another. Too long an exposure to it may leave in the
victim a lifelong distaste for the whole notion of moral duty.
I have just spoken of an imaginary pointer that marks the
line dividing duty from aspiration. The task of finding the proper
resting place for this pointer has, I think, been needlessly compli-
cated by a confusion of thought that runs back at least as far as
Plato. I have in mind an argument along these lines: In order to
judge what is bad in human conduct, we must know what is per-
fectly good. Every action must be appraised in the light of its
contribution to the perfect life. Without a picture of the ideal of
human existence before us, we can have no standard, either for
imposing duties or for opening new avenues for the expression
of human capabilities. Those who accept this line of reasoning
will reject as either meaningless or insoluble the problem of cor-
rectly locating the line where duty leaves off and aspiration begins.
In their view it is obvious that the morality of aspiration is the
foundation of all morality. Since the morality of duty must in-
evitably incorporate standards borrowed from the morality of
aspiration, there is neither occasion nor warrant for drawing a
clear line between the two moralities.
Curiously, the view that all moral judgments must rest on
some conception of perfection has historically been employed to
reach diametrically opposed conclusions concerning the objec-

10
 THE TWO MORALITIES
tivity of moral judgments.One side argues as follows: It is a fact
of experience that we can know and agree on what is bad. It
must follow that we have in the back of our minds some shared
picture of what is perfectly good. The task of moral philosophy is
therefore to bring to articulation something we already know
and agree upon. This is by the Platonic Socrates.
the route taken
The opposing party reasons as follows: It is obvious that men do
not agree on what is perfectly good. But since meaningful judg-
ments as to what is bad are impossible without an agreement on
—
what is perfectly good an agreement that plainly does not exist
— it must follow that our apparent agreement on what is bad is

an illusion, born perhaps of social conditioning, habituation, and

shared prejudice.
Both conclusions rest on the assumption that we cannot know
the bad without knowing the perfectly good, or, in other words,
that moral duties cannot be rationally discerned without firs
embracing a comprehensive morality of aspiration. This assump-
tion is contradicted by the most elementary human experience.
The moral injunction "thou shalt not kill" implies no picture of
the perfect life. It rests on the prosaic truth that if men kill one
another off no conceivable morality of aspiration can be realized.
In no field of human endeavor is it true that our judgments as to
what is undesirable must be secretly directed by some half-per-
ceived Utopia. In the field of linguistics, for example, none of us
pretends to know what a perfect language would be like. This
does not prevent us from struggling against certain corruptions
of usage which plainly tend to destroy useful distinctions.
In the whole field of human purpose —
including not only hu-
man actions but artifacts of every kind —we find a pervasive
refutation for the notion that we cannot know what is unsuited
to an end without knowing what is perfectly suited to achieve it.
In selecting instruments for our purposes we can and do make
out everywhere with imperfectly defined conceptions of what it
is we are trying to achieve. No ordinary human tool, for example,
is perfectly suited to any particular task. It is designed rather to
accomplish an indefinite range of tasks reasonably well. A car-

11
THE MORALITY OF LAW
penter's hammer serves adequately over a large but indefinite
range of uses, revealing its deficiencies only when we try to use
it to drive very small tacks or heavy tent stakes. If a working
companion asks me for a hammer, or the nearest thing to it
available to me, I know at once, without knowing precisely what
operation he is undertaking, that many tools will be useless to
him. do not pass him a screwdriver or a length of rope. I can,
I

in short, know the bad on the basis of very imperfect notions of

what would be good to perfection. So I believe it is with social
rules and institutions. We can, for example, know what is plainly
unjust without committing ourselves to declare with finality what
perfect justice would be like.
None of the arguments just advanced is intended to imply that
there is no difficulty in drawing the line that separates the morali-
ty of duty from that of aspiration. Deciding where duty ought to
leave off is one of the most difficult tasks of social philosophy.
Into its solution a large element of judgment must enter and
individual differences of opinion are inevitable. What is being
argued here is that we should face the difficulties of this problem
and not run away from them under the pretext that no answer is
possible until we have constructed a comprehensive morality of
aspiration. We know enough to create the conditions that will
permit a man to lift himself upward. It is certainly better to do
this than to try to pin him to the wall with a final articulation of
his highest good.
This is perhaps the point to forestall one further misunder-
standing. It has been suggested that the morality of duty relates
to man's life in society, while the morality of aspiration is a
matter between a man and himself, or between him and his
God. 7 This is true only in the sense that as we move up the
ladder from obvious duty to highest aspiration individual differ-
ences in capacity and understanding become increasingly im-

7. valuable analysis of W. D. Lamont seems to me to be marred

The
by assumption that the morality of duty has to do with social relations,
his
while the morality of value is concerned with individual preference ratings.
See The Value Judgement (1955).

12
 THE TWO MORALITIES
portant. But this does not mean that the social bond is ever
broken in that ascent. The classic statement of the morality of
aspiration was Greek philosophers. They took it for
that of the
granted that man had to find the good life
as a political animal
in a life shared with others. If we were cut off from our social
inheritance of language, thought, and art, none of us could aspire
to anything much above a purely animal existence. One of the
highest responsibilities of the morality of aspiration is to preserve
and enrich this social inheritance.

The Vocabulary of Morals and the Two Moralities

One reason the distinction between the morality of duty and that
of aspiration does not take a firmer hold in modern thought lies,

I believe, in the fact that our moral vocabulary itself straddles

this distinction and obscures it. Take, for example, the term
"value judgment." The concept of value is congenial to a moral-
ity of aspiration. Had we chosen some other companion for it,

and spoken, say, of "the perception of value," we would have had

an expression thoroughly at home in a system of thought directed
toward the achievement of human excellence. But instead we
coupled "value" with the term "judgment," an expression which
suggests not a striving toward perfection, but a conclusion about
obligations. Thus a subjectivism appropriate to the higher reaches
of human aspiration spreads itself through the whole language
of moral discourse and we are easily led to the absurd conclusion
that obligations obviously essential for social living rest on some
essentially ineffable preference.
The much debated question of the relation between fact and
value would, I believe, be if the disputants took pains
clarified
to keep in mind the between the moralities of duty and
distinction
of aspiration. When we are passing a judgment of moral duty, it
seems absurd to say that such a duty can in some way flow directly
from knowledge of a situation of fact. We may understand the
facts from top to bottom, and yet there will still seem to intervene
an act of legislative judgment before we conclude that a duty

13
 —

THE MORALITY OF LAW

ought to exist. This act of legislative judgment may not be diffi-

cult, but in principle it is always there.

It is quite otherwise with the morality of aspiration, which in
this respect shows its close affinity with aesthetics. When we seek
to comprehend some new form of artistic expression, our effort
if it is well informed — will direct itself at once to the purpose
pursued by the artist. We ask ourselves, "What is he trying to do?
What does he seek to convey?" When we have answered these
questions, we may like or dislike the work in question. But no
distinct step intervenes between our understanding and our ap-
proval or disapproval. If we disapprove, but remain distrustful of
our judgment, we do not ask ourselves whether we have applied
the wrong standard of approval, but whether we have after all
truly understood what the artist was trying to do. Indeed, I. A.
Richards has shown the havoc wrought in students' judgments of
literary value when they concern themselves not with the writer's
objective, but with the application of standards by which they
suppose literature should be judged to be good or bad. 8 Similarly,
Norman T. Newton has demonstrated how aesthetic judgments
of architecture can be distorted by the effort to find some verbal
formula that will seem to justify the judgment passed. 9
These last remarks are not intended to deny the quality of
rationality to the morality of aspiration. Rather they are intended
to assert that the discursive kind of justification that characterizes
judgments of duty is out of place in the morality of aspiration.
This point is illustrated, I believe, in the Platonic Socrates.
Socrates identified virtue with knowledge. He assumed that
if men truly understood the good they would desire it and seek to
attain This view has often been considered as being either
—depending on
it.

puzzling or absurd the modesty of the critic. If

Socrates were teaching a morality of duty, the criticisms of him

would certainly have been But his was a morality of
justified.

aspiration. He sought to make men see and understand the good

life so that they would strive to attain it. His argument would not

8. Practical Criticism —A Study of Literary Judgment (1949).

9. An Approach to Design (1951).

14
 THE TWO MORALITIES
have been clarified, but confused, if he had said, "First, I shall
demonstrate what the good life is like so that you may understand
it and discern what kind of man you would become if you led it.

Then I shall advance reasons why you ought to lead such a life."
The Socratic identification of virtue with knowledge itself il-
uneasy way our ethical vocabulary has of migrating
lustrates the ^h

back and forth between the two moralities. With us the word >\P
"virtue" has become thoroughly identified with the morality of
J*
„UjV
L
duty. For moderns the word has largely lost its original sense of
~
/x
A
power, efficacy, skill, and courage, a set of connotations that once \
^ . L/yjJ*

put it plainly within the morality of aspiration. The word "sin" p4^>L4
has undergone a similar migration. With us to sin is to violate a JW
duty. Yet the words translated in the Bible as "sin" contained *\/Qp
originally the metaphor of "missing the mark." Something of ty
this original figure remained among the early Christians, for they )^\)

listed among the deadly sins, not only Avarice and Unchastity, but

also what Sidgwick calls "the rather singular sins" of Gloominess

and Languid Indifference. 10

Marginal Utility and the Morality of Aspiration

I have suggested that if we look for affinities among the human

studies, the morality of duty finds its closest cousin in the law,
while the morality of aspiration stands in intimate kinship with
aesthetics. I now propose an inquiry that may seem a little bizarre,
that of determining the relationship between the two moralities
and the modes of judgment characteristic of economic science.
A difficulty encountered at the outset lies in the fact that no
general agreement exists among economists about the definition
of their subject. Though economics has the deserved reputation
of being the most advanced of all the social sciences, the world
still awaits a final answer to the question, "What is it about?"
Most economic treatises are content to introduce the reader to
their subject with a more or less impressionistic listing of the

10. Outlines of the History of Ethics (1949), p. 129.

15
THE MORALITY OF LAW
kinds of problems that are the special concern of the economist.
Beyond that the reader is left to decide for himself just what it is

he is studying. 11
There are, however, a few serious attempts to come to grips
with the problem of properly defining economic science. 12 In
these, two general views emerge. One is that economics has to do
with relationships of exchange. The other is that the heart of
economics lies in the principle of marginal utility, the principle by
which we make the most effective allocation of the resources at
our command in achieving whatever objectives we have set for
ourselves. The standard figure employed for distinguishing be-
tween these views is, of course, that of Robinson Crusoe. Until
the arrival of Friday, at least, there was no one with whom Crusoe
could exchange anything, except in the metaphorical sense in
which one may be said to trade one's solitary labor against the
fruits of nature. If economics is identified with exchanges between

human beings, then Crusoe had no economic problems. On the

other hand, he did have to decide how to make the most effective
application of the scarce resources at his command, including his
own time and energy. If at a given moment he were cultivating a
he might have to ask himself whether if he shifted his efforts
field,

he might expect a greater return from his first hour as a

to fishing
fisherman than he would from another hour as a farmer. In this

—
Paul A. Samuelson's treatise, Economics An Introductory Analy-
11.
sis, is one of the most widely used college textbooks ever written.
said to be
In the second edition (1951, pp. 14-16) there appeared a discussion of the
"Boundaries and Limits to Economics," in which the view was advanced
that economics is concerned exclusively with means and has no compe-
tence to deal with ends. In the fifth edition (1961) this attempt to delimit
the competence of the subject has disappeared and in its place there is
simply a listing of the kinds of subjects with which economics deals
(pp. 5-6). An interesting demonstration that economic science is charac-
terized by a particular kind of end, and is incompetent to answer questions
when that end is excluded from consideration, will be found in R. F. Har-
rod, Scope and Method of Economics (1938), reprinted in Clemence,
Readings in Economic Analysis, 1 (1950), 1-30.
The most widely read treatment of the subject is that of Lionel
12.
Robbins, An Essay on the Nature and Significance of Economic Science
(2d ed. 1935).

16
 THE TWO MORALITIES
sense Crusoe not only had economic problems, but very serious
ones.
Now there is, I believe, a striking parallel between these two
conceptions of economics and the two views of morality that are
the subject of this chapter. The economics of exchange has a close
affinity with the morality of duty. The economics of marginal
utility is, as it were, the economic counterpart of the morality of
aspiration. Let me begin with this second relationship.
The morality of aspiration has to do with our efforts to make
the best use of our short lives. Marginal utility economics deals
with our efforts to make the best use of our limited economic
resources. The two are not only alike in what they seek to do, but
also in their limitations. It is said that the morality of aspiration
necessarily implies some conception of the highest good of man,
though it fails to tell us what this is. Exactly the same criticism,
p^\$S
with the same force, can be directed against the marginal utility y
principle. The consumer is viewed by marginal utility economics \yKp\ .

as seeking to equalize the return for each dollar he spends. When\V(y a(V
he has spent so many dollars for books that the return from this d^
particular expenditure begins to diminish perceptibly, he may
expenditures to some other direction, say, for a richer and
shift his

—
more satisfying diet. In this shift in the very idea that one can}
compare and equalize expenditures for radically different things
— there seems to be implied some ultimate criterion that stands
above books, food, clothing, and all the other things and services
for which men may spend their money. The marginal utility
economist cannot describe what this criterion is, though, unlike,
the moralist of aspiration, he has a word to cover his ignorance.
That word is, of course, "utility." When the utility derived from
a dollar's worth of Commodity A declines to a point where it is
lower than the utility derived from a dollar's worth of Commodity l s

B, the consumer shifts his expenditure toward the second kind of \ Q0 s

good. It is with this word "utility" that the economist draws a veil V f
over his failure to discern some economic good that stands above
all particular goods and serves to guide choice among them. The Y\\

economist's default remains, however, in essence the same as that

17
THE MORALITY OF LAW
of the moralist who purports to show men the way to the Good
Life, without defining what the highest aim of life is or should
be. 13
Bentham's attempt to substitute for the goal of excellence that
of pleasure was in effect simply to introduce into morality the
same covert default that is inveterate in economics. It is impossible
to maintain the assertion that all human striving is directed toward
pleasure unless we are willing to expand the notion of pleasure to
the point becomes, like utility in economics, an empty
where it

container for every kind of human want or striving. If, following

Mill, we try to be more selective about what goes into the con-
tainer, we end, not with the greatest happiness principle, but
something like the Greek conception of excellence.
In default of some highest moral or economic good, we resort
ultimately, both in the morality of aspiration and in marginal
utility economics, to the notion of balance —not too much, not
too little. This notion is not so trite as it seems.. It is a characteristic
of normal human beings that they pursue a plurality of ends; an
obsessive concern for some single end can in fact be taken as a
symptom of mental disease. In one passage Aquinas seems to
make the curious argument that the existence of an ultimate end
for human life is revealed in the circumstance that we do in fact
shift from one particular end to another, for if there were no
standard by which this shift could be guided we would go on for-
ever striving in one direction. Since this is impossible and absurd

13. It may be objected that the comparison in the text confuses descrip-
tion with prescription. Unlike the moral philosopher, the economist, it
may be said, is indifferent to the question what the consumer ought to
want; he merely describes a process of evaluation and finds the term
"utility" useful in this description. But this view dodges the difficulties
involved in trying to describe in wholly non-evaluative terms a process
that is itself evaluative. (These difficulties were the occasion for an ex-
change between myself and Professor Ernest Nagel; see 3 Natural Law
Forum 68-104 [1958]; 4 id. 26-43 [1959].) The economist may not care
what the consumer wants, but he cannot be indifferent to the process by
which the consumer reaches his decision as to what he wants. If he is to
understand that process, the economist must be capable of participating
in it vicariously and have an understanding of its terms.

18
 THE TWO MORALITIES
it follows that we would not act at all, in any direction, if we were
not guided by some highest end. 14 Whatever one may think of
this paradoxical reasoning, there is nothing banal about Aris-
totle's conception of the just mean. This mean is not to be con- ,
A
fused with^he modern notion of "the middle way." For moderns ^\a 5$
the middle way is, the easy way, involving a minimum of commit-
mefer^or_Axist6tle the mean was the hard way, the way from,
which the and unskilled were most likely to fall. In this
slothful
respect it made the same demands on insight and intelligence that
sound economic management does. ^
Reciprocity and the Morality of Duty

So much for the relation between the morality of aspiration and

a view of economic science that sees it as being concerned essen-
tially with prudent management. Let me now turn to the affinity
I have asserted to exist between the morality of duty and the
economics of exchange.
It is obvious that duties, both moral and legal, can arise out of

an exchange, say, an exchange of promises or the exchange of a

promise for a present act. A territory exists, therefore, that is
shared in common by the concepts of exchange and duty. On the
other hand, it would certainly be perverse to attempt to construe
all duties as arising out of an explicit exchange. We can assert, for

example, that the citizen has a moral duty to vote, and to inform
himself sufficiently to vote intelligently, without implying that this
duty rests on a bargain between him and his government or be-
tween him and his fellow citizens.
To establish the affinity between duty and exchange we require
a third member, a mediating principle. This is to be found, I
think, in the relationship of reciprocity. Exchange is, after all,

only a particular expression of this more general, and often more

subtle, relationship. The literature of the morality of duty is in
fact filled with references to something like the principle of reci-
procity.

14. Summa Contra Gentiles, III, ch. II.

19
 THE MORALITY OF LAW
Even in the midst of the exalted appeals of the Sermon on the
Mount there is a repeated note of sober reciprocity. "Judge not,
that ye be not judged. For with what judgment ye judge, ye shall
be judged; and with what measure ye mete, it shall be measured

to you again Therefore all things whatsoever ye would that

. . .

men should do to you, do ye even so to them: for this is the law

and the prophets." 15
—
Teachings like these and they are to be found in all moralities
of duty —
do not, of course, imply that every duty arises out of a
face-to-face relationship of bargain. This becomes apparent if
we rephrase the Golden Rule to read something like this: "So soon
as I have received from you assurance that you will treat me as
you yourself would wish to be treated, then I shall be ready in
turn to accord a like treatment to you." This not the language
r is

of morality, nor even of friendly commerce, but of cautious and

even hostile trade. To adopt its thought as a general principle
would be to dissolve the social bond altogether.
What Golden Rule seeks to convey is not that society is
the
composed of a network of explicit bargains, but that it is held
together by a pervasive bond of reciprocity. Traces of this con-
ception are to be found in every morality of duty, from those
heavily tinctured by an appeal to self-interest to those that rest
on the lofty demands of the Categorical Imperative. Whenever an
appeal to duty seeks to justify itself, it does so always in terms of
something like the principle of reciprocity. So in urging a reluctant
voter to the polls it is almost certain that at some point we shall
ask him, "How would you like it if everyone acted as you propose
to do?"
It may be objected that these remarks relate to the rhetoric of
duty rather than to its sociology. It is natural that a moralist trying
to push men toward an unpleasant duty should include in his

15. Matthew 7:1 and 12. Cf. Deuteronomy 7:11-12, "Thou shalt there-
fore keep the commandments, and the statutes, and the judgments, which
I command thee this day, to do them. Wherefore it shall come to pass, if ye
hearken to these judgments, and keep, and do them, that the lord thy God
shall keep unto thee the covenant and the mercy which he sware unto thy
fathers."

20
 a

THE TWO MORALITIES

argument some appeal to self-interest. It is also natural that any-
one trying to get men to accept an unwelcome compulsion —
—
compulsion that is in fact external should seek to give to it the
appearance of being voluntarily assumed, just as the harsh fact ^o
of political power has historically been obscured by the fiction
'

of an original compact.
This argument underestimates, I believe, the extent to which
the principle of reciprocity has roots not only in our professions
but in our practices as well. The rephrasing of the Golden Rule I
presented a short while ago was an obvious perversion of its

intent. I do not think its meaning would be distorted, however, if

we were to add a qualification reading somewhat as follows: "So
soon as it becomes perfectly clear that you have no intention
whatever of treating me as you yourself would wish to be treated,
then I shall consider myself as relieved from the obligation to lAP^
^
treat you as I would wish to be treated." Here the element of ^ \§*
reciprocity is displaced by several removes from the duty itself;/7
.

-£>>
'r X
it represents a kind of "fail-safe" point. Men are certain to be ofj^T

different minds as to just when this point is reached. But there are'
obvious cases where no dispute is possible. So when I urge on a
fellow citizen that he has a duty to go to the polls, my appeal will
certainly lose its force if he knows quite well there is no likelihood
that his ballot will be counted.
The duty to vote is not absolute, but depends upon the fulfill-
ment of certain expectations concerning the actions of others.
This would be true even of a citizen who might vote knowing his
ballot would not be counted where his object was to make a test
case of certain election abuses. If all the world remains indifferent
and unmoved by his action —does come forward with some
not
reaction to it —then it remains utterly pointless.
In this broad sense there is a notion of reciprocity implicit in
the very notion of duty — at least in the case of every duty that
runs toward society or toward another responsible human being.
One can imagine a social bond that knows nothing of duties.
Such a bond might exist between a couple deeply in love, or
among a small band of men united by some emergency making —
 —
THE MORALITY OF LAW
let us say, a stand against an encircling enemy. In such a
last
situation therewould be no thought of measuring contributions.
The appropriate organizing principle would be "one for all and
all for one." But so soon as contributions are designated and

—
measured which means so soon as there are duties there must —
—
be some standard however rough and approximate it may be
by which the kind and the extent of the expected contribution is
determined. This standard must be derived from the pattern of
a social fabric that unites strands of individual action. A sufficient
rupture in this fabric must — if we are to judge the matter with
any rationality at all — release men from those duties that had
as their only reason for being, maintaining a pattern of social
interaction that has now been destroyed.
In the argument just presented there is implicit the notion of
a sort of anonymous collaboration among men by which their
activities are channeled through the institutions and procedures
of an organized society. This conception seems a long way from
that of a simple exchange of economic values. But we should
recall that even the direct and explicit relationship of reciprocity
is by no means confined to anything like a horse trade. Suppose,

for example, that two men exchange promises to give equal sums
to the same charity. Here the usual self-serving motives of ex-
change are absent, as is also the notion of performances running
between the parties to the exchange. Yet in this case we certainly
have a relation of reciprocity and, assuming no rights of the
charity have intervened, the repudiation of his promise by one
of the parties ought in fairness to excuse the other. The duties of
both arise from and depend upon a relation of reciprocity that is
not different in kind from that which unites the members of a
society in more complex ways.
If it is true that duties generally can be traced to the principle
of reciprocity, it is also true that the reciprocity out of which a
given duty arises can be visible, as it were, in varying degrees.
At times it is obvious to those affected by it; at others it traces a
more subtle and obscure course through the institutions and
practices of society. This suggests the question: Under what cir-

22
 THE TWO MORALITIES
cumstances does a duty, legal or moral, become most understand-
able and most acceptable to those affected by it? I think we may
discern three conditions for the optimum efficacy of the notion
of duty. First, the relationship of reciprocity out of which the
duty arises must result from a voluntary agreement between the
parties immediately affected; they themselves "create" the duty.
Second, the reciprocal performances of the parties must in some
sense be equal in value. Though the notion of voluntary assump-
tion itselfmakes a strong appeal to the sense of justice, that appeal
is reinforced when the element of equivalence is added to it. We
cannot here speak of an exact identity, for it makes no sense at
all to exchange, say, a book or idea in return for exactly the

same book or idea. The bond of reciprocity unites men, not simply
in spite of their differences, but because of their differences. When,
therefore, we seek equality in a relation of reciprocity what we
require is some measure of value that can be applied to things
that are different in kind. Third, the relationships within the so-
ciety must be sufficiently fluid so that the same duty you owe me
today, I may owe you tomorrow — in other words, the relation-
ship of dutymust in theory and in practice be reversible. Without
symmetry we are likely to be stumped by Rousseau's question,
this
What is the reason that I, being myself, should act as if I were
the other person, when I am virtually certain that I shall never
be found in his situation? 16
These, then, are the three conditions for an optimum realiza-
tion of the notion of duty, the conditions that make a duty most

16. The passage from Rousseau occurs in Emile, Book IV, and is here
quoted from Del Vecchio, Justice (1952), p. 96. Rousseau intends his ques-
tion, of course, as a refutation of utilitarian theories of duty. Del Vecchio
himself makes much of reciprocity in his analysis of justice. In distinguish-
ing a mere demand from a claim of right, Del Vecchio points out that the
latter presupposes a general principle, according to which if the positions
of the parties were reversed, the same duty would be imposed in the oppo-
site direction. This abstract reciprocity loses much of its appeal, however,
if the reversal of positions cannot in fact occur. It is not much consolation
to the slave, for example, to be told that if he had been born a master and
his master, a slave, then it would have been his right to command what
he must now render.

23
THE MORALITY OF LAW
understandable and most palatable to the man who owes it. When
we what kind of society are these conditions most apt to
ask, "In
be met?" the answer is a surprising one: in a society of economic
traders. By definition the members of such a society enter direct
and voluntary relationships of exchange. As for equality it is
only with the aid of something like a free market that it is possible
to develop anything like an exact measure for the value of dis-
parate goods. 17 Without such a measure, the notion of equality
loses substance and descends to the level of a kind of metaphor.
Finally, economic traders frequently change roles, now selling,
now buying. The duties that arise out of their exchanges are
therefore reversible, not only in theory but in practice. The re-
versibility of role that thus characterizes a trading society exists
nowhere else in the same degree, as becomes apparent when we
consider the duties running between parent and child, husband
and wife, citizen and government. Hayek sees the rule of law itself
as dependent on a condition of society such that men may meet
today to legislate their duties not knowing tomorrow whether
they will owe these duties or be their beneficiaries. Understand-
ably, Hayek identifies such a society with one organized on the
market principle, and predicts a collapse of the rule of law for
any society which abandons the market principle. 18
This analysis suggests the somewhat startling conclusion that
it is only under capitalism that the notion of the moral and legal
duty can reach its full development. This was in fact the conclu-
sion reached by a once famous Soviet writer, Eugene Pashukanis,
perhaps the only Soviet thinker who can be said to have made a
distinctive contribution to social philosophy. 19

17. It should be recalled, however, that there are proposals (which have
been put into at least partial operation within the Soviet bloc) for managing
a socialist economy by market principles. See, for example, Oskar Lange,
On the Economic Theory of Socialism (1936-37), reprinted in a volume
with the same title, edited by Benjamin E. Lippincott (1938), pp. 55-129.
18. Chapter VI, "Planning and the Rule of Law," The Road to Serf-
dom (1944), pp. 72-87.
19. See Vol. V, 20th Century Legal Philosophy Series, Soviet Legal
Philosophy, trans. Babb (1951), "The General Theory of Law and Marx-

24
 THE TWO MORALITIES
Pashukanis' theory became known as the Commodity Ex-
change Theory of Law, though it might better have been called
the Commodity Exchange Theory of Legal and Moral Duty. The
theory was built on two pillars of Marxist thought: first, in the
organization of society the economic factor is paramount; legal
and moral principles and institutions therefore constitute a kind c,
x

of "superstructure" reflecting the economic organization of so- ,

o^
,

ciety; second, in the finally achieved state of communism, law r)

and the state will wither away. ^\j^r

In its main outlines Pashukanis' argument was quite simple. ^A^
The economic organization of capitalist society is determined by \

exchange. It follows therefore that the legal and political institu- \fi)
tions of such a society will be permeated with notions derived
from exchange. So in bourgeois criminal law we find a table of
crimes with a schedule of appropriate punishments or expiations
—a kind of price list for misbehavior. In private law the dominant
figure is that of the legal subject who owes duties, possesses rights,
and is granted the legal power to settle his disputes with others by \)^ v
^
Aj^
agreement. The legal subject is thus the legal counterpart of the
economic With communism economic exchange will be
trader.
abolished, as will all the legal and political conceptions that
derive from it. In particular communism will know nothing of
legal rights and duties.
The same analysis was extended to the field of morals. With
achieved communism, morality as it is usually understood (that
is, as the morality of duty) will cease to perform any function.

How far Pashukanis carried his theory may be seen in his attitude
toward Kant. Kant's view that we should treat our fellow man as
an end, and not merely as a means, is usually regarded as one of
the noblest expressions of his philosophy. For Pashukanis it was
merely the reflection of a market economy, for it is only by enter-

ing relationships of exchange that we are able to make others

ism," pp. 1 1 1-225. I have attempted a summary of Pashukanis' theory in

"Pashukanis and Vyshinsky: A Study in the Development of Marxist Legal
Theory," 47 Michigan Law Review 1157-66 (1949).

25
 THE MORALITY OF LAW
serve our ends at the same time we serve theirs. Indeed, any kind
of reciprocity, however circuitously it may operate through social
forms, casts men in a dual role, as ends in themselves and as means
to the ends of others. Since there is no clear stop or breaking point
between implicit reciprocity and explicit exchange, Pashukanis

^
\ends with the conclusion that when communism is finally achieved
allmoral duties will disappear.
These views proved too strong (or at least too inconvenient)
for Pashukanis' contemporaries in Stalinist Russia, and he was
VJCfiquidated in 1937. In justice to his memory it should be said that
r &/ his theories have strong roots in the teachings of the communist
>\V\ forefathers. They obviously derive support from the twin doc-
u v ^Nlrines of the superstructure and of the future withering away of
kj ^n]\ state and law. They also have a remarkable emotional affinity with
the whole tenor of Marx's thought, especially as revealed in the
youthful "alienation theme." Marx seemed to have had a strong
distaste for any principle or arrangement that could make one
v man serve the ends of another, though this compulsion is not only
""
implicit in exchange but in any kind of formal social organization.
This distaste reveals itself implicitly in his lifelong antipathy to
the very notion of a formal division of labor, an antipathy all the
more curious since it must have been plain to Marx that the eco-
nomic production sought by communism would be impossible
without the gains resulting from a specialization of function. This
fundamental aversion to interdependence comes to most articulate
expression in an early passage in which Marx describes life in
bourgeois society — that is, in a trading society — as one in which
man "treats others as means, reduces himself to the role of a
means, and becomes the plaything of alien forces." 20
With the bitter mood of this passage from Marx we may con-
trast the description of economic exchange given by Philip Wick-
steed, a Unitarian minister turned economist:

over the whole range of exchangeable things we can usually

act more potently by the indirect method of pursuing or
Quoted from Tucker, Philosophy and Myth in Karl Marx (1961),
20.
p. 105. This book is highly recommended to anyone who wants to acquire
a sense of what may be called the "moral feel" of Marx's thought.

26
 THE TWO MORALITIES
furthering the immediate purposes of others than by the
direct method of pursuing our own . . . We enter into busi-
ness relations with others, not because our purposes are
selfish, but because those with whom we deal are relatively
indifferent to them, but are (like us) keenly interested in
purposes of their own, to which we in our turn are relatively
indifferent There is surely nothing degrading or revolting
. . .

to our higher sense in this fact of our mutually furthering

each other's purposes because we are interested in our own
. The economic nexus [that is, the nexus of exchange] in-
. .

definitely expands our freedom of combination and move-

ment; for it enables us to form one set of groups linked by
cohesion of [diverse] faculties and resources, and another
set of groups linked by community of purpose, without hav-
ing to find the "double coincidence" which would otherwise
be necessary. 21

by some reversal of the flow of time Marx could have had

If

this passage before him, and could have absorbed

its thought and

mood, the world might today bear a very different aspect for all
of us.

Locating the Pointer on the Moral Scale

It is time now more general comparison between

to return to a
the concepts of economics and those of morality. In speaking of
the relation of the two moralities, I suggested the figure of an
ascending scale, starting at the bottom with the conditions obvi-
ously essential to social life and ending at the top with the loftiest
strivings toward human excellence. The lower rungs of this scale
represent the morality of duty; its higher reaches, the morality of
aspiration. Separating the two is a fluctuating line of division,
difficult to locate precisely, yet vitallyimportant.
This line of division serves as an essential bulwark between the
two moralities. If the morality of duty reaches upward beyond

21. The Common Sense of Political Economy, ed. Robbins (1933),

pp. 156, 179-80.

27
 —

THE MORALITY OF LAW

its proper sphere the iron hand of imposed obligation may stifle

experiment, inspiration, and spontaneity. If the morality of aspira-

tion invades the province of duty, men may begin to weigh and
qualify their obligations by standards of their own and we may
end with the poet tossing his wife into the river in the belief
perhaps quite justified — that he will be able to write better poetry
in her absence.
A similar relation holds between the economics of exchange
and of marginal utility. Before the principle of marginal utility
nothing is sacred; all existing arrangements are subject to being
reordered in the interest of increased economic return. The eco-
nomics of exchange is, in contrast, based on two fixed points:
property and contract. While it permits interested calculation to
reign everywhere else, such calculation is excluded when the
question is fidelity to contract or respect for property. Without a
self-sacrificing deference toward these institutions, a regime of
exchange would lose its anchorage and no one would occupy a
sufficiently stable position to know what he had to offer or what
he could count on receiving from another. On the other hand, the
rigidities of property and contract must be held within their proper

boundaries. If they reach beyond those boundaries, society's effort

its resources toward their most effective use is frustrated
to direct
by a system of vested personal and institutional interests, a "re-
served market," for example, being a kind of property right reach-
ing beyond its proper domain. Here we encounter again what is

essentially the problem of locating the imaginary pointer at the

right place. Once again the economist enjoys an advantage over
the moralist. If he too has difficulty in drawing the line, he can
at least shield his fumblings behind an impressive vocabulary,
which in this case goes much beyond the innocent transparency
of the word "ultility" and offers terms like monopoly, monopsony,
parallel action, and sticky prices.
It may be suggested that a certain quality of stickiness is in-

herent in all duties, whether they be moral or legal and whether

they arise out of an exchange or from some other relation. At the
same time it is in the nature of all human aspirations toward

28
 THE TWO MORALITIES
perfection, including that which seeks maximum economic ef-

ficiency, tobe pliable and responsive to changing conditions.

A pervasive problem of social design is therefore that of main-
taining a balance between supporting structure and adaptive
This problem shared by morals, law, economics,
—
fluidity. is

aesthetics, and — shown also by sci-

as Michael Polanyi has
ence. 22The nature of this problem is not adequately perceived
when we think of it in trite terms as an opposition between se-
curity and freedom, for we are concerned not merely with the
question whether individuals are or feel free or secure, but with
attaining a harmony and balance among the processes—often
—
anonymous of society as a whole. 23
In a somewhat paradoxical sense even the essential social
must maintain themselves, not simply by being there,
rigidities

but by pressing actively for recognition. Holmes once observed

that every legal right tends to become absolute. 24 One may sug-
gest that it is just this tendency toward the absolute that con-
stitutes the essential meaning of "a right," whether it be legal
or moral. In like manner one may say of the notion of duty that
itsmeaning lies in a resistance to qualification. In contrast to
mere desiderata, counsels of prudence, appeals to vague ideals
and the like, rights and duties (whether they be moral or legal)
represent sticking points in human resolution. In proper cases
they may be qualified, but they may be counted on to resist
qualification.
The view just expressed is closely akin to H. L. A. Hart's

22. The Logic of Liberty(1951); Personal Knowledge (1958).

23. It may
be suggested that the question of the function of status, or
of institutional role, is a part of this larger problem. Much of the analysis
of this problem that has been made by Chester Barnard could, I think, be
restated in the terms employed in the text. See Chapter IX in his Organiza-
tion and Management (1948).
24. "All rights tend to declare themselves absolute to their logical ex-
treme. Yet all in fact are limited by the neighborhood of principles of
policy which are other than those on which the particular right is founded,
and which become strong enough to hold their own when a certain point
is reached." Hudson County Water Company v. McCarter, 209 U.S. 349,

at p. 355 (1908).

29
THE MORALITY OF LAW
notion of "defeasible concepts." 25 To say that a man has entered
a contract is not just to tip the scales of justice indeterminately
toward the conclusion that he may possibly have incurred an
obligation. It is to say that he is obligated unless some specific
ground of excuse, such as incapacity or duress, can be established.
One may suggest that what is manifested here is an impulse of
the morality of duty, expressing itself within the law, to maintain
the integrity of its domain and to protect that domain from the
erosions threatened by a view that attempts to solve too many
simultaneous equations at once.

Rewards and Penalties

There remains for brief mention one final manifestation of the

distinction between the morality of duty and that of aspiration.
I refer to the way in which that distinction finds tacit recognition

in our social practices concerning penalties and rewards.

In the morality of duty it is understandable that penalties
should take precedence over rewards. We do not praise a man,
or confer honors on him, because he has conformed to the mini-
mum conditions of social living. Instead we leave him unmolested
and concentrate our attention on the man who has failed in that
conformity, visiting on him our disapproval, if not some more
tangible unpleasantness. Considerations of symmetry would sug-
gest that in the morality of aspiration, which strives toward the
superlative, reward and praise should play the role that punish-
ment and disapproval do in the morality of duty. To some extent
this mirror image maintains itself in practice. But perfect sym-
metry is marred by the fact that the closer a man comes to the
highest reaches of human achievement, the less competent are
others to appraise his performance.
The business of distributing awards and penalties is a perva-

sive one in our society, extending beyond law into education,

25. "The Ascription of Responsibility and Rights," in A. G. N. Flew,

ed., Essays on Logic and Language (1952), pp. 145-66.

30
 THE TWO MORALITIES
industry, agriculture, and sports. Wherever distinctions are
granted or deprivations imposed it is natural to select some um-
pire or committee to make the decision, and, no matter whether
the issue be that of penalty or award, the deciding agency is

expected to act with intelligence and impartiality. Nevertheless

there is a great difference in the procedures generally established
for meting out penalties as contrasted with those which grant
awards. Where penalties or deprivations are involved we sur-
round the decision with procedural guaranties of due process,
often elaborate ones, and we are likely to impose an obligation
of public accountability. Where awards and honors are granted
we are content with more informal, less scrutinized methods of
decision.
The reason for this difference is plain. Where penalties and
deprivations are involved we are operating at the lower levels \
jjjjl/^
of human achievement where a defective performance can be^ of/jlM
iwvguu^vw)
recognized, if
u. care
viuv 10
is iwriwu, with
taken, «iui vuinpui uu t w vvi
comparative certainty
luxxxijr an0jW&£
uiij*Py\i w

formal standards for judging it can be established. At the level ^ WS$- ft

where honors and prizes become appropriate we see that therev^ w*

would be little sense, and a good deal of hypocrisy, in surround- i' \ Ka
ing a decision that is essentially subjective and intuitive with the
procedures appropriate to the trial of a law suit.
Many illustrations, in many corners of society, could be given
of this difference. I shall mention only two. In union-management v
relations discharges are normally the first managerial function Pp
subjected to arbitrational review. Promotions may, under a
particular contract, never be subjected to this review; if they are,
they remain much less satisfactory material for the arbitrational
process than do discharges. In baseball errors are formally judged
by experts and publicly announced, while brilliant fielding plays
— the Willie Mays catch, for example —
depend for recognition
on the informal opinion of fans and newspaper reporters. This
practice may, of course, distort the pitcher's earned run average,
but we accept this distortion as a small price to pay for escaping
the obligation to measure with precision what cannot be so
measured.

31
 —
THE MORALITY OF LAW
Generally we are content with informal methods of decision
often screened from the public —when selections are made for
honorary degrees, military decorations, hero medals, literary and
scientific prizes, foundation awards, and testimonial dinners. One
outstanding exception to this laxness may seem to be presented
by the elaborately formal procedure of beatification in the Roman
Catholic Church. But this procedure does not in fact constitute
an exception. Its object is not to honor a saint, but to authorize
a cult. In the language of administrative law, it is a certification
procedure. The required performance — including as does the
—
it

working of miracles of necessity runs off the top of the scale

of human achievement. Presumably, however, it falls within the
lower rungs of the supernatural.
In the social practices I have just described there is a standing
refutation for the notion, so common
moral argument, that
in
we must know the perfectly good before we can recognize the
bad or the barely adequate. If this were true, it would seem to be
much easier to assess a five per cent deviation from perfection
than to judge a ninety per cent departure. But when it actually
comes to cases, our common sense tells us that we can apply
more objective standards to departures from satisfactory perfor-
mance than we can to performances reaching toward perfection.
And it is on this common sense view that we build our institutions
and practices.

32
 THE MORALITY
II
THAT MAKES LAW POSSIBLE

[A] law which a man cannot obey, nor act according to it, is void and no
law: and it is impossible to obey contradictions, or act according to them.
— Vaughan, C. J. in Thomas v. Sorrell, 1677

// is would answer these ensuing queries

desired that our learned lawyers
. .whether ever the Commonwealth, when they chose the Parliament,
.

gave them a lawless unlimited power, and at their pleasure to walk con-
trary to their own laws and ordinances before they have repealed them?
— Lilburne, England's Birth-Right Justified, 1645

This chapter will begin with a fairly lengthy allegory. It concerns

the unhappy reign of a monarch who bore the convenient, but
not very imaginative and not even very regal sounding name of
Rex.

Eight Ways to Fail to Make Law

Rex came to the throne filled with the zeal of a reformer. He con-
sidered that the greatest failure of his predecessors had been in
the field of law. For generations the legal system had known
nothing like a basic reform. Procedures of trial were cumbersome,

33
THE MORALITY OF LAW
the rules of law spoke in the archaic tongue of another age, justice
was expensive, the judges were slovenly and sometimes corrupt.
Rex was resolved to remedy all this and to make his name in
history as a great lawgiver. It was his unhappy fate to fail in this
ambition. Indeed, he failed spectacularly, since not only did he
not succeed in introducing the needed reforms, but he never even
succeeded in creating any law at good or bad.
all,

His first official act was, however, dramatic and propitious.

Since he needed a clean slate on which to write, he announced
to his subjects the immediate repeal of all existing law, of what-
ever kind. He then set about drafting a new code. Unfortunately,
trained as a lonely prince, his education had been very defective.
In particular he found himself incapable of making even the
simplest generalizations. Though not lacking in confidence when
it came to deciding specific controversies, the effort to give articu-
late reasons for any conclusion strained his capacities to the
breaking point.
Becoming aware of his limitations, Rex gave up the project
of a code and announced to his subjects that henceforth he
would act as a judge in any disputes that might arise among them.
In this way under the stimulus of a variety of cases he hoped
that his latent powers of generalization might develop and, pro-
ceeding case by case, he would gradually work out a system of
rules that could be incorporated in a code. Unfortunately the de-
fects in his education were more deep-seated than he had sup-
posed. The venture failed completely. After he had handed down
literally hundreds of decisions neither he nor his subjects could

detect in those decisions any pattern whatsoever. Such tentatives

toward generalization as were to be found in his opinions only
compounded the confusion, for they gave false leads to his sub-
jects and threw his own meager powers of judgment off balance
in the decision of later cases.
After this fiasco Rex realized it was necessary to take a fresh
start. His first move was to subscribe to a course of lessons in
generalization. With his intellectual powers thus fortified, he re-
sumed the project of a code and, after many hours of solitary

34
 —
THE MORALITY THAT MAKES LAW POSSIBLE
labor, succeeded in preparing a fairly lengthy document. He was
still not confident, however, that he had fully overcome his pre-
vious defects. Accordingly, he announced to his subjects that he
had written out a code and would henceforth be governed by it
in deciding cases, but that for an indefinite future the contents of

the code would remain an official state secret, known only to

him and his scrivener. To Rex's surprise this sensible plan was
deeply resented by his subjects. They declared it was very un-
pleasant to have one's case decided by rules when there was no
way of knowing what those rules were.
Stunned by this rejection Rex undertook an earnest inventory
of his personal strengths and weaknesses. He decided that life

had taught him one clear lesson, namely, that it is easier to decide
things with the aid of hindsight than it is to attempt to foresee
and control the Not only did hindsight make it easier to
future.
decide cases, but —
and this was of supreme importance to Rex
it made it easier to give reasons. Deciding to capitalize on this

insight, Rex hit on the following plan. At the beginning of each

calendar year he would decide all the controversies that had arisen
among his subjects during the preceding year. He would accom-
pany his decisions with a full statement of reasons. Naturally, the
reasons thus given would be understood as not controlling deci-
sions in future years, for that would be to defeat the whole pur-
pose of the new arrangement, which was to gain the advantages
of hindsight. Rex confidently announced the new plan to his sub-
jects, observing that he was going to publish the full text of his

judgments with the rules applied by him, thus meeting the chief
objection to the old plan. Rex's subjects received this announce-
ment in silence, then quietly explained through their leaders that
when they said they needed to know the rules, they meant they
needed to know them in advance so they could act on them. Rex
muttered something to the effect that they might have made that
point a little clearer, but said he would see what could be done.
Rex now realized that there was no escape from a published
code declaring the rules to be applied in future disputes. Con-
tinuing his lessons in generalization, Rex worked diligently on a

35
THE MORALITY OF LAW
revised code, and finally announced that it would shortly be pub-
lished. This announcement was received with universal gratifica-
tion. The dismay of Rex's subjects was all the more intense,
therefore, when his code became available and it was discovered
that it was truly a masterpiece of obscurity. Legal experts who
studied it declared that there was not a single sentence in it that
could be understood either by an ordinary citizen or by a trained
lawyer. Indignation became general and soon a picket appeared
before the royal palace carrying a sign that read, "How can any-
body follow a rule that nobody can understand?"
The code was quickly withdrawn. Recognizing for the first
time that he needed assistance, Rex put a staff of experts to work
on a revision. He instructed them to leave the substance un-
touched, but to clarify the expression throughout. The resulting
code was a model of clarity, but as it was studied itbecame ap-
parent that its new clarity had merely brought to light that it was
honeycombed with contradictions. It was reliably reported that
there was not a single provision in the code that was not nullified
by another provision inconsistent with it. A picket again appeared
before the royal residence carrying a sign that read, "This time
the king —
made himself clear in both directions."
Once again the code was withdrawn for revision. By now,
however, Rex had lost his patience with his subjects and the nega-
tive attitude they seemed to adopt toward everything he tried to
do for them. He decided to teach them a lesson and put an end
to their carping. He instructed his experts to purge the code of
contradictions, but at the same time to stiffen drastically every
requirement contained and to add a long list of new crimes.
in it

Thus, where before the citizen summoned to the throne was given
ten days in which to report, in the revision the time was cut to ten
seconds. It was made a crime, punishable by ten years' imprison-
ment, to cough, sneeze, hiccough, faint or fall down in the pres-
ence of the king. It was made treason not to understand, believe
in, and correctly profess the doctrine of evolutionary, democratic
redemption.
When the new code was published a near revolution resulted.

36
 THE MORALITY THAT MAKES LAW POSSIBLE
Leading citizens declared their intention to flout its provisions.
Someone discovered in an ancient author a passage that seemed
apt: "To command what cannot be done is not to make law; it
is to unmake law, for a command that cannot be obeyed serves

no end but confusion, fear and chaos." Soon this passage was
being quoted in a hundred petitions to the king.
The code was again withdrawn and a staff of experts charged
with the task of revision. Rex's instructions to the experts were
that whenever they encountered a rule requiring an impossibility,
it make compliance possible. It turned out
should be revised to
that to accomplish this result every provision in the code had
to be substantially rewritten. The final result was, however, a
triumph of draftsmanship. It was clear, consistent with itself, and
demanded nothing of the subject that did not lie easily within
was printed and distributed free of charge on every
his powers. It
street corner.
However, before the effective date for the new code had ar-
rived, it was discovered that so much time had been spent in

successive revisions of Rex's original draft, that the substance of

the code had been seriously overtaken by events. Ever since Rex
assumed the throne there had been a suspension of ordinary
legal processes and this had brought about important economic
and institutional changes within the country. Accommodation
to these altered conditions required many changes of substance
in the law. Accordingly as soon as the new code became legally
effective, it was subjected to a daily stream of amendments. Again
popular discontent mounted; an anonymous pamphlet appeared
on the streets carrying scurrilous cartoons of the king and a lead-
ing article with the title: "A law that changes every day is worse
than no law at all."

Within a short time this source of discontent began to cure it-

self as the pace of amendment gradually slackened. Before this had
occurred to any noticeable degree, however, Rex announced an
important decision. Reflecting on the misadventures of his reign,
he concluded that much of the trouble lay in bad advice he had
received from experts. He accordingly declared he was reas-

37
THE MORALITY OF LAW
suming the judicial power in his own way he could
person. In this
directly control the application of the new code and insure his
country against another crisis. He began to spend practically all

of his time hearing and deciding cases arising under the new code.
As the king proceeded with this task, it seemed to bring to a
belated blossoming his long dormant powers of generalization.
His opinions began, indeed, to reveal a confident and almost
exuberant virtuosity as he deftly distinguished his own previous
decisions, exposed the principles on which he acted, and laid
down guide lines for the disposition of future controversies. For
Rex's subjects a new day seemed about to dawn when they could
finally conform their conduct to a coherent body of rules.
This hope was, however, soon shattered. As the bound volumes
of Rex's judgments became available and were subjected to closer
study, his subjects were appalled to discover that there existed
no discernible relation between those judgments and the code
they purported to apply. Insofar as it found expression in the
actual disposition of controversies, the new code might just as
well not have existed at all. Yet in virtually every one of his
decisions Rex declared and redeclared the code to be the basic
law of his kingdom.
Leading citizens began to hold private meetings to discuss
what measures, short of open revolt, could be taken to get the
king away from the bench and back on the throne. While these
discussions were going on Rex suddenly died, old before his time
and deeply disillusioned with his subjects.
The first act of his successor, Rex II, was to announce that he
was taking the powers of government away from the lawyers and
placing them in the hands of psychiatrists and experts in public
relations. This way, he explained, people could be made happy
without rules.

The Consequences of Failure

Rex's bungling career as legislator and judge illustrates that the

attempt to create and maintain a system of legal rules may mis-

38
 THE MORALITY THAT MAKES LAW POSSIBLE
carry in at least eight ways; there are in this enterprise, if you

will, eight distinct routes to disaster. The and most obvious

first

lies ina failure to achieve rules at all, so that every issue must
be decided on an ad hoc basis. The other routes are: (2) a failure | ;jj\|^
.

\£
to publicize, or at least to make available to the affected party, \*@JX
the rules he is expected to observe; (3) the abuse of retroactive
legislation, which not only cannot itself guide action, but under-

cuts the integrity of rules prospective in effect, since it puts them

under the threat of retrospective change; (4) a failure to make
rules understandable; (5) the enactment of contradictory rules
or (6) rules that require conduct beyond the powers of the af-
fected party; (7) introducing such frequent changes in the rules
that the subject cannot orient his action by them; and, finally,

(8) a failure of congruence between the rules as announced and

their actual administration.
A total failure in any one of these eight directions does not
simply result in a bad system of law; it results in something that

is not properly called a legal system at all, except perhaps in the

, Pickwickiansense in which a void contract can still be said to

be one kiSToTcontract. Certainly therecaa-be no rational ground

for asserting that a man can have a(moral/obligation tc/obey^r
legal rule that does not exist, or is keprsecret from him/orthat
came into existence only after he had acted, or was unintelligible,
or was contradicted by another rule of the same system, or com-
manded the impossible, or changed every minute. It may not be
impossible for a man to obey a rule that is disregarded by those
charged with its administration, but at some point obedience be-
comes —
futile be
as futile, in fact, as casting a vote that will never
counted. As Simmel has observed, there is a kind
the sociologist
of reciprocity between government and the citizen with respect
to the observance of rules. 1 Government says to the citizen in

1. The Sociology of Georg Simmel (1950), trans. Wolff, §4, "Interaction

in the Idea of 'Law,' " pp. 186-89; see also Chapter 4, "Subordination under
a Principle," pp. 250-67. Simmers discussion is worthy of study by those
concerned with defining the conditions under which the ideal of "the rule
of law" can be realized.

39
THE MORALITY OF LAW
effect, "These are the rules we expect you to follow. If you follow
them, you have our assurance that they are the rules that will be
applied to your conduct." When this bond of reciprocity is finally

and completely ruptured by government, nothing is left on which

to ground the citizen's duty to observe the rules.
The citizen's predicament becomes more difficult when, though
there is no total failure in any direction, there is a general and
drastic deterioration in legality, such as occurred in Germany
under Hitler. 2 A situation begins to develop, for example, in
which though some laws are published, others, including the most
important, are not. Though most laws are prospective in effect, so
free a use is made of retrospective legislation that no law
is im-

mune change ex post facto if it suits the convenience of those

to
in power. For the trial of criminal cases concerned with loyalty
to the regime, special military tribunals are established and these
tribunals disregard, whenever it suits their convenience, the rules
that are supposed to control their decisions. Increasingly the
principal object of government seems to be, not that of giving
the citizen rules by which to shape his conduct, but to frighten
him into impotence. As such a situation develops, the problem
faced by the citizen is not so simple as that of a voter who knows
with certainty that his ballot will not be counted. It is more like

2. I have discussed some of the features of this deterioration in my

article, "Positivism and Fidelity to Law," 71 Harvard Law Review 630,
648-57 (1958). This article makes no attempt at a comprehensive survey
of all the postwar judicial decisions in Germany concerned with events
occurring during the Hitler regime. Some of the later decisions rested the
nullity of judgments rendered by the courts under Hitler not on the ground
that the statutes applied were void, but on the ground that the Nazi judges
misinterpreted the statutes of their own government. See Pappe, "On the
Validity of Judicial Decisions in the Nazi Era," 23 Modern Law Review
260-74 (1960). Dr. Pappe makes more of this distinction than seems to me
appropriate. After all, the meaning of a statute depends in part on accepted
modes of interpretation. Can it be said that the postwar German courts
gave full effect to Nazi laws when they interpreted them by their own
standards instead of the quite different standards current during the Nazi
regime? Moreover, with statutes of the kind involved, filled as they were
with vague phrases and unrestricted delegations of power, it seems a little
out of place to strain over questions of their proper interpretation.

40
 THE MORALITY THAT MAKES LAW POSSIBLE
that of the voter who knows that the odds are against his ballot
being counted at all, and that if is counted, there is a good
it
0^
chance that it be counted for the^side against which he actual-
will ip^
ly voted. A citizen in this predicament has to decide for himself #^v
whether to stay with the system and cast his ballot as a kind of A0- J>L
^ a\t
-

symbolic act expressing the hope of a better day. So it was with

the German citizen under Hitler faced with deciding whether y^ ^
he had an obligation to obey such portions of the laws as the Nazi ^^lyi^
terror had left intact. (/- ^y
In situations like these there can be no simple principle by - \ A^
which to test the citizen's obligation of fidelity to law, any more ^ jJ3\ r

v
than there can be such a principle for testing his right to engage \\ \

in a general revolution. One thing is, however, clear. A mere

respect for constituted authority must not be confused with fi-

delity to law. Rex's subjects, for example, remained faithful to

him as king throughout his long and inept reign. They were
not faithful to his law, for he never made any.

The Aspiration toward Perfection in Legality

So far we have been concerned to trace out eight routes to failure

in the enterprise of creating law. Corresponding to these are eight
kinds of legal excellence toward which a system of rules may
strive. What appear at the lowest level as indispensable condi-
tions for the existence of law at all, become, as we ascend the
scale of achievement, increasingly demanding challenges to hu-
man capacity. At the height of the ascent we are tempted to
imagine a Utopia of legality in which all rules are perfectly clear,
consistent with one another, known
to every citizen, and never
remain constant through time,
retroactive. In this Utopia the rules
demand only what is possible, and are scrupulously observed by
courts, police, and everyone else charged with their administra-
tion. For reasons that I shall advance shortly, this Utopia, in
which all eight of the principles of legality are realized to per-
fection, is not actually a useful target for guiding the impulse
toward legality; the goal of perfection is much more complex.

41
 —
THE MORALITY OF LAW
Nevertheless it does suggest eight distinct standards by which
excellence in legality may be tested.
In expounding in my first chapter the distinction between the
morality of duty and that of aspiration, I spoke of an imaginary

scale that starts at the bottom with the most obvious and essential
moral duties and ascends upward to the highest achievements
open to man. I also spoke of an invisible pointer as marking the
dividing line where the pressure of duty leaves off and the chal-
lenge of excellence begins. The inner morality of law, it should
now be clear, presents all of these aspects. It too embraces a
morality of duty and a morality of aspiration. It too confronts
us with the problem of knowing where to draw the boundary
below which men will be condemned for failure, but can expect
no praise for success, and above which they will be admired for
success and at worst pitied for the lack of it.
In applying the analysis of the first chapter to our present
subject, it becomes essential to consider certain distinctive quali-
ties of the inner morality of law. In what may be called the basic

morality of social life, duties that run toward other persons

generally (as contrasted with those running toward specific indi-
viduals) normally require only forbearances, or as we say, are
negative in nature: Do do not injure, do not deceive, do
not kill,

not defame, and the like. Such duties lend themselves with a
minimum of difficulty to formalized definition. That is to say,
whether we are concerned with legal or moral duties, we are able
to develop standards which designate with some precision
—
though it is never complete the kind of conduct that is to be
avoided.
The demands of the inner morality of the law, however, though
they concern a relationship with persons generally, demand more
than forbearances; they are, as we loosely say, affirmative in na-
ture: make the law known, make it coherent and clear, see that
your decisions as an official are guided by it, etc. To meet these
demands human energies must be directed toward specific kinds
of achievement and not merely warned away from harmful acts.
Because of the affirmative and creative quality of its demands,

42
 THE MORALITY THAT MAKES LAW POSSIBLE
the inner morality of law lends itself badly to realization through **V^
duties, whether they be moral or legal. No matter how desirable CrAig/
a direction of human effort may appear to be, if we assert there p<\P.
is a duty to pursue it, we shall confront the responsibility of de- X^fXN •
fining at what point been violated. It is easy to as-
that duty has V rfy
sert that the legislator has a moral duty to make his laws clear \$r £{J*

and understandable. But this remains at best an exhortation un- ACr ~

less we are prepared to define the degree of clarity he must at- fe-
^ qC?
tain in order to discharge his duty. The notion of subjecting n, (J^O
clarity to quantitative measure presents obvious difficulties. WeC/^
may content ourselves, of course, by saying that the legislator
has at least a moral duty to try to be clear. But this only post-
pones the difficulty, for in some situations nothing can be more
baffling than to attempt to measure how vigorously a man in-
tended to do that which he has failed to do. In the morality of
law, in any event, good intentions are of little avail, as King Rex
amply demonstrated. All of this adds up to the conclusion that
the inner morality of law is condemned to remain largely a
morality of aspiration and not of duty. Its primary appeal must
be to a sense of trusteeship and to the pride of the craftsman.
To these observations there is one important exception. This
relates to the desideratum of making the laws known, or at least
making them available to those affected by them. Here we have
a demand that lends itself with unusual readiness to formaliza-
tion. A written constitution may prescribe that no statute shall
become law until it has been given a specified form of publica-
tion. If the courts have power to effectuate this provision, we
may speak of a legal requirement for the making of law. But a
moral duty with respect to publication is also readily imaginable.
A custom, for example, might define what kind of promulgation
of laws is expected, at the same time leaving unclear what con-
sequences attend a departure from the accepted mode of publica-
tion. A formalization of the desideratum of publicity has obvious
advantages over uncanalized efforts, even when they are intel-
and conscientiously pursued. A formalized standard of
ligently
promulgation not only tells the lawmaker where to publish his

43
 THE MORALITY OF LAW
laws; it also lets the subject — or a lawyer representing his in-
terests —know where to go to learn what the law is.
One might suppose that the principle condemning retroactive
laws could also be very readily formalized in a simple rule that
no such law should ever be passed, or should be valid if en-
Pv acted. Such a rule would, however, disserve the cause of legality.
Curiously, one of the most obvious seeming demands of legality
— that a rule passed today should govern what happens to-
—
morrow, not what happened yesterday turns out to present some
of the most difficult problems of the whole internal morality of
law.
With respect to the demands of legality other than promulga-
tion, then, themost we can expect of constitutions and courts is
that they save us from the abyss; they cannot be expected to lay
out very many compulsory steps toward truly significant accom-
plishment.

Legality and Economic Calculation

In my first chapter I attempted to demonstrate how, as we leave

the morality of duty and ascend toward the highest levels of a
morality of aspiration, the principle of marginal utility plays an
increasing role in our decisions. On the level of duty, anything
like economic calculation is out of place. In a morality of aspira-
tion, it is not only in place, but becomes an integral part of the
moral decision itself — increasingly so as we reach toward the
highest levels of achievement.
It is not difficult to show that something like an economic
calculation may become necessary when a conflict arises between
the internal and external moralities of law. From the standpoint
of the internal morality of law, for example, it is desirable that
laws remain stable through time. But it is obvious that changes
in circumstances, or changes in men's consciences, may demand
changes in the substantive aims of law, and sometimes disturbing-
ly frequent changes. Here we are often condemned to steer a

44
 THE MORALITY THAT MAKES LAW POSSIBLE
wavering middle course between too frequent change and no
change at all, sustained by the conviction, not that the course
chosen is the only right one, but that we must in all events keep
clear of the shoals of disaster that lie on either side.
It is much less obvious, I suspect, that antinomies may arise
within the internal morality of law Yet it is easy to demon-
itself.

strate that the various desiderata which go to make up that

morality may at times come into opposition with one another.
Thus, it is simultaneously desirable that laws should remain
stable through time and that they should be such as impose no
insurmountable barriers to obedience. Yet rapid changes in cir-
cumstances, such as those attending an inflation, may render
obedience to a particular law, which was once quite easy, in-
creasingly difficult, to the point of approaching impossibility.
Here again it may become necessary to pursue a middle course
which involves some impairment of both desiderata.
During a visit to Poland in May of 1961 I had a conversation
with a former Minister of Justice that is relevant here. She told
how in the early days of the communist regime an earnest and
sustained effort was made to draft the laws so clearly that they
would be intelligible to the worker and peasant. It was soon
discovered, however, that this kind of clarity could be attained
only at the cost of those systematic elements in a legal system
that shape its rules into a coherent whole and render them capable
of consistent application by the courts. It was discovered, in
other words, that making the laws readily understandable to the
citizen carried ahidden cost in that it rendered their application
by the courts more capricious and less predictable. Some retreat
to a more balanced view therefore became unavoidable.
These examples and illustrations could be multiplied. Enough
has been said, I believe, to show that the Utopia of legality can-
not be viewed as a situation in which each desideratum of the
law's special morality is realized to perfection. This is no special
quality —and certainly no peculiar defect — of the internal moral-
ity of law. In every human pursuit we shall always encounter
the problem of balance at some point as we traverse the long

45
THE MORALITY OF LAW
road that leads from the abyss of total failure to the heights of
human excellence.
It is now time to pass in an extended review each of the eight
demands of the law's inner morality. This review will deal with
certain difficulties hitherto passed over, particularly those touch-
ing the relation between the internal and external moralities of
law. It will also include some remarks on the ways in which
problems of the law's inner morality have actually arisen in
history.

The Generality of Law

The first desideratum of a system for subjecting human conduct

to the governance of rules an obvious one: there must be
is rules.
This may be stated as the requirement of generality.
In recent history perhaps the most notable failure to achieve
general rules has been that of certain of our regulatory agencies,
particularly those charged with allocative functions. Like King
Rex they were embarked on their careers in the belief that by
proceeding at first case by case they would gradually gain an

insight which would enable them to develop general standards

of decision. In some cases this hope has been almost completely
disappointed; this is notably so in the case of the Civil Aeronautics
Board and the Federal Communications Commission. The reason
for this failure lies, I believe, in the nature of the tasks assigned
to these agencies; they are trying to do through adjudicative forms
something that does not lend itself toaccomplishment through
those forms. 3 But whatever the reason, considered as attempts
to create coherent legal systems these agencies have been notably
unsuccessful.

3. I have attempted to analyze the limitations of the adjudicative pro-

cess in two articles: "Adjudication and the Rule of Law," Proceedings of
the American Society of International Law (1960), pp. 1-8; "Collective
Bargaining and the Arbitrator," Wisconsin Law Review 3-46 (1963). I
plan later to publish a more general analysis to be called The Forms and
Limits of Adjudication. See also pp. 170-77, infra.

46
 THE MORALITY THAT MAKES LAW POSSIBLE
The complaint registered against these agencies is not so much
that their rules are unfair, but that they have failed to develop
any significant rules at all. This distinction is important because

the desideratum of generality is sometimes interpreted to mean

that the law must act impersonally, that its rules must apply to
general classes and should contain no proper names. Constitu-
tional provisions invalidating "private laws" and "special legis-
lation" express this principle. 4 But the principle protected by
these provisions is a principle of fairness, which, in terms of the
analysis presented here, belongs to the external morality of the
law.
This principle is from the demand of the law's inter-
different
nal morality that, at the very minimum, there must be rules of
some kind, however fair or unfair they may be. One can imagine
a system of law directed toward a single named individual, regu-
lating his conduct with other named individuals. Something like
this can exist between employer and employee. If the employer
wants to avoid the necessity of standing over the employee and
directing his every action, he may find it essential to articulate
and convey to the employee certain general principles of con-
duct. In this venture there are open to the employer all the routes
to failure traversed by King Rex. He may not succeed in articu-

4. See the entry, "Special, Local or Private Laws," in Index Digest of

State Constitutions (2d ed. 1959), published by the Legislative Drafting
Research Fund of Columbia University. Provisions of this sort have pro-
duced much difficulty for courts and legislatures. Sometimes their require-
ments are met by such apparently disingenuous devices as a provision that
a particular statute shall apply "to all cities in the state which according to
the last census had a population of more than 165,000 and less than
166,000." Before condemning this apparent evasion we should recall that
the one-member class or set is a familiar and essential concept of logic and
set theory. Sometimes the prohibition of special laws is directed against
rather obvious misuses of legislative power. The California Constitution,
for example, prohibits special laws "for the punishment of crimes regu- . . .

lating the practice of courts of justice . granting divorces

. . declaring
. . .

any person of age." (Article VI §25, as amended to Nov. 4, 1952.) The same
Article, however, contains a general prohibition of special or local laws
"in all cases where a general law can be made applicable." This has pro-
duced a veritable donnybrook of litigation.

47
THE MORALITY OF LAW
lating general rules; if he does, he may not succeed in conveying
them employer succeeds in bringing
to the employee, etc. If the
into existence a functioning system of rules, he will discover that
this success has been bought at a certain cost to himself. He must

not only invest some effort and intelligence in the enterprise, but
its very success limits his own freedom of action. If in distrib-
uting praise and censure, he habitually disregards his own rules,
he may find his system of law disintegrating, and without any
open revolt, it may cease to produce for him what he sought to
obtain through it.

In actual systems for controlling and directing human conduct

a total failure to achieve anything like a general rule is rare.
Some generalization is communicating even
implicit in the act of
a single wish. The command to a dog, "Shake hands," demands
some power of generalization in both master and dog. Before he
can execute the command the dog has to understand what range
of slightly different acts will be accepted as shaking hands.
Furthermore, a well-trained dog will come in time to perceive
in what kinds of situations he is likely to be asked to shake hands
and will often extend his paw in anticipation of a command not
yet given. Obviously something like this can and does happen
in human affairs, even when those possessing the power to com-
mand have no desire to lay down general rules. But if a total
failure of generalization requires the special talent for ineptitude
of a King Rex, the fact is that many legal systems, large and
small, suffer grievously from a lack of general principle. 5
The problem of generality receives a very inadequate treat-
ment in the literature of jurisprudence. Austin correctly perceived
that a legal system something more than a series of pattern-
is

less exercises of political power. Yet his attempt to distinguish

between general and particular commands was so arbitrary and
so unrelated to his system as a whole that the Anglo-American

5. Herbert Wechsler's complaint that some of the recent decisions of

the Supreme Court on constitutional issues lack the degree of reasoned
generality that will assure the Court's "neutrality" is the latest expression of
a plaint that goes back to the beginnings of law itself. See Wechsler, Prin-
ciples, Politics, and Fundamental Law (1961).

48
 THE MORALITY THAT MAKES LAW POSSIBLE
literature since his time has scarcely recovered from this original

misdirection. 6
Perhaps the basic defect of Austin's analysis lay in his failure

to distinguish two questions: (1) what is essential for the efficacy

of a system of legal rules, and (2) what shall we call "a law"? In
the analysis presented in these lectures the requirement of
generality restson the truism that to subject human conduct to
the control of rules, there must be rules. This in no way asserts
that every governmental act possessing "the force of law" —such
as a judicial decree directed against a particular defendant —must
itselftake the form of laying down a general rule. Nor is there
any attempt here to rule on such issues of linguistic convenience
as deciding whether we should call a statute which establishes a
tax collection office in Centerville a law.

Promulgation

Turning now to the promulgation of laws, this is an ancient and

recurring problem, going back at least as far as the Secession of
the Plebs in Rome. 7 Obvious and urgent as this demand seems,
it must be recognized that it is subject to the marginal utility
principle. It would in fact be foolish to try to educate every citi-
zen into the full meaning of every law that might conceivably
be applied to him, though Bentham was willing to go a long
way in that direction. 8

6. See Austin, Lectures on Jurisprudence (1879), Lecture I, pp. 94-98;

Gray, The Nature and Sources of the Law (2d ed. 1921), pp. 161-62;
Brown, The Austinian Theory of Law (1906), note on pp. 17-20; cf. Kel-
sen, General Theory of Law and State (1945), pp. 37-39; Soml6, Juristische
Grundlehre (2d ed. 1927), §20, pp. 64-65. The best treatment in English
that I have encountered is in Patterson, Jurisprudence —
Men and Ideas of
the Law (1953), ch. 5.
7. Relevant discussions will be found in Austin, Lectures on Jurispru-
dence (1879), pp. 542-44; Gray, Nature and Sources of the Lmw (2d ed.,
1921), pp. 162-70. Austin accepts without cavil a view traditional in Eng-
land according to which an act of Parliament is considered to be effective
without publication.
8. See, for example, the educative efforts recommended in Rationale
of Judicial Evidence, Ch. IV, "Of Preappointed Evidence," Works, Bow-
ring's ed., 4, 508-85.

49
THE MORALITY OF LAW
The need for this education will, of course, depend upon how
far the requirements of law depart from generally shared views
of right and wrong. Over much of its history the common law
has been largely engaged in working out the implications of
conceptions that were generally held in the society of the time.
This large measure of coincidence between moral and legal de-
mands reduced greatly the force of the objection that the rules of
the common law were, in contrast with those of a code, difficult

of access.
The problem of promulgation is complicated by the question,
"Just what counts as law for purposes of this requirement?" De-
ciding agencies, especially administrative tribunals, often take
the view that, though the rules they apply to controversies ought
to be published, a like requirement does not attach to the rules
and practices governing their internal procedures. Yet every ex-
perienced attorney knows that to predict the outcome of cases
it is often essential to know, not only the formal rules governing
them, but the internal procedures of deliberation and consulta-
tion by which these rules are in fact applied. Perhaps it is in
recognition of this that the otherwise bizarre seeming require-
ment has developed in Switzerland and Mexico that certain courts
must hold their deliberations in public.
The man whom Thurman Arnold sometimes calls the "mere
realist" (when he is not reserving that role for himself) 9 might be
tempted to say something like this of the requirement of promul-
gation: "After all, we have thousands of laws, only the smallest
fraction of which are known, directly or indirectly, to the ordi-

9. Sometimes Judge Arnold seems to be able to combine the roles. In

Professor Hart's "Theology," 73 Harvard Law Review 1298, at p. 1311
(1960), he rises eloquently above the "mere realist" by declaring, "Without
a constant and sincere pursuit of the shining but never completely attain-
able ideal of the rule of law above men, of 'reason' above 'personal pref-
erence,' we would not have a civilized government." But in the same article
he castigates Professor Henry M. Hart for suggesting that the Supreme
Court ought to spend more time in "the maturing of collective thought."
Arnold declares, "There is no such process as this, and there never has
been; men of positive views are only hardened in those views by . con-
. .

ference" (p. 1312).

50
 THE MORALITY THAT MAKES LAW POSSIBLE
nary citizen. Why all this fuss about publishing them? Without
reading the criminal code, the citizen knows he shouldn't murder
and steal. As for the more esoteric laws, the full text of them
might be distributed on every street corner and not one man
in a hundred would ever read it." To this a number of responses
must be made. Even if only one man in a hundred takes the pains
to inform himself concerning, say, the laws applicable to the
practice of his calling, this is enough to justify the trouble taken
to make the laws generally available. This citizen at least is en-
titled to know, and he cannot be identified in advance. Further-
more, in many activities men observe the law, not because they
know it directly, but because they follow the pattern set by others
whom they know to be better informed than themselves. In this
way knowledge of the law by a few often influences indirectly
the actions of many. The laws should also be given adequate
publication so that they may be subject to public criticism, in-
cluding the criticism that they are the kind of laws that ought
not to be enacted unless their content can be effectively conveyed
to those subject to them. It is also plain that if the laws are not
made readily available, there no check against a disregard of
is

them by those charged with their application and enforcement.

Finally, the great bulk of modern laws relate to specific forms of
activity, such as carrying on particular professions or businesses;

it is therefore quite immaterial that they are not known to the

average citizen. The requirement that laws be published does
not rest on any such absurdity as an expectation that the dutiful
citizen will sit down and read them all.

Retroactive Laws
In this country the problem of retroactive laws is explicitly dealt
with in certain provisions of the United States Constitution 10

10. The third paragraph of Article I, Section IX, provides, "No bill of
attainder or ex post facto law shall be passed" by the Congress. Despite
the breadth of its language, the provision concerning ex post facto laws has
been construed to apply only to criminal statutes. (See the articles cited in

51
 .

THE MORALITY OF LAW

and measures in certain state constitutions. 11 Out-
in scattered
side the areas covered by these provisions, the validity of retro-
active legislation is largely regarded as a problem of due process.
I shall not concern myself with the intricacies and uncertainties of
this body of constitutional law. 12 Instead I shall deal with cer-
tain basic problems concerning the relation between retroactivity
and the other elements of legality. 13

note 12, infra.) By bills of attainder the Constitution meant primarily

punitive legislative acts directed against individuals. The prohibition of
such bills was supported not only by the belief that laws ought to be pro-
spective in effect, but also, and perhaps primarily, by a conviction that puni-
tive measures ought to be imposed by rules of general application.
The prohibition of bills of attainder and ex post facto laws is extended
to the states by Article I, Section X. This Section adds a provision that no
"state shall pass
. . any law impairing the obligation of contract."
. . . .

This last provision is generally regarded as invalidating a particular kind

of "retroactive" law. However, as I shall indicate later in the text, there
are real difficulties in developing a precise definition of a "retroactive law."
These become particularly acute in connection with the "impairment
clause."
1 1 See the entries "Ex Post Facto Laws and Retrospective Laws" in the
Index Digest of State Constitutions (2d ed. 1959). The spirit of these stat-
utes finds vigorous expression in Part I, Section 23, of the New Hampshire
Constitution of 1784: "Retrospective laws are highly injurious, oppressive,
and unjust. No such laws, therefore, should be made, either for the decision
of civil causes, or the punishment of offenses."
12. See Hale, "The Supreme Court and the Contract Clause," 57 Har-
vard Law Review 512-57, 612-74, 852-92 (1944); Hochman, "The Su-
preme Court and the Constitutionality of Retroactive Legislation," 73
Harvard Law Review 692-727 (1960); "Prospective Overruling and Retro-
active Application in the Federal Courts," 71 Yale Law Journal 907-51
(1962), (unsigned note).
13. The literature of jurisprudence pays but scant attention to retroac-
tive laws. Gray discusses at considerable length the ex post facto effect of
judicial decisions (The Nature and Sources of the Law [2d ed. 1921],
pp. 89-101, 218-33) but has only this to say of statutes: "The legislature
. . can, in the absence of any Constitutional prohibition, even make the
.

new statute retroactive." (Ibid., p. 187.) Kelsen seems slightly bothered by

retroactive laws, but observes that since generally recognized that
it is

ignorance of law does not excuse, and hence a law may properly be ap-
plied to one who did not know of it, the retroactive statute only carries this
a bit further by applying a law to one who could not possibly have known
of it. General Theory of Law and State (1945), pp. 43-44, 73, 146, 149. For

52
 THE MORALITY THAT MAKES LAW POSSIBLE
Taken by itself, and in abstraction from its possible function
in a system of laws that are largely prospective, a retroactive
law is truly a monstrosity. Law has to do with the governance
of human conduct by rules. To speak of governing or directing
conduct today by rules that will be enacted tomorrow is to talk
in blank prose. To ask how we should appraise an imaginary
legal system consisting exclusively of laws that are retroactive,
and retroactive only, is like asking how much air pressure there

is in a perfect vacuum.

If, therefore, we are to appraise retroactive laws intelligently,

we must place them in the context of a system of rules that are
generally prospective. Curiously, in this context situations can
arise in which granting retroactive effect to legal rules not only
becomes tolerable, but may actually be essential to advance the
cause of legality.
Like every other human undertaking, the effort to meet the
often complex demands of the internal morality of law may suffer
various kinds of shipwreck. It is when things go wrong that the
retroactive statute often becomes indispensable as a curative
measure; though the proper movement of law is forward in time,
we sometimes have to stop and turn about to pick up the pieces.
Suppose a statute declares that after its effective date no marriage
shall be valid unless a special stamp, provided by the state, is
affixed to the marriage certificate by the person performing the
ceremony. A breakdown of the state printing office results in
the stamps' not being available when the statute goes into effect.

Soml6 the question is one of fairness; there is no intrinsic reason in the

nature of law itself why laws cannot be retrospective. Juristische Grund-
lehre (2d ed. 1927), 302-03. Only Austin seems to consider retroactive laws
as presenting a serious problem for legal analysis. Regarding law as a
command to which a sanction is attached, he observes that "injury or
wrong supposes unlawful intention, or one of those modes of unlawful
inadvertence which are styled negligence, heedlessness, and rashness. For
unless the party knew that he was violating his duty, or unless he might
have known that he was violating his duty, the sanction could not operate,
at the moment of the wrong, to the end of impelling him" to obey the
command. Lectures on Jurisprudence (4th ed. 1879), p. 485.

53
THE MORALITY OF LAW
Though the statute is duly promulgated, it is little publicized, and
the method by which it would ordinarily become known, by word
of mouth among those who perform marriages, fails because the
stamps are not distributed. Many marriages take place between
persons who know nothing of the law, and often before a minister
who also knows nothing of it. This occurs after the legislature has
adjourned. When it is back into session, the legislature
called
enacts a statute conferring validity on marriages which by the
terms of the previous statute were declared void. Though taken
by itself, the retrospective effect of the second statute impairs
the principle of legality, it alleviates the effect of a previous
failure to realize two other desiderata of legality: that the laws
should be made known to those affected by them and that they
should be capable of being obeyed. 14
One might be tempted to derive from this illustration the les-

son that retrospective laws are always justified, or at least are

innocent, when their intent is to cure irregularities of form. Be-
fore hastening to this conclusion it would be well to recall the

Roehm Purge of 1934. Hitler had decided that certain elements

in the Nazi party gathered about Roehm were an encumbrance to
his regime. The normal procedure for a dictatorship in such a
case would be to order sham trials to be followed by conviction
and execution. However, time was pressing, so Hitler and his
associates took a hurried trip south during which they shot down
nearly a hundred persons. Returning to Berlin Hitler promptly
arranged to have passed a retroactive statute converting these
murders into lawful executions. Afterward Hitler declared that
during the affair "the Supreme Court of the German people
consisted of myself," thus indicating that to his mind the shoot-

14. Because their draftsmen commonly overlook the occasional need

for "curative" laws, flat constitutional prohibitions of retroactive laws have
sometimes had to be substantially rewritten by the courts. Thus Article I,
§20, of the Tennessee Constitution of 1870 provides that "no retrospective
law, or law impairing the obligation of contract, shall be made." This was
at an early time interpreted as if it read "no retrospective law, or other
law, impairing the obligation of contract, shall be made." The early cases
are discussed in Wynne's Lessee v. Wynne, 32 Tenn. 405 (1852).

54
 THE MORALITY THAT MAKES LAW POSSIBLE
ings were attended by a mere irregularity of form which con-
sisted in the fact that he held in his hand a pistol rather than
the staff of justice. 15 And, on this view of the matter, he might
even have quoted the language of our Supreme Court in up-
holding an enactment which it called "a curative statute aptly
designed to remedy . . . defects in the administration of govern-
ment."^
A second aspect of retrospective lawmaking relates not so
much to any positive contribution it may on occasion make to
the internal morality of the law, but rather to the circumstance
that it unavoidably attaches in some measure to the office of
judge. It is important to note that a system for governing human
conduct by formally enacted rules does not of necessity require
courts or any other institutional procedure for deciding disputes
about the meaning of rules. In a small and friendly society,
governed by relatively simple rules, such disputes may not arise.
If they do, they may be settled by a voluntary accommodation
of interests. Even if they are not so resolved, a certain number
of continuing controversies on the periphery may not seriously
impair the efficacy of the system as a whole.
I emphasize this point because it is so often taken for granted
that courts are simply a reflection of the fundamental purpose
of law, which assumed to be that of settling disputes. The need
is

for rules —
so it seems to be thought —
arises wholly out of man's
selfish, quarrelsome, and disputatious nature. In a society of angels

there would be no need for law.

But this depends on the angels. If angels can live together and
accomplish their good works without any rules at all, then, of
course, they need no law. Nor would they need law if the rules
on which they acted were tacit, informal, and intuitively per-
ceived. But if, in order to discharge their celestial functions effec-
tively, angels need "made" rules, rules brought into existence

15. Relevant references will be found in my article in 71 Harvard Law

Review 650 (1958).
16. Graham v. Goodcell, 282 U.S. 409, 429 (1930).

55
THE MORALITY OF LAW
by some then they need law as law is viewed
explicit decision,
in these essays. A
King Rex called in to govern them and to
establish rules for their conduct would lose no opportunity to
bungle his job simply because his subjects were angels. One
might object that at least the problem of maintaining congruence
between official action and enacted rule would not arise; but
this is not true, for Rex might easily fall into the pit of addressing
particular requests to his angelic subjects that conflicted with the
general rules he had laid down for their conduct. This practice
might produce a state of confusion in which the general rules
would lose their directive force.
In a complex and numerous political society courts perform
—
an essential function. No system of law whether it be judge-
made or legislatively enacted —can be so perfectly drafted as
to leave no room for dispute. When a dispute arises concerning
the meaning of a particular rule, some provision for a resolution
of the dispute is necessary. The most apt way to achieve this
resolution lies in some form of judicial proceeding.
Suppose, then, a dispute arises between A and B concerning the
meaning of a statutory rule by which their respective rights are
determined. Their dispute is submitted to a court. After weigh-
ing all the arguments carefully the judge may consider that they
are about evenly balanced between the position taken by A and
that taken by B. In that sense the statute really gives him no clear
standard for deciding the case. Yet the principles relevant to its
decision lie in this statute, the requirements of which would in
nine cases out of ten raise no problem at all. If the judge fails
to render a decision, he fails in his duty to settle disputes arising
out of an existing body of law. If he decides the case, he in-
evitably engages in an act of retrospective legislation.
Obviously the judge must decide the case. If every time doubt
arose as to the meaning of a rule, the judge were to declare the
existence of a legal vacuum, the efficacy of the whole system of
prospective rules would be seriously impaired. To act on rules
confidently, men must not only have a chance to learn what the
rules are, but must also be assured that in case of a dispute about

56
 THE MORALITY THAT MAKES LAW POSSIBLE
their meaning there is available some method for resolving the
dispute.
In the case just supposed the argument for a retrospective de-
cision is very strong. Suppose, however, that the court acts not
to clarify a doubt about the law, but to overrule one of its own
precedents. Following the case of A v. B, for example, the same
dispute arises between C and D. C refuses to settle the dispute
on the basis of the decision rendered in A v. B, and instead takes
the case to court. C convinces the court that its decision in A v. B
was mistaken and should be overruled. If this overruling is made
retrospective, then D loses out though he relied on a legal de-
cision that was clearly in his favor. On the other hand, if the
decision in A v. B was wrong and ought to have been overruled,
then C has performed a public service in refusing to accept it
and in taking it to court to be reexamined. It is surely ironic
if the only reward C receives for this service is to have a now

admittedly mistaken rule applied against him. If the court were

to overrule the precedent prospectively, so that the new rule
would apply only to cases arising after the overruling decision,
it is difficult to see how a private litigant would ever have any
incentive to secure the repeal of a decision that was mistaken
or that had lost its justification through a change in circum-
stances. (It has been pointed out that this argument loses its
force in the case of what may be called "the institutional liti-
gant," say, a labor union or a trade association which has a
continuing interest in the development of the law that extends
beyond specific controversies.) 17
The situations just discussed concerned civil disputes. Quite
different considerations apply to criminal cases. This has come
to be recognized in cases involving the overruling of precedents,
as for example where a court has construed a criminal statute not
to apply to a certain form of activity, then in a later case changes
its mind and overrules its previous interpretation. 18 If this over-

17. See the note in the Yale Law Journal cited in n. 12, supra.
18. See reference of last note.

57
THE MORALITY OF LAW
ruling decision were projected retrospectively, then men would
be branded as criminals who acted in reliance on a judicial
interpretation of the law.
It has been supposed that different considerations apply to
cases where the court settles previously unresolved uncertainties
in the application of a criminal statute and that such cases are to
be treated just like the civil case of A v. B discussed above. This
view is, I believe, mistaken. It is true that there are certain safe-
guards here that mitigate what appears to be the gross injustice
of retrospectively making criminal what was previously not clear-
ly so. If the criminal statute as a whole is uncertain of applica-
tion it may be declared unconstitutionally vague. Furthermore,

an accepted principle of interpretation that a criminal statute

it is

should be construed strictly, so that acts falling outside its normal

meaning are not to be considered criminal simply because they
present the same kind of danger as those described by the lan-
guage of the statute. Yet it is possible that a criminal statute may
be so drawn that, though its meaning is reasonably plain in nine
cases out of ten, in the tenth case, where some special situation
of fact arises, it may be so unclear as to give the particular de-
fendant no real warning that what he was doing was criminal.
This is especially likely to be the case where economic regula-
tions are involved. The courts have generally assumed that in
this kind of case they have no choice but to resolve the doubt,
thus creating retrospective criminal law. The problem is treated,
in other words, as if it were just like a civil suit. Yet in a criminal
case like that supposed an acquittal leaves no dispute unresolved;
it simply means that the defendant goes free.

I suggest that a principle ought to be recognized according to

which a defendant should not be held where the
guilty of crime
statute, was so unclear
as applied to his particular situation,
that, had it been equally unclear in all applications, it would
have been held void for uncertainty. This principle would elimi-
nate the false analogy to civil suits, and would bring the treat-
ment of what may be called specific uncertainty into harmony
with the law concerning criminal statutes that are uncertain as
a whole.

58
 THE MORALITY THAT MAKES LAW POSSIBLE
There remains for examination the most difficult problem of
all, that of knowing when an enactment should properly be re-

garded as retrospective. The easiest case is that of the statute

which purports to make criminal an act that was perfectly legal
when it was committed. Constitutional provisions prohibiting ex
post facto laws are chiefly directed against such statutes. The
principle nulla poena sine lege is one generally respected by
civilized nations. The reason the retrospective criminal statute
so universally condemned does not arise merely from the fact
—and
is

that in criminal litigation the stakes are high. It arises also

chiefly —because of all branches of law, the criminal law is most
obviously and directly concerned with shaping and controlling
human conduct. It is the retroactive criminal statute that calls
most directly to mind the brutal absurdity of commanding a man
today to do something yesterday.
Contrast with the ex post facto criminal statute a tax law
first let us say, in 1963 imposing a tax on financial gains
enacted,
realized in 1960 at a time when such gains were not yet subject
to tax. Such a statute may be grossly unjust, but it cannot be
said that it is, strictly speaking, retroactive. To be sure, it bases
the amount of the tax on something that happened in the past.
But the only act it requires of its addressee is a very simple one,
namely, that he pay the tax demanded. This requirement operates
prospectively. We do not, in other words, enact tax laws today j

that order a man to have paid taxes yesterday, though we may I

pass today a tax law that determines the levy to be imposed onj
the basis of events occurring in the past.
To the ordinary citizen the argument just advanced would
probably appear as the merest quibble. He would be likely to
say that just as a man may do an act because he knows it to be
legal under the existing criminal law, so he may enter a trans-
action because he knows that under the existing law the gain it
yields is not subject to tax. If the ex post facto criminal law is

heinous because it attaches a penalty to an act that carried no

punishment when it was done, there is an equal injustice in a
law that levies a tax on a man because of an activity that was
tax-free when he engaged in it.

59
 —
THE MORALITY OF LAW
The answer to this argument would call attention to the con-
sequences that would follow if its implications were fully ac-
cepted. Laws of all kinds, and not merely tax laws, enter into
men's calculations and decisions. A man may decide to study
for a particular profession, to get married, to limit or increase
the size of his family, to make a final disposition of his estate
all with reference to an existing body of law, which includes not
only tax laws, but the laws of property and contract, and per-
haps, even, election laws which bring about a particular distri-
bution of political power. If every time a man relied on existing
law in arranging his affairs, he were made secure against any
change in legal rules, the whole body of our law would be ossified
forever.
To
this argument a reply could be made along the following
lines:Tax laws are not just like other laws. For one thing, they
enter more directly into the planning of one's affairs. Moreover

« ^ ^-\\ —
and much more importantly their principal object is often not
merely to raise revenue, but to shape human conduct in ways
thought desirable by the legislator. In this respect they are close
N ry^ cousins to the criminal law. The laws of property and contract
neither prescribe nor recommend any particular course of ac-
tion; their object is merely to protect acquisitions resulting from
unspecified activities. Tax laws, on the other hand, coax men
into, or dissuade them from, certain kinds of behavior and this
is often precisely their objective. When they thus become a kind
of surrogate for the criminal law, they lose, as it were, their
primitive innocence. In the case with which this discussion began
(where the law originally imposed no tax on certain kinds of
gains) the purpose of the law may have been to induce men to
enter transactions of the kind that would yield these very gains.
When a tax is later imposed on gains arising from these trans-
actions, men are in effect penalized for doing what the law itself

originally induced them to do.

At this point a replication may be entered to the following
effect. Laws of every kind may induce men toward, or deter
them from, particular forms of behavior. The whole law of con-

60
 THE MORALITY THAT MAKES LAW POSSIBLE
tracts, for example, might be said to have the purpose of in-
ducing men to organize their affairs through "private enterprise."
If business operations are planned in part by taking into account
the existing law of contracts, is that law to be forever immune
from change? Suppose a man unable to read or write becomes
a real estate broker at a time when oral brokerage contracts are
enforceable. Is he to be protected against a later law that might
require such contracts to be evidenced by a signed writing? As
for the argument that tax laws often have the explicit purpose
of attracting men into, or deterring them from, certain activities,
who can say what the precise function of a tax is, except that
it raises revenue? One. legislator may have favored a tax for one

reason, another for a quite different reason. What shall we say

of the taxon alcoholic beverages? Was its purpose to discourage
drinking or was it to raise revenue by imposing a special levy
on those whose habits of life indicate that they are especially
able to help defray the costs of government? There can be no
clear answer to questions like these.
At this pointwe must cut short this dialogue and leave its
issues unresolved. The purpose of presenting it has been merely
to indicate some of the difficulties surrounding the concept of
the retroactive law, difficulties that are by no means confined
to the law of taxation. In meeting these courts have
difficulties the
often resorted to the notion of a contract between the government
and the citizen. Thus, if a tax exemption is granted in favor of
certain activities and then later repealed, the test often applied
is to ask whether the state can fairly be considered to have en-
tered a contract to maintain the exemption. It should be observed

that this notion of a contract between state and citizen is capable

of indefinite extension. As Georg Simmel has shown, the state's
position of superior power rests ultimately on a tacit reciprocity. 19
This reciprocity, once made explicit, can be extended to all eight
of the principles of legality. If King Rex, instead of being an
hereditary monarch, had been elected to office for life on a
promise to reform the legal system, his subjects might well have
19. See note 1, supra.

61
THE MORALITY OF LAW
felt they had a right to depose him. The notion that a revolution
may be by a breach of contract by the government is,
justified

of course, an ancient one. It is a concept that is generally thought

to lie completely beyond the usual premises of legal reasoning.
Yet a milder cousin of it appears within the legal system itself

when the validity of retrospective legislation is made to depend

upon the state's fidelity to a contract between itself and the
citizen.
In this discussion of retrospective laws much stress has been
placed on difficulties of analysis. For that reason I should not
like to leave the subject without a reminder that not every aspect
of it is shrouded with obscurity. As with the other desiderata that
make up the internal morality of the law, difficulties and nuances
should not blind us to the fact that, while perfection is an elusive
goal, it is not hard to recognize blatant indecencies. Nor in seek-
ing examples of obvious abuses do we need to confine our search
to Hitlerite Germany or Stalinist Russia. We, too, have legisla-
tors who, in their own more modest way, give evidence of be-
lieving that the end justifies the means. Take, for example, a
federal statute enacted in 1938. This statute made it "unlawful
for any person who has been convicted of a crime of violence
... to receive any firearm or ammunition which has been shipped
or transported in interstate or foreign commerce." The draftsmen
of the statute quite justifiably considered that persons falling
within its language do not as a whole constitute our most trust-
worthy citizens. They also quite understandably harbored a wish
that they might make their statute retroactive. Realizing, how-
ever, that this was impossible they sought to do the next best
thing. They wrote into the statute a rule that if any firearm was

received in interstate commerce by a person meeting the descrip-

tion of the act, then it should be presumed that the receipt took
place after the effective date of the act. This piece of legislative
overcleverness was stricken down by the Supreme Court in Tot v.

United States. 20

20. Tot v. United States, 319 U.S. 463 (1942). The Court also struck
down another presumption contained in the Act. This provided that pos-

62
 THE MORALITY THAT MAKES LAW POSSIBLE

The Clarity of Laws

The desideratum of clarity represents one of the most essential

ingredients of legality. 21 Though this proposition is scarcely sub-
ject to challenge, I am not certain it is always understood what
responsibilities are involved in meeting this demand.
Today there is a strong tendency to identify law, not with rules
of conduct, but with a hierarchy of power or command. This
—which confuses
\

view fidelity to law with deference for estab- $

—
lished authority leads easily to the conclusion that while judges,
^ $&>
policemen, and prosecuting attorneys can infringe legality, legis-
latures cannot, except as they may trespass against explicit con-W>^
stitutional restrictions on their power. Yet it is obvious that ob- v^i l&\ r

scure and incoherent legislation can make legality unattainable

A^v-' U ,

by anyone, or at least unattainable without an unauthorized re-\|$~^ ,

{

vision which itself impairs legality. Water from a tainted spring vj ftjij
l

session of a firearm or ammunition by a person falling within the descrip-

tion contained in the Act should give rise to a presumption that it had been
received after being shipped in interstate or foreign commerce.
21. There is little discussion of this desideratum in the literature of
jurisprudence. The short treatment in Bentham's posthumous work, The
Limits of Jurisprudence Defined, Everett, ed. (1945), p. 195, is entirely de-
voted to a labored attempt to develop a nomenclature capable of distin-
guishing various kinds of unclarity. One might have expected Austin to
list among "laws improperly so-called" (Lectures, pp. 100-01) the wholly

unintelligible statute. But it does not appear in his discussion. The neglect
of this subject by positivistic writers is, however, quite understandable. A
recognition that laws may vary in clarity would entail a further recognition
that laws can have varying degrees of efficacy, that the unclear statute is,
n
in a real sense, less a law than the clear one. But this would be to accept a
proposition that runs counter to the basic assumptions of positivism.
In this country it has been urged that, quite without reference to any
standards impliedly imposed by constitutions, the courts should refuse to
make any attempt to apply statutes drastically lacking in clarity. Aigler,
#
"Legislation in Vague or General Terms," 21 Michigan Law Review 831—
51 (1922). As the law has developed, however, the requirement of clarity
has been incorporated in a doctrine of unconstitutional vagueness, the
application of this doctrine being almost entirely confined to criminal cases.
See the extensive note, "The Void-for- Vagueness Doctrine in the Supreme
Court," 109 University of Pennsylvania Law Review 67-116 (1960).

63
 THE MORALITY OF LAW
can sometimes be purified, but only at the cost of making it
something other than it was. Being at the top of the chain of
i command does not exempt the legislature from its responsibility
Ho respect the demands of the internal morality of law; indeed, it

intensifies that responsibility,

k To put a high value on legislative clarity is not to condemn out
of hand rules that make legal consequences depend on standards
such as "good faith" and "due care." Sometimes the best way
to achieve clarity is to take advantage of, and to incorporate into
the law, common sense standards of judgment that have grown
up in the ordinary life lived outside legislative halls. After all,
this is something we inevitably do in using ordinary language
itself as a vehicle for conveying legislative intent. Nor can we
ever, as Aristotle long ago observed, be more exact than the na-
ture of the subject matter with which we are dealing admits. A
specious) clarity can be more damaging than an honest open-
ended vagueness.
On the other hand, is a serious mistake —and a mistake
—
it

made constantly to assume that, though the busy legislative

draftsman can find no way of converting his objective into clearly
stated rules, he can always safely delegate this task to the courts
or to special administrative tribunals. In fact, however, this de-
pends on the nature of the problem with which the delegation is

concerned. In commercial law, for example, requirements of

"fairness" can take on definiteness of meaning from a body of
commercial practice and from the principles of conduct shared
by a community of economic traders. But it would be a mistake to
conclude from this that all human conflicts can be neatly con-
tained by rules derived, case by case, from the standard of
fairness.
There is need, then, to discriminate when we encounter Hayek's
sweeping condemnation of legal provisions requiring what is

"fair" or "reasonable":

One could write a history of the decline of the Rule of

Law ... in terms of the progressive introduction of these

64
 THE MORALITY THAT MAKES LAW POSSIBLE
vague formulas into legislation and jurisdiction, 22 and of
the increasing arbitrariness and uncertainty of, and the con-
sequent disrespect for, the law and the judicature. 23

A much neededchapter of jurisprudence remains at present

largely unwritten. This chapter would devote itself to an analysis
of the circumstances under which problems of governmental
regulation may safely be assigned to adjudicative decision with
a reasonable prospect that fairly clear standards of decision will
emerge from a case-by-case treatment of controversies as they
arise. In dealing with problems of this fundamental character,
a policy of "wait and see" or of "social experimentation" has
little to recommend it.

Contradictions in the Laws

It is rather obvious that avoiding inadvertent contradictions in the
law may demand a good deal of painstaking care on the part
of the legislator.What is not so obvious is that there can be diffi-
culty in knowing when a contradiction exists, or how in abstract
terms one should define a contradiction.
It is generally assumed that the problem is simply one of logic.

A contradiction is something that violates the law of identity by

which A cannot be not-A. This formal principle, however, if it
has any value at all, has none whatever in dealing with contra-
dictory laws. 24
Let us take a situation in which a contradiction "in the logical
sense" seems most evident. In a single statute, we may suppose,
are to be found two provisions: one requires the automobile

22. "Adjudication" is no doubt meant, not "jurisdiction."

23. The Road to Serfdom (1944), p. 78.
24. Kelsen's highly formal analysis of the problem of contradictory
norms does submit, offer any aid at all to the legislator seeking to
not, I

avoid contradictions or to the judge seeking to resolve them. General

Theory of Law and State (1945), pp. 374-75 et passim; see index entry
"Non-contradiction, principle of." Nor is much to be gained from Ben-
tham's discussion of "repugnancies." Everett, Bentham's Limits of Jurispru-
dence Defined (1945), pp. 195-98.

65
THE MORALITY OF LAW
owner to install new license plates on January first; the other
makes it a crime to perform any labor on that date. Here there
seems to be a violation of the law of identity; an act cannot be
both forbidden and commanded same time. But is there
at the

any violation of logic in making a man do something and then

punishing him for it? We may certainly say of this procedure
that it makes no judgment we are
sense, but in passing this
tacitly assuming the objective of giving a meaningful direction
to human effort. A man who is habitually punished for doing
what he was ordered to do can hardly be expected to respond
appropriately to orders given him in the future. If our treat-
ment of him is part of an attempt to build up a system of rules
for the governance of his conduct, then we shall fail in that at-
tempt. On the other hand if our object is to cause him to have
a nervous breakdown, we may succeed. But in neither event will
we have trespassed against logic.
One of the accepted principles for dealing with apparent con-
tradictions in the law is to see whether there is any way of
reconciling the seemingly inconsistent provisions. Pursuant to
this principle a court might hit upon the idea of finding the man
who installed his plates on New Year's Day and
guilty of a crime
of then remitting his punishment because he worked under the
compulsion of a statute. This seems a rather labored solution,
but stranger procedures have been adopted in the history of the
law. At one time in canonical law there was a principle according
to which any promise made under oath was binding and another
principle according to which certain kinds of promises, such as
those extorted or usurious, imposed no obligation. What should
the courts do then in the case of a usurious promise under oath?
The solution was to order the promisor to render performance
to the promisee and then immediately to compel the promisee
to return what he had just received. 25 There may even have been
a certain symbolic value in this curious procedure. By first en-
forcing the contract the court would dramatize the rule that men
25. Rudolph von Jhering, Geist des romischen Rechts, II 2 (6th and 7th
ed. 1923), §45, p. 491.

66
 THE MORALITY THAT MAKES LAW POSSIBLE
are bound by promises under oath, and then by undoing its de-
cree, the court would remind the promisee of what his overreach-
ing had cost him.
Assuming that the court confronted with the New Year's Day
statute would see no value in convicting the defendant and then
remitting his fine, it might adopt one of two interpretations of
the statute: (1) that the section making work on New Year's Day
a crime overrides the provision concerning license plates, so that
the automobile owner may lawfully postpone installing his plates
until January second; or (2) that the provision concerning license
plates overrides the work prohibition, so that the owner must
install his plates on the first, but commits no crime in doing so.
A less obvious, but much better solution would be to combine
these interpretations, so that the owner who installs his plates on
the first violates no law, while the owner who postpones providing
his car with new plates until the second is equally within the law.
This solution would recognize that the basic problem presented °*

by the statute is that it gives a confused direction to the citizen ^uSK

so that he ought to be allowed to resolve that confusion in either -
way without injuring himself.
It will be well to consider another "self-contradictory" statute
— this time as presented in an actual decision. In United States v.

Cardiff the president of a company manufacturing food had been

convicted of the crime of refusing to permit a federal inspector
to enter his factory to determine whether it was complying with
the Federal Food, Drug, and Cosmetic Act. 26 Section 704 of that
Act defines the conditions under which an inspector may enter
a factory; one of these conditions is that he first obtain the per-
mission of the owner. Section 331 makes it a crime for the owner
of the factory to refuse "to permit entry or inspection as au-
thorized by section 704." The Act seems, then, to say that the
inspector has a right to enter the factory but that the owner
has a right to keep him out by refusing permission. There is,
however, a very simple way of removing this apparent contra-

26. 344 U.S. 174 (1952).

67
 —

THE MORALITY OF LAW

diction. This would be to interpret the Act to mean that the
owner Act if after granting his consent that the in-
violates the
spector should enter, he then refuses entry. That this would
make his liability depend on his own voluntary act is no anomaly;
a man doesn't have to make a promise, but if he does, he may
on himself by doing so.
fasten a liability
The Supreme Court considered this interpretation but refused
to accept it. The trouble with it is not that it is lacking in logic,
but that it does not correspond to any sensible legislative pur-
pose. It is understandable that Congress might wish to insure
that the inspector be able to enter the factory over the owner's
protest. It is not understandable that it should limit the inspec-
tor's right to enter to the improbable case of an eccentric factory
owner who might first grant permission and then shut the door.
Sense could be made of the statute by construing the requirement
that the inspector first secure permission as relating to the normal
courtesies affecting a convenient time and date, though the lan-
guage counts against this The Supreme Court
interpretation.
held that the clash of the two provisions produced a result too
ambiguous to give adequate warning of the nature of the crime;
the Court therefore set the conviction aside.
So far this discussion has related to contradictions as they arise
within the frame of a single enactment. More difficult problems
can be presented when a statute enacted, say, in 1963 is found
to conflict with the provisions of a quite distinct statute passed
in 1953. Here the solution sanctioned by usage is to regard as
impliedly repealed any provisions in the earlier statute incon-
sistent with the later enactment, the consecrated maxim being
lex posterior derogat priori. 21
But in some cases an apter way of
dealing with the problem might be to follow the principle now

on interpretation Lord Ellesmere laid down the

27. In an early treatise
rule that where repugnancies arise within a single statute the first provision
— that is, the provision that comes first in the reading order of the text
should control. Thorne, A Discourse upon the Statutes (1942), pp. 132-33.
One wonders what the basis for this curious view could have been. Was it
perhaps an assumption that legislative draftsmen characteristically become
weary and less attentive as they near the end of their task?

68
 THE MORALITY THAT MAKES LAW POSSIBLE
applied where contradictions arise within the frame of a single
statute, that is, by effecting a reciprocal adjustment between the
two statutes, interpreting each in the light of the other. This
solution would, however, involve its own difficulties. One would
be to know where to stop, for the courts might easily find them-
selvesembarked on the perilous adventure of attempting to re-
make the entire body of our statutory law into a more coherent
whole. The reinterpretation of old statutes in the light of new
would also present embarrassing problems of retrospective legis-
lation. I shall not attempt to pursue these issues. Enough has
been intimated, however, to convey one clear lesson: legislative
carelessness about the jibe of statutes with one another can be
very hurtful to legality and there is no simple rule by which to
undo the damage.
It has been suggested that instead of speaking of "contradic-
tions" in legal and moral argument we ought to speak of "in-
compatibilities," 28 —
of things that do not go together or do not go
together well. Another term, a great favorite in the history of the
common law, is useful here. This is the word "repugnant." It is

especially apt because what we call contradictory laws are laws

that fight each other, though without necessarily killing one an-
other off as contradictory statements are assumed to do in logic.
Another good term that has fallen into disuse is the word "in-
convenient" in its original sense. The inconvenient law was one
that did not fit or jibe with other laws. (Cf. modern French, con-
venir, to agree or come together.)
It should be apparent from the analysis presented here that to
determine when two rules of human conduct are incompatible
we must often take into account a host of considerations extrinsic
to the language of the rules themselves. At one time in history
the command, "Cross this river, but don't get wet," contained a
repugnancy. Since the invention of bridges and boats this is no
longer true. If today I tell a man to jump in the air, but to keep
his feet in contact with the ground, my order seems self-contra-
Perelman and Olbrechts-Tyteca, La Nouvelle Rhetorique
28. — Traite
de V Argumentation (1958), pp. 262-76.

/ 69
THE MORALITY OF LAW
dictory simply because we assume there is no way open to him
to take the ground along with him in his leap. The context that
must be taken into account in determining the issue of incompati-
bility is, of course, not merely or even chiefly technological, for
it includes the whole institutional setting of the problem — legal,
moral, political, economic, and sociological. To test this asser-
tion one may suppose that the New Year's Day statute required
the installation of license plates, on that day, but in another sec-
an excise tax of one dollar on any person performing
tion levied
work on that day. It would be instructive to reflect how one
would go about demonstrating that these provisions are "repug-
nant" and that their inclusion in a single statute must have been
the result of legislative oversight.

Laws Requiring the Impossible

On the face of it a law commanding the impossible seems such
an absurdity that one is tempted to suppose no sane lawmaker,
not even the most evil dictator, would have any reason to enact
such a law. 29 Unfortunately the facts of life run counter to this
assumption. Such a law can serve what Lilburne called "a law-

29. The question may be raised at this point whether most of the other
desiderata that make up the internal morality of the law are not also ul-
timately concerned with the possibility of obedience. There is no question
that the matter may be viewed in this light. Just as it is impossible to obey
a law that requires one to become ten feet tall, so it is also impossible to
obey a law that cannot be known, that is unintelligible, that has not yet
been enacted, etc. But in justification for the separation effected in the text
it should be observed that my concern is not to engage in an exercise in

logical entailment, but to develop principles for the guidance of purposive

human effort. The logician may, if he wishes, view a law that contradicts
itself as a special case of the impossibility of observance, though in adopt-
ing this view he may, as I have indicated, find it difficult to define what he
means by a "contradiction." From the standpoint of the lawmaker, in any
event, there is an essential difference between the precautions he must take
to keep his enactments consistent with one another and those he must take
to be sure that the requirements of the law lie within the powers of those
subject to them. Essential differences of this sort would be obscured by any
attempt to telescope everything under the head of "impossibility of obedi-
ence."

70
 THE MORALITY THAT MAKES LAW POSSIBLE
less unlimited power" by its very absurdity; its brutal pointless-
ness may let the subject know that there is. nothing that may not
be demanded of him and that he should keep himself ieady to
jump in any direction.
The technique of demanding the impossible is subject to more
subtle and sometimes even to beneficent exploitation. The good
teacher often demands of his pupils more than he thinks they
are capable of giving. He does this with the quite laudable motive
of stretching their capacities. Unfortunately in many human con-
texts the line can become blurred between vigorous exhortation
and imposed duty. The legislator is thus easily misled into be-
lieving his role is like that of the teacher. He forgets that the
teacher whose pupils fail what he asked of them can,
to achieve
without insincerity or self-contradiction, congratulate them on
what they did in fact accomplish. In a similar situation the
government official faces the alternative of doing serious injustice
or of diluting respect for law by himself winking at a departure
from its demands.
The principle that the law should not demand the impossible
of the subject may be pressed toward a quixotic extreme in which
it ends by demanding the impossible of the legislator. It is some-

times assumed that no form of legal liability can be justified un-

less it rests either on (1) an intent to do a harmful act, or (2) some
fault or neglect. If a man is held accountable for a condition of
affairs for —
which he was not to blame either because he inten-
tionally brought it about or because it occurred through some
neglect on his part —
then he has ascribed to him responsibility
for an occurrence that lay beyond his powers. When the law is
interpreted to reach such a result it in effect holds a man for
violating a command, "This must not happen," which it was
impossible for him to obey.
The air of reasonableness that surrounds this conclusion ob-
scures the true extent of what it demands. With respect
actually
to the proof of fault, for example, the law faces an insoluble
dilemma. If we apply to a particular defendant an objective stan-
—
dard traditionally that of "the reasonable man" —we obviously

71
THE MORALITY OF LAW
run the risk of imposing on him requirements he is incapable of
meeting, for his education and native capacities may not bring
this standard within his reach. Ifwe take the opposite course
and attempt to ask whether the man before us, with all his indi-
vidual limitations and quirks, fell short of what he ought to have
achieved, we enter upon a hazardous inquiry in which all capacity
for objective judgment may be lost. This inquiry requires a sym-
pathetic identification with the life of another. Obviously differ-
ences of class, race, religion, age, and culture may obstruct or
distort that identification. The result is that though an aloof
justice bound at times to be harsh, an intimate justice, seeking
is

to explore and grasp the boundaries of a private world, cannot

in the nature of things be evenhanded. The law knows no magic
that will enable it to transcend this antinomy. It is, therefore,
condemned to tread an uncertain miiddle course, tempering the
standard of the reasonable man in favor of certain obvious de-
ficiencies, but formalizing even its definitions of these.
The difficulties just described, it may be
because a said, arise
determination of fault involves what moral judg-
is essentially a
ment. In contrast, determining the intention with which an act
was done seems to require only an inquiry of fact. But, again the
reality is more complex. If intention is a fact, it is a private fact
inferred from outward manifestations. There are times when
the inference is relatively easy. Holmes once remarked that even
a dog knows the difference between being stumbled over and
being kicked. But at times the intention required by the law is
a highly specific one, as where criminal penalties are made de-
pendent upon proof that the defendant knowingly violated the
law. This sort of provision is sometimes found in complex eco-
nomic regulations, purpose being to avoid the injustice of
its

punishing a man for doing an act which may on its face have
seemed quite innocent. From my own observation it is often
a question whether in this case the cure is not worse than the
disease. The required intent is so little susceptible of definite proof
or disproof that the trier of fact is almost inevitably driven to
asking, "Does he look like the kind who would stick by the rules
 THE MORALITY THAT MAKES LAW POSSIBLE
or one who would cheat on them when he saw a chance?" This
question, unfortunately, leads easily into another, "Does he look
like my kind?"3°
These, then, are the difficulties encountered when, in order
to keep the law within the citizen's capacity for obedience, his
liability is limited to cases where fault or wrongful intent can be

demonstrated. There are, however, numerous instances in our

law of legal liability that is explicitly made independent of any
proof of fault or intent.
One rather pervasive form of a liability of this sort presents no
serious problem for the law's inner morality. A lunatic, let us
suppose, steals my purse. His mental condition may be such that
it is impossible for him to understand or to obey the laws of
private property. This circumstance furnishes a good reason for
not sending him to jail, but it offers no reason at all for letting
him keep my purse. I am entitled under the law to get my purse
back, and he is, in this sense, under a legal liability to return it,

even though he acted without

in taking it faultand without any
intention of doing wrong. Another case illustrating the same
principle arises when in a settlement of accounts a debtor over-
pays his creditor, both acting innocently and sharing the same
mistaken belief as to what is due. Here the creditor is compelled
to return the overpayment, though his receipt of it was in no sense

a wrongful act.

A considerable body of law has to do with preventing or

rectifying the unjust enrichment that may come about when men
act inadvertently, or under mistake, or without the ordinary ca-

30. In this connection attention should be called to an article, "The

Modern Conception of Animus," 19 Green Bag 12-33 (1906), by Brooks
Adams, brother of Henry and grandson of John Quincy. In this article
Adams presents an ingenious and curiously Marxist argument that the
ruling classes have always manipulated in their own interest the definition
of intent (animus) required for particular crimes or torts. Adams also
seeks to demonstrate that a similar manipulation has been worked on the
rules of evidence that determine what suffices to prove or disprove the
required intent. Though its main thesis is at times more ingenious than
convincing, the article is worth reading for its demonstration of the diffi-
culties of proof involved where liability is made to depend on intent.

73
 THE MORALITY OF LAW
pacity to comprehend the nature of their acts. Some of this law
explicitly assigned to quasi contracts; the rest of makes its

— —
is it

presence as an influence often a silent influence in the

«\ felt

law of contracts and torts. Analysis has been confused, both in

the common law and in the Roman law, by the fact that actions
formally classified as "delictual" or as "sounding in tort" have
been used tc rectify the unjust enrichment of one party at the
expense of another in situations where any wrongdoing by the
defendant is quite immaterial.
The existence of a body of law having to do with the rectifica-
tion of inadvertencies may seem to suggest an objection to the
analysis presented in these essays. Law has here been considered
as "the enterprise of subjecting human conduct to the governance
of rules." Yet when men act under mistake or through inadver-
tence they obviously do not and cannot pattern their actions after
the law; no one studies the law of quasi contracts to learn what
he should do in moments when he does not quite know what
he is doing. The solution of this difficulty is fairly obvious. To
preserve the integrity of a system of legal relations set by adver-
tence there is need for a supplementary system of rules for heal-
ing the effects of inadvertence. There is here a close parallel to the
problem of retrospective laws. A system of law composed exclu-
sively of retrospective rules could exist only as a grotesque con-
ceit worthy of Lewis Carroll or Franz Kafka. Yet a retrospective
"curative" statute can perform a useful function in dealing with
mishaps that may occur within a system of rules that are generally
prospective. 31 So it is with the rules that cure the effects of in-
advertence. If everything happened through inadvertence, there
would be no way even of conceiving of the problem of correcting
inadvertence. Rules designed for that purpose derive not only
their justification, but their very meaning from their function as
an adjunct to a larger system of rules intended to be taken as a
guide for conduct.
The principle of rectifying the unjust enrichment that results
from inadvertence cannot, however, explain all the instances

31. See pp. 53-54, supra.

74
 THE MORALITY THAT MAKES LAW POSSIBLE
where legal liability arises without fault or intent. There exists,

in fact, a very considerable body of law concerned with imposing

a strict or absolute liability for harms resulting from certain forms
of activity. Thus, blasting operations may be attended by an ac-
countability for all harm that may result to others even though

no intent to harm or any neglect of proper precautions can be

demonstrated. 32 In cases like this the law decrees, in the con-
secrated phrase, that "men act at their peril."
Strict liability of this sort is most readily justified by the eco-
nomic principle that the foreseeable social costs of an enterprise
ought to be reflected in the private costs of conducting that enter-
prise. Thus, the dangers inherent in a blasting operation are such
that no amount of care or foresight can prevent occasional un-
intended injury to persons or property. If the highway contractor

who blasts a cut through a hillside is held accountable only for

demonstrated fault, his incentive to accomplish his excavations
by a safer means reduced. His economic calculations, in other
is

words, are and the price of this falsification is borne by

falsified

the public. To rectify this situation we impose on his blasting

operations a kind of tax in the form of a rule that he must respond
for any damage that results from these operations, whether or
not they can be attributed to any negligence on his part.
The analogy of a tax is useful in clarifying the relation between
a strict liability of this sort and the internal morality of law. We
do not view a general sales tax as ordering men not to sell goods;
we consider that it merely imposes a kind of surcharge on the act
of selling. So we should not view the special rule about blasting
operations as commanding the man using explosives never to
cause any damage, however innocently. Rather we should regard
the rule as attaching a special liability to entry upon a certain
line of conduct. What the internal morality of law demands of a
rule of strict liability is not that it cease commanding the im-
possible, but that it define as clearly as possible the kind of
activity that carries a special surcharge of legal responsibility.
The principle that enterprises creating special risks ought to

32. American Law Institute, Restatement of Torts (1938), §519, "Mis-

carriage of Ultrahazardous Activities Carefully Carried On."

75
 THE MORALITY OF LAW

#
bear the cost of the injuries resulting from their operation is

capable of a very considerable expansion. In some countries, for

\^ example, the principle has been extended to the operation of
automobiles, including those used for pleasure or private con-
venience. It is a kind of cliche that there exists today "a general
trend" toward strict liability. It seems, indeed, often to be as-
sumed that this trend is carrying us remorselessly toward a fu-
\^ \^ure in which the concepts of fault and intent will cease to play

^^ P art m * e
v

v\^
aw *
'

^^
\ \
we can be reasonably
c
I think sure that no such future lies

«
ahead of us. If strict liability were to attend, not certain specified
\\ f6hns of activity, but all activities, the conception of a causal
connection between the act and the resulting injury would be
,

jjfc^ost A poet writes a sad poem. A rejected lover reads it and is

\tL/^ so depressed that he commits suicide. Who "caused" the loss

of his life? Was it the poet, or the lady who jilted the deceased,
or perhaps the teacher who aroused his interest in poetry? A
man in a drunken rage shoots his wife. Who among those con-
cerned with this event share the responsibility for its occurrence
— the killer himself, the man who lent the gun to him, the liquor
dealer who provided the gin, or was it perhaps the friend who
dissuaded him from securing a divorce that would have ended
an unhappy alliance?
Some inkling of the nature of this sort of problem we can get
from the difficulties encountered in administering those forms of
strict liability we already have. One such liability is that imposed

by the Workmen's Compensation Laws. Obviously some causal

connection must be established between the employee's job and
the illness or injury to be compensated. The phrase used in the
statutes is that the injury or illness must "arise out of and in the
course of the employment." The interpretation of this clause has
given rise to a most unsatisfactory and often bizarre body of law.
To see what a universal application of strict liability would in-
volve we ne?d only ask how we would apply a rule that required

^M&m?
only that the plaintiff's loss or injury should "arise out of" the
defendant's conduct. 1/ .hf
..IV. \rf
76
 THE MORALITY THAT MAKES LAW POSSIBLE
The account just given of the problem of strict civil liability
is by no means exhaustive. Some forms of such liability exist

that are not readily explained on the grounds examined here.

There are also numerous instances of uncertain or mixed legis-
lative motives, one common supplementary justification for rules
of strict accountability being, for example, that they tend to in-
sure due care more effectively than rules making liability turn
explicitly on proof that due care was lacking. Some instances of
strict liability are probably to be regarded as anomalies, result-
ing either from analytical confusion or historical accident. Then,
too, the line between strict liability andfounded on fault
liability

is often obscured by presumptions of fault, some of those being

quite stiff in the sense that they impose a heavy burden on those
who seek to rebut them. Finally, it should be recalled that con-
tractual liability is generally "strict"; though certain catastrophic
and unexpected interferences with performance may excuse, it

is generally not a defense for the defaulting contractor to plead

that he did his best. It scarcely requires demonstration that this
last form of strict liability presents no problem for the internal
morality of law; the law ought not itself to impose an impossible

burden on a man, but it is not bound to protect him from con-

tractually assuming responsibility for an occurrence that lies be-
yond his powers.
We come now to the most serious infringement of the principle
that the law should not command the impossible. This lies in
laws creating a strict criminal liability —laws under which a man
may be found guilty of a crime though he acted with due care
and with an innocent intent. In modern times the most generous
use of such laws has been in the field of economic, health, and
safety regulations, though it is not uncommon also to impose a
strict criminal liability in areas having to do with the possession
of narcotics, gambling apparatus, and prohibited liquors.
Strict criminal liability has never achieved respectability in our
law. Wherever laws imposing such a liability have been enacted
they have called forth protests and a defense that seldom goes
beyond apologizing for an assumed necessity. There is, however,

77
 THE MORALITY OF LAW
no mystery about the reason for their continued and perhaps
expanding appearance in modern legislation: they serve mightily
the convenience of the prosecutor. Their apparent injustice, he
is likely to assure us, is removed by "selective enforcement."
(ji Though theoretically such laws are a trap for the innocent, it is

only the real villains who are pursued in practice. As for them,
their being brought to justice is greatly facilitated because the
government in making out its case is relieved from having to
prove intent or fault, a particularly difficult task when compli-
cated regulatory measures are involved. When absolute liability
is coupled with drastic penalties — as it often is —the position of
the prosecutor is further improved. Usually he will not have to
take the case to trial at all; the threat of imprisonment or a heavy
fine is enough to induce a plea of guilty, or—where this is au-
thorized —a settlement out of court. Drastic penalties also en-
hance the public relations of the agencies of enforcement. The
innocent stumbler who knows that he could have been found
guilty is deeply grateful when he is let off and therefore saved
from being branded as a criminal. He promises in all sincerity to
be more intelligently cooperative in the future.
The conveniences of what has been called "jawbone enforce-
ment"— might be less charitably called "enforcement by black-
mail"—became widely known during
it

World
the hectic days of
War when overworked administrators of complex economic
II,

regulations had to find some way of simplifying their task. The

continued use of this device should be a source of concern to
I
everyone who likes to think of fidelity to law as respect for duly
.enacted rules, rather than as a readiness to settle quietly any claim
may be made by the agencies of law enforcement. Fortunate-
influential and persuasive voices have recently been raised
against tfiis evil and the other abuses that go with strict criminal
liability? 3

33. Hall, General Principles of Criminal Law (2d ed. 1960), Chapter X,
pp. 325-59; Hart, "The Aims of Criminal Law," 23 Law & Contemporary
Problems 401-41 (1958); The American Law Institute, Model Penal Code,
V Proposed Official Draft (1962), Sections 1.04(5), 2.01-2.13.
 THE MORALITY THAT MAKES LAW POSSIBLE
Before leaving the subject of laws commanding the impossible,
two further observations need to be made. One is simply and
obviously to the effect that no hard and fast line can be drawn
between extreme difficulty and impossibility. A rule that asks
somewhat too much can be harsh and unfair, but it need not
contradict the basic purpose of a legal order, as does a rule that
demands what is patently impossible. Between the two is an
indeterminate area in which the internal and external moralities
of law meet.
My final observation is that our notions of what is in fact im-
possible may be determined by presuppositions about the nature
of man and the universe, presuppositions that are subject to his-
torical change. Today opposition to laws purporting to compel
religious or political beliefs is rested on the ground that such
laws constitute an unwarranted interference with individual
liberty. Thomas Jefferson took a different view. In the original
draft of the Preamble to the Virginia Statute of Religious Free-
dom he condemned such laws as attempting to compel the im-
possible:

Well aware that the opinions and beliefs of men depend

not upon their own will, but follow involuntarily the evi-
dence proposed to their minds . . ,
34

One may raise the question whether there is not in this con-
ception a profounder respect both for truth and for human powers
than there is in our own.

Constancy of the Law through Time

Of the principles that make up the internal morality of the law,

that which demands that laws should not be changed too fre-
quently seems least suited to formalization in a constitutional
example, a constitutional
restriction. It is difficult to imagine, for
convention unwise enough to resolve that no law should be

34. Boyd, The Papers of Thomas Jefferson, II, 545.

79
THE MORALITY OF LAW
changed more often than, say, once a year. Restrictions on retro-
active legislation, on the other hand, have been a favorite among
constitution makers. 85 Yet there is a close affinity between the
harms done by retrospective legislation and those resulting from
too frequent changes in the law. Both follow from what may be
called legislative inconstancy. It is interesting to note that Madi-
son, when he sought to defend the provisions in the Constitution
prohibiting ex post facto laws and laws impairing the obligation
of contract, used language more apt for describing the evil of
frequent change than that resulting from retroactive laws:

The sober people of America are weary of the fluctuating

policy which has directed the public councils. They have
seen with regret and indignation that sudden changes and
legislative interferences . . . become . . . snares to the more-
industrious and less-informed part of the community. They
have seen, too, that one legislative interference is but the
first link of a long chain of repetitions. 36

The affinity between the problems raised by too frequent or

sudden changes in the law and those raised by retrospective legis-
lation receives recognition in the decisions of the Supreme Court.
The evil of the retrospective law arises because men may have
acted upon the previous state of the law and the actions thus
taken may be frustrated or made unexpectedly burdensome by a
backward looking But sometimes
alteration in their legal effect.
an action taken in reliance on the previous law can be undone,
provided some warning is given of the impending change and
the change itself does not become effective so swiftly that an in-
sufficient time is left for adjustment to the new state of the law.
Thus the Court has said:

well settled that [statutes of limitations] may be modified

it is

by shortening the time prescribed, but only if this is done

while the time is still running, and so that a reasonable time

35. See notes 10 and 11, supra pp. 51-52.

36. The Federalist, No. 44.

80
 THE MORALITY THAT MAKES LAW POSSIBLE
still remains for the commencement of an action before the
bar takes effect. 37

Congruence between Official Action and Declared Rule

We arrive finally at the most complex of all the desiderata that

make up the internal morality of the law: congruence between
official action and the law. This congruence may be destroyed
or impaired in a great variety of ways: mistaken interpretation,
inaccessibility of the law, lack of insight into what is required to
maintain the integrity of a legal system, bribery, prejudice, in-
difference, stupidity, and the drive toward personal power.
Just as the threats toward this congruence are manifold, so
the procedural devices designed to maintain it take, of necessity,
a variety of forms. We may count here most of the elements of
"procedural due process," such as the right to representation by
counsel and the right of cross-examining adverse witnesses. We
may also include as being in part directed toward the same ob-
jective habeas corpus and the right to appeal an adverse decision
to a higher tribunal. Even the question of "standing" to raise con-
stitutional issues is relevant in this connection; haphazard and
fluctuating principles concerning this matter can produce a
broken and arbitrary pattern of correspondence between the
Constitution and its realization in practice.
In this country it is chiefly to the judiciary that is entrusted the
task of preventing a discrepancy between the law as declared and
as actually administered. This allocation of function has the ad-
vantage of placing the responsibility in practiced hands, sub-
jecting its discharge to public scrutiny, and dramatizing the in-
There are, however, serious disadvantages in
tegrity of the law.
any system that looks solely to the courts as a bulwark against
the lawless administration of the law.It makes the correction of

abuses dependent upon the willingness and financial ability of

the affected party to take his case to litigation. It has proved

37. Ochoa v. Hernandez y Morales, 230 U.S. !39, at pp. 161-^2 (1913). X?
*>\\Un
 —
THE MORALITY OF LAW
relatively ineffective in controlling lawless conduct by the police,
this evil being in fact compounded by the tendency of lower
courts to identify their mission with that of maintaining the
morale of the police force. For an effective control of police law-
lessness much can be said for some overseeing agency, like the
Scandinavian ombudsman, capable of acting promptly and flexi-
bly on informal complaints.
is judge-made it may be said that,
In those areas where the law
though the essential congruence between law and official action
can be impaired by lower courts, it cannot be impaired by the
supreme court since it makes the law. The supreme court of a
jurisdiction, it may seem, cannot be out of step since it calls the
tune. But the tune called may be quite undanceable by anyone,
including the tune-caller. All of the influences that can produce
a lack of congruence between judicial action and statutory law
can, when the itself makes the law, produce equally damag-
court
ing departures from other principles of legality: a failure to articu-
late reasonably clear general rules and an inconstancy in decision
manifesting itself in contradictory rulings, frequent changes of
direction, and retrospective changes in the law.
The most subtle element in the task of maintaining congruence
between law and official action lies, of course, in the problem of
interpretation. Legality requires that judges and other officials
apply statutory law, not according to their fancy or with crabbed
literalness, but in accordance with principles of interpretation
that are appropriate to their position in the whole legal order.
What are those principles? The best short answer I know dates
back to 1584 when the Barons of the Exchequer met to consider
- a difficult problem of interpretation in Hey don's Case:

And it was resolved by them, that for the sure and true
interpretation of all statutes in general (be they penal or
beneficial, restrictive or enlarging of the common law,) four
things are to be discerned and considered:
1st. What was the common law before the making of the

r
 THE MORALITY THAT MAKES LAW POSSIBLE

2nd. What was the mischief and defect for which the
common law did not provide.
3rd. What remedy the Parliament hath resolved and ap-
pointed to cure the disease of the commonwealth.
And, 4th. The true reason of the remedy; and then the
office of all the Judges is always to make such construction
as shall suppress the mischief, and advance the remedy. 38

If any criticism can be made of this analysis, it is that it should

have included a fifth point to be "discerned and considered,"

which might read somewhat as follows: "How would those who
must guide themselves by its words reasonably understand the
intent of the Act, for the law must not become a snare for those
who cannot know the reasons of it as fully as do the Judges."

Keeping before us the central truth of the Resolution in

Heydon's Case, namely, that to understand a law you must under-
stand "the disease of the commonwealth"
it was appointed to

problem of interpretation of the

cure, will enable us to clear the
confusions that have typically beclouded it. Some of these have
a specious air of common sense about them that has conferred
on them an undeserved longevity. This is particularly true of the
thought contained in the following passage from Gray:

Interpretation is generally spoken of as if its chief func-

tion was what the meaning of the Legislature
to discover
really was. But when a Legislature has had a real intention,
one way or another, on a point, it is not once in a hundred
times that any doubt arises as to what its intention was
. . . The fact is that the difficulties of so-called interpretation

38. 3 Co. Rep. 7a. It is apparent that in the passage quoted the word
"mischief" used in a sense no longer current. As used in Heydon's Case
is

it was in fact a close cousin to two other words that were then great favor-

ites: "repugnancy" and "inconvenience." All of these terms described a

situation where things did not fit together, chunks of chaos not yet reduced
through human effort to reasoned order.
It should perhaps also be suggested that since the report of the Resolu-
tion is by Coke, it is possible that he reports what the Barons ought to have
resolved rather than what they did in fact think and say.

83
THE MORALITY OF LAW
arise when the Legislature has had no meaning at all; when
the question which is raised on the statute never occurred
to it . . . [In such cases] when the judges are professing to
declare what the Legislature meant, they are in truth, them-
selves legislating to fill up casus omissi.™

Now it is, of course, true that occasionally in the drafting of a

statute some likely situation is one
entirely forgotten, so that
may imagine the draftsman saying something like "Oops!" when
this oversight is called to his attention.But cases of this sort are
far from typical of the problems of interpretation. More com-
monly the statute turns out to be blunt and incomplete rather
than so directed as to miss an obvious target.
Underlying Gray's view is an atomistic conception of inten-
tion, coupled with what may be called a pointer theory of mean-
ing. This view conceives the mind to be directed toward individual

things, rather than toward general ideas, toward distinct situations

of fact rather than toward some significance in human affairs
that these situations may share. If this view were taken seriously,
then we would have to regard the intention of the draftsman of
a statute directed against "dangerous weapons" as being directed
toward an endless series of individual objects: revolvers, auto-
matic pistols, daggers, Bowie knives, etc. If a court applies the
statute to a weapon its draftsman had not thought of, then it
would be "legislating," not "interpreting," as even more obviously
it would be if it were to apply the statute to a weapon not yet

invented when the statute was passed. 40

This atomistic view of intention exercises, directly and in-
directly, so much influence on theories of interpretation that it
becomes essential to set explicitly off against it a truer view of
the problem. To that end let me suggest an analogy. An inventor

39. The Nature and Sources of the Law (2d ed. 1921), pp. 172-73.
40. The "atomistic" view of intention described in the text is related to,
and may be regarded as an expression of, philosophic nominalism. I have
dealt with the influence of this view on the movement known as legal
realism in my article, "American Legal Realism," 82 University of Pennsyl-
vania Law Review 429, 443-47 (1934).

84
 THE MORALITY THAT MAKES LAW POSSIBLE
of useful household devices dies leaving the pencil sketch of an
invention on which he was working at the time of his death. On
his deathbed he requests his son to continue work on the inven-
tion, though he dies without having had a chance to tell the son
what purpose the invention was to serve or anything about his
own plans for completing it. In carrying out his father's wish the
son's first would be to decide what the purpose of the pro-
step
jected invention was, what defect or insufficiency of existing de-
vices it was intended to remedy. He would then try to grasp the
underlying principle of the projected invention, the "true reason
of theremedy" in the language of Heydon's Case. With these
problems solved he would then proceed to work out what was
essential to complete the design for the projected device.
Let us now ask of the son's action questions of the sort com-
monly asked concerning the interpretation of statutes. Was the
son faithful to his father's intention? If we mean, "Did he carry
out an intention the father had actually formed concerning the
manner of completing the design?" why, of course, the question
is quite unanswerable forwe do not know whether the father had
any such intention, and if so, what it was. If we mean, "Did he
remain within the framework set by the father, accepting the
father's conception of a need for the projected device and his
father's general approach to the problem of supplying that need?"
then the answer, on the facts supposed, is yes. If the son were
able to call on his father's spirit for help, the chances are that
this help would take the form of collaborating with the son in
the solution of a problem the father had left unsolved. So it is
usually with difficult problems of interpretation. If the draftsman
of a statute were called into direct consultation, he would normal-
ly have to proceed in the same manner as the judge by asking

such questions as the following: Does this case fall within the
mischief which the statute sought to remedy? Does it fall within
the "true reason of theremedy" appointed by the statute, that is,
is remedy apt for dealing with this particular
the prescribed
manifestation of the general mischief at which the statute was
aimed?

85
THE MORALITY OF LAW
The analogy of the incomplete invention may also be helpful
in clarifying an obscurity that runs through the vocabulary of
interpretation. We tend to think of intention as a phenomenon of
individual psychology, though what we are interpreting is a cor-
porate act. Thus we ask after the intention of "the legislator,"
though we know there no such being. At other times we speak
is

of the intention of "the legislature," though we know that those

who voted for a statute often do so with a variety of views as to
its meaning and often with no real understanding of its terms.

Moving closer to individual psychology we may speak of the in-

tention of "the draftsman." But again we are in trouble. There
may be a number of draftsmen, acting at different times and
without any common understanding as to the exact purpose
sought. Furthermore, any private and uncommunicated inten-
tion of the draftsman of a statute is properly regarded as legally
irrelevant to its proper interpretation. 41 Let us turn to the analogy
of the incomplete invention to see offers any aid in this im-
if it

passe. It is clear that the son may

working out his problem
in
find it helpful to put himself, as it were, in the frame of his
father's thinking, recalling his modes of thought and his char-
acteristic ways of solving problems. Yet it is also plain that this
procedure may neither be essential nor helpful. Indeed, if the
incomplete design came from the hand of some quite unknown
inventor the son's task might not be essentially changed. He
would look to the diagram itself to see what purpose was to be
served by the invention and what general principle or principles
underlay the projected design. We could speak in such a case of
"the intention of the design." This might involve a metaphor but
it is at least a useful one that does not misdescribe the nature of

41. Speaking of the Statute of Frauds, Lord Nottingham said in Ash v.

Abdy, 3Swanston 664 (1678), "I had some reason to know the meaning of
this law; for it had its first rise from me." Cf. "If Lord Nottingham drew it,
he was the less qualified to construe it, the author of an act considering
more what he privately intended than the meaning he has expressed."
Campbell's Lives of the Lord Chancellors of England, 3 (3d ed. 1848),
423 n.

86
 THE MORALITY THAT MAKES LAW POSSIBLE
the son's task. So in speaking of legislative intention I think it

would be better if we spoke of "the intention of the statute,"

just as Mansfield in dealing with contractual intention once spoke
of "the intent of the transaction." 42
Fidelity to enacted law is often identified with a passive and
purely receptive attitude on the part of the judge. If he acts
"creatively," must be that he is going beyond his assignment
it

as an interpreter. Those who prefer judge-made law to statutes

are apt to welcome this departure and rejoice to see the judge
apparently make so much from so little. On the other hand, those
who distrust judicial power are apt to discern in any creative role
an abandonment of principle and a reaching for personal power.
When issue is joined in these terms the whole problem is mis-
conceived. In the case of the incomplete invention when the son
assumed a creative role he did not, for that act alone, deserve
either praise or blame. He was simply meeting the demands of
his assignment by doing what he had to do to carry out his
father's wish. The time for praise or blame would come when we
could survey what he had accomplished in this inescapably crea-
tive role. So it is with judges.

It may be objected that the analogy that has been exploited

here is misleading. A statute, it may be said, does not serve a

purpose as simple and as easily defined as, for example, that of

a vacuum cleaner. The social mischief it seeks to remedy is often
subtle and complex, its very existence being perceptible only to
those holding certain value judgments. Again, the remedy which
a statute appoints for curing "a disease of the commonwealth"
is not like a shaft connecting one mechanism with another. Often
the legislature has to choose among a wide range of possible
remedies, some providing a very oblique kind of cure for the de-
fect sought to be corrected.
All this may be conceded and yet I suggest that it is precisely
at this point of apparent default that the figure of the incomplete
invention becomes most useful. Some obscurity concerning the

42. Kingston v. Preston, 2 Douglas 689 (1773).

87
THE MORALITY OF LAW
mischief sought to be remedied by a statute can be tolerated. But
if this obscurity exceeds a certain crucial point, then no virtuos-
ity in draftsmanship nor skill in interpretation can make a mean-
ingful thing of a statute afflicted with it. Again, some looseness
of thought about the connection between the remedy and the
defect it is appointed to cure does not inevitably vitiate a statute.
But if this connection is fundamentally misconceived, then all

possibility of coherent interpretation is lost. To suppose other-

wise would be like assuming that an invention basically mistaken
in conception could be rescued by being incorporated in a neat
blueprint.
Let me give an historic example of a statutory provision that
was by a fundamental defect in its design. I refer to
vitiated
Paragraph 5 of Section 4 of the Statute of Frauds, passed in 1677.
Section 4 of the Statute was predicated on the assumption that
certain kinds of contracts ought not to be legally enforceable un-
less proof of their existence was backed by a signed document.
On the other hand, it was thought unwise to extend so stringent

a requirement to all contracts, some of which ought to be legally

valid though expressed orally. Accordingly, the draftsmen faced
the necessity of deciding what kinds of contracts ought to be
required to be in writing and what kinds could safely be left to
oral expression. One such decision was incorporated in the fol-
lowing language: "no action shall be brought ... (5) upon any
agreement that is not to be performed within the space of one
year from the making thereof; unless the agreement upon which
such action shall be brought shall be in writing, and signed
. . .

by the party to be charged therewith."

It is probably safe to say that few statutory enactments have

given rise to so many discordant and bizarre interpretations as

the words just quoted. What went wrong? The statute is ex-
pressed in simple, straightforward English. The mischief aimed
at seems fairly obvious. It is also fairly easy to see why the drafts-
men should select, as especially needing the security of written
evidence, contracts scheduled to run over a considerable period
of time; in Holt's words, "the design of the statute was, not to

88
 THE MORALITY THAT MAKES LAW POSSIBLE
trust to the memory of witnesses for a longer time than one
year."-**
Difficulty arose because the draftsmen had simply not thought
through the relation between the mischief and the remedy they
appointed to cure it. In the first place it is clear that there is no
direct relation between the time when a witness will be called
to testify and the time required to perform the contract; a con-
tract might be scheduled for completion within one month and
yet first come into proof in court two years later. Furthermore,
the draftsmen failed to ask themselves what the courts should
do with the very common case of contracts as to which it is im-
possible to say in advance how much time their performance
will require, such as contracts to employ a man for life or to pay
a monthly sum to him until he is cured of an illness. By imagining
unexpected events that accelerate or postpone performance this
class of contracts can be greatly expanded. In a case coming up
for decision shortly after the Statutewas passed it was suggested
that the validity of the contract should depend on the actual
course of events. 44 If it turned out that performance came due
within a year, the oral contract was valid; if not, then the con-
tract was unenforceable. But this solution was never accepted
and could not be. Parties need to know from the outset, or at
least as soon as trouble develops, whether or not they have a
contract. To make the existence of a binding contract depend
upon later events would invite all kinds of jockeying for position
and produce the greatest imaginable confusion. In short, the
courts were confronted with a statute which simply could not be
applied in a way to carry out the loosely conceived intention of
its draftsmen. The British finally found in 1954 the only cure for

this situation: outright repeal of the section in question. We still

reach for the solution to a puzzle that has no solution.

My second instance of fundamentally misconceived legisla-
tion is more modern by nearly three centuries. It concerns a
statute which suffers from the defect that it is impossible to define
43. Smith v. Westfall, 1 Lord Raymond 317 (1697).
44. See the case cited in the last note.

89
 —
THE MORALITY OF LAW
in any clear terms just what mischief it was intended to cure.
With the repeal of prohibition Americans highly resolved "to
prevent the return of the old saloon." What did this mean? The
old saloon was a complex thing, combining architectural, atmo-
spheric, artistic, commercial, legal, and sociological aspects. It
was highly improbable that it would, or even could, return in
its old form after an absence of fifteen years during which funda-

mental social changes took place. Still, to make assurance doubly

sure was thought in many states "there ought to be a law."
it

How do you legislate against a thing like "the old saloon"?

Well, the old saloon had swinging doors; let it therefore be made
illegal to serve drinks behind anything that may fairly be called
swinging doors. In the old saloon the patrons stood up to their
it therefore be decreed that they must now sit down
drinks; let
though surely as an original proposition there is much reason for
assuming that the cause of temperance would be advanced by
requiring the drinkers to stand during their imbibitions. You
could not buy a meal in the old saloon, though you might be
given one for nothing. Let us create something of the atmosphere
of a family restaurant in the new saloon by imposing a legal
requirement that it serve meals. But this must not be carried too
would be grossly unfair to require the thirsty customer to
far. It

buy food before he could be served a drink. Let the legal require-
ment be, then, that the new saloon be prepared to serve food to
any who may order it, however few they may be among its
patrons.
The primary responsibility for administering this allopathic
concoction of rules was of course vested, not with the prosecutor,
but with the licensing authority.Can anyone imagine deriving
any sense of useful social function from serving on such an
authority? Is it any wonder that this area of regulation is no-
torious for inefficiencyand corruption? Even if a conscientious
bureaucrat could be found who would consider his life filled with
mission if he were simply allowed to enforce rules, however
senseless, the problem would still not be solved. There would re-
main insoluble problems of interpretation, in deciding, for ex-

90
 THE MORALITY THAT MAKES LAW POSSIBLE
ample, what constitutes being adequately prepared to serve a
meal to a diner who never comes.
At this point our discussion of the problem of interpretation
must be broken off. It is too richly textured a subject to be ex-
hausted by any one analogy or metaphor. Its demands depend so
much on context that illustrative cases can serve only to disclose
general principles, but cannot convey the nuances that attend
the application of those principles to particular branches of the
law. With all its subtleties, the problem of interpretation occupies
a sensitive, central position in the internal morality of the law.
It reveals, as no other problem can, the cooperative nature of

the task of maintaining legality. If the interpreting agent is to

preserve a sense of useful mission, the legislature must not im-
pose on him senseless tasks. If the legislative draftsman is to
discharge his responsibilities he, in turn, must be able to antici-
pate rational and relatively stable modes of interpretation. This
reciprocal dependence permeates in less immediately obvious
ways the whole legal order. No single concentration of intelli-
gence, insight, and good will, however strategically located, can
insure the success of the enterprise of subjecting human conduct
to the governance of rules.

Legality as a Practical Art

To the lengthy analysis just concluded some final observations

should be added concerning practical applications of the princi-
ples of legality.
First, a warning about the word "law" is in order. In 1941

there was added Annotated Laws of Massachusetts (Ch. 2,

to the
§9) a provision to the effect that the chickadee should be the
Official Bird of theCommonwealth. Now it is apparent that the
public weal would have suffered no serious setback if this law
had been kept secret from the public and made retroactive to
the landing of the Mayflower. Indeed, if we call by the name of
law any official act of a legislative body, then there may be cir-
cumstances under which the full details of a law must be kept

91
 THE MORALITY OF LAW
secret. Such a case might arise where a legislative appropriation
was made to finance research into some new military weapon.
It is always unfortunate when any act of government must be

concealed from the public and thus shielded from public criticism.
But there are times when we must bow to grim necessity. The
Constitution itself in Article V provides that each "house shall
keep a journal of its proceedings, and from time to time publish
the same, excepting such parts as may in their judgment require
secrecy." All of this has very relevance, however, to the
little

laws that are the subject under discussion. 45 I can conceive, for
example, of no emergency that would justify withholding from
the public knowledge of a law creating a new crime or changing
the requirements for making a valid will.
Secondly, infringements of legal morality tend to become
cumulative. A neglect of clarity, consistency, or publicity may
beget the necessity for retroactive laws. Too frequent changes
in the law may nullify the benefits of formal, but slow-moving
procedures for making the law known. Carelessness about keep-
ing the laws possible of obedience may engender the need for a
discretionary enforcement which in turn impairs the congruence
between official action and enacted rule.
Thirdly, to the extent that the law merely brings to explicit

A^ expression conceptions of right and wrong widely shared in the

community, the need that enacted law be publicized and clearly
5 * 3*^ diminishes m importance. So also with the problem of
\V^ Va^
»A5rO retroactivity; where law is largely a reflection of extralegal moral-
Y^Ar, ity, what appears in form as retrospective legislation may in sub-

stance represent merely the confirmation of views already widely

held, or in process of development toward the rule finally en-
acted. When toward the end of the sixteenth century the English
courts finally gave legal sanction to the executory bilateral con-
tract they only caught up with commercial practice by allowing

45. A discussion of some problems of publicity as they affect govern-

mental action other than the passage of laws in the usual sense will be
found in my article, "Governmental Secrecy and the Forms of Social
Order," in 2 Nomos ("Community") 256-68 (1959).

92
 THE MORALITY THAT MAKES LAW POSSIBLE
parties to do directly what they had previously been compelled
to achieve by indirection.
Fourthly, the stringency with which the eight desiderata as a
whole should be applied, as well as their priority of ranking among
themselves, will be affected by the branch of law in question, as
well as by the kinds of legal rules that are under consideration.
Thus, it is generally more important that a man have a clear
warning of his legal duties than that he should know precisely
what unpleasantness will attend a breach; a retroactive statute
creating a new crime is thoroughly objectionable, a similar statute
lengthening the term of imprisonment for an existing crime is
less so. A familiar distinction between rules of law is that which
distinguishes rules imposing duties from rules conferring legal
capacities. Both sorts of rules are affected in some measure by
all eight of the demands of legal morality. At the same time, rules
granting and defining legal powers seldom have any counterpart
in the practices of everyday life —shaking hands on a deal has
never been accepted as an adequate legal formality. Hence as
to rules defining legal powers the requirements of publicity and
clarity are apt to be especially demanding. Contrariwise, con-
ferring retroactive validity on what was under existing law a
vain attempt to exercise a legal power will often be seen as ad-
vancing the cause of legality by preventing a confusion of legal
rights.

Fifthly and finally, it should be recalled that in our detailed

analysis of each of the demands of legal morality we have general-
ly taken the viewpoint of a conscientious legislator, eager to
understand the nature of his responsibility and willing to face its

difficulties. This emphasis on nuances and difficult problems

should not make us forget that not all cases are hard. Each of
the demands of can be outraged in ways that leave no
legality
doubt. Caligula, for example, is said to have respected the tradi-
tion that the laws of Rome be posted in a public place, but saw
to it that his own laws were in such fine print and hung so high
that no one could read them.
The paradox that a subject can be at once so easy and so

93
THE MORALITY OF LAW
difficult may be illumined by a figure from Aristotle. In his
Ethics Aristotle raises the question whether it is easy to deal
justly with others. He observes that it might seem that it would
be, for there are certain established rules of just dealing that can
be learned without difficulty. The application of a simple rule
ought itself to be simple. But this is not so, Aristotle says, in-
voking at this point a favorite analogy, that of medicine: "It is

an easy matter to know the effects of honey, wine, hellebore,

cautery and cutting. But to know how, for whom, and when we
should apply these as remedies is no less an undertaking than
being a physician." 46
So we in turn may say: It is easy to see that laws should be
clearly expressed in general rules that are prospective in effect
and made known to the citizen. But to know how, under what
circumstances, and in what balance these things should be
achieved is no less an undertaking than being a lawgiver.

46. Nichomachean Ethics, Book V, 1137a.

94
 •v
THE CONCEPT
III
OF LAW

As ideas of what law is for are so largely implicit in ideas of what law is,
a brief survey of ideas of the nature of law will be useful.
. . . Roscoe —
Pound

Das Vergessen der Absichten ist die hdufigste Dummheit, die gemacht
wird. —Friedrich Nietzsche

The purpose of the present chapter is to put the analysis pre-

sented in my second chapter into its proper relation with pre-
vailing theories of and about law. This task is taken up, not
primarily to vindicate what I have said against the opposing

views of others, but by way of a further clarification of what has

so far been said here. While I agree that a book on legal theory
ought not to be merely "a book from which one learns what
other books contain," 1 the fact remains that what one has learned
from other books (sometimes indirectly and without having read
them) acts as a prism through which any new analysis is viewed.
Some setting off of one's own views against those deeply en-

1. Hart, The Concept of Law (1961), viii.

95
THE MORALITY OF LAW
trenched in the vocabulary and thought of one's subject is an
essential part of exposition.

Legal Morality and Natural Law

Proceeding with that exposition, then, the first task is to relate

what I have called the internal morality of the law to the ages-old
tradition of natural Jaw. Do the principles expounded in my
second chapter represent some variety of natural law? The answer
is an emphatic, though qualified, yes.

What I have tried to do is to discern and articulate the natural

laws of a particular kind of human undertaking, which I have
human conduct to the
described as "the enterprise of subjecting
governance of rules." These natural laws have nothing to do
with any "brooding omnipresence in the skies." Nor have they
the slightest affinity with any such proposition as that the prac-
tice of contraception is They remain
a violation of God's law.
entirely terrestrial in origin and application. They are not "higher"
laws; if any metaphor of elevation is appropriate they should be
called "lower" laws. They are like the natural laws of carpentry,
who wants the
or at least those laws respected by a carpenter
house he builds to remain standing and serve the purpose of
those who live in it.

Though these natural laws touch one of the most vital of hu-
man activities they obviously do not exhaust the whole of man's
moral life. They have nothing
to say on such topics as polygamy,
the study of Marx, the worship of God, the progressive income
tax, or the subjugation of women. If the question be raised
whether any of these subjects, or others like them, should be
taken as objects of legislation, that question relates to what I have
called the external morality of law.
As a convenient (though not wholly satisfactory) way of de-
scribing the distinction being taken we may speak of a pro-
cedural, as distinguished from a substantive natural law. What
I have called the internal morality of law is in this sense a pro-
cedural version of natural law, though to avoid misunderstanding

96
 THE CONCEPT OF LAW
theword "procedural" should be assigned a special and expanded
sense so thatit would include, for example, a substantive accord

between official action and enacted law. The term "procedural"

is, however, broadly appropriate as indicating that we are con-
cerned, not with the substantive aims of legal rules, but with the
ways in which a system of rules for governing human conduct
must be constructed and administered if it is to be efficacious
and at the same time remain what it purports to be.
In the actual history of legal and political thinking what as-
sociation do we find between the principles I have expounded
in my second chapter and the doctrine of natural law? Do those
principles form an integral part of the natural law tradition? Are
they invariably rejected by the positivist thinkers who oppose
that tradition? No simple answer to these questions is possible.
With the positivists certainly no clear pattern emerges. Austin
defined law as the command of a political superior. Yet he in-
sisted that "laws properly so-called" were general rules and that
"occasional or particular commands" were not law. 2 Bentham,
who exploited his colorful vocabulary in castigating the law of
nature, was at all times concerned with certain aspects of what
I have called the internal morality of law. Indeed, he seemed
almost obsessed with the need to make the laws accessible to
those subject to them. On the other hand, in more recent times
Gray has treated the question whether law ought to take the form
of general rules as a matter of "little importance practically,"
though admitting that specific and isolated exercises of legal
power do not make a fit subject for jurisprudence. 3 For Somlo
retroactive laws might be condemned as unfair, but in no sense
are to be regarded as violating any general premise underlying
the concept of law itself. 4

2. See note
3. ibid.
6,
T
Chapter 2, p. 49.
re
"Es kann somit bloss ein Rechtsinhaltsprinzip sein, das die riick-
4.
wirkende Kraft von Rechtsnormen ausschliesst, nicht ein Voraussetzungs- >

prinzip." Juristische Grundlehre (2d ed. 1927), p. 302. See'alSO note 13,
Chapter 2, supra p. 52. \ .

97
THE MORALITY OF LAW
With respect to thinkers associated with the natural law tradi-
tion it is none of them would display the casual-
safe to say that
ness of a Gray or Somlo toward the demands of legal morality.
On the other hand, their chief concern is with what I have called
substantive natural law, with the proper ends to be sought through
legal rules. When they treat of the demands of legal morality it

is, I believe, usually in an incidental way, though occasionally

one aspect of the subject will receive considerable elaboration.
Aquinas is probably typical in this respect. Concerning the need
for general rules (as contrasted with a case-by-case decision of
controversies) he develops a surprisingly elaborate demonstra-
tion, including an argument that wise men being always in short
supply it is a matter of economic prudence to spread their talents
by putting them to work to draft general rules which lesser men
can then apply. 5 On the other hand, in explaining why Isidore
required laws to be "clearly expressed" he contents himself with
saying that this is desirable to prevent "any harm ensuing from
the law itself." 6
With writers of all philosophic persuasions it is, I believe, true
to say that when they deal with problems of legal morality it is

generally in a casual and incidental way. The reason for this is

not far to seek. Men do not generally see any need to explain
or to justify the obvious. It is likely that nearly every legal phi-
losopher of any consequence in the history of ideas has had oc-
casion to declare that laws ought to be published so that those
subject to them can know what they are. Few have felt called
upon expand the argument for this proposition or to bring
to
it within the cover of any more inclusive theory.

From one point of view it is unfortunate that the demands

of legal morality should generally seem so obvious. This ap-
pearance has obscured subtleties and has misled men into the
belief that no painstaking analysis of the subject is necessary or
even possible. When it is asserted, for example, that the law
ought not to contradict itself, there seems nothing more to say.

5. Summa Theologica, Pt. I— II, ques. 95, Art 1.

6. Ibid., Art. 3.

98
 THE CONCEPT OF LAW
Yet, as I have tried to show, in some situations the principle
against contradiction can become one of the most difficult to
apply of those which make up the internal morality of the law. 7
To the generalization that in the history of political and legal
thought the principles of legality have received a casual and
incidental treatment —such as befits the self-evident — there is

one significant exception. This lies in a literature that arose in

England during the seventeenth century, a century of remon-
strances, impeachments, plots and civil war, a period during
which existing institutions underwent a fundamental reexamina-
tion.
to this period that scholars trace the "natural law founda-
—
It is

tions" of the American Constitution. Its literature curiously

embodied chiefly in the two extremes of anonymous pamphlets
—
and judicial utterances was intensely and almost entirely con-
cerned with problems I have regarded as those of the internal
morality of law. spoke of repugnancies, of laws impossible to
It

be obeyed, of parliaments walking contrary to their own laws

before they have repealed them. Two representative samples of
this literatureappear at the head of my second chapter. 8 But
the most famous pronouncement to come down from that great
period is that of Coke in Dr. Bonham's Case.
Henry VIII had given to the Royal College of Physicians (in
a grant later confirmed by Parliament) broad powers to license
and regulate the practice of medicine in London. The College
was granted the right to try offenses against its regulations and
to impose fines and imprisonments. In the case of a fine, one half
was to go to the King, the other half to the College itself. Thomas
Bonham, a doctor of medicine of the University of Cambridge,
undertook the practice of medicine in London without the certif-
icate of the Royal College. He was tried by the College, fined
and later imprisoned. He brought suit for false imprisonment.

Supra pp. 65-70.

7.
Supra p. 33. A splendid account of this literature will be found in
8.
Gough, Fundamental Law in English Constitutional History (1954); (re-
printed with minor changes, 1961).

99
THE MORALITY OF LAW
In the course of Coke's judgment upholding Bonham's cause,
this famous passage appears:

The censors [of the Royal College] cannot be judges,

ministers and parties; judges to give sentence or judgment;
ministers to make summons; and parties to have the moiety
of the forfeiture, quia aliquis non debet esse Judes in propria
causa, imo iniquum est aliquem suae rai esse judicem; and
one cannot be Judge and attorney for any of the parties.
. .And it appears in our books, that in many cases, the
.

common law will controul Acts of Parliament, and some-

times adjudge them to be utterly void: for when an Act of
Parliament is against common right and reason, or re-
pugnant, or impossible to be performed, the common law
will controul it, and adjudge such Act to be void. 9

Today this pronouncement is often regarded as the quintes-

sence of the natural law point of view. Yet notice how heavily it

emphasizes procedures and institutional practices. Indeed, there

is only one passage that can be said to relate to substantive Tight-
ness or justice, that speaking of parliamentary acts "against com-
mon and reason." Yet by "common right" Coke may very
right
well have had in mind rights acquired through the law and then
taken away by law, the kind of problem, in other words, often
presented by retrospective legislation. It may seem odd to speak
of repugnant statutes in a context chiefly concerned with the im-
propriety of a man's acting as judge in his own cause. Yet for
Coke there was here a close association of ideas. Just as legal
rules can be repugnant to one another, so institutions can be
repugnant. Coke and his associates on the bench strove to create
an atmosphere of impartiality in the judiciary, in which it would
be unthinkable that a judge, say, of Common Pleas should sit in

8 Rep. 118a (1610). For an interesting analysis of the relevance

9.
thisfamous passage had for the actual decision of the lawsuit brought by
Dr. Bonham, see Thome, "Dr. Bonham's Case," 54 Law Quarterly Review
543-52 (1938).

100
 —
THE CONCEPT OF LAW
judgment of his own case. Then came the King and Parliament
sticking an ugly, incongruous finger into this effort, creating a
"court" of physicians for judging infringements of their own
monopoly and collecting half the fines for themselves. When
Coke associated this legislative indecency with repugnancy he
was not simply expressing his distaste for it; he meant that it
contradicted essential purposive efforts moving in an opposite
direction.
The view, common among modern scholars, that in the quoted
passage Coke betrays a naive faith in natural law, tells us little

that will help us understand the intellectual climate of the seven-

teenth century. It tells us a great deal about our own age, an age
that in some moods at least thinks itself capable of believing that
no appeal to man's nature, or to the nature of things, can ever
be more than a cover for subjective preference, and that under
the rubric "subjective preference" must be listed indifferently
propositions as far apart as that laws ought to be clearly ex-
is one that makes the citizen
pressed and that the only just tax
pay the exact equivalent of what he himself receives from
government.
Those who actually created our republic and its Constitution
were much closer in their thinking to the age of Coke than they
are to ours. They, too, were concerned to avoid repugnancies in
their institutions and to see to it that those institutions should
suit the nature of man. Hamilton rejected the "political heresy"
of the poet who wrote:

For forms of government let fools contest

That which is best administered is best. 10

In supporting the power of the judiciary to declare acts of

Congress unconstitutional Hamilton pointed out that the judiciary
can never be entirely passive toward legislation; even in the ab-
sence of a written constitution judges are compelled, for example,
to develop some rule for dealing with contradictory enactments,

10. The Federalist, No. 68.

101
 THE MORALITY OF LAW
this rule being derived not "from any positive law, but from the
nature and reason of the thing." 11
A continuing debate in this country relates to the question
whether in interpreting the Constitution the courts should be
influenced by considerations drawn from "natural law." 12 I sug-
gest that this debate might contribute more to a clarification of
issues if a distinction were taken between a natural law of sub-
stantive ends and a natural law concerned with procedures and
should be confessed, however, that the term "nat-
institutions. It
ural law" has been so misused on all sides that it is difficult to
recapture a dispassionate attitude toward it.
What is perfectly clear is that many of the provisions of the
Constitution have the quality have described as that of being
I

blunt and incomplete. 13 This means that in one way or another

their meaning must be filled out. Surely those whose fate in any
degree hinges on the creative act of interpretation by which this
meaning is supplied, as well as those who face the responsibility
of the interpretation itself, must wish that it should proceed on
the most secure footing that can be obtained, that it should be

grounded insofar as possible in the necessities of democratic gov-

ernment and of human nature itself.
I suggest that this ideal lies most nearly within our reach in

V the area of constitutional law concerned with what I have called

Aj^ x
the internal morality of the law. Within this area, interpretation
> J\ <*ean often depart widely from the explicit words of the Constitu-
\ ' \Jk tion and yet rest secure in the conviction that it is faithful to an
.

Afffi intention implicit in the whole structure of our government. There

)^J is, for example, no explicit prohibition in the Constitution of

vague or obscure legislation. Yet I doubt if anyone could regard

?J as a judicial usurpation the holding that a criminal statute vio-

lates "due process of law" if it fails to give a reasonably clear

Xy 11. Ibid., No. 78.

^ 12.Within the Court itself the debate was initiated by an exchange be-
tween Justices Black and Frankfurter in A damson v. California, 332 U.S.
46(1947).
13. P. 84, supra.

102
 THE CONCEPT OF LAW
description of the act it prohibits. 14 When one reflects on the
problems of drafting a constitution the justification for this hold-
ing becomes obvious. If an express provision directed against
vague laws were included in the Constitution, some standard,
explicit or tacit, would have to determine what degree of ob-
scurity should vitiate. This standard would have to run in quite
general terms. Starting with the premise that law governs and
judges men's actions by general rules, any criminal statute ought
to be sufficiently clear to serve the double purpose of giving to
the citizen an adequate warning of the nature of the act pro-
hibited and of providing adequate guidelines for adjudication in
accordance with law. If one wished to summarize all this in a

phrase, it would be hard to find a better expression than "due

process of law."
The Constitution invalidates any "law impairing the obligation
of contracts." Yet the courts have held that a law unduly en- . *
t/
hancing the obligation of existing contracts may be equally ob- ^\(£?}
jectionable and therefore unconstitutional. 15 This seems a sur-^ vf
'

prising result but it rests on a secure constitutional basis. The

context of the impairment clause makes it clear that it was re- /K/!y
garded as one of several manifestations of the general evil of ^*^$f/>
retrospective legislation, the draftsmen having refrained (wisely » f
in view of the difficulty of the task) from attempting any compre-
hensive measure covering the subject. When we judge the im-
pairment clause against the background of its general purpose, it

becomes plain that the same objection that applies to laws re-
ducing the obligations of existing contracts may equally apply
to laws enlarging those obligations. In assuming the risks in-
herent in a contractual engagement, a man may properly take
into account what the existing law prescribes as his obligation in
case of default. If that law is then radically changed to his dis-
favor, the legislature has broken faith with him.
In these last remarks I may seem to be assigning contradictory

See the references in note 21, Chapter 2, p. 63, supra.

14.
15. The
cases are discussed in Hale, "The Supreme Court and the Con-
tracts Clause," 57 Harvard Law Review 512, 514-16 (1944).

103
 THE MORALITY OF LAW
qualities to the internal morality of the law. I have suggested that
this morality lends itself awkwardly to formulation in a written
constitution. I have at the same time asserted that in dealing
with questions touching the internal morality of the law judicial
interpretation can proceed with an unusual degree of confidence
in its objectivity, and this despite the fragmentary and inadequate
constitutional expressions on which it must build. How can a
task so difficult for the draftsman that he must leave his job
half-done be thought to provide relatively firm guidelines for
judicial interpretation?

^
The answer to this question has, I think, already been given,
thoughin somewhat unfamiliar terms. I have described the in-
ternal morality of law as being chiefly a morality of aspiration,
rather than of duty. 16 Though this morality may be viewed as
made up of separate —
demands or "desiderata" I have discerned
eight —these do not lend themselves to anything like separate and
categorical statement. 17 All of them are means toward a single
end, and under varying circumstances the optimum marshalling
of these means may change. Thus an inadvertent departure from
one desideratum may require a compensating departure from
another; this is the case where a failure to give adequate publicity
to a new requirement of form may demand for its cure a retro-
spective statute. 18 At other times, a neglect of one desideratum
may throw an added burden on another; thus, where laws change
frequently, the requirement of publicity becomes increasingly
stringent. In other words, under varying circumstances the ele-
ments of legality must be combined and recombined in accord-
ance with something like an economic calculation that will suit
them to the instant case.
These considerations seem to me to lead to the conclusion that
it is within the constitutional area I have designated as that of the

law's internal morality that the institution of judicial review is

both most needed and most effective. Wherever the choice is

16. See pp. 42-44, supra.

17. See pp. 42-46, supra, et passim in the second chapter.
18. See p. 92, supra.

104
 —
THE CONCEPT OF LAW
reasonably open to it, the court ought to remain within this area.

Robinson v. California™ is, 1 submit, a case where the Supreme

Court quite plainly took the wrong turn. As the majority viewed
the issues in that case the question presented was whether a
statutemight constitutionally make the state or condition of being
a drug addict a crime punishable by six months' imprisonment. It
was assumed as a scientific fact that this condition might come
about innocently. The Court held that the statute violated the
Eighth Amendment by imposing a "cruel and unusual punish-
ment."
Surely it is plain that being sent to jail for six months would
not normally be regarded as "cruel and unusual punishment"
a phrase that calls to mind at once the whipping post and the
ducking stool. In attempting to meet this objection the Court
argued that in deciding whether a given punishment was cruel

and unusual one had to take into account the nature of the of-
fense for which it was imposed. Thus the Court needlessly took
on its shoulders a general responsibility — surely oppressive, even
if it has been described as sublime — for making the punishment
fit the crime.
This excursion into substantive justice was, I submit, quite
unnecessary. We
have an express constitutional prohibition of
ex post facto criminal laws, and a well-established rule of con-
stitutional law that a statutory definition of crime must meet
certain minimum
standards of clarity. Both of these restraints
on freedom proceed on the assumption that the crimi-
legislative
nal law ought to be presented to the citizen in such a form that he
can mold his conduct by it, that he can, in short, obe.y it. Being
innocently in a state or condition of drug addiction cannot be
construed as an act, and certainly not as an act of disobedience.
Bringing the decision in Robinson v. California within the tra-
ditional confines of due process would certainly have presented
no greater difficulty than would be presented by a case, say,
where a criminal statute was kept secret by the legislature until

19. 370 U.S. 660 (1962).

105
THE MORALITY OF LAW
an indictment was brought under it. (It should be recalled that
our Constitution has no express requirement that laws be pub-
lished.)

Legal Morality and the Concept of Positive Law

Our next task is to bring the view of law implicit in these chapters
into proper relation with current definitions of positive law.
its

The only formula that might be called a definition of law offered

in these writings by now thoroughly familiar: law is the enter-
is

prise of subjecting human conduct to the governance of rules.

Unlike most modern theories of law, this view treats law as an
activity and regards a legal system as the product of a sustained
purposive effort. Let us compare the implications of such a view
with others that might be opposed to it.
The first such theory I shall consider is one that in mood and
emphasis stands at the opposite pole from these chapters and yet,
paradoxically, advances a thesis that is easily reconciled with my
own. This is Holmes' famous predictive theory of law: "The
prophecies of what the courts will do in fact, and nothing more
pretentious, are what I mean by law." 20
Now clearly the ability to prophesy presupposes order of some
sort. The predictive theory of law must therefore assume some

constancy in the influences that determine what "the courts will

do in fact." Holmes chose to abstract from any study of these
influences, concentrating his attention on the cutting edge of the
law.
He himself explained that he made this abstraction in order
to effect a sharp distinction between law and morality. But he
could think he had succeeded in this objective only by refraining
from any attempt to describe the actual process of prediction
itself. If we are to predict intelligently what the courts will do

in fact, we must ask what they are trying to do. We must indeed
go further and participate vicariously in the whole purposive ef-
20. "The Path of the Law," 10 Harvard Law Review 457-78, at p. 461
(1897).

106
 .

THE CONCEPT OF LAW

fort that goes into creating and maintaining a system for directing
human conduct by rules. If we are to understand that effort, we
must understand that many of its characteristic problems are
moral in nature. Thus, we need to put ourselves in the place of the
judge faced with a statute extremely vague in its operative terms
yet disclosing clearly enough in its preamble an objective the
judge considers plainly unwise. We need to share the anguish of
the weary legislative draftsman who at 2:00 A.M. says to himself,
"I know this has got to be right and if it isn't people may be

hauled into court for things we don't mean to cover at all. But
how long must I go on rewriting it?"

A concentration on the order imposed by law in abstraction

from the purposive effort that goes into creating it is by no means
a peculiarity of Holmes' predictive theory. Professor Friedmann,
for example, in an attempt to offer a neutral concept of law that
will not import into the notion of law itself any particular ideal

of substantive justice, proposes the following definition:

the rule of law simply means the "existence of public order."

Itmeans organized government, operating through the vari-
ous instruments and channels of legal command. In this
sense, all modern societies live under the rule of law, fascist
as well as socialist and liberal states. 21

Now it is plain that a semblance of "public order" can be

created by lawless terror, which may serve to keep people off
the streets andhomes. Obviously, Friedmann does not
in their
have this sort of order in mind, for he speaks of "organized
government, operating through the various instruments and
channels of legal command." But beyond this vague intimation
of the kind of order he has in mind he says nothing. He plainly
indicates, however, a conviction that, considered just "as law,"
the law of Nazi Germany was as much law as that of any other
nation. This proposition, I need not say, is completely at odds
with the analysis presented here.

21. Law and Social Change ( 1 95 1 ), p. 28 1

107
 THE MORALITY OF LAW
Most theories of law either explicitly assert, or tacitly assume,
\\
that a distinguishingmark of law consists in the use of coercion
or force. That distinguishing mark is not recognized in this
volume. In this respect the concept of law I have defended con-
tradicts the following definition, proposed by an anthropologist
seeking to identify the distinctive "legal" element among the
various forms of social order that make up a primitive society:
J
*?

for working purposes law may be defined in these terms:

A social norm is legal if its neglect or infraction is regularly
met, in threat or in by the application of physical force
fact,

by an individual or group possessing the socially recognized

privilege of so acting. 22

The notion that its authorization to use physical force can

serve to identify lawand to distinguish it from other social phe-
nomena is a very common one in modern writings. In my opinion
it has done great harm to clarity of thought about the functions

performed by law. It will be well to ask how this identification

came about.
In the first place, given the facts of human nature, it is per-
fectly obvious that a system of legal rules may lose its efficacy
if it permits itself to be challenged by lawless violence. Sometimes
violence can only be restrained by violence. Hence it is quite
predictable that there must normally be in society some mecha-
nism ready to apply force in support of law in case it is needed.
But this in no sense justifies treating the use or potential use of
force as the identifying characteristic of law. Modern science
depends heavily upon the use of measuring and testing apparatus;
without such apparatus it could not have achieved what it has.
But no one would conclude on this account that science should
be defined as the use of apparatus for measuring and testing. So
it is with law. What law must foreseeably do to achieve its aims

is something quite different from law itself.

There is another factor tending toward an identification of

22. Hoebel, The Law of Primitive Man (1954), p. 28.

108
 THE CONCEPT OF LAW
law with force. It is precisely when the legal system itself takes
up weapons of violence that we impose on it the most stringent
requirements of due process. In civilized nations it is in criminal 1

u
cases that we are most exigent in the demand for guarantees that
the law remain faithful to itself. Thus, that branch of law most
closely identified with force is which we associate most
also that
closely with formality, ritual, and solemn due process. This
identification has a particular relevance to primitive society, where
the first steps toward a legal order are likely to be directed
toward preventing or healing outbreaks of private violence.
These considerations explain, but do not justify, the modern
tendency to see physical force as the identifying mark of law.
Let us test this identification with a hypothetical case. A nation
admits foreign traders within its borders only on condition that
they deposit a substantial sum of money in the national bank
guaranteeing their observance of a body of law specially ap-
plicable to their activities. This body of law is administered with
integrity and, in case of dispute, is interpreted and applied by
special courts. If an infraction is established the state pursuant
to court order levies a fine in the form of a deduction from the
trader's deposit. No force, but a mere bookkeeping operation, is
required to accomplish this deduction; no force is available to
the trader that could preventit. Surely ITwouTd be perverse to

deny the term "law" to such a system merely because it had no

occasion to use force or the threat of force to effectuate its re-
quirements. We might, however, quite properly refuse to call it a
system of law were determined that its published rules and
if it

robed judges were a mere facade for what was in fact a lawless
act of confiscation.
The considerations implicit in this illustration relieve us, I

think, from having to explore in any detail a further question:

Just what is meant by force when it is taken as the identifying
mark of law? If in a theocratic society the threat of hell-fire
suffices to secure obedience to its laws, is this "a threat of force"?
If so, then force begins to take on a new meaning and simply
indicates that a legal system, to be properly called such, has to

109
THE MORALITY OF LAW
achieve some minimum efficacy in practical affairs, whatever the
basis of that efficacy — a proposition both unobjectionable and
quite unexciting.
In most theories of law the element of force is closely associ-
ated with the notion of a formal hierarchy of command or au-
thority. In the passage quoted from Hoebel this association was
absent because, as an anthropologist, Hoebel was concerned with
primitive law, where any clearly defined hierarchic ordering of
authority is generally lacking. Since the emergence of the na-
tional state,however, a long line of legal philosophers running
from Hobbes through Austin to Kelsen and Somlo have seen the
essence of law in a pyramidal structure of state power. This view
abstracts from the purposive activity necessary to create and
maintain a system of legal rules, contenting itself with a descrip-
tion of the institutional framework within which this activity is

assumed to take place.

Legal philosophy has paid a heavy price for this abstraction.
Within the school accepting it many disputes are left without
any intelligible principle for resolving them. Take, for example,
the argument whether "law" includes only rules of some general-
ity, or should be regarded as embracing also "particular or oc-
casional commands." Some say that law implies generality of
some deny this. Those who agree on the necessity
sort, others
for generality disagree on the proper way of defining it; does it
require a class of acts, a class of persons, or both? 23 The whole
argument, resting merely on affirmation and counteraffirmation,
ends in a blind alley. I suggest that this debate is without intel-
ligible content unless one starts with the obvious truth that the
citizen cannot orient his conduct by law if what is called law
confronts him merely with a series of sporadic and patteraless
exercises of state power.
If we ask what purpose is served by the conception of law as
a hierarchy of command, the answer may be that this conception
represents the legal expression of the political national state. A
23. See note 6, Chapter 2, p. 49.

110
 THE CONCEPT OF LAW
less vague and, I believe, jusier answer would be to say that it
expresses a concern with the problem of resolving conflicts within
the legal system. Indeed, one may say that it converts one princi-
ple of the internal morality of law — that condemning contradic-
tory laws — into an absolute to the neglect of all others. With

Kelsen and Somlo this concentration on internal coherence be-

comes explicit as a fundamental element of their theories. 24
Certainly it is desirable that unresolved contradictions within a
system should be avoided or should be subject to resolution
legal
when they arise. But viewing the matter without precommitment,
what reason can there be for any preference between a legal sys-
tem that is full of contradictions and one in which the rules are
so vague it is impossible to know whether they contradict one
another or not?
It may be answered that common sense and a concern to make
his measures effective will ordinarily lead the legislator to make
his laws reasonably clear, whereas contradictions among the rules
applied by the various agencies of government constitute a peren-
nial problem. Before accepting this answer we should certainly
reflect on the very real temptations a government may have to
make its laws vague. But more fundamentally the whole issue is

misconceived when, instead of clarifying our problems and seek-

ing apt solutions, we attempt to foreclose our difficulties by
definitional fiat. It is all very well to define law in such a way
that it cannot be self-contradictory because in theory there is al-

ways a higher instance that can resolve disputes on a lower level.

But this leaves the practical problems of contradiction untouched,
particularly that of clarifying what in close cases shall be re-
garded as being a contradiction. Though Kelsen and Somlo make
much of the problem of resolving contradictions, so far as I can
determine neither ever discusses a single problem of the sort
likely to cause difficulties in actual practice. Instead the whole
discussion deals with such abstractions as that "it is logically

24. See Kelsen, General Theory of Law and State (1945), pp. 401-04 and
index entry "Non-contradiction, principle of"; Somlo, Juristische Grund-
lehre (2d ed. 1927), index entry "Widerspriiche des Rechts."

Ill
THE MORALITY OF LAW
impossible to assert both 'A ought to be' and 'A ought not to
"
be' 25 —
a proposition certainly not likely to help a judge strug-
gling with a statute that inone section seems to say Mr. A ought
to pay a tax and in another that heis exempt from it. Nor would

a judge faced with such a statute derive much assistance from

Somlo's principle that where there is a "real," as contrasted with
an "apparent," contradiction the opposing rules should be re-
garded as canceling one another. 26
Even if we could solve all the problems of contradiction by a
definition, it is by no means clear that a neatly defined hierarchy
of authority is always the best way of resolving conflicts within
a legal system. In discussing what the law is when the lower
courts disagree, Gray presupposes a and gives
judicial hierarchy
the obvious answer that in such a case what the supreme court
says is the law. 27 But one can easily conceive of a system of
courts of equal standing, in which the judges would come to-
gether from time to time to iron out any conflicts among them
by a process of discussion and reciprocal accommodation. Some-
thing like this no doubt occurred when appellate judges used
to preside over trials and bring doubtful cases for discussion be-
fore the whole court.
In unionized industries in this country we have an institution
that has been called "industrial jurisprudence." The rules regu-
lating relations within an industrial plant are set, not through
enactment by some legislative body, but by contract between
management and a labor union. The judiciary of this legal sys-
tem is constituted by arbitrators, again chosen by agreement. In
such a system there are, of course, opportunities for failure. The
fundamental charter of the parties' rights, the collective bargain-
ing agreement, may notcome into existence because of a failure
of agreement between management and the union. When a dis-
pute arises under a successfully negotiated agreement, the parties
may fail to agree in nominating an arbitrator. Usually some

25. Kelsen, p. 374.

26. Soml6, p. 383.
27. The Nature and Sources of the Law (2d ed. 1921), p. 117.

112
 THE CONCEPT OF LAW
formal provision is made in anticipation of this possibility; when
the parties cannot agree on an arbitrator the American Arbitra-
tion Association may, for example, be authorized to nominate
him. But such a provision is neither indispensable to success, nor

a guarantee against failure. All legal systems can break down,

including those with the most neatly ordered chains of command.
In his discussion of theories that identify law with a hierarchic
28 that if a
ordering of authority, Pashukanis shrewdly observes
neat chain of command were the most significant quality of law
then we should regard the military as the archetypal expression
of juristic order. Yet any such view would violate the most ele-

mentary common sense. The source of this tension between theory

and everyday wisdom lies, quite obviously, in a concentration by
theory on formal structure to the neglect of the purposive activity
this structure is assumed to organize. There is no need here to

attempt any elaborate analysis of the differences between the

kind of hierarchic ordering required for military purposes and
that which may be thought essential to a legal system. One need
only recall the common and quite troublesome problem faced by
a legal order in knowing what to do when a lay citizen relies on
an erroneous interpretation of the law rendered by an agency
occupying a lower rung of the legal ladder. Plainly no similar
question could arise within a military order except in times of
martial law, when the military takes over the function of govern-
ing lay conduct.
Our discussion of theories of law would be incomplete if we
made no mention of the principle of parliamentary sovereignty,
the doctrine according to which, in the United Kingdom for ex-
ample, the Parliament is regarded as possessing an unlimited
competence in lawmaking. This doctrine deserves examination
here because of its intimate association with theories that accept
a hierarchic ordering of authority as the essential mark of a legal
system.

28. Pashukanis, The General Theory of Law and Marxism (1927), trans.
Babb in Soviet Legal Philosophy, 20th Century Legal Philosophy Series, 5
(1951), 11 1-225, at p. 154.

113
THE MORALITY OF LAW
Parliamentary sovereignty can, of course, be supported entirely
by an argument of political prudence to the effect that it is always
desirable to have a reserve of lawmaking power ready to meet
unforeseen circumstances. Explicit limitations on the power of the
legislature that seem wise and beneficial when adopted may later
serve to block measures necessary to deal with drastically changed
conditions. If the pressure of circumstance mounts too high, the
restraint may be circumvented by dodges and fictions that them-
selves carry a high cost in the distortions they introduce into the
moral atmosphere of government and even into its institutional
structure. These points can be illustrated hypothetically by a
reference to the most stringent restraint contained in our own
Constitution. This is the provision that no state shall, without
its consent, "be deprived of its equal suffrage in the Senate." 29
This is the only constitutional restraint now operative that is re-
moved even from the effect of change by amendment of the Con-
stitution itself.
Now it is possible that there might occur —perhaps as the
result of some natural disaster — a radical reduction in the popula-
one third of the
tion of certain of the states, so that, let us say,
states would contain a population of only about one thousand
persons each. In such a situation equal representation in the
Senate might become a political absurdity. If the right to equal
representation is respected, the whole political life of the nation
might be mortally crippled. In such a situation the possibility of
some legal maneuver comes naturally to mind. Could we perhaps
use the amending power to reduce the role of the Senate to some-
thing like that of the House of Lords? Or abolish the Senate in
favor of a unicameral assembly? Or is public opinion sufficiently
behind us to make it enough simply to rename the Senate "The
Council of Elders" and then reallocate representation in it?

In comparing the obvious rigidities of a written constitution

with the principle of parliamentary supremacy we must not be
misled by the appearance of rugged simplicity which the latter

29. Art. V.

114
 THE CONCEPT OF LAW
principle presents. Parliamentary sovereignty means, in effect,
that the parliament stands above the law in the sense that it can
change any law that is not to its liking. But, paradoxically, it a£
gains this position of being above the law only by subjecting it-
self to law —
the law of its own internal procedure.^or a corpo-
rate body to pass laws it must conform to laws that will determine
when a law has been passed. This body of laws is itself subject
to all the kinds of shipwreck that can visit any other legal system
— it can be too vague or contradictory to give sure guidance,
and, above all, its standards can be so disregarded in practice as

to default in time of need. The kind of crisis that can cause a

breakdown in rigid constitutional restrictions on legislative power
can also, and perhaps as easily, cause a breakdown in the lawful
processes of legislation. Even in England, where men tend to
stick by the rules and to keep things straight, it is said that the
courts once applied as law —
on the basis of an entry in the
Parliamentary Roll —
a measure that had never actually been
passed by Parliament. 30 The structure of authority, so often
glibly thought of as organizing law, is itself a product of law.
In the country where the doctrine of parliamentary sovereignty
is most vigorously cultivated discussions of it run, not in terms
of its wisdom, but turn rather on points of law. Those who sup-

port the doctrine have generally regarded it as a principle of law

to be sustained or refuted entirely by legal arguments; critics of
the doctrine have generally accepted this joinder of issue. It is
when the argument takes this form that an opening is presented
for the entry of theories about the nature of law. The theories
that have actually shaped the doctrine are those which display
what I have described as a fatal abstraction from the enterprise
of creating and administering a system of rules for the control
of human conduct.
The effects of this abstraction become apparent in a crucial
passage in Dicey's classic defense of the rule of parliamentary
sovereignty. In the concluding paragraph of his main argument

30. Dicey, The Law of the Constitution (10th ed., 1960), Intro., xl.

115
THE MORALITY OF LAW
he asserts that certain laws passed by Parliament constitute "the
highest exertion and crowning proof of sovereign power." 31
What are the enactments that possess these extraordinary
qualities? In Dicey's own words they are "Acts such as those
which declare valid marriages which, owing to some mistake of
form or otherwise, have not been properly celebrated," and
statutes "the object of which is to make legal transactions which
when they took place were illegal, or to free individuals to whom
the statute applies from having broken the law." 32
liability for

It was of such enactments that Dicey wrote, "being as it were

the legalisation of illegality" they constitute "the highest exertion
and crowning proof of sovereign power."
It is only a theory that disregards completely the realities of
creating and administering a legal system that could pass such a
—
sweeping though fortunately highly metaphorical judgment —
on retrospective laws. It should be recalled that other adherents
of the same general school of thought as that to which Dicey be-
longed have viewed retroactive laws as a routine exercise of
legislativepower, presenting no special problems for legal
theory. 33
These diametrically opposed views, arising within the
framework of the same general theory, are, I submit, sympto-
matic of a lack of any real concern with the problems of law-
making.
A similar lack of concern is revealed in the conclusions Dicey
is draw from the rule of parliamentary supremacy.
willing to
The most famous such conclusion is expressed in the following
words: "Parliament could extinguish itself by legally dissolving

itself and leaving no means whereby a subsequent Parliament

could be legally summoned." 34 This is about like saying that the
life force manifests itself even in the act of suicide — a statement
that may have a certain existential poetry about it, but is about
as remote from the ordinary affairs and concerns of men as is

Dicey's legal authorization of the suicide of a legal order.

31. Ibid., p. 50.

32. Ibid., pp. 49-50.
33. See esp. Soml6, supra n. 4, p. 97.
1A Ibid.,
34. Thirl
pp. Aft_7fl n
nr, 68-70 n.

116
 THE CONCEPT OF LAW
The tradition in discussing Parliament's legal omnipotence is

to test statements that are extreme to the point of absurdity by

illustrations that are equally absurd. This tradition is fully re-
spected in my next illustration. Let us put together two of Dicey's
assertions, that Parliament may legally end itself, and "that Parlia-
ment ... has under the English constitution, the right to make
or unmake any law whatever." 35 Now let us suppose that in some
psychotic future the Parliament were to enact the following mea-
sures: (1) that all the persons then members of the Parliament
should henceforth be free from the restraint of any laws whatever,
and should be authorized to rob, kill and rape without legal
penalty; (2) that any interference with the actions of such persons
should be a crime, subject to capital punishment; (3) that all

other laws of whatever kind were repealed; and (4) that the
Parliament be permanently dissolved. Surely it is difficult to imag-
ine any solicitor advising his client, after consulting Dicey, that
"as a matter of strict law" the rampaging and ravishing M.P.s
were within their legal rights and that the would have to
client
face for himself the moral issue whether to violate the law by
lifting his hand against them. At some point we take leave of the
gravitational field within which the distinction between law and
not-law makes sense. I suggest that that point is reached far
short of the situation I have described, and is indeed reached
when we begin to ask whether parliamentary suicide is possible,
or whether Parliament can formally assign all its powers to a
dictator, or whether Parliament can decide that all future laws

enacted by it shall be kept secret from those subject to them.

The first two questions are easy grist for Dicey 's mill; the third,
of course, he does not consider, though in terms of the experience
of history it is the least fanciful of the three.
This concludes my criticism of certain theories of law that
may be opposed to the analysis presented in these chapters. In
summary of the view I have advanced I may repeat that I have

tried to see law as a purposive activity, typically attended by cer-

tain difficulties that it must surmount if it is to succeed in attain-

35. Ibid., pp. 39-40.

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 THE MORALITY OF LAW
ing its ends. In contrast, the theories I have rejected seem to me
to play about the fringe of that activity without ever concerning
themselves directly with its problems. Thus, law is defined as
"the existence of public order" without asking what kind of order
K' is meant or how it is brought about. Again, the distinguishing
mark of law lie in a means, namely "force," that is
is said to
typically employed to effectuate its aims. There is no recognition
that, except as it makes the stakes higher, the use or nonuse of
force leaves unchanged the essential problems of those who make
and administer the laws. Finally, there are theories that concen-
trate on the hierarchic structure that is commonly thought to
organize and direct the activity I have called law, though again
without recognizing that this structure is itself a product of the
activity it is thought to put in order.
At this point I am sure there will be those who, though agreeing

generally with my negations and rejections, will nevertheless feel

a certain discomfort about the view of law I have presented as
my own. To them the concept of law that underlies these writings
will seem too loose, too accommodating, too readily applied over
too wide a range of instances, to serve significantly as a distinc-
tive way of looking at law. These are criticisms that I shall deal
with shortly. But first I should like to explore an analogy that
may serve to support the conception advanced here.

The Concept of Science

The analogy I have in mind is that of science, by which I mean

primarily what are called the physical and biological sciences.
Science, too, may be regarded as a particular direction of
human effort, encountering its special problems and often failing

in certain typical ways to solve them. Just as there are philoso-

phies of law, so there are philosophies of science. Some philoso-
phers of science, notably Michael Polanyi, are primarily con-
cerned with the activity of the scientist, seeking to discern its

proper aims and the practices and institutions conducive to at-

118
 .

THE CONCEPT OF LAW

taining them. Others seem to embroider their theories, in various

ingenious ways, about the periphery of the scientist's work. Such

browsing in the literature as I have done would indicate that the
parallels between legal and scientific philosophies are indeed
striking. Holmes' definition of law in terms of its cutting edge is

certainly not lacking in affinity for Bridgman's "operational

theory of concepts." 36 One advocate of "scientific empiricism"
has expressly asserted that his philosophy has nothing to say
about the act of scientific itself, for, he says, this
discovery
"escapes logical analysis." 37 One
reminded at once of Kelsen's
is

relegation of all the important problems involved in the making

and interpreting of laws to the realm of the "meta-juristic."
I shall not attempt here, however, any further excursion into

the actual literature of scientific philosophy. Instead I shall con-

struct three hypothetical definitions of science after the models
presented by legal theory.
In defining science it is and indeed quite custom-
quite possible,
ary, to concentrate on its than on the activity that
results, rather
produces those results. Thus, corresponding to the view that law
is we may assert that
simply "the existence of public order,"
"science existswhen men have the ability to predict and control
the phenomena of nature." As a parallel to the view that law is
characterized by the use of force, we may, as I have already
suggested, suppose a theory of science defining it as the use of
certain kinds of instruments. Seeking an analogue for hierarchic
theories of lawwe encounter the difficulty that, except in a totali-
tarian context, we cannot very well think of science as a hier-
archic ordering of scientific authority. But we may recall that
with Kelsen the legal pyramid presents, not a hierarchy of human
agencies, but a hierarchy of norms. Building on this conception
we may then define science as consisting of "an arrangement of
propositions about natural phenomena in an ascending order of
generality."

36. The Logic of Modern Physics (1949), pp. 3-9 et passim.

37. Reichenbach, The Rise of Scientific Philosophy (195 1), p. 23 1

119
THE MORALITY OF LAW
Now it cannot be said that any of these views is false. It is

simply that none of them would start the lay citizen on his way
toward any real understanding of science and its problems. Nor
would they serve the scientist usefully who wanted to clarify for
himself the aims of science and the institutional arrangements
that would promote those aims.
Recently there has been a movement of reform in scientific
education, particularly in the teaching of general courses in sci-
ence intended for those who do not expect to become scientists.

The older courses of this sort generally offered a kind of pan-

oramic view of the achievements of science, supplemented by a
fairly abstract discussion of some of the problems of scientific
method, notably induction and verification. Newer courses have
sought to give the student an insight into the manner in which
the scientist reaches for new truths. In the course pioneered by
Conant this is done through a study of case histories. The object
is to give the student a vicarious experience in the act of scientific
discovery. In this way it is hoped that he will come to have some
understanding of the "tactics and strategy of science." 38
Michael Polanyi's greatest achievement has probably been in
his theories of what may be called broadly the epistemology of
scientific discovery. But as touching the theme of these essays,
his most distinctive contribution lies in his conception of the
scientific enterprise. 39 With him this enterprise is a collaborative
one, seeking the institutional forms and practices appropriate to
itspeculiar aims and problems. Though men of genius may intro-
duce revolutionary turns of theory, they are able to do so only by
building on the thought, the findings, and the mistakes of their
predecessors and contemporaries. Within the scientific community
the freedom of the individual scientist is not simply an opportu-
nity for self-assertion, but an indispensable means for organizing
effectively the common search for scientific truth.
The calling of the scientist has its distinctive ethos, its internal
morality. Like the morality of law, it must, by the very nature of
38. Science and Common Sense (1951).
39. The Logic of Liberty (1951); Personal Knowledge (1958).

120
 THE CONCEPT OF LAW
the demands it has to meet, be a morality of aspiration, not of
duty. A single example will suffice, I think, to make clear why
this must be so.
A scientist believes that he has made a fundamental discovery
of the sort that may touch upon and advance the researches of
others. When should he publish? It is clear that if he has in fact
made an important discovery, he must make it known to the
scientific community even though, for example, he can foresee
that a rival scientist, building on it, may perhaps be enabled to
make a further discovery overshadowing his own. On the other
hand, he must be sure that he has in fact made the discovery he
believes he has, for by rushing into print he may waste the time
of others by giving a false lead to their researches.
It is questions of this sort that Polanyi has in mind when, bor-

rowing a legal term, he speaks of a "fiduciary" concept of science.

There is, indeed, a close correspondence between the moralities
of science and of law. Outrageous departures are in both cases
easily recognized. Within both fields an adherence to traditional
ways, or a coincidence between self-interest and the ethics of the
profession, may prevent any moral issue from arising. Yet both
moralities may at times present difficult and subtle problems no
simple formula of duty can possibly resolve. As to both moralities
the general level of perceptiveness and of behavior may vary
appreciably from one nation to another, or within a single nation,
from one social context to another.
Without some understanding of the tactics and strategy of the
scientific enterprise, and of its distinctive ethos, the lay citizen
cannot, I submit, have an intelligently informed opinion on ques-
tions like the following: What should be the policy of government
toward science? How can scientific research be most effectively
introduced and cultivated in newly emerging nations? What pre-
cisely is the cost society pays directly and indirectly, when the
responsibilities of scientific morality are ignored or loosely ob-
served? I think I need not labor to prove that all these questions
have close cousins in the law. Nor is there any need to demon-
strate that the legal questions corresponding to these of science

121
THE MORALITY OF LAW
must remain unanswered in any philosophy of law that abstracts
from the nature of the activity we call law.

Objections to the View of Law Taken Here

I now turn to certain objections that may be raised against any

analysis that treats law as "the enterprise of subjecting human
conduct to the governance of rules."
The first such objection would run in terms something like

these: To speak of a legal system as an "enterprise" implies that

it may be carried on with varying degrees of success. This would

mean that the existence of a legal system is a matter of degree.

Any such view would contradict the most elementary assump-
tions of legal thinking. Neither a rule of law nor a legal system
can "half exist."
To this my answer is that, of course, both rules of law and
legal systems can and do half exist. This condition results when
the purposive effort necessary to bring them into full being has
been, as it were, only half successful. The truth that there are
degrees of success in this effort is obscured by the conventions
of ordinary legal language. These conventions arise from a laud-
able desire not to build into our ways of speech a pervasive en-
couragement to anarchy. It is probably well that our legal vo-
cabulary treats a judge as a judge, though of some particular
holder of the judicial office I may quite truthfully say to a fellow
lawyer, "He's no judge." The tacit restraints that exclude from
our ordinary ways of talking about law a recognition of imper-
fections and shades of gray have their place and function. They
have no place or function in any attempt to analyze the funda-
mental problems that must be solved in creating and administer-
ing a system of legal rules.
Of no other complex human undertaking would it ever be as-
sumed that it could meet with anything other than varying degrees
of success. If I ask whether education "exists" in a particular
country, the expected response, after the addressee of my question
had recovered from some puzzlement as to its form, would be

122
 THE CONCEPT OF LAW
something like this: "Why, yes, their achievements in this field
are very fine," or "Well, yes, but only in a very rudimentary way."
So would be with science, literature, chess, obstetrics, conversa-
it

tion, and the mortuary art. Disputes might arise, to be sure, about
the proper standards for judging achievement, and of course,
any attempt at quantitative appraisal (such as "half-success)
would have to be considered as metaphorical. Nevertheless the
normal expectation would be of some performance falling be-
tween zero and a theoretical perfection.
Only with law is it different. It is truly astounding to what an
extent there runs through modern thinking in legal philosophy
the assumption that law is like a piece of inert matter — it is there
or not there. It is only such an assumption that could lead legal
scholars to assume, for example, that the "laws" enacted by the
Nazis in their closing years, considered as laws and in abstrac-

tion from their evil aims, were just as much laws as those of Eng-
land and Switzerland. An even more grotesque outcropping of
this assumption is the notion that the moral obligation of the
decent German citizen to obey these laws was in no way affected
by the fact that they were in part kept from his knowledge, that
some of them retroactively "cured" wholesale murder, that they
contained wide delegations of administrative discretion to redefine
the crimes they proscribed, and that, in any event, their actual
terms were largely disregarded when
suited the convenience of
it

the military courts appointed to apply them. 40

A possible second objection to the view taken here is that it

permits the existence of more than one legal system governing

the same population. The answer is, of course, that such multiple
systems do exist and have in history been more common than
unitary systems.
In our country today the citizen in any given state is subject
to two distinct systems of law, that of the federal government
and that of the state. Even in the absence of a federal system,
there may be one body of law governing marriage and divorce,

40. See the discussion and references supra, p. 40.

123
THE MORALITY OF LAW
another regulating commercial relations and still a third govern-
ing what is left over, all three systems being separately adminis-
tered by special courts.
Multiple systems may give rise to difficulties both for theory
and for practice. Difficulties of the first sort can arise only if

theory has committed itself to the view that the concept of law
requires a neatly defined hierarchy of authority with a supreme
power at the top that is itself free from legal restraints.
legislative
One way of accommodating this theory to the facts of political
life is to say that although there may appear to be three systems,
A, B and C, actually B and C exist only by the legal tolerance
of A. Carrying this a step further it may be asserted that what
thesupreme legal power permits it impliedly commands, so that
what appears as three systems is actually one "in contempla- —
tion of law."
Practical difficulties can arise when there is a real rub between
systems because their boundaries of competence have not been
and perhaps cannot be clearly defined. One solution of this prob-
lem as it affects the division of competence between nation and
system is to subject disputes to judicial decision
state in a federal
under the terms of a written constitution. This device is useful,
but not in all cases indispensable. Historically dual and triple
systems have functioned without serious friction, and when con-
flicthas arisen it has often been solved by some kind of voluntary
accommodation. This happened in England when the common
law courts began to absorb into their own system many of the
rules developed by the courts of the law merchant, though the
end of this development was that the merchants' courts were
finally supplanted by those of the common law.
A possible third criticism points to the same basic objection as
the second, but sees it this time magnified many times over. If
law is considered as "the enterprise of subjecting human conduct
to the governance of rules," then this enterprise is being con-
ducted, not on two or three fronts, but on thousands. Engaged
in this enterprise are those who draft and administer rules gov-

124
 THE CONCEPT OF LAW
erning the internal affairs of clubs, churches, schools, labor
unions, trade associations, agricultural fairs, and a hundred and
one other forms of human association. If, therefore, we are pre-
pared to apply with consistency the conception of law advanced
in these chapters, it must follow that there are in this country

alone "systems of law" numbering in the hundreds of thousands.

Since this conclusion seems absurd, it may be said that any theory
that can give rise to must be equally absurd.
it

Before attempting any general answer to this critcism, let us

consider a hypothetical instance of the workings of one such
legal system in miniature. A college enacts and administers a set
of parietal rules governing the conduct of students in its dormi-

tories". ~A student or faculty council is entrusted with the task of

passing on infractions and when it is established that a violation
has occurred, the council is understood to have the power to im-
pose disciplinary measures, which in serious cases may include the
organizational equivalent of capital punishment, that is, expulsion.
If we extract from the word "law" any connotation of the
power or authority of the state, there is not the slightest difficulty
in calling this a system of law. Furthermore, a sociologist or
philosopher interested primarily in the law of the state, might
study the rules, institutions, and problems of this body of parietal
law for the insight he might thus obtai" into the processes of law
generally. However, so inveterate has become the association of
the word "law" with the law of the political state that to call a
system of parietal rules in all seriousness a "system of law" sug-
gests an offense against the rules of linguistic propriety. If this
were our only problem we might at once make peace with our
by entering a stipulation that they may regard any such
critics

usage as metaphorical and that they may qualify it as much as

they like with that ancient question-beggar: "quasi."
The difficulty runs deeper, however. Suppose that under the
system of parietal rules a student is tried by the council, and
being found guilty of a serious infraction, is expelled from the
school. He files suit and asks the court to order his reinstatement.

125
THE MORALITY OF LAW
There abundant authority that the courts may and should take
is

jurisdiction of such a case, and this without reference to the

question whether the school involved is private or public. 41
How will the court decide such a case? If the expelled student
contends that, although his expulsion was in accord with the pub-
lished rules, the rules themselves are grossly unfair, the court
may, though normally with reluctance, pass judgment on that
contention. Assuming no such objection is raised, the court will
address itself to a question that may be expressed in these terms:
Did the school in creating and administering its parietal rules
respect the internal morality of law? Were these rules promul-
gated? — a question in this case expressed by asking whether the
student was given proper notice of them. Were they reasonably
clear in meaning, so as to let the studentknow what actions on
his part would constitute an infraction? Was the finding of the
council in accordance with the rules? Were the procedures of
inquiry so conducted as to insure that the result would be
grounded in the published rules and based on an accurate knowl-
edge of the relevant facts?
Whether the court reinstates the student or upholds his ex-
pulsion, it takes its standard of decision from the college's own
rules. If to acquire the force of law these rules need the im-
primatur of the state, they have now received it insofar as they
affect the issue decided by the court. Once we accept the parietal
rules as establishing the law of the case, binding both on the col-
lege authorities and the courts, the situation is not essentially
different from that in which an appellate court reviews the de-
cision of a trial judge.
Why, then, do we hesitate to describe the parietal rules simply
as law? The easy answer is to say that such an extension of the
word would violate ordinary linguistic usage. This begs the ques-
tion why linguistic usage has taken the turn it has. I think the
answer lies in considerations something like the following: We
41. For the best general treatment see "Private Government on the
Campus — Judicial Review of University Expulsions," 72 Yale Law Journal
1362-1410(1963).

126
 THE CONCEPT OF LAW
intuitively realize that in cases like that I have been discussing
we are confronted with delicate issues of maintaining a proper
balance of institutional function within our society. That such
issues are at stake becomes apparent if the case brought for
judicial determination involves a student expelled from a school
run by a religious order because of heresy or from a private mili-
tary academy because "he is constitutionally incapable of accept-
ing military discipline in the proper spirit." When issues as deli-
cate as those here suggested are under consideration we hesitate
to throw into the balance a word as heavily loaded with implica-
tions of sheer power and established authority as is the word
"law."
One may approve the motives that prompt this restraint. I

suggest, however, that the real source of difficulty lies in phi-

losophies that have invested the word "law" with connotations
which unfit it where it is most needed. For in
for use precisely
the case at hand it is badly needed. Without it, we face this di-
lemma: On the one hand, we are forbidden to call law the rules
by which a college determines expulsions. On the other hand,
these rules are plainly given the force of law in judicial decisions.
That the courts may strike down rules that are grossly unfair
does not differentiate them from Acts of Congress which may
also be declared void when they violate constitutional restrictions
on the legislative power. Being denied the term "law" we are
compelled to look about for some other conceptual shelter under
which we can house these rules. This is generally found in a no-
tion of private law: contract. The parietal rules, it is said, consti-
tute a contract between the school and the student by which their
respective rights are determined. 42
This "thoroughly artificial nexus of contract" 43 has given a
great deal of trouble. In considering its inconveniences and short-
42. I am leaving out of account here the limited use courts have made
of property concepts and the law of defamation in dealing with some ex-
pulsion cases, particularly those involving social clubs.
43. Lloyd, "Disqualifications Imposed by Trade Associations Juris- —
diction of Court and Natural Justice," 21 Modern Law Review 661, at
p. 668 (1958).

127
THE MORALITY OF LAW
comings we should recall that the school expulsion cases con-
stitute only a small sampling drawn from a vast body of prece-
dent dealing with similar problems as they arise in labor unions,
churches, social clubs, and a whole host of other institutional
forms. As a device for dealing with this wide range of problems
the concept of contract defaults in several important respects.
For one thing, it points to remedies that are inappropriate to the
context. For another, it suggests that if the institution or associa-
tion sees fit to do so, it may contractually stipulate for an un-
restricted privilege of canceling membership. Most fundamental-
ly, the contract theory is inconsistent with the responsibility ac-
tually assumed by the courts in these cases. It is easy to say,
for example, that the parietal rules constitute a contract between
the college and the student, but how are we to explain the defer-
ence accorded by the courts to the interpretation put on those
rules by the college authorities in the process of applying them
to an alleged infraction? When what a con-
parties quarrel about
tract means we do not ordinarily defer to the interpretation made
by either of them but judge between the two impartially. These
difficulties, and others I have left unmentioned, can be cured by

the device of assuming that the contract in question is a very

special one, in which all from ordinary
the necessary deviations
contract law are to be understood as tacitly intended by the
parties. But when this is done the "contract" becomes an empty
fiction, offering a convenient rack on which to hang any result

deemed appropriate to the situation.

The objection to the contract theory is that, like any legal fic-
tion, it tends to obscure the real issues involved and postpones a
direct confrontation with them. I submit that the body of law I

have been discussing branch of constitutional law,

is essentially a
largely and properly developing outside the framework of our
written constitutions. It is constitutional law in that it involves
the allocation among the various institutions of our society of
legal power, that is, the authority to enact rules and to reach
decisions that will be regarded as properly binding on those af-
fected by them. That this body of constitutional law should have

128
 THE CONCEPT OF LAW
grown up outside our written constitutions should not be a source
of concern. It would have been impossible for the draftsmen of
our first written constitutions to have anticipated the rich insti-
tutional growth that has occurred since their time. Furthermore,
the intellectual climate of the late eighteenth century was such
as to obscure a recognition of the centers of authority created
when men form voluntary associations. 44 In the light of these
considerations we should be no more disturbed to find that we
have a body of unwritten constitutional law than the British have
been to discover that since the Statute of Westminster of 1931
they have acquired the rudiments of a written constitution living
comfortably in the midst of their unwritten constitution.
A view that seeks to understand law in terms of the activity
that sustains it, instead of considering only the formal sources of

its authority, may sometimes suggest a use of words that violates

the normal expectations of language. This inconvenience may,
I suggest, be offset by the capacity of such a view to make us
perceive essential similarities. It may help us to see that the im-
perfectly achieved systems of law within a labor union or a uni-
versity may often cut more deeply into the life of a man than any
court judgment ever likely to be rendered against him. On the
other hand, it may also help us to realize that all systems of law,
big and little, are subject to the same infirmities. In no case can
the legal achievement outrun the perception of the human beings
who guide it. The judicial review of institutional disciplinary
measures performs its most obvious service when it corrects out-
rageous injustice; in the long run it can be most useful if it helps
to create an atmosphere within institutions and associations that
will render it unnecessary. 45

44. Wyzanski,"The Open Window and the Open Door," 35 California

Law Review 336-51, at pp. 341-^5 (1947).
45. For a general survey of the law, amounting to a short treatise, see
—
the note, "Developments in the Law Judicial Control of Actions of Pri-
vate Associations," 76 Harvard Law Review 983-1100 (1963). The best
general introduction is still Chafee's very readable article, "The Internal
Affairs of Associations Not for Profit," 43 Harvard Law Review 993 (1930).

129
THE MORALITY OF LAW
I come now to the fourth —and so far as my own account can
go — final criticism that may be made of the view of law taken
here. This is that it does not sufficiently distinguish between law

and morality. Morality, too, is concerned with controlling human

conduct by rules. It, too, is concerned that these rules should be
clear, consistent with one another and understood by those who
ought to obey them. A view that seems to recognize as the char-
acteristic mark of law a set of concerns shared with morality in-
vites the criticism that it obscures an essential distinction.
I think, several distinct issues. One
This criticism conceals,
is when we ask how, when we are confronted with a
presented
system of rules, we decide whether the system as a whole shall
be called a system of law or one of morality. The only answer
to that question ventured here is that contained in the word
"enterprise" when I have asserted that law, viewed as a direction
of purposive human effort, consists in "the enterprise of sub-
jecting human conduct to the governance of rules."
One can imagine a small group — transplanted, say, to some
tropical island — living successfully together with only the guid-
ance of certain shared standards of conduct, these standards
having been shaped in various indirect and informal ways by
experience and education. What may be called the legal experi-
ence might first come to such a society when it selected a com-
mittee to draw up an authoritative statement of the accepted
standards of conduct. Such a committee would find itself ex
necessitate rei embarked on the enterprise of law. Contradictions
in standards, previously latent and unnoticed, would have to be
resolved. Realizing that clarification could not be accomplished
without some change of meaning the committee would have to
concern itself with the possible harshness of a retrospective ap-
plication of the standards set forth in its statement. As the society
gradually acquired the other familiar instruments of a legal system
—such as judges and a legislative assembly — it would find itself
more deeply involved in the enterprise of law. Or, again, instead
of starting with an attempt to draft an authoritative statement of
the rules, the society in question might start by appointing some

130
 THE CONCEPT OF LAW
one to serve as judge. Nothing, it seems to me, hinges upon the
particular manner in which the members of the society, or some
of them, are plunged into what I have called the "enterprise" of
law.
Though can be said that law and morality share certain
—
it

concerns — for example, that the rules should be clear it is as

these concerns become increasingly the objects of an explicit
responsibility that a legal system is created. Generality, for ex-
ample, is taken for granted in morality and can hardly be called
a problem. becomes a problem, and a pressing one, however,
It

when a judge sentences a man to jail and can find no way of

expressing any general principle by which his decision can be
explained or justified.

These observations admittedly leave uncertain the precise

point at which a legal system can be said to have come into
being. I see no reason to pretend to see black and white where
reality presents itself in shades of gray. Certainly there is little

point in imposing on the situation some definitional fiat,by say-

ing, for example, that we shall consider law to exist only where
there are courts.
The question just dismissed, though much discussed in the
literature of jurisprudence, is not one of great interest in prac-
tice.Here the difficult problem is rather that of defining the proper
relationship between what is unquestionably an established and
functioning system of law, on the one hand, and general stan-
dards of morality, on the other. In dealing with this problem I
do not think it can be said that the view of law taken in these
essays in any sense obscures or distorts the essential issues.
On the contrary I submit that the distinction between the ex-
ternal and internal moralities of the law may offer a helpful
clarification. Take, for example, the problems that may confront
a judge in interpreting a statute. So far as the external aims of the
statute are concerned, it is a part of the ethos of his office that
the judge should remain, insofar as human capacity admits,
neutral among the moral positions that may have been taken in
the statute with regard to such questions as divorce, contracep-

131
THE MORALITY OF LAW
tion, gambling, or the requisition of private property for public
use.
But the very same considerations that require an attitude of
neutrality with regard to the external aims of the law demand a
commitment by the judge to the law's internal morality. It would,
for example, be an abdication of the responsibilities of his office
if the judge were to take a neutral stand between an interpreta-

tion of a statute that would bring obedience to it within the ca-

pacity of the ordinary citizen and an interpretation that would
make it impossible for him to comply with its terms.
The distinction between the external and internal moralities of
law is, of course, a tool of analysis and should not be regarded as
a substitute for the exercise of judgment. I have been at pains to

show that along the spectrum occupied by these two moralities

there may appear, in certain applications, a middle area where
they overlap. 46 The two moralities, in any event, interact with
one another in ways that I shall analyze in my final chapter. 47
Suffice it for the present to point out that a judge faced with two
equally plausible interpretations of a statute might properly pre-
fer that which would bring its terms into harmony with generally
accepted principles of right and wrong. Though this result may
be rested on a presumed can also be justified
legislative intent, it

on the ground that such an interpretation would be less likely to

make of the statute a trap for the innocent, thus bringing the
problem within the considerations relevant to the law's internal
morality.
A perennial debate relates to the problem of "legislating
morals." Recently there has been a lively discussion of the proper
relation of the law to sexual behavior and more particularly to
homosexual practices. 48 I
must confess that I find this argument

46. See especially the discussion of the problems of generality (supra,

pp. 46-48 and infra, pp. 157-59), contradictions (supra, pp. 69-70),
and the possibility of obedience (supra, p. 79).
47. See infra, pp. 155-67.
48. P. A. Devlin, The Enforcement of Morals (1959), Law and Morals
(1961); H. L. A. Hart, Law, Liberty and Morality (1963).

132
 THE CONCEPT OF LAW
quite inconclusive on both sides, resting as it does on initial as-

sumptions that are not made explicit in the argument itself. I

would, however, have no difficulty in asserting that the law ought
not to make it a crime for consenting adults to engage privately
inhomosexual acts. The reason for this conclusion would be that
any such law simply cannot be enforced and its existence on the
books would constitute an open invitation to blackmail, so that
there would be a gaping discrepancy between the law as written
and its enforcement in practice. I suggest that many related issues
can be resolved in similar terms without our having to reach
agreement on the substantive moral issues involved.

Hart's The Concept of Law

So far I have passed over the important recent book from which
I have borrowed the title for this chapter. The Concept of Law 49

by H. L. A. Hart is certainly a contribution to the literature of

jurisprudence such as we have not had in a long time. It is not a
collection of essays disguised as a book. It is not a textbook in
the usual sense. Instead, it represents an attempt to present in
short compass the author's own solutions for the major problems
of jurisprudence.
Many things about the book are excellent. It is beautifully
written and filled have learned many
with brilliant aper^us. I

things from it. With its fundamental analysis of the concept of

law, however, I am in virtually complete disagreement.

In my final chapter I shall have some critical comments on
the treatment Hart accords to what I have called the internal
morality of law. Insummary the criticism I shall there advance
is whole analysis proceeds in terms that systematically
that Hart's
exclude any consideration of the problems I attempted to ana-
lyze in my second chapter.
In the present context my quarrel is with "the rule of recogni-
tion," a concept Hart seems to regard as the central theme of his

49. Oxford University Press, 1961.

133
THE MORALITY OF LAW
book and its chief contribution. In developing this concept Hart
begins with a distinction between rules imposing duties and rules
conferring legal powers. So far there can be no complaint. The
distinction is a familiar one, especially in this country where it

has served as the keystone of the Hohfeldian analysis. 50 Plainly

there is an important difference between a rule that says, "Thou
shalt not kill," and one that says, "If you want to make a valid
will, put it in writing and sign it before three witnesses."
It should be observed that this distinction, usefully clarifying
as it is in some cases, may be misapplied in such a way as to
obfuscate the simplest issues almost beyond redemption. Of this
there is abundant evidence in some of the writings based on the
Hohfeldian analysis.
Let me develop briefly the ambiguities implicit in the distinc-
tion with the aid of two illustrations. In the first we shall pose
for ourselves the problem of classifying a rule that reads, "Where
a trustee has paid out of his own pocket expenses properly
chargeable to the trust estate, he has a right to reimburse himself
out of trust funds in his possession." The use of the word "right"
suggests a corresponding duty on the part of the beneficiary, yet
the trustee has no need to enforce this duty; by a species of lawful
self-help he simply effects a legally valid transfer from the trust
funds to his own account. Accordingly we may conclude that we
are here dealing with a power-conferring rule, rather than a duty-
imposing rule. But suppose that the instrument creating the trust
gives the beneficiary, in turn, a power on coming of age to effect
a transfer of the trust estate directly to himself. Suppose, further,
that the beneficiary exercises this power before the trustee has
had a chance to reimburse himself out of the trust funds. Plainly

50. See Hohfeld, Fundamental Legal Conceptions (1923). The best

introduction to the Hohfeldian system is Corbin, "Legal Analysis and
Terminology," 29 Yale Law Journal 163-73 (1919). The Hohfeldian anal-
ysis discerns four basic legal relations: right-duty, no-right-privilege,
power-liability, and disability-immunity. Of these, however, the second
and fourth are simply the negations of the first and third. Accordingly the
basic distinction on which the whole system is built is that between right-
duty and power-liability; this distinction coincides exactly with that taken
by Hart.

134
 THE CONCEPT OF LAW
the beneficiary now has a legal duty to reimburse the trustee.
The fundamental principle is, however, the same in both cases,

namely, that the trustee is entitled to reimbursement at the ex-

pense of the beneficiary; whether he is given a power to help
himself, as it were, or a right against the beneficiary (with cor-
responding duty) is simply a question of the most apt way of
achieving the result.
My second illustration relates to a familiar rule concerning the
mitigation of damages. A and B enter a contract whereby A is to
construct a specially designed machine for B and B is to pay
$10,000 when the job is completed. After A has begun work on
the machine, B repudiates his contract. There is no question but
that B is liable for damages,
which would include reimbursement
to A up to the time of repudiation as well
for expenses incurred
as any profit A would have made on the whole job. The crucial
issue is whether A can disregard B's repudiation, continue work
on the machine and, when he has finished, recover the full price.
The law is that he cannot charge to B any expenses incurred in
performing the contract after B has repudiated it; whether he
continues work or not, the limit of his recovery is set by the
amount he would have been entitled to had he quit work after
B's repudiation. The courts have commonly expressed this idea
by saying that on the repudiation A has "a duty to mitigate dam-
ages" by ceasing work on the machine, the notion being that he
cannot recover for costs incurred in violation of this duty.
This view has been severely criticized as obfuscating the dis-
tinction between rules that impose duties and those that grant
or take away legal powers. If A foolishly continues to work on
the machine after B's repudiation of the contract, B has no cause
of action against A to enforce any "duty." The only sanction
this misnamed duty has is that if A does continue work, he can-
not recover the cost of doing so from B. Prior to the repudiation
A had a legal power in that by continuing work day by day he
was increasing B's possible obligation to him. Now he has lost
that power. The situation is comparable to that produced by the
passage of the Statute of Frauds. Prior to the Statute men had

135
THE MORALITY OF LAW
the power to create binding contracts orally; after the Statute was
enacted this power, as to certain kinds of contracts, was removed.
So runs an argument based on the Hohfeldian analysis. 51
This argument seems quite convincing until we reflect that in
cases like that of the machine the courts start with the assump-
tion that A ought to stop work, for by continuing he squanders
his and society's resources on something that no longer serves
any need. This is what the courts mean by saying A has a duty
to mitigate. There is no occasion for B to sue for a breach of this
duty; since he doesn't have to pay for the work done after his
repudiation, he is not personally injured by A's continued per-
formance. The Statute of Frauds, on the other hand, does not
say that men ought to put their contracts in writing; it simply
says that if certain contracts are left in oral form they will not be
legally enforced. Contracting parties, familiar with the terms of
the Statute, may in fact deliberately refrain from executing a
written memorandum so as to preserve for their contract the
status of a "gentlemen's agreement."
In the cases of the machine and the Statute, what has been
called "the sanction of nullity" is employed to effectuate quite
different ends. In the one case it is used to make A do what he
ought to do, by cutting off his pay, as it were; in the other, it is

used to insure that the power to enter binding contracts will be

exercised under circumstances that will protect against fraud and
mistaken memory.
It is impossible to deal here adequately with the many prob-
lems that can arise out of the distinction between rules imposing
duties and those conferring powers, particularly when arguments
from analogy are involved. Even the sketchy account presented
here makes it plain, however, that there are two different stan-
dards for applying the distinction. The one inquires into the
fundamental legislative intent; the other into the legal mechanics
by means of which the aim of the rule is effectuated. A failure to
perceive that these are distinct standards has muddied many at-

51.5 Corbin, Contracts, §1039, 205-07 (1951).

136
 THE CONCEPT OF LAW
tempts to put the Hohfeldian analysis to practical account. 52
On the other hand, if one attempts always to penetrate behind
legal forms to underlying intent, the distinction loses much of its

appeal and scarcely provides the pervasive illumination that the

Hohfeldians expected of it. The disappointing experience with
the Hohfeldian analysis, projected against the enthusiasm with
which it was originally greeted, inclines me to view with some
skepticism the suggestion that the distinction Hart proposes is

"a most powerful tool for the analysis of much that has puzzled
both the jurist and the political theorist." (The Concept of Law,
p. 95.)
These doubts approach something like a certitude when it
comes to Hart's "rule of recognition." Let me express what I
understand this rule to mean by the aid of an illustration of per-
haps grotesque simplicity. A small country is ruled by King Rex.
Within this country there is unanimous agreement that the high-
est legal power rests in Rex. To make this abundantly clear we
may suppose that every adult citizen signs, with cheerful sincerity,
a statement reading, "I recognize in Rex the sole and ultimate
source of law in my country."
Now it is is in his kingdom an accepted
apparent that there
rule according to which Rex has the final say as to what shall
be considered law. Hart proposes to call this "the rule of recogni-
tion." Certainly there can be no quarrel with this proposal. But
Hart goes further and insists that we apply to this rule the distinc-
tion between rules that confer powers and those that impose
duties. The rule of recognition, he declares, must be regarded as a
power-conferring rule. Again, this seems almost a truism.
But Hart seems to read into this characterization the further
notion that the rule cannot contain any express or tacit pro-
vision to the effect that the authority it confers can be withdrawn
for abuses of it. To one concerned to discourage tendencies

52. An outstanding example is Cook, "The Utility of Jurisprudence in

the Solution of Legal Problems." This article appears in 5 Lectures on
Legal Topics 337-90 (1928), published by the Association of the Bar of the
City of New York.

137
 THE MORALITY OF LAW
toward anarchy something can be said for this and Hobbes in
fact had a great deal to say for it. But Hart seems to consider
that he is dealing with a necessity of logical thinking. If one is
intent on preserving a sharp distinction between rules imposing
duties and rules conferring powers, there are reasons for being
unhappy about any suggestion that it may be possible to with-
draw the lawmaking authority once it has been conferred by the
rule of recognition. If Rex began to keep his laws secret from
those legally bound to obey them, and had his crown taken away
from him for doing so, it would certainly seem foolish to ask
whether he was deposed because he violated an implied duty or
because, by exceeding the tacit limits of his power, he had worked
an automatic forfeiture of his office and thus became subject to
"the sanction of nullity." In other words, a rule that confers a
power and provides, expressly or by implication, that this power
may be revoked
*
for abuses, presents in its proviso a stipulation
that straddles ambiguously the distinction between duty-imposing
rules and those that grant powers.
It follows then thatif Hart is to preserve his key distinction he

^^ is compelled to assume that the lawmaking authority cannot be

lawfully revoked. In his whole analysis of the rule of recognition

it seems to me Hart has fallen into a familiar trap properly

dreaded by all of us in the field of jurisprudence. He is applying

to the attitudes that bring into being and support a legal system
juristic distinctions that can have no meaning in this application.

There is no doubt that a legal system derives its ultimate support

from a sense of its being "right." However, this sense, deriving
as it does from tacit expectations and acceptances, simply cannot
be expressed in such terms as obligations and capacities.
Suppose, to borrow a famous example from Wittgenstein, a
mother leaving to attend a matinee says to her baby-sitter, "While
I'm gone teach my children a game." The baby-sitter teaches the
children to throw dice for money or to duel with kitchen knives.
Must the mother before passing judgment on this act ask herself
whether the baby-sitter has violated a tacit promise or has simply
exceeded her authority? I suggest that she would be as little con-

138
 THE CONCEPT OF LAW
cerned with that question as she would with the one Wittgenstein
himself raises: Can she truthfully say, "I did not mean that kind
of game," when she never thought of the possibility of such a
game being taught to her children? There are some outcomes in
human relations too absurd to rise to the level of conscious ex-
clusion. So it would be, in modern times at least, if a parliament
should forget that its accepted function is, after all, to make laws
and should begin to act as if it had been given the power to save
souls or to declare scientific truth. And if the expectations and
acceptances that underlie a parliament's power confine it to law-
making, does not this tacitly entail further limitations? Is it not
assumed, for example, that the parliament will not hold a drink-
ing bout with the understanding that those members still on their
feet at midnight shall have the power to make the laws? And is
it going much further— or even as far — to say that it is tacitly
understood that the parliament will not withhold its enactments
from the knowledge of those bound to obey them or express its

laws in terms deliber ately made unintelligible?

Hart is bent o n^rescuing^he concept of law from its identifica-
tion with coercive power. A legal system, he asserts, is not "the
gunman situation writ large." But if the rule of recognition means
that anything called law by the accredited lawgiver counts as
law, then the plight of the citizen is in some ways worse than that *

of the gunman's victim. If a gunman says, "Your money or your ^*A

y
life," it is certainly expected that if I give him my money, he will Vp^

spare my life. If he accepts my purse and then shoots me down, pLr

I should suppose his conduct would not only be condemned by \ -

moralists, but also by right-thinking highwaymen. In this sense

not even an "unconditional surrender" is really unconditional,
for there must be an expectation on the part of him who sur-
renders that he is not trading sudden death for slow torture.
Hart's own distinction between the "gunman situation" and a
legal system (pp. 20-25) contains no suggestion of any element
of tacit reciprocity. Instead, the distinction runs entirely in formal
or structural terms. The gunman communicates his threat in a
single face-to-face situation; the law expresses itself normally in

139
 —
THE MORALITY OF LAW
standing and general orders that may be published, but do not
constitute a directcommunication between lawgiver and subject.
Acting through general rules is "the standard way in which law
functions, if only because no society could support the number
of officials necessary to secure that every member of the society
was and separately informed of every act which he was
officially

required to do" (p. 21). Every step in the analysis seems almost
as if it were designed to exclude the notion that there could be
any rightful expectation on the part of the citizen that could be
violated by the lawgiver.
I shall not attempt to trace in detail Hart's application of the
rule of recognition to a complex, constitutional democracy. Suf-
fice it to say he concedes that in this case there is not one rule
of recognition, but a whole complex of rules, practices, and con-
ventions that determine how lawmakers are elected, what the
qualifications and jurisdiction of judges shall be, and all the re-
lated matters that affect the determination in a given case of what
shall count as law and what not (pp. 59, 75, 242, et passim).
He also concedes "that a great proportion of ordinary citizens
perhaps a majority —have
no general conception of the legal
structure or of its he con-
criteria of validity" (p. 111). Finally,
cedes that it is not always possible to draw a sharp line of dis-
tinction between ordinary rules of law and those rules that grant
lawmaking powers (p. 144). Yet he seems to insist that, despite
all these concessions, the rule of recognition that ascribes legal
sovereignty to the Queen in Parliament can in some way sum-
marize and absorb all the little rules that enable lawyers to
recognize law in a hundred different special contexts. He seems
further to assert that this view of the matter is not a juristic con-
struction imposed from without, nor an expression of confidence
in the political power of Parliament to resolve any conceivable
conflicts that may arise within the system, but rather something
provable empirically in the daily practices of his government.
I have difficulty in seeing how this can be. "Parliament" is,

after all, only a name for an institution that has changed its na-
ture drastically over the centuries. The memory of one such

140
 THE CONCEPT OF LAW
change is preserved i the gracious fiction that even today speaks,
not of lawmaking by the Parliament, but by "the Queen in Parlia-
ment." To speak of one rule of recognition as pointing to some-
thing constantly changing is, it seems to me, almost like saying
that in a given country the rule of recognition has always ac-
corded the supreme lawmaking power to The Great X, where X
in one decade meant an elected official, in the next, the eldest son
of the last X, and in a third, a triumvirate selected by lot from
the Army, the Clergy, and the Laborers' Union.
It thus appears in Hart's account that the pointing finger which

the rule of recognition directs toward the source of law can move
through a wide arc without losing its target. How wide can that
arc become? It is perhaps a matter of political wisdom not to
ask for too precise an answer to this question. It is well in survey-
ing the past of one's country to see continuities even where con-
temporaries saw revolutions. But when the rule of recognition is

used as a "powerful tool of analysis" then becomes essential

it

to know when there is anything toward which it can point and

when it has shifted from A to a quite distinct B.
A basic error of method permeates, I submit, Hart's whole
treatment of the rule of recognition. He is throughout attempting
with the aid of that rule to give neat juristic answers to questions
that are essentially questions of sociological fact. This misap-
plication of the rule is most apparent in his discussion of what

he calls theproblem of "the persistence of law" (pp. 60-64).

An absolute monarch, King Rex V, succeeds to the throne on
the death of his father, Rex IV. Despite this displacement in the
human source of law, the laws enacted by Rex IV are commonly
regarded as persisting and as remaining unchanged until Rex V
announces some alteration in them. This is the sociological fact
Hart seeks to explain. It was described more than a century and
a half ago by Portalis in these words: "L'experience prouve que
les hommes changent plus facilement de domination que de
lois."53

53. "Discours preliminaire," in Locre, La legislation de la France (1827),

p. 251.

141
THE MORALITY OF LAW
Hart's explanation of this fact of experience is to say that the
rule of recognition points not to the man, but to the office, and
includes within itself the rules of lawful succession. In a similar
way we are in a position to explain, Hart suggests, why a law en-
acted by Parliament in 1735 can still be law in 1944.
But suppose that in our hypothetical case Rex IV is succeeded
not by his son, Rex V, but by Brutus I, who ousts Rex IV from
the throne without the slightest pretense of title and in open

violation of the accepted rules of succession. Are we to say that

it is a necessary consequence of this event that all previous laws
— including those of property, contract, and marriage —have now
lost their force? This is the result demanded by Hart's analysis,
yet it Hart would
violates the experience of history. In this case
have to employ, presumably, some such argument as that Bru-
tus I, by saying nothing about the matter, tacitly re-enacted the
previous law —
the very argument Hart himself criticizes in
Hobbes, Bentham, and Austin and an argument Hart's analysis is
intended to render unnecessary.
There is perhaps an irony here in that the old-fashioned, mili-
tary, non-ideological coup d'etat presents the clearest model of
a change in "the rule of recognition," yet perhaps constitutes the
least threat to "the persistence of law." The modern ideological
revolution, insinuating itself into power by a manipulation of
legal forms, represents precisely the kind of change most likely
to create doubts as to whether previous laws (say, exempting
churches from taxation) remain in effect. As an explanation for
the persistence of law the rule of recognition weights the balance
exactly in the wrong direction.
An equally infelicitous application of the rule of recognition
occurs, seems to me, when Hart attempts to use it to explain
it

how and when a primitive society makes its "step from the pre-
legal into the legal world" (p. 41). A society living in the pre-legal
world knows only primary rules of obligation, that is, duty-
imposing rules (p. 89). Such a system of rules is defective in a
number of respects: it provides no machinery for resolving doubts
and contradictions, or for effecting deliberate change; its rules

142
 THE CONCEPT OF LAW
depend for their effectiveness on diffuse social pressures (pp. 90-
91). A transition to the "legal world" occurs when a society first

conceives and applies to its affairs the notion that a rule may con-
fera power to make or change rules of duty (p. 61). This dis-
covery "is a step forward as important to society as the invention
of the wheel" (p. 41).
Now it seems to me that this essentially Austinian conception
represents, again, a misapplication of juristic distinctions to a
context that will not support them. For one thing, in a society
where there is a pervasive belief in magic, and where nature is
invoked by a formula, it is apparent that there can be no clear
distinction between "natural" and "legal" powers. The charis-
matic lawgiver is not authorized by any man-made rule of recog-
nition to make the law. Rather, the authority he enjoys in society
derives from a belief that he possesses a special capacity to dis-
cern and declare the law. 54 If we can speak of the emergence of
something like an explicit rule of recognition, this took place over
centuries and involved a gradual shift from the notion of powers
as an attribute of the person to powers conferred by an assigned
social role. Before this transition is complete, we have long since
left behind anything that could be called a primitive state of
society. Indeed, it may be said that this transition is never secure
against a relapse into more primitive notions. The cult of per-
sonality remains in some measure with us always.
It is furthermore doubtful whether primitive society was domi-
nated by anything like the modern conception of duty. It is at

least arguable that asbetween power and duty, power represents

the more primitive conception. What we would today call "punish-
ment" quite generally took the form in primitive society of an
exercise of magical powers over the offender to purge the com-

54. See Weber, Law in Economy and Society, trans. Shils and Rhein
stein (1954), pp. 73-82. The distinction taken in Chinese philosophy be-
tween a government by men and a government by laws is also worthy of
note, since it can serve to counteract somewhat Weber's insistence on the
nonrational character of "charisma." See Escarra, Le droit chinois (1936),
pp. 7-57.

143
THE MORALITY OF LAW
munity of an uncleanliness. A similar purging was accomplished
through the generous use of ostracism. Instead of a generalized
notion of duty we encounter acts that are allowed and disallowed,
proper and improper, fas et nefas. The first legal procedures often
took the form, not of a judicial determination of guilt, but of a
ritualistic self-help. Every misdeed tended to demand for its cure
a distinctive, and specially designed remedy. A generalized con-
ception of duty may perhaps be said to emerge only when we have
several remedies for the breach of a single duty, or several duties
that may be enforced by a single remedy. So long as the con-
sequences of a misdeed are identified with the formal steps neces-
sary to cure it, it would seem we are confronted with a notion of
power, rather than of duty.
It willbe useful to test Hart's hypothesis concerning the
world" against the actual experience of a
transition to "the legal
primitive people making that transition in quite modern times.
The experience in question is that of the Manus people of the
Admiralty Islands as reported by Margaret Mead. 55
After World War II the Manus people learned from their
Australian governors that there was a way of dealing with dis-
putes of which they had no previous knowledge. This was the
procedure of adjudication. Their own methods of settling disputes
had been most unsatisfactory, consisting as they did of "feuds,
raids, and subsequent ephemeral peace-making ceremonies often
with payments in expiation." Now they came to see that a dispute
could be decided and settled by a submission of it to an impartial
arbiter. There followed a veritable fad for adjudication, their own
elders being assigned or assuming a quite unfamiliar social role,
that of judge. Curiously the justice thus dispensed was a kind of
black market commodity since the "judges" who decided their
disputes lacked any legal standing with the Australian govern-
ment; their powers were quite unsupported by any rule of recog-
nition except a very informal and shifting one among the Manus
people themselves.

55. New Lives for Old (1956). The quotations in the text are taken from
pp. 306 and 307.

144
 THE CONCEPT OF LAW
The attitude of the indigenous people toward this innovation
is thus described by Miss Mead:

to the New Guinea native, newly fired with a desire to

keep his society "straight," the whole legal system looks
fresh and beautiful. He sees it as a magnificent invention, as
wonderful as the airplane, so that far into the interior of New
Guinea proper the institution of illegal "courts" is spreading.

If Miss Mead's account is correct, then the rule of recognition

among the Manus people ran primarily not toward a human
agency empowered by the rule to make law, but toward a pro-
cedure. And surely if one is going to speak of an invention com-
parable to that of the wheel or the airplane, it is appropriate to
think of a procedure and not of a mere grant of authority.

Law as a Purposeful Enterprise and Law as a

Manifested Fact of Social Power

The many different oppositions of viewpoint that have been

examined in this chapter may be said to reflect in shifting contexts
a single, underlying disagreement. The nature of this fundamental
divergence may be have insisted that
expressed in these terms: I

law be viewed as a purposeful enterprise, dependent for its suc-

cess on the energy, insight, intelligence, and conscientiousness of
those who conduct it, and fated, because of this dependence, to
fall always somewhat short of a full attainment of its goals. In
opposition to this view law must be treated as
it is insisted that
a manifested fact of social authority or power, to be studied for
what it is and does, and not for what it is trying to do or become.
In dealing with this fundamental opposition let me begin with
a statement of the considerations that seem to me to have led
to the view which I oppose. Since I have no authority to speak
for the opposition, this statement will have to be hypothetical in
form. I shall, however, try to phrase it as persuasively as I can.
Such a statement would begin with a concession that purpose

145
THE MORALITY OF LAW
has a proper role to play in the interpretation of individual legal
enactments. A statute is obviously a purposive thing, serving
some end or congeries of related ends. What is objected to is not
the assignment of purposes to particular laws, but to law as a
whole.
Any view that ascribes some purpose or end to a whole insti-

tutional complex has, it may be said, very unattractive ante-

cedents in the history of philosophy. It calls to mind the excesses
of German and if we start talk-
British idealism. It suggests that
ing about the purpose of law we may end by talking about the
Purpose of the State. Even if we dismiss as unreal the danger
that the spirit of Hegel may ride again, the view under considera-
tion has other affinities that are far from reassuring. It recalls,
for example, the solemn discussions about the Purpose of Swamps
that Thomas Jefferson conducted with his associates in the Ameri-
can Philosophical Society. 56 A naive teleology, it may be said,
has shown itself to be the worst enemy that the scientific pursuit
of objective truth can have.
Even if its historic affinities were less disturbing, there is an
intrinsic improbability about any theory that attempts to write
purpose in a large hand over a whole institution. Institutions are
constituted of a multitude of individual human actions. Many
of these follow grooves of habit and can hardly be said to be
purposive at all. Of those that are purposive, the objectives sought
by the actors are of the most diverse nature. Even those who
participate in the creation of institutions may have very different
views of the purpose or function of the institutions they bring
into being.
In answering these criticisms I shall begin by recalling that
the purpose I have attributed to the law is a modest
institution of
and sober one, that of subjecting human conduct to the guidance
and control of general rules. Such a purpose scarcely lends itself
to Hegelian excesses. The ascription of it to law would, indeed,
seem a harmless truism if its implications were not, as I believe

56. Boorstin, The Lost World of Thomas Jefferson (1948), pp. 45^*7.

146
 THE CONCEPT OF LAW
I have shown in my second chapter, far from being either self-

evident or unimportant.
Before denying ourselves the modest indulgence in teleology
I have proposed, we should consider carefully the cost entailed
in this denial. The most significant element of that cost lies in

the fact that we lose wholly any standard for defining legality. If
law is simply a manifested fact of authority or social power, then,
though we can still talk about the substantive justice or injustice
of particular enactments, we can no longer talk about the degree
to which a legal system as a whole achieves the ideal of legality;
if we are consistent with our premises we cannot, for example,
assert that the legal system of Country X achieves a greater mea-
sure of legality than that of Country Y. We can talk about con-
tradictions in the law, but we have no standard for defining what
a contradiction is. We may bemoan some kinds of retroactive
laws, but we cannot even explain what would be wrong with a
system of laws that were wholly retroactive. If we observe that
the power of law normally expresses itself in the application of
general rules, we can think of no better explanation for this than
to say that the supreme legal power can hardly afford to post
a subordinate at every street corner to tell people what to do.
In short, we can neither formulate nor answer the problems to
which my second chapter was devoted.
It may be said that if in truth these problems cannot be formu-

lated in a manner that enables us to answer them then we ought

to face that fact courageously and not deceive ourselves with
fictions. It is at this point that issue is most sharply joined. The

question becomes, not which view is most comforting and reas-

suring, but which view Is right, which view corresponds most
faithfully to the reality with which we must deal. In the re-
mainder of this (chapter I shall seek to show that the view which
pretends to absrradf from the purpose of law and to treat law
simply as a manifested fact of social power cannot be supported
except through a falsification of the reality on which it purports
to build.
The view I am criticizing sees the reality of law in the fact of

147
THE MORALITY OF LAW
an established lawmaking authority. What this authority deter-
mines to be law is law. There is in this determination no question
of degree; one cannot apply to it the adjectives "successful" or
"unsuccessful." This, it seems to me, is the gist of the theory
which opposes that underlying these chapters.
Now this theory can seem tenable, I submit, only if we sys-
tematically strike from view two elements in the reality it pur-
ports to describe. The first of these lies in the fact that the
established authority which tells us what is law is itself the
product of law. 57 In modern society law is typically created by
corporate action. Corporate action —by a parliament, for example
— is possible only by adopting and following rules of procedure
that will enable a body of men to speak legally with one voice.
These rules of procedure may meet shipwreck in all of the eight
ways open to any system of law. So when we assert that in the
United Kingdom Parliament has the final say as to what law is,
we are tacitly assuming some measure of success in at least one
legal enterprise, that directed toward giving Parliament the cor-
porate power to "say" things. This assumption of success is nor-
mally quite justified in countries with a long parliamentary tradi-
tion. But if we are faithful to the reality we purport to describe,
we shall recognize that a parliament's ability to enact law is itself
an achievement of purposive effort, and not simply a datum of
nature.
The second falsification of reality consists in ignoring the fact
that a formal structure of authority is itself usually dependent on
human effort that is not required by any law or command. Weber
points out that all formal social structures —whether embodied
in a tradition or a written constitution — are likely to have gaps
that do not appear as such because they are filled by appropriate
actions taken, often, without any awareness that an alternative is

open, 58 Men do not, in other words, generally do absurd things

57. I had occasion to touch on this point in discussing parliamentary

supremacy; see p. 115 supra.
58. Weber, Law in Economy and Society, pp. 31-33. Weber writes, "It
is a fact that the most 'fundamental' questions often are left unregulated by

148
 —
THE CONCEPT OF LAW
that would defeat the whole undertaking in which they are en-
gaged, even though the formal directions under which they
operate permit these absurdities.
Agood example of a gap in formal structure is to be found
in the Constitution of the United States. That laws should be a a j\(
promulgated is probably the most obvious demand of legality.
It is also the demand that is most readily reduced to a formal

constitutional requirement. Yet the Constitution says nothing

about the publication of laws. Despite this lack I doubt if it has
ever entered the mind of any Congressman that he might curry
favor with the taxpayers through a promise to save them money
by seeing to it that the laws were left unpublished. One can, of
course, argue that a constitutional requirement of publication
can be reached by interpretation, since otherwise the provisions
would make little sense. But
against certain retrospective laws
the point isno such interpretation was in fact engaged in
that
by those who from the first assumed as a matter of course that
laws ought to be published.
The scholar may refuse to see law as an enterprise and treat
it simply as an emanation of social power. Those whose actions
constitute that power, however, see themselves as engaged in an
enterprise and they generally do the things essential for its suc-
cess. To the extent that their actions must be guided by insight
rather than by formal rule, degrees in the attainment of success
are inevitable.
Hart's problem of "the persistence of law" —how can the law
made by Rex IV still be law when Rex V comes to the throne?
isanother example of a gap in postulated formal structure that
does not appear as such in practice. The need for continuity in
law despite changes in government is so obvious that everyone
normally assumes this continuity as a matter of course. It becomes
a problem only when one attempts to define law as an emanation

law even in legal orders which are otherwise thoroughly rationalized." He

goes on to say that generally men act so that "the 'absurd' though legally
possible situation" does not arise in practice.

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 —
THE MORALITY OF LAW
of formal authority and excludes from its operations the possible
influence of human judgment and insight.
The heavy emphasis theory tends to place on an exact defini-
tion of the highest legal power expresses, no doubt, a concern
that obscurity on this point may cause the legal system as a whole
to disintegrate. Again, it is forgotten that no set of directions
emanating from above can ever dispense with the need for intel-
ligent action guided by a sense of purpose. Even the lowly
justice of the peace, who cannot make head or tail of the language
by which his jurisdiction is limited, will usually have the insight
to see that his powers derive from an office forming part of a
larger system. He will at least have the judgment to proceed

cautiously. Coordination among the elements of a legal system

is not something that can simply be imposed; it must be achieved.
Fortunately, a proper sense of role, reinforced by a modicum of
intelligence, will usually suffice to cure any defaults of the formal
system.
There is, I any view that refuses
think, a curious irony about
to attribute tolaw as a whole any purpose, however modest or
restricted. No school of thought has ever ventured to assert that
it could understand reality without discerning in it structure,

relatedness, or pattern. If we were surrounded by a formless rain

of discrete and unrelated happenings, there would be nothing we
could understand or talk about. When we treat law as a "fact,"
we must assume that it is a special kind of fact, possessing defin-
able qualities that distinguish it from other facts. Indeed, all legal
theorists are at great pains to tell us just what kind of fact it is
it is not "the gunman situation writ large," it normally involves
the application of general rules to human behavior, etc., etc.

This effort to discover and describe the characteristics that

identify law usually meets with a measure of success. Why should
this be? The reason is not at all mysterious. It lies in the fact that
in nearly all societiesmen perceive the need for subjecting certain
kinds of human conduct to the explicit control of rules. When
they embark on the enterprise of accomplishing this subjection,
they come to see that this enterprise contains a certain inner logic

150
 THE CONCEPT OF LAW
of its own, that it imposes demands that must be met (sometimes
with considerable inconvenience) if its objectives are to be at-
tained. It is because men generally in some measure perceive
these demands and respect them, that legal systems display a
certain likeness in societies otherwise quite diverse.
It is, then, precisely because law is a purposeful enterprise
that it displays structural constancies which the legal theorist can
discover and treat as uniformities in the factually given. If he
realized on what he built his theory, he might be less inclined

to conceive of himself as being like the scientist who discovers a

uniformity of inanimate nature. But perhaps in the course of re-
thinking his subject he might gain a new respect for his own
species and come to see that it, too, and not merely the electron,
can leave behind a discernible pattern.

151
 THE SUBSTANTIVE AIMS
IV
OF LAW

Yet law-abiding scholars write

Law is neither wrong nor right. —W. H. Auden
We must not expect a good constitution because those who make it are
moral men. Rather it is because of a good constitution that we may expect
—
a society composed of moral men. Immanuel Kant

Holmes' legal philosophy had as itscentral theme the necessity

for maintaining a sharp distinction between law and morals. Yet
in The Path of the Law he wrote:

I do not say that there is not a wider point of view from

which the distinction between law and morals becomes of

secondary importance, as all mathematical distinctions
vanish in the presence of the infinite. 1

So it is now time in these investigations — without, to be sure,

invoking the infinite — to see whether there are not contexts in
which distinctions previously insisted upon may become of
1. 10 Harvard Law Review 457-78, at p. 459 (1897).

152
 THE SUBSTANTIVE AIMS OF LAW
secondary importance. The two principal distinctions upon which
the discussion has so far been built are,it will be recalled, the

distinction between the moralities of duty and of aspiration and

the distinction between the internal and external moralities of
law.

The Neutrality of the Law's Internal Morality toward

Substantive Aims

In presenting my analysis of the law's internal morality I have

insisted that it is, over a wide range of issues, indifferent toward
the substantive aims of law and is ready to serve a variety of such
aims with equal efficacy. One moral issue in lively debate today
is that of contraception. Now it is quite clear that the principles
of legality are themselves incapable of resolving this issue. It is

also clear that a legal system might maintain its internal integrity
whether its rules were designed to prohibit or to encourage
contraception.
But a recognition that the internal morality of law may support
and give efficacy to a wide variety of substantive aims should
not mislead us into believing that any substantive aim may be
adopted without compromise of legality. Even the adoption of
an objective like the legal suppression of contraception may,
under some circumstances, impair legal morality. If, as sometimes
seems to be the case, laws prohibiting the sale of contraceptives
are kept on the books as a kind of symbolic act, with the knowl-
edge that they will not and cannot be enforced, legal morality is
seriously affected. There is no way to quarantine this contagion
against a spread to other parts of the legal system. It is unfortu-
nately a familiar political technique to placate one interest by
passing a statute, and to appease an opposing interest by leaving
the statute largely unenforced.
One of the tasks of the present chapter is to analyze in general
terms the manner in which the internal and external moralities
of law interact. Before presenting this analysis it will be useful
to oppose against it the view expressed by H. L. A. Hart in

153
 THE MORALITY OF LAW
The Concept of Law. 2 In his chapter on "Law and Morals" Hart
writes:

If social control [through legal rules] is to function, the

rules must satisfy certain conditions: they must be intel-
ligible and within the capacity of most to obey, and in

general they must not be retrospective, though exceptionally

they may be Plainly these features of control by rule
. . .

are closely related to the requirements of justice which

r\ lawyers term principles of legality. Indeed one critic of
positivism has seen in these aspects of control by rules,
something amounting to a necessary connexion between
law and morality, and suggested that they may be called
"the inner morality of law." Again, if this is what the neces-
sary connexion of law and morality means, we may accept
it. It is unfortunately compatible with very great iniquity. 3

Certainly one could not wish for a more explicit denial of any
possible interaction between the internal and external moralities
of law than that contained in this last sentence. must confess
I

I am puzzled by it. Does Hart mean merely that possible, by

it is

stretching the imagination, to conceive the case of an evil monarch

who pursues the most iniquitous ends but at all times preserves a
genuine respect for the principles of legality? If so, the observa-
tion seems out of place in a book that aims at bringing "the con-
cept of law" into closer relation with life. Does Hart mean to
assert that history does in fact afford significant examples of
regimes that have combined a faithful adherence to the internal
morality of law with a brutal indifference to justice and human
welfare? If so, one would have been grateful for examples about
which some meaningful discussion might turn.
Hart's view that problems of legality deserve no more than
casual and passing consideration does not by any means reveal

2. This book has been previously discussed at some length; see pp. 133—
45, supra.
3. Ibid., p. 202. The unidentified "critic of positivism" mentioned in
the quoted passage is myself.

154
 THE SUBSTANTIVE AIMS OF LAW
itself solely in have quoted. It permeates his
the few sentences I

book as a whole. In his discussion of what he calls "the core

of good sense in the doctrine of Natural Law" (pp. 189-95), he
concerns himself exclusively with substantive aims, passing over
in silence the fine English tradition of "fundamental law," a tra-
dition largely concerned with what may be called the laws of
lawfulness. 4 When he comes to treat of "The Pathology of a
Legal System" (pp. 114-20), the issues discussed largely reduce
themselves in the vernacular to the question, "Who's boss around
here anyway?" Finally, the predicament of postwar Germany in

attempting to clean up the moral and legal debris left by the

Nazis still takes no account of the drastic deterioration in legal
morality that occurred under Hitler (p. 204). In short, while Hart
recognizes in passing that there exists something that may be
called an internal morality of the law, he seems to consider that
it has no significant bearing on the more serious concerns of
jurisprudence.
Against this view of Hart's — certainly not untypical of modern
legal thinking — I shall attempt in what follows to restore the in-
tellectual channels which it seems to me should connect the prob-
lem of legality with the other major issues of legal philosophy.

Legality as a Condition of Efficacy

I think I need not repeat here the argument implicit in my whole

second chapter that the internal morality of the law is not some-
thing added to, or imposed on, the power of law, but is an essen-
tial condition of that power itself. If this conclusion is accepted,
then the first observation that needs to be made is that law is a
precondition of good law. A conscientious carpenter, who has
learned his trade well and keeps his tools sharp, might, we may
suppose, as well devote himself to building a hangout for thieves
as to building an orphans' asylum. But it still remains true that
it takes a carpenter, or the help of a carpenter, to build an or-

4. See supra, pp. 99-101.

155
THE MORALITY OF LAW
phans' asylum, and that it will be a better asylum if he is a skill-

ful craftsman equipped with tools that have been used with care
and kept in proper condition.
If we had no
carpenters at all it would be plain that our first
need would be, not to draft blueprints for hospitals and asylums
or to argue about the principles of good design, but to recruit
and train carpenters. It is in this sense that much of the world
today needs law more than it does good law.
It is worth recalling that in the indictment set forth in the

Declaration of Independence, George III was as much charged

with a denial of law as with the imposition of unjust laws.

He has refused his assent to laws, the most wholesome

and necessary for the public good ... He has forbidden his
Governors to pass laws of immediate and pressing impor-
tance ... He has dissolved representative houses repeatedly
... He has refused for a long time, after such dissolutions
to cause others to be elected ... He has obstructed the
administration of justice, by refusing his assent to laws for
establishing judiciary powers ... He has abdicated govern-
ment here, by declaring us out of his protection and waging
war against us.

Whenthese words were written, Americans were on their way

to becoming "decolonized." We were fortunate that we had
learned from our British teachers something of the need for law
and for preserving its integrity and force. Much of the world
today yearns for justice without having undergone a similar
tutelage. There was never a time that could reveal more plainly
the vacuity of the view that law simply expresses a datum of
legitimated social power. Nor was there ever a time when it was
more dangerous to take that view seriously.
I should apologize for insisting on so obvious a proposition
as that some minimum adherence to legal morality is essential
for the practical efficacy of law, were it not that the point is so
often passed over precisely in contexts where it needs most to be
made explicit. A notable example of this occurs, I believe, in

156
 THE SUBSTANTIVE AIMS OF LAW
Hart's treatment (pp. 114-20) of "The Pathology of a Legal
System." All the situations he discusses under that heading in-
volve either a conflict of ultimate authority or "the simple break-
down of ordered legal control in the face of anarchy or banditry
without political pretensions to govern." Here, as elsewhere in
Hart's book, law is conceived entirely in terms of its formal source
rather than as a complex undertaking capable of various degrees
of success. There is no recognition that there may be a con-
tinued public acceptance of a single source of legal power and
yet that power may be so ineptly or corruptly exercised that an
effective legal system is not achieved. Nor is there any recognition
that some degree of "pathology" attends all legal systems, in-
cluding the most exemplary. Even if one is interested only in
shifts from one formal source of legal power to another, no

realistic account can be given if problems of legal morality are

excluded. In the course of history lawfully established govern-

ments have been overthown in the name of law. The threat of
lawless revolution can make it difficult to maintain lawfulness in
the actions of a government genuinely dedicated to legality. These
antinomies dominating the actual drama of history are lost from
view in an account content simply to say, in effect, "First there
was Act I, then there was Act II."

Legality and Justice

One deep affinity between legality and justice has often been re-
marked and is in fact explicitly recognized by Hart himself
(p. lies in a quality shared by both, namely, that they
202). This
act by known rule. The internal morality of the law demands
that there be rules, that they be made known, and that they be
observed in practice by those charged with their administration.
These demands may seem ethically neutral so far as the external
aims of law are concerned. Yet, just as law is a precondition for
good law, so acting by known rule is a precondition for any
meaningful appraisal of the justice of law. "A lawless unlimited
power" expressing itself solely in unpredictable and patternless

157
THE MORALITY OF LAW
interventions in human affairs could be said to be unjust only in
the sense that it does not act by known rule. It would be hard
to call it unjust in any more specific sense until one discovered
what hidden principle, if any, guided its interventions. It is the
virtue of a legal order conscientiously constructed and adminis-
tered that it exposes to public scrutiny the rules by which it acts.
It is now generally forgotten by what dodges the Nazis avoided
that public disclosure. During their regime there appeared in
many German shop windows a sign reading "JUdisches Geschaft."
No law was ever passed requiring the display of such signs. They
were installed at the "request" of Party members who went about
distributing them to the stores where their display was thought
appropriate. The explanation of this procedure current among
the German citizenry was that the Nazis knew that a formal and
published legal enactment would invite foreign criticism. This
ruse was in fact partly successful. At times when an influx of
foreigners was expected, say, during a commercial fair, the signs
were, again at the request of the Party, temporarily removed. In
Berlin, where a great many foreign visitors were coming and
going at all times, signs were not used at all. Instead stores of
Jewish ownership were "requested" by the Party to use a distinc-
tive paint around the frames of their display windows. The casual
foreign visitor would be likely to observe the frequency with
which this color was used, but generally remained ignorant of
its significance and that it had been used in compliance with a

rule that was never enacted publicly.

In our own country it is quite common for the practices of
governmental agencies to be controlled by unwritten and un-
published rules. Sometimes these rules are quite innocent in sub-
stance, though a lack of knowledge of them may handicap the
citizen in dealing with the agency. At other times these unde-
clared rules are far from innocent. A particularly brutal instance
of such a rule was revealed recently in Boston. It appears that
when an arrested person is detained in jail overnight, it is the
practice to require him to sign a paper releasing the police from
all civil liability for acts connected with his arrest and detention.

158
 THE SUBSTANTIVE AIMS OF LAW
Signing such a paper is a condition of his discharge from custody.
No doubt many a police officer, quite unreflective about this
practice, has applied it with a sense of conscientiously observing
standard operating procedure. It is hard to imagine any law-
maker who would be willing to authorize such a procedure by a
published rule.
So far I have spoken as if the affinity between legality and
justice consisted simply in the fact that a rule articulated and
made known permits the public to judge of its fairness. The
affinity has, however, deeper roots. Even if a man is answerable
only to his own
conscience, he will answer more responsibly if
he is compelled to articulate the principles on which he acts.
Many persons occupying positions of power betray in their rela-
tions with subordinates uniformities of behavior that may be said
to constitute unwritten rules. It is not always clear that those who
express these rules in their actions are themselves aware of them.
It has been said that most of the world's injustices are inflicted,

not with the fists, but with the elbows. When we

fists we use our
use them for a definite purpose, and we are answerable to others
and to ourselves for that purpose. Our elbows, we may com-
fortably suppose, trace a random pattern for which we are not
responsible, even though our neighbor may be painfully aware
that he is being systematically pushed from his seat. A strong
commitment to the principles of legality compels a ruler to answer
to himself, not only for his fists, but for his elbows as well.

Legal Morality and Laws A iming at A lleged

Evils That Cannot Be Defined

The simple demand that rules of law be expressed in intelligible

terms seems on its face ethically neutral toward the substantive
aims law may serve. If any principle of legal morality is, in Hart's
words, "compatible with very great iniquity," this would seem
to be it. Yet if a legislator is attempting to remove some evil and
cannot plainly identify the target at which his statute is directed,
it is obvious he will have difficulty in making his laws clear. I
THE MORALITY OF LAW
have already tried to illustrate this point by a reference to statutes
designed to prevent "a return of the old saloon." 5 In that case,
however, we have to do with legislative foolishness, rather than
with anything touching on iniquity.
It is quite otherwise with laws attempting to make legal rights
depend on race. It is common today to think of the government
of South Africa as combining a strict observance of legality with
the enactment of a body of law that is brutal and inhuman. This
view could only arise because of the now inveterate confusion
between deference for constituted authority and fidelity to law.
An examination of the legislation by which racial discrimination
is maintained in South Africa reveals a gross departure from the

demands of the internal morality of law.

The following extracts are taken from a careful and objective
study of the racial laws enacted by the Union of South Africa:

The Legislation abounds with anomalies and the same

person may, in the result, fall into different racial categories
under different statutes ... the Minister of the Interior on
the 22nd March 1957, stated that approximately 100,000
race classification cases were then pending before the Di-
rector of Census and Statistics which were regarded as
"borderline cases" ... As the present study has revealed,
the absence of uniformity of definition flows primarily from
the absence of any uniform or scientific basis of race classifi-
cation ... In the final analysis the legislature is attempting
to define the indefinable. 6

Even the South African judge who in his private life shares
the prejudices that have shaped the law he is bound to interpret
and apply, must, if he respects the ethos of his calling, feel a deep
distaste for the arbitrary manipulations this legislation demands
of him.

5. See pp. 89-91, supra.

6. Suzman, "Race Classification and Definition in the Legislation of
the Union of South Africa, 1910-1960," Acta Juridica (1960), pp. 339-67;
the extracts quoted in the text are taken from pp. 339, 355, and 367.

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 THE SUBSTANTIVE AIMS OF LAW
It should not be supposed it is only in South Africa that statutes
attaching legal consequences to differences in race have given
rise to serious difficulties of interpretation. In 1948 in Perez v.

Sharp 1 the Supreme Court of California held unconstitutional a

statute providing that "no license may be issued authorizing the
marriage of a white person with a Negro, mulatto, Mongolian or
member of the Malay race." The holding that the statute was in-
valid was rested in part on the ground that it did not meet the
constitutional requirement "that a law be definite and its meaning
ascertainable by those whose rights and duties are governed
thereby."
Our naturalization laws now expressly provide that the "right
of a person to become a naturalized citizen . . . shall not be
denied . . . because of race." 8 The Supreme Court is thus now
safe from the danger of getting itself entangled in its own inter-
it did in 1922 and 1923. In Ozawa v. United States
pretations as 9

the Court had to give some meaning to a provision restricting

naturalization to "white persons." The court observed, "Mani-
festly, the test afforded by the mere color of the skin of each

individual is impracticable as that differs greatly among persons

of the same race." In an attempt to achieve something like sci-
entific exactitude the Court declared that "white person" should
be interpreted to mean a person of the Caucasian race. In a case
argued a few months after this decision, the applicant for citizen-
ship was a high-caste Hindu. 10 His counsel introduced rather
convincing proof that among anthropologists employing the term
"Caucasian," he would be assigned to that race. The Court ob-
served that the term Caucasian was unknown to those who drafted
the statute in 1790, and that "as used in the science of ethnology,
the connotation of the word is by no means clear and the use of
it in its scientific sense as an equivalent for the words of the

statute . would simply mean the substitution of one perplexity

. .

7. 32Cal.2d711.
8. USCA,Tit.8, §1422.
9. 260 U.S. 178(1922).
10. United States v. Thind, 261 U.S. 204 (1923).

161
THE MORALITY OF LAW
for another The words of familiar speech, which were used
. . .

by the original framers of the law, were intended to include only

the type of man whom they knew as white."
Finally, by a bitter irony the Israeli High Court of Justice has
encountered well-nigh insoluble problems in trying to give some
simple and understandable interpretation to the Law of Return
granting citizenship automatically to immigrants who are "Jews."
On December 6, 1962, a divided Court held that a Roman Catho-
lic monk was not a Jew for purposes of this law. His counsel ar-
gued that, being of Jewish parentage, he was by rabbinical law still

a Jew. The Court conceded that this was true, but said that the
question was not one of religious law but of the secular law of
Israel. By that law he was no longer a Jew because he had em-
braced the Christian religion. 11

The View of Man Implicit in Legal Morality

Icome now to the most important respect in which an observance

demands of legal morality can serve the broader aims of
of the
human life generally. This lies in the view of man implicit in
the internal morality of law. I have repeatedly observed that

legal morality can be said to be neutral over a wide range of

ethical issues. It cannot be neutral in its view of man himself.
To embark on the enterprise of subjecting human conduct to
the governance of rules involves of necessity a commitment to
the view that man is, or can become, a responsible agent, capable
of understanding and following rules, and answerable for his
defaults.
Every departure from the principles of the law's inner morality
is an affront to man's dignity as a responsible agent. To judge
his actions by unpublished or retrospective laws, or to order him
to do an act that is impossible, is to convey to him your indiffer-
ence to his powers of self-determination. Conversely, when the
view is accepted that man is incapable of responsible action, legal
11. See the New York Times for Dec. 7, 1962, pp. 1 and 15, and Dec. 8,
1962, p. 13.

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 THE SUBSTANTIVE AIMS OF LAW
morality loses its reason for being. To judge his actions by un-
published or retrospective laws is no longer an affront, for there
is nothing left to affront — indeed, even the verb "to judge" be-
comes itself incongruous in this context; we no longer judge a
man, we act upon him.
Today a whole complex of attitudes, practices, and theories
seems to drive us toward a view which denies that man is, or
can meaningfully strive to become, a responsible, self-determin-
ing center of action. The causes of this development are of the
most varied sort; in their motivation they seem to run the gamut
from the basest to the most noble.
One stream of influence comes from science, and more par-
ticularly from certain doctrinaire schools of thought in the social
sciences. Let me allow the eminent psychologist B. F. Skinner
at this point to speak for himself:

If we are to use the methods of science in the field of

human affairs, we must assume that behavior lawful and
is

determined. We must expect to discover thatwhat a man

does is the result of specifiable conditions and that once
these conditions have been discovered, we can anticipate
and to some extent determine his actions. This possibility is

offensive to many people. It is opposed to a tradition of long

standing which regards man as a free agent ... no one who
is a product of Western civilization can [accept the scientific
view of human behavior] without a struggle.
The conception of a free, responsible individual is em-
bedded in our language and pervades our practices, codes,
and beliefs. Given an example of human behavior, most
people can describe it immediately in terms of such a con-
ception. The practice is so natural that it is seldom examined.
A scientific formulation, on the other hand, is new and
strange.
We do not hold people responsible for their reflexes — for
example, for coughing in church. We hold them responsible
for their operant behavior — for example, for whispering in

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THE MORALITY OF LAW
church or remaining in church while coughing. But there
are variables which are responsible for whispering as well as
coughing, and these may be just as inexorable. When we
recognize this, we are likely to drop the notion of responsi-
bility altogether and with it the doctrine of free will as an
inner causal agent. This may make a great difference in our
practices. The doctrine of personal responsibility is associ-
ated with certain techniques of controlling behavior
techniques which generate "a sense of responsibility" or
point out "an obligation to society." These techniques are
^relatively ill-adapted to their purpose. 12

That views like those just quoted represent an overreaching

of "science" and are based on a most naive epistemology, 13
does not seem seriously to detract from their appeal. Though
no one, including Professor Skinner, really believes them to the
extent of adopting them as a consistent basis for action, we recog-
nize that they express a partial truth. By overstating that truth
and leaving undefined its proper limits, they encourage an attitude
of indifference toward the decay of the concept of responsibility
implicit in many developments in the law, most of which certainly
do not serve the ends for which Professor Skinner has striven so
hard.
For in justice to Professor Skinner it should be noted that he
does not simply doubt the validity of the concept of responsibility;
he proceeds to construct an alternative mode of social control.
Stated in very simple terms he proposes that instead of telling
men to be good, we condition them to be good. Whatever the
merits or faults of this program, it has no affinity with that of the

12. Science and Human Behavior (1953); the quotations in the text are
taken from pp. 6-7, 10, 115-16.
13. Two themes that run through Skinner's thinking are: (1) that pur-
pose must be excluded from scientific explanation, since it involves a con-
ceived future state as governing the present, whereas it is an accepted
tenet of science that the past controls the present; (2) human behavior
must, so far as possible, be explained in terms of causes "outside" the
organism, rather than operative "within" it.

164
 THE SUBSTANTIVE AIMS OF LAW
overworked prosecutor who seeks to simplify his job through v^
laws that will make criminal responsibility independent of any
proof of fault or intent.
I have spoken of "noble" impulses as having played a part in
confusing the concept of responsibility. An outstanding example
lies in abuses of the rehabilitative ideal in the criminal law. As
Francis Allen has demonstrated, 14 misapplied this ideal can
brutalize the criminal law it sought to make more humane. When,
for example, rehabilitation is taken as the exclusive aim of the
criminal law, all concern about due process and a clear definition
of what is criminal may be lost. If the worst that can happen to
the defendant is that he should be given a chance to have him-
self improved at public expense, why all the worry about a fair
trial?

Since Professor Allen published his article the fears he there

expressed have received fresh confirmation in the opinion ren-
dered by Mr. Justice Clark in Robinson v. California. 15 As most'
of the court viewed the issue in that case it was whether the condi-
tion of being a —
drug addict a condition that might come about
innocently—could constitutionally be made a crime. The majority
of the court held that it could not. In dissenting from this decision
Mr. Justice Clark argued that the statute in question might be
regarded as a curative measure. Since it is conceded that a state
may through civil proceedings commit an addict to the hospital
for the purpose of curing him, he saw no reason why it might Y
not also sentence him to six months in jail where, presumably,
narcotics would be beyond his reach.
On this view of the criminal law what relevance would the
principles of legality have for such a statute as that involved in
Robinson v. California? Do curative measures need to be limited
and controlled by formal rules? Need the nature of these mea-
sures and the cases to which they are applicable be promulgated?

14. "Criminal Justice, Legal Values and the Rehabilitative Ideal," 50

Journal of Criminal Law and Criminology 226-32 (1959).
15. 370 U.S. 660 at pp. 679-86 (1962); the majority opinion in this
case was discussed supra, pp. 105-06.
THE MORALITY OF LAW
May not curative measures be applied to conditions arising be-
fore they were officially adopted?
There is much reason to believe that our approach to the prob-
lem of drug addiction is wrong, and that more would be achieved
through medical and rehabilitative measures than through the
criminal law. But such a program of reform, if it is to succeed,
will have to create the institutions necessary for its realization.

It cannot project itself incongruously into institutions created

with quite different aims in mind; you cannot make a jail a hos-
pitalby calling it that or make a criminal trial a medical examina-
tion by pretending that it is.
There are other trends in the law that serve to obscure the citi-
zen's role as a self-determining agent. Not the least of these lies
in the increasing use being made of taxation as a sort of legal
maid-of-all-work. In recent times taxation has become the means
of serving a multitude of oblique ends. Taxes have been imposed
to control the business cycle, to identify professional gamblers,
to allocate economic resources, to discourage the use of alcohol,
to make vendors of cosmetics share with the government a part
of the high price women are willing to pay for their unnatural
beauty, to discourage travel, to expand federal jurisdiction and —
who knows for what other objectives? Meanwhile prosecutors
means of securing
discover that the tax laws provide a convenient
convictions not obtainableon other grounds.
Small wonder, then, that the object and victim of it all should
sometimes become perplexed and begin to ask himself what lies
ahead. The corpulent citizen, already obsessed by the guilt of
overeating, may become concerned lest the government do some-
thing about his extra poundage. To be sure, he will probably
feel fairly safe in assuming they are not likely to fine him for
weighing too much. But can he be certain that tomorrow he may
not be the subject of a special tax, justified on the theory that it
costs more to transport him over governmentally subsidized air
lines, though the fact is he never travels by air? And may he not

ask himself what, after all, is the difference between a tax and
a fine? His mood of quiet desperation is not likely to be improved

166
 THE SUBSTANTIVE AIMS OF LAW
if he is unfortunate enough to learn that a famous justice of the
Supreme Court of the United States used to insist that there is
no difference.
I shall not dwell longer on these incongruities of the modern
Jr?^
legal order. I should like instead to recall what we would lose
s >J\^
if the concept of responsibility ever disappeared completely from ^v >/
the law. The whole body of the law is permeated by two recurring
standards of decision: fault and intent. Philosophic discussion of )(X)
J$^
^
these notions has largely concentrated on their role in the criminal
law, where they have given rise to the most abstruse arguments,
including that concerning freedom of the will. But these twin
standards play an equally important role in the law of contracts,
torts, and property. Examined closely they turn out to be difficult
and elusive conceptions in whatever area of the law they appear.
Yet without them we would have no thread to guide us through
the labyrinth. When one of them fails, we are apt to reach for
the closest approximation of it. When there is no clearly deter-
mined intent, we ask what intention the parties would have had
had they foreseen the situation that has arisen. When neither
party seems chargeable directly with fault, we ask which of them
—
had the best chance to prevent the harm which, in other words,
was closest to being at fault.
Notice what happens when these two tests, and their near
relatives, fail completely. This occurs in the law of contracts
when performance of an agreement is hampered or its significance
is changed by some external event, such as the cancellation of a

coronation procession. In the law of property our familiar stan-

dards fail when nature intervenes and takes control, as when a
river shifts its course, removing twenty acres from A's land and
adding twenty-five to B's. In cases like these the litigants do not
appear as responsible agents, but as the helpless victims of out-
side forces. We can no longer ask: Who was to blame? What did
they intend? Since our usual standards of justice fail us, we are at
a loss to know what justice requires. If we were to lose through-
out the law the view of man as a responsible center of action, all

legal problems would become like those I have just suggested.

167
 THE MORALITY OF LAW

The Problem of the Limits of Effective Legal Action

So far in this chapter I have attempted to show that the internal

morality of law does indeed deserve to be called a "morality."
I hope have demonstrated that an acceptance of this morality
I

is a necessary, though not a sufficient co n dition for the realiz a-

tion of justice, that this mor ality is itself violate d when an at tempt

ki Is made
finally, the specific
to express blind Tiatreds mrough legal rules , ancPtfiat,
morality of law articulates and holds before
us a view of man's nature that is indispensable to law and morality
alike.

It is now time to turn to the limits of legal morality and to an

analysis of the situations in which an application of this morality
may be inappropriate and damaging.
But first note must be taken of a confusion that threatens our
subject. Let me give an historical instance of this confusion. In
his essay On Liberty Mill had written:

"Hie object of this Essay is to assert one simple principle,

as entitled to govern absolutely the dealings of society with
the individual by way of compulsion and control, whether
the means used be physical force in the form of legal penal-
ties, or the moral coercion of public opinion. That principle
is, that ... the only purpose for which power can be right-
fully exercised over any member of a civilized community,
against his will, is to prevent harm to others. His own good,
either physical or moral, is not a sufficient warrant. 16

In his famous reply to Mill, James Fitzjames Stephen sought

to refute Mill's "one simple principle" by pointing out that the
British citizen has power exercised over him to extract taxes
which go in support of the British Museum, an institution ob-

16. The quoted passage appears in Ch. I.

168
 —

THE SUBSTANTIVE AIMS OF LAW

viously designed, not to protect the citizen from harm, but to im-
prove him. 17
What is a confusion between law in the usual
illustrated here is
sense of rules of conduct directed toward the citizen, and govern-
mental action generally. Mill was arguing that "physical force in
the form of legal penalties" should not itself be used as a direct
instrument for improving the citizen. Certainly he did not intend
to assert that the government should never use funds raised
through taxes — if necessary, by coercive measures
enforced, to —
provide facilities that will enable the citizen to improve himself.
The confusion Stephen introduced in his controversy with Mill
represents a fairly subtle representative of its class. A more
thorough piece of obfuscation is found in the following passage
from a famous anthropologist:

Law has been often used as an instrument of legislative

omnipotence. There was an attempt to make a whole nation
sober by law. It failed. [At this point we may say, so far, so
good.] In Nazi Germany a whole nation is being trans-
formed into a gang of bloodthirsty world-bandits through
the instrumentality of law, among others. This, we hope,
will fail again. The Italian dictator is trying to make his
intelligent, cynical, and peace-loving people into courageous
heroes.The fundamentalists have tried in some states of this
Union to make people God-fearing and bibliolatric by law.
A great communistic Union has tried to abolish God, mar-
riage, and the family, again by law. 18

This identification of law with every conceivable kind of of-

ficial act has become so common that when one finds an author

17. Liberty, Equality, Fraternity (1873), p. 16. "To force an unwilling

person to contribute to the support of the British Museum is as distinct a
violation of Mr. Mill's principle as religious persecution."
18. Malinowski, "A New Instrument for the Interpretation of Law
Especially Primitive," 51 Yale Law Journal 1237-54, at p. 1247 (1942).

169
THE MORALITY OF LAW
about to discuss, in Pound's famous phrase, "the limits of effec-
tive legal action," one is not sure whether the subject will be the
attempted legal suppression of homosexuality or the failure of
the government to convert the power of the tides into electricity
at Passamaquoddy.

Legal Morality and the Allocation of Economic Resources

So much by way of an attempt at intellectual prophylaxis. Let

me now turn directly to situations in which the internal morality
of law reaches beyond its proper domain.
You will recall how in my first chapter I invoked the analogy
of a kind of scale, starting at the bottom with the duties most
obviously necessary to social existence and ending at the top with
the highest and most difficult achievements of which human be-
ings are capable. I also spoke of an invisible pointer as marking
the line where the pressure of duty leaves off and the challenge
of excellence begins. I regarded the proper location of that point-
er as a basic problem of social philosophy. If it is set too low,
the notion of duty itself may disintegrate under the influence of
modes of thought appropriate only to the higher levels of a moral-
ity of aspiration. If the pointer is set too high, the rigidities of
duty may reach up to smother the urge toward excellence and
substitute for truly effective action a routine of obligatory acts.
This figure of the scale and the pointer is useful, I believe,
in surveying the range of governmental action. At the bottom we
have government establishing set rules of duty for the control
of human conduct. At the other end of the scale we have, for
example, the President conducting (with the advice and consent
of the Senate) our relations with foreign countries, relations that
obviously cannot be set by fixed rules of duty, if for no other
reason, because they involve decisions by powers beyond the
reach of our law.
In my second chapter I pointed out that the internal morality
of the law is itself largely a morality of aspiration. At the same
time it takes its peculiar quality from the fact that it has to do

170
 THE SUBSTANTIVE AIMS OF LAW
with creating and enforcing legal duties. The internal morality
of law, in other words, is not and cannot be a morality appropri-
ate for every kind of governmental action. The Army is a creature
of law and its officers are, in a sense, officials of the government.
Yet certainly it does not follow that every exercise of military
command must subject itself to the restraints appropriate, for
example, to a discharge of the judicial function.
It is chiefly in the economic field that truisms like those just

advanced have commonly been ignored. It will be recalled how

in the first chapter I pointed out that private economic activity
takes place within a restraining framework set by the law and
morality of property and contract. At the same time, this activity
cannot and should not be conducted in accordance with anything
resembling the internal morality of law. It knows but one general
principle, that of obtaining a maximum return from limited re-
sources. This remains true even when the restraints surrounding
economic calculation are expanded to include r let us say, the
obligation to pay a minimum wage, to provide some form of
job security, and to submit discharges to arbitration. Obligations
like these serve simply to shrink the framework within which
economic calculation takes place; they do not change the essen-
tial nature of that calculation.
Nor is the nature of that calculation changed when the govern-
ment itself engages directly in economic activity. Socialist econo-
mies have historically encountered a
difficulty in developing
meaningful pricing system. Without such a system applications
of the marginal utility principle become difficult and conjectural.

But the principle itself remains unimpaired, as it must whenever

and wherever men seek to make the most effective disposition of
the resources at their command. And it is apparent that that
principle cannot be realized through set rules of duty.
Now all the considerations I have just outlined are ignored
when we attempt, in our mixed economy, to accomplish through
adjudicative forms what are essentially tasks of economic alloca-
tion. This most notably occurs in the case of the Civil Aeronau-
tics Board and the Federal Communications Commission. By its

171
THE MORALITY OF LAW
nature adjudication must act through openly declared rule or
principle, and the grounds on which it acts must display some
continuity through time. Without this, joinder of argument be-
comes impossible and all the conventional safeguards that sur-
round decision (such as that proscribing private conferences be-
tween the litigant and the arbiter of the dispute) forfeit their
meaning.
To act wisely, the economic manager must take into account
every circumstance relevant to his decision and must himself
assume the what circumstances are rele-
initiative in discovering
vant. His decisions must be subject to reversal or change as con-
ditions alter. The judge, on the other hand, acts upon those facts
that are in advance deemed relevant under declared principles of
decision. His decision does not simply direct resources and ener-
gies; it declares rights, and rights to be meaningful must in some
measure stand firm through changing circumstances. When,
therefore, we attempt to discharge tasks of economic manage-
ment through adjudicative forms there is a serious mismatch be-
tween the procedure adopted and the problem to be solved.
Nowhere is this thought more effectively conveyed than in an
illustration suggested by Henry J. Friendly in his Holmes Lec-
tures, The Federal Administrative Agencies: The Need for Better
Definition of Standards. 19 Judge Friendly speaks of "the frustrat-
ing nature" of the task assigned by Congress to the Federal Com-
munications Commission. He continues:

The job Commission was some-

that Congress gave the
what comparable to asking the Board of the Metropolitan
Opera Association to decide, after public hearing and with
a reasoned opinion, whether the public convenience, inter-
est, or necessity would be served by having the prima donna
role on the opening night sung by . . . Tebaldi, Sutherland,
or one of several winners of high American awards. Multi-
ply this many hundred fold; add the seemingly capricious
element that whoever was selected for the role could assign

19. Harvard University Press, 1962.

172
 THE SUBSTANTIVE AIMS OF LAW
it to any of the other qualified applicants; prohibit the board

from getting the advice of many best able to help; assume

further that the decision-makers know their action is likely
to please or displease persons responsible for their continu-
ance in office, who occasionally communicate attitudes
while the decision is in progress —and you will have a more
sympathetic understanding of the Commission's problem
(pp. 55-56).

The "sympathetic understanding" so effectively conveyed in

this passage seems to have taken little hold in the remainder of
Judge Friendly's lectures. His complaint of the Federal adminis-
trative agencies is that they have insufficiently respected what
has been called here the internal morality of law. In advancing
reasons why the agencies should define clearly the standards on
which they act Judge Friendly presents considerations which
closely parallel, and in some respects usefully supplement, those
I have treated as making up the ingredients of legal morality

(pp. 19-26). Yet he extends these considerations indiscriminately

over the whole administrative process, making little attempt to
distinguish among the kinds of economic tasks that may be as-
signed to an agency.
The contention I am advancing here is that tasks of economic
allocation cannot be effectively performed within the limits set
by the internal morality of law. The attempt to accomplish such
tasks through adjudicative forms is certain to result in inefficiency,
hypocrisy, moral confusion, and frustration.
This contention finds, I believe, an interstitial confirmation in
Judge Friendly's lectures. The two targets of his most severe
strictures are the Federal Communications Commission and the
Civil Aeronautics Board, agencies whose chief tasks are explicitly
allocative. He praises the National Labor Relations Board for
the clarity with which has defined unfair labor practices, in
it

other words, for the manner in which it has exercised a jurisdic-

and remote from anything
tion closely akin to the criminal law
resembling a managerial allocation of resources. Generally it

173
THE MORALITY OF LAW
will be found throughout Judge Friendly's lectures that praise
and blame trace a path closely adhering to the distinction be-
tween allocative and nonallocative functions. Both praise and
blame are, however, largely misplaced when they are directed at
individuals; they ought instead to be directed to the aptness of
the institutional design of the agency to perform the task assigned
to it.

In an attempt to alleviate the incongruity between procedure

and assignment that afflicts so many administrative agencies,
Hector 20 and Redford 21 have, in somewhat different ways, pro-
posed a separation between the function of declaring general
policies and the day-to-day decision of particular cases. Red-
ford's proposal is certainly not received with "sympathetic under-
standing" by Judge Friendly; in fact he rejects it categorically:
"Quite simply, I find it hard to think of anything worse" (p. 153).
Yet the suggestion that the function of declaring general policies
be separately discharged represents a sincere and intelligent at-
tempt to come to grips with the problem of adjusting the institu-
tional design of administrative agencies to the economic tasks
assigned to them. One can imagine, for example, a national
policy for increasing the production of coal. No one would sup-
pose that such a policy should be arrived at by a judicial process
cabined within its normal limits. What such a policy would re-
quire in particular contexts would, of course, have to be decided
case by case. In this respect the proposals of Hector and Redford
make rare economic sense. They have not, however, solved the
problem of a mismatch between the institutional design of the
allocative agency and the job it has to do. Deciding what a general
economic policy requires in particular instances remains an awk-
ward assignment for adjudication. A national policy for increasing
the production of coal could not, for example, tell an adjudicative

"Problems of the CAB and the Independent Regulatory Commis-

20.
sions,"69 Yale Law Journal 931-64 (1960).
21. The President and the Regulatory Commissions (1960), a report sub-
mitted to the President's Advisory Committee on Government Organiza-
tion.

174
 THE SUBSTANTIVE AIMS OF LAW
agency whether to close down or to subsidize the continued
operation of a losing mine. An intelligent determination of that
question could only be made after an investigation into alterna-
tive uses for the manpower released by the shutdown and into
other opportunities for the use of the subsidy.
In stressing the special significance of the allocative function,
I do not wish to imply, of course, that there are no gradations in
the distinction between allocative and nonallocative tasks. Even
a judicial decision declaring a tax unconstitutional may operate
to draw investment into the area previously affected by the tax.
This allocative side effect is in theory disregarded as irrelevant
to the decision. Similarly an administrative tribunal may proceed
on standards that ignore the allocative effects of its decisions.
This is done by a rate-making agency where it takes as its stan-
dard the principle of an adequate return on a particular invest-
ment. If, on the other hand, the agency takes as its standard
setting a rate that will induce a sufficient flow of capital into the
regulated industry as a whole, its allocative function becomes
more explicit, but can be muted by an assumption that the in-
dustry requires a "normal" inflow of investment, though a wider
view of the economy might falsify this assumption. Tasks that
were once only incidentally allocative may become more directly
so with a change in circumstances. This happened to the Inter-
state Commerce Commission when the railways came under
competition from the truck and the airplane. It is interesting to
note that Judge Friendly praises some of the earlier decisions of
the ICC (pp. 27-35) and condemns more recent decisions for a
lack of "clear standards" (pp. 106-40).
The problem of finding the most apt institutional design for
governmental control over the economy has been acute for a long
time. In the future this problem is, I think, bound to become
more pressing and pervasive. Indispensable facilities, like certain
of our railways, will have to be rescued in one way or another
from their economic plight, a plight which, in the case of the
railways, has in part been brought about by the allocative effects
(for which no one assumes explicit responsibility) of subsidies

175
 —
THE MORALITY OF LAW
granted to competing forms of transportation. In the labor field,

many experienced arbitrators who once unbendingly opposed

compulsory arbitration have become more receptive toward it
and some even regard it as inevitable. Almost by inadvertence
a multibillion dollar inadvertence —
we have developed a new
form of mixed economy in that huge segment of industry de-
pendent upon contracts with the armed services. Because this
new form of enterprise is classified as "private," it escapes the
scrutiny to which direct governmental operation would be sub-
jected. At the same time it is foolish to think of it as being signifi-
cantly subject to the discipline of the market. When and if our
expenditures for armaments are seriously reduced, a great un-
meshing of gears will have to take place. Finally, there are the
as yet largely unf aced dislocations that will be brought by increas-
ing automation.
If these portents of what lies ahead can be trusted, then it is
plain that we shall be faced with problems of institutional design
unprecedented in scope and importance. It is inevitable that the
legal profession will play a large role in solving these problems.
The great danger is that we will unthinkingly carry over to new
conditions traditional institutions and procedures that have al-
ready demonstrated their faults of design. As lawyers we have a
natural inclination to "judicialize" every function of government.
Adjudication is a process with which we are familiar and which
enables us to show to advantage our special talents. Yet we must
face the plain truth that adjudicationis an ineffective instrument

for economic management and for governmental participation in

the allocation of economic resources.
It may be objected that without the guarantees afforded by

adjudicative procedures governmental power is subject to grave

abuse. This fear may underestimate the sense of trusteeship that
goes with being given a job to do that makes sense and being
allowed to do it the sensible way. Today greed and the thirst for
power most commonly find their outlet in the exploitation of in-
stitutional forms no longer animated by any clear sense of pur-
pose. In any event, in the search for institutional safeguards

176
 THE SUBSTANTIVE AIMS OF LAW
against abuse we need not confine ourselves to adjudicative pro-
cedures in the strict sense, but may also consider the models
suggested by the French Conseil d'fitat, the Scandinavian
ombudsman, the British Council on Tribunals, and the boards of
censors once established by several American states, censors
whose function it was not to supervise private morals, but to be
alert to detect abuses and deficiencies in government.

Legal Morality and the Problem of Institutional Design

In discussing the limits of legal morality I have so far sought to

show an effective allocation of economic resources cannot

that
be performed within the restraints imposed by that morality.
This in turn means that such an allocation cannot be performed
satisfactorily through adjudicative processes. It is important to
note that the considerations I have advanced in support of these
propositions are by no means relevant only to the field of eco-
nomics in the strict sense. In a broad sense economic calculation
is a pervasive part of our lives. No direction of creative human

effort can be entirely free from it.

The two fundamental processes of decision that characterize
a democratic society are: decision by impartial judges and deci-
sion by the vote of an electorate or a representative body. It is
important to recall that neither of these processes of decision can
by itself solve complex issues involving a wide range of possible
solutions. Thus when the faculty of Christ Church College was
of many opinions concerning the best design for a new belfry,
even the mathematical genius of Charles Dodgson was unable
to devise a method of voting that could resolve their differences. 22
Adjudication and majority vote are both dependent in such cases
on some preliminary procedure that will narrow the range of
22. Black, The Theory of Committees and Elections (1958), Ch. XX,
"The Circumstances in which Rev. C. L. Dodgson (Lewis Carroll) Wrote
his Three Pamphlets," pp. 189-213. (This fascinating and somewhat Freud-
ian chapter tells how Dodgson was driven to become a pioneer in the math-
ematical theory of elections by a dislike for his Dean, father of the real-life
Alice.)

177
THE MORALITY OF LAW
choice. This procedure normally involves a series of accommoda-
tions and compromises among those to be affected by the final

decision.
The architectural design of legal institutions and procedures
obviously cannot be drawn by adjudicative decision. It is for
this reason that the Supreme Court has wisely regarded as beyond
its competence the enforcement of the constitutional provision
guaranteeing to the states a republican form of government. A
court acting as such can neither write a constitution nor under-
take a general managerial supervision of its administration.
The decision in Carr 23 represents a gamble that
Baker v.

extracurial processes of political adjustment and compromise

will produce an issue digestible, as it were, by the Court. In
carrying out the commitment it undertook in Baker v. Can the
Court will find itself, I believe, compelled to tread a difficult
middle course. on the one hand, it lays down standards that
If,

are too exactingand comprehensive, it will stifle the indispensable

preliminary processes of adjustment and compromise. If its stan-
dards are too loose, these processes are not likely to produce a
solution acceptable to the Court.

Institutional Design as a Problem of Economizing

Implicit in these last remarks, as well as in these essays as a

whole, an assumption that just as man is restricted in what he
is

can do by the limits imposed by physical nature, so also is he

limited in the choices open to him in arranging the forms of his
social life. Here, as everywhere, he is confronted by scarcity and
is compelled to order the resources available to him with skill

and prudence.
At the risk of laboring the obvious, let me illustrate the point

I am make with a purely hypothetical case. Let us

trying to
suppose that among the parents of children attending a grammar
school dissatisfaction has arisen about the way in which some

23. 82 Sup. Ct. 691 (1962).

178
 THE SUBSTANTIVE AIMS OF LAW
pupils are denied promotion and are compelled to repeat a grade.
The parents' dissatisfaction is twofold: (1) they are not certain
that decisions on this matter are correctly made there have, in—
fact, been rumors of favoritism and of carelessness in the study
of records; (2) the parents think that in any event too much is

made of a failure to be promoted and that a disproportionate

stigma attaches to being made to repeat a grade. To meet the
first objection the parents demand that all recommendations
against promotion by grade teachers be submitted to a board of
senior teachers, who in reaching a final decision will follow
adjudicative procedures in which the affected parents will be
permitted to appear and be given access to all relevant records.
To meet the second objection the parents demand that a con-
certed effort be made to reduce the stigma attaching to a failure
to be promoted and that all teachers in discussing cases where a
pupil is held back make an effort to minimize the significance of

the decision.
Now it is apparent that this program combines elements be-
tween which there is a very considerable incompatibility. Skill
and tact in administering the program can reduce this clash, but
it will still remain generally true that the more effective the pro-
cedural guarantees against mistake and favoritism are, the more
unambiguously the finger of shame will point to the pupil not
promoted. A public trial may protect him against injustice, but
it will do so at the cost of depriving him of the consolation of be-

lieving that those who held him back did not know what they
were doing.
Similar problems of weighing costs run throughout our legal
and political life. For example, if the question be asked, "How
much effort should be expended to make certain that no innocent
man is ever convicted of crime?," the answer is apt to run toward
the absolute, and the suggestion may even be made that where
fundamental human rights are at stake a question so indecently
calculative should not even be raised. Yet when we reflect that
in order to make sure that a decision is right we must consume
the scarce commodity of time, and that a right decision too long

179
THE MORALITY OF LAW
delayed may do more damage to the accused himself than a mis-
taken decision promptly rendered, the matter assumes a differ-

ent aspect. We then perceive that even in this case we are com-
make a calculation that is in the broad sense "economic"
pelled to
even though money costs are completely left out of account.
It is a great mistake to treat questions of the design and ad-
ministration of our institutions as if the problem were merely

one of weighing substantive ends against one another. For in-

stitutions have an integrity of their own which must be respected
if they are to be effective at all. I have developed this point at

great length with respect to the internal morality of the law. In

the following passage from Henry M. Hart the point is properly
expanded to institutions and procedures generally:

In the criminal law, as in all law, questions about the

action to be taken do not present themselves for decision
in an institutional vacuum. They arise rather in the context
of some established and specific procedure of decision: in
a constitutional convention; in a legislature; in a prosecuting
attorney's office; in a court charged with the determination
of guilt or innocence; in a sentencing court; before a parole
board; and so on. This means that each agency of decision
must take account always of its own place in the institutional
system and of what is necessary to maintain the integrity
and workability of the system as a whole. A complex of
institutional ends must be served, in other words, as well
as a complex of substantive social ends. It is axiomatic that
each agency of decision ought to make those decisions which
its position in the institutional structure best fits it to make. 24

Though Professor Hart speaks with special reference to the

makes it clear that the problems he suggests run
criminal law, he
through government as a whole. I believe, for reasons already

24. "The Aims of Criminal Law," 23 Law and Contemporary Problems

401-41, at p. 402(1958).

180
 THE SUBSTANTIVE AIMS OF LAW
outlined, that these problems of the proper design and coordina-
tion of our legal institutions are certain to become more pressing
in the years ahead. Their solution will require an earnest col-
laborative effort among those competent to understand them.
Something like the spirit of the Federalist Papers will become
essential —a once inquiring and constructive.
spirit at

Unfortunately this spirit seems to be largely lacking in our

present intellectual climate. On the one hand, there are compe-
tent scholars who seem to deny the very existence of problems of
institutional design. Their program seems to be a maximum ex-
ploitation of governmental power —
without any inquiry into its
—
moral sources for whatever ends seem worthy at a given time.
On the other hand, there are those who — in the terms of my
presentation — assign these problems to the morality of duty
rather than to the morality of aspiration. They resist the sug-

gestion that the solution of these problems requires anything like

an economic calculation or an application of the principle of
marginal utility. From this entrenched position they are likely to

regard those who disagree with them, not merely as being mis-
taken, but as being unprincipled and immoral.
Fortunately, the lines of controversy are not quite so grimly
drawn as the account just given might suggest. One hopes that
the future will bring a further bridging of extremes, for the capac-
ity todevise institutions and procedures adequate to its problems
is perhaps the chief mark of a civilized society. That capacity is
in any event the chief instrument by which civilization can hope
to survive in a radically changing world.

The Problem of Defining the Moral Community

So been passed over in

far in these pages a basic question has
silence. This is the question, Who
embraced in the moral
are
community, the community within which men owe duties to one
another and can meaningfully share their aspirations? In plain
straightforward modern jargon the question is, Who shall count
as a member of the in-group?

181
THE MORALITY OF LAW
This is a problem that has bothered all moral philosophers.
Within a functioning community, held together by bonds of mu-
tual interest, the task of drafting a moral code is not difficult.

It is comparatively easy to discern in this situation certain rules

of restraint and cooperation that are essential for satisfactory

life within the community and for the success of the community
as a whole. But this confidence in moral judgment is bought at a
cost, for if there are no rational principles for determining who
shall be included in the community, the internal code itself rests
on what appears to be an essentially arbitrary premise.
Is there any resolution for this dilemma? If so, it cannot be

obtained from the morality of duty for that morality is essen-

tially a morality of the in-group. It presupposes men in living
contact with one another, either through an explicit reciprocity
or through relations of tacit reciprocity embodied in the forms of
an organized society.
A measure of resolution can, however, be obtained from the
morality of aspiration. The most eloquent expression of this
possibility is found in the Bible. The morality of duty expounded
in the Old Testament includes the command: Thou shalt love thy
neighbor as thyself. The New Testament tells of an encounter
between a lawyer and Jesus that turned on this command. The
lawyer, perceiving that the passage contained a point of difficulty,
wished to test Jesus' powers of exegesis. He asked, "And who is

my neighbor?"
On this occasion Jesus does not answer, "Your neighbor is

everyone; you are bound to love all men everywhere, even your
Good Samaritan. 25
enemies." Instead he relates the parable of the
A certain man had been struck down by thieves and left half
dead. Two of his community brothers passed him by without
offering aid. Then one of the despised Samaritans — definitely a
member of the out-group —bound up his wounds and took him
into care. Jesus ends with the question: "Which now of these

25. Luke 10:25-37.

182
 THE SUBSTANTIVE AIMS OF LAW
three, thinkest thou, was neighbor unto him that fell among the
thieves?"
The meaning of this parable is, I believe, not that we should
include everyone in the moral community, but that we should ^y,
aspire to enlarge that community at every o^por4tmtty--asd to ^\C>

include within it ultimately, if we can, all merfof goodwill^ \)*jA*^

But this still leaves a certain difficulty. The morality of aspira-
tion speaks, not imperatively, but in terms of praise, good coun-
sel, and encouragement. Is there no firmer basis for deciding the
question of the membership of the moral community?
I believe that in one situation there is. I shall put this situation

abstractly, though it is far from being hypothetical. Within a given

political society there are men commonly described as being of
different races. These men have lived together for many years.
Each group has enriched the idiom, the thought, the music, the
humor, and the artistic life of the other. They have together pro-
duced a common culture. Is there no moral principle that can
imperatively condemn drawing a line between them, and denying
to one group access to the essentials on which a satisfactory and
dignified life can be built?
I believe there is. In this case the morality of aspiration speaks
in terms fully as imperative as those characteristic of the morality
of duty, so that the distinction between the two at this point
breaks down. The morality of aspiration is after all a morality
of human aspiration. It cannot refuse the human quality to human
beings without repudiating itself.

Talmud there is a passage that reads, "If I am not for

In the
myself, who shall be for me? If I am for myself alone, what am
I?" 26 If we put this in the plural, we have, "If we are not for
ourselves, who shall be for us? If we are for ourselves alone, what
are we?" Whatever answer we may give to this last question, it
must be predicated on the assumption that we are above all else
human beings. If we have to qualify our answer by adding some

26. Aboth, Ch. 1, Mishnah 14.

183
THE MORALITY OF LAW
biological tag line to our own title, then we deny the human
quality to ourselves in an effort to justify denying it to others.

The Minimum Content of a Substantive Natural Law

In seeking to know whether it is possible to derive from the

morality of aspiration anything more imperative than mere coun-
sel and encouragement, I have then so far concluded that, since
the morality of aspiration is necessarily a morality of human
aspiration, it cannot deny the human quality to those who pos-
sess it without forfeiting its integrity. Can we derive more than
this?
The problem may be stated in another form. In my third
chapter I treated what
have called the internal morality of law
I

as itself presenting a variety of natural law. It is, however, a pro-

cedural or institutional kind of natural law, though, as I have
been at pains in this chapter to show, it affects and limits the sub-
stantive aims that can be achieved through law. But can we de-
rive from the morality of aspiration itself any proposition of
natural law that is substantive, rather than procedural, in quality?
In his Concept of Law H. L. A. Hart presenfTwHat he calls
"the minimum content of natural law" (pp. 189-95). Starting
with the single objective of human survival, conceived as oper-
ating within certain externally imposed conditions, Hart derives,
by a process I would describe as purposive implication, a fairly
comprehensive set of rules that may be called those of natural
law. What is expounded in his interesting discussion is a kind of
minimum morality of duty.
Like every morality of duty this minimum natural law says
nothing about the question, Who shall be included in the com-
munity which accepts and seeks to realize cooperatively the
shared objective of survival? In short, who shall survive? No at-
tempt is made to answer this question. Hart simply observes that
"our concern is with social arrangements for continued existence,
not with those of a suicide club."
In justifying his starting point of survival Hart advances two

184
 THE SUBSTANTIVE AIMS OF LAW
kinds of reasons. One amounts to saying that survival is a neces-
sary condition for every other human achievement and satisfac-

tion.With this proposition there can be no quarrel.

But in addition to treating survival as a precondition for every
other human good, Hart advances a second set of reasons for
his starting point —reasons of a very different order. He asserts
that men have properly seen that in "the modest aim of survival"
lies "the central indisputable element which gives empirical good
sense to the terminology of Natural Law." He asserts further
that in the teleological elements that run through all moral and
legal thinking there is "the tacit assumption that the proper end
of human activity is survival." He observes that "an overwhelming
majority of men do wish to live, even at the cost of hideous
misery."
In making these assertions Hart is, I submit, treading more
dubious ground. For he is no longer claiming for survival that
a necessary condition for the achievement of other ends, but
it is

seems to be saying that it furnishes the core and central element

ofall human striving. This, I think, cannot be accepted. As

Thomas Aquinas remarked long ago, if the highest aim of a cap-

tain were to preserve his ship, he would keep it in port forever. 27
As for the proposition that the overwhelming majority of men
wish to survive even at the cost of hideous misery, this seems to
me of doubtful truth. If it were true, I question whether it would

have any particular relevance to moral theory.

Hart's search for a "central indisputable element" in human
striving raises the question whether in fact this search can be
successful. I believe that if we were forced to select the principle
that supports and infuses all human aspiratio^we^wnlo'^nd'it
in the objective of maintaining communication witn our fellows.
In the first —place staying within the limits of Hart's own
argument —man has been able to survive up to now because of
his capacity for communication. In competition with other crea-

27. Summa Theologica, Pt. I—II, Q. 2, Art. 5. "Hence a captain does

not intend as a last end, the preservation of the ship entrusted to him, since
a ship is ordained to something else as its end, viz., to navigation."

185
 THE MORALITY OF LAW
tures, often more powerful than he and sometimes gifted with
keener senses, man has so far been the victor. His victory has
come about because he can acquire and transmit knowledge and
because he can consciously and deliberately effect a coordination
of effort with other human beings. If in the future man succeeds
in surviving his own powers of self-destruction, it will be because
he can communicate and reach understanding with his fellows.
Finally, I doubt if most of us would regard as desirable survival
into a kind of vegetable existence in which we could make no
meaningful contact with other human beings.
Communication something more than a means of staying
is

< alive. It is a way of being alive. It is through communication that

we inherit the achievements of past human effort. The possibility

of communication can reconcile us to the thought of death by
assuring us that what we achieve will enrich the lives of those to
come. How
and when we accomplish communication with one
another can expand or contract the boundaries of life itself. In
the words of Wittgenstein, "The limits of my language are the
limits of my world."
If were asked, then, to discern one central indisputable
I

principle of what may be called substantive natural law Natural —

Law with capital letters — I would find it in the injunction: Open
up, maintain, and preserve the integrity of the channels of com-
munication by which men convey to one another what they per-
ceive, feel, and desire. In this matter the morality of aspiration
offers more than good counsel and the challenge of excellence.
It here speaks with the imperious voice we are accustomed to
hear from the morality of duty. And if men will listen, that voice,
unlike that of the morality of duty, can be heard across the
boundaries and through the barriers that now separate men from
one another.

186
 A REPLY
V
TO CRITICS

In the internal debate that preceded the decision to add this

chapter to my book, I was acutely aware of considerations that
weighed heavily against my undertaking it. For one thing, it has
been my observation that authors generally serve themselves
badly when they attempt to defend their books against critical
reviews. The reviewer enjoys the advantage of occupying a fairly
well understood role. The expectations of his readers make it
appropriate for him to assume the part of a vigorous prosecutor;
if he is reasonably fair and sticks to the evidence a considerable
license ofadvocacy will gladly be accorded to him and will indeed
seem to serve the ultimate cause of truth.
The author defending his work confronts a very different set
of expectations. He has published his book, he has already had
his day in court and the becoming posture for him may seem
to be that of awaiting quietly the verdict of the intelligent and
disinterested reader. Furthermore, any reply to critical reviews
is apt to become a muddled mixing charges of misinterpre-
thing,
tation with rearticulations of what the author claims he meant
to say, intermingling awkwardly defense and counteroffensive,
and ending with dark intimations that only limitations of space
prevent him from demonstrating with devastating finality how

187
THE MORALITY OF LAW
completely mistaken his critics are. In general, efforts at self

justification are apt to be painful for all concerned; there is, in-
deed, a saying in my profession that a lawyer never appears to
worse advantage than when pleading his own cause.
In the case at hand there was also the consideration that any
Reply to Critics would mark the continuation of a debate between
H. L. A. Hart and myself that has already gone on for more than a
decade. It began when Professor Hart published the Holmes Lec-
ture delivered at the Harvard Law School in April 1957. 1 In that
lecture he undertook to defend legal positivism against criticisms
made by myself and others. The first attempt at counterthrust
was my critical commentary on this lecture. 2 Round three was
marked by the publication of Hart's The Concept of Law; round
four occurred when the first edition of the present work was pub-
lished; round five took place when Hart published his review. 3
One has the feeling that at some point such an exchange must
terminate. Interest reipublicae ut sit finis litium. As Ernest Nagel
remarked in the fourth and final round of a debate we had in
1958 and 1959, "There is, in general, little intellectual nourish-
ment to be found in rebuttals to rejoinders to replies." 4
A final deterrent lay in the sheer number of reviews and the
diversity of opinion expressed in them, 5 not to speak of the con-
tributions to a symposium held on April 2, 1965, 6 or of incidental

'Positivism and the Separation of Law and Morals," 71 Harvard

Law Review 593-629 (1958).
Law—A Reply to Professor Hart," 71
2. "Positivism and Fidelity to
Harvard Law Review 630-72 (1958).
3. 78 Harvard Law Review 1281-96 (1965).
4. "Fact, Value and Human Purpose," 4 Natural Law Forum 26-43, at
p. 26 (1959).
5. There have been some 46 reviews. See list, pp. 243-44.
6. 'The Morality of Law —
A Symposium," 10 Villanova Law Review
631-78 (1965). Individual contributions were Murray, "Introduction to the
Morality of Law," 624-30; Dworkin, "The Elusive Morality of Law,"
631-39; Cohen, "Law, Morality and Purpose," 640-54; Fuller, "A Reply
to Professors Cohen and Dworkin," 655-66; with comments by John E.
Murray, Jr., 667-70; E. Russell Naughton, 671-72; Francis H. Parker,
673-75; and Donald A. Giannella, 676-78.

188
 —

A REPLY TO CRITICS

appraisals of the book contained in articles of a larger scope. 7

To do justice to all of the points raised in these reviews and
commentaries would require a very long chapter indeed.
Notwithstanding the misgivings just outlined I have decided
to undertake in this new and final chapter, not only a continuation
of my debate with Hart, but a reply to certain other critics as

well. Several considerations have prompted this decision.

One of these lay in certain statements contained in Hart's

review. In his first paragraph he remarks that it may be that
"our starting points and interest in jurisprudence are so different"
that he and I "are fated never to understand each other's works."
As critical reviews of my book came in, I myself became increas-
ingly aware of the extent to which the debate did indeed depend
—
on "starting points" not on what the disputants said, but on
what they considered it unnecessary to say, not on articulated
principles but on tacit assumptions. What was needed therefore, it
seemed to me, was to bring these tacit assumptions to more ade-
quate expression than either side has so far been able to do.
was further encouraged to undertake this effort at clarifica-
I

tion by the closing words of Hart's review words that seem to —

intimate what he himself conceives to be the fundamental differ-
ence in our "starting points":

In conclusion I would say

the virtues and vices of this
this:

book seem to me
from the same single source.
to spring
The author has all his life been in love with the notion of
purpose and this passion, like any other can both inspire
and blind a man. I have tried to show how it has done both

7.Anastaplo, "Natural Right and the American Lawyer," Wisconsin

Law Review 322-43 (1965); Dworkin, "Philosophy, Morality, and Law
Observations Prompted by Professor Fuller's Novel Claim," 113 Univer-
sity of Pennsylvania Law Review 668-90 (1965); Hughes, 1964 Annual
—
Survey of American Law Jurisprudence (1965), New York University,
pp. 693-97; King, "The Concept, The Idea, and The Morality of Law,"
Cambridge Law Journal 106-28 (1966); Lewan, "Die Rechtsphilosophie
Lon Fullers," Archiv fur Rechts- und Sozialphilosophie, 377-413 (1966);
Sturm, "Lon Fuller's Multidimensional Natural Law Theory," 18 Stanford
Law Review 612-39 (1966).

189
THE MORALITY OF LAW
to the author. The inspiration is so considerable that I would
not wish him to terminate his longstanding union with this
idee maitresse. But I wish that the high romance would
settle down to some cooler form of regard. When this hap-
pens, the author's many readers will feel the drop in tem-
perature; but they will be amply compensated by an increase
in light. 8

The amatory figure —though inevitably a little vivid for the

taste of its victim — I accept as a legitimate literary device. I take
itwhat Hart is attempting to convey is that I make too much of
purpose and that I would do well to play it down in my thinking.
In my view Hart makes too little of purpose; he suffers from
the positivist delusion that some gain unstated and unanalyzed —
— will be realized if only we treat, insofar as we can, purposive

arrangements as though they served no purpose.

Another development prompting me toward this Reply to
Critics occurred in November 1966, when there appeared an
article announcing the emergence of a new school of legal philos-
ophy, denominated as that of the New Analytical Jurists. 9 The
acknowledged leader of this school of thought is H. L. A. Hart.
The school itself is described as being "less positivistic" than its

forerunners, though most of its members are said to remain

positivists in the sense that their core commitment is to the
proposition that "law as it is can be clearly differentiated from
law as it ought to be." To the layman this proposition is likely
to seem too obvious a truth to justify running up a philosophic
banner over it; to the lawyer experienced in issues of interpreta-
tion it will suggest a host of problems hardly intimated in Sum-
mer's article.

Though at the conclusion of his article Summers asserts that

"professional interest in the new analytical jurisprudence grows

8. Supra n. 3, at 1295-96.
Summers, 'The New Analytical
9. Jurists," 41 New York University
Law Review 861-96 (1966).

190
 A REPLY TO CRITICS

each year," he seems throughout to have some difficulty in artic-

ulating just what philosophic creed unites this new school of

thought. I think I may be able to help him in this. According to
Summers the adherents of the New Analytical Jurisprudence in-
clude Hart, Ronald Dworkin, and himself. He also considers
Marshall Cohen as a philosopher thinking and writing in a vein
similar to that of the New Analytical Jurists. These four men
have written in all some ninety pages of critical commentary on
my book. I can testify to an amazing uniformity in their reactions;
whole paragraphs could be transferred from one discussion to
another without any perceptible break in continuity of thought.
It is apparent that here, too, we are dealing not with explicit
theories but with what Hart called "starting points." Perhaps I

can in what follows identify those starting points more clearly than
the New Analytical Jurists themselves have been able to do.

The Structure of Analytical Legal Positivism

What I shall attempt here is to bring to articulation the basic

intellectual commitments underlying analytical legal positivism.
By mean to exclude behavior-pattern
the adjective "analytical" I

positivism of the sort suggested when it was proposed, at the

height of the movement called American Legal Realism, to de-
fine law as "the behavior patterns of judges and other officials." 10 j

The term "analytical" is also apt in conveying an intellectual

mood that finds more satisfaction in taking things apart than in
seeing how they fit and function together; there is, indeed, little

interest among analytical positivists in discerning the elements

of tacit interrelatedness that infuse —
though always somewhat
imperfectly —what we call, by no accident, a legal system.
The structure of thought I shall try to describe is one generally
shared by Austin, Hart, and Kelsen. In presenting it I shall deal
only incidentally with intramural debates among adherents of

10. References to behavior-pattern legal realism will be found in my

book, The Law in Quest of Itself (1940, 1966), pp. 53-57.

191
THE MORALITY OF LAW
the positivist position. Confining myself, then, to the basic "start-
ing points" that shape the positivist creed, I would discern five
of these.
law as a one-way projection
First, the analytical positivist sees
of authority, emanating from an authorized source and imposing
itself on the citizen. It does not discern as an essential element

in the creation of a legal system any tacit cooperation between

lawgiver and citizen; the law is seen as simply acting on the citizen
—morally or immorally, justly or unjustly, as the case may be.
Second, the positivist philosophy asks of law not what it is or
does, but whence it comes; its basic concern is with the question,
Who can make law? Intramural disputes within the school of
legal positivism relatealmost entirely to the problem of defining
the principle or principles by which the right to create law is
allocated. Thus we have Austin's "sovereign one or many enjoy-
ing the habit of obedience," Kelsen's postulated "Grundnorm,"
and Hart's "empirically" grounded "Rule of Recognition." 11
Positivism may recognize, of course, that the authorized law-
giver may lack the power to enact specific kinds of law, as, for
example, where a written constitution proscribes certain ex-
ercises of legislative power. But no modern positivist elevates to a
central position in his thinking any limitations contained in "the
law job" itself, to borrow a phrase that was a favorite of Karl
Llewellyn's.
Third, the legal positivist does not in fact view the lawgiver
as occupying any distinctive office, role, or function. If we spoke
of his performing a role this would imply that his role should

11. I have not attempted here or elsewhere any critical appraisal of

Hart's concept of the Rule of Recognition. The interested reader will find
such an appraisal in Sartorius, "The Concept of Law," Archiv fiir Rechts-
und Sozialphilosophie 161-90 (1966); and Dworkin, 'The Model of Rules,"
35 University of Chicago Law Review 14-46 (1967). These two articles
make it clear that the Rule of Recognition is by no means so simple a notion
as might appear from Hart's presentation of it. How
it is to be "empirically"

established, instead of being "postulated" after the manner of Kelsen's

Basic Norm, remains largely unexamined and unexplained.

192
 A REPLY TO CRITICS

be adjusted to the complementary roles of others, including that

of the ordinary citizen. Any such view would compromise the
attempt to regard law as a one-way projection of authority.
Fourth, since the lawgiver is not regarded as occupying a dis-
tinctive and limited role, nothing that could be called a "role
morality" attaches to the performance of his functions. The
ordinary lawyer is, of course, subject to a code of ethics govern-
ing his conduct toward clients, fellow lawyers, courts, and the
public. This code is no mere restatement of the moral prin-
ciples governing human conduct generally, but sets forth special
standards applicable to the discharge of a distinctive social func-
tion. There is, however, no room in the positivist philosophy for
a similar ethical code governing the lawgiver's role. If the lawgiver
enacts what Hart calls "iniquitous" laws, he sins of course against
general morality, but there is no special morality applicable to his
job itself.

I think I need not labor the point that the four elements of the
positivist creed just outlined are interdependent; each in a sense
implies the others. They may all be summed up in the observation
that the positivist recognizes in the functioning of a legal system
nothing that can truly be called a social dimension. The positivist
sees the law at the point of its dispatch by the lawgiver and again
at the point of its impact on the legal subject. He does not see the
lawgiver and the citizen in interaction with one another, and by
virtue of that failure he fails to see that the creation of an effective
interaction between them is an essential ingredient of the law
itself.

So far I have left out the fifth and most central article of faith

in the credo of positivism. This lies in a belief that clear thinking

is impossible unless we effect a neat separation between the pur-
posive effort that goes into the making of law and the law that
in factemerges from that effort. This aspect of the positivist
philosophy —
which is, indeed, what justifies its name may seem —
unconnected with the other four. It stands, however, in intimate
relation with them.
It is in dealing with human interaction that the positivistic

193
 —
THE MORALITY OF LAW
stance toward reality becomes most difficult to maintain. In con-
trast, whenever human action can plausibly be viewed as unilater-
ally projected, the embarrassments of a commitment to positivism

are reduced to a minimum. If A is attempting to accomplish

some purpose by acting upon an inert B, then we can expect to
distinguish with some measure of success between A's purpose
—
what he was trying to achieve and the result of his action
some change in the external world. If A is a surgeon operating
on an anesthetized B, we can say that A is attempting to achieve
some specified result and we can ask ourselves meaningfully what
result he in fact achieves. To be sure, if I am not myself a surgeon
I may not, as I watch the operation, really understand what is

going on, except in broad outlines; the specific motions of the

surgeon's hands, the instruments used, and other details may not
really register themselves on my perception. All of these details
would be meaningful to a fellow surgeon witnessing the same
operation, simply because he would perceive and be able to
participate in the purposive why of what was happening. But
ignoring this limitation on my comprehension of what was going
on, I can still insist that as a layman I had at least a general under-
standing of the purpose back of the operation and that this was
something quite different from its actual outcome, whether that
outcome be viewed as a success or as a failure in terms of the
"w^ purpose pursued by the surgeon.
Suppose, however, that A is not acting upon an inert B, but
that A and B are two persons in conscious and lively interaction
with one another. A and B may, for example, have entered
upon some common undertaking. They have not yet settled on
the terms of their collaboration, but as the venture gets under
way they begin to negotiate, by words explicitly and by actions
^ tacitly, a kind of constitution regulating their relations with one

) another. Each is orienting his words, signs, and actions by what

-s'

^ he thinks the other seeks and in part also by what he thinks the
other thinks he seeks. Here there emerges from the parties' inter-
actions no hard factual datum that can be set off against the
purposes that brought it into existence. The quality and terms of

194
 A REPLY TO CRITICS

the parties' emergent relationship — its "laws" if you will —con-

stitutean important social reality, but it is a reality brought into
being and kept alive by purposive effort and by the way each of
the parties interprets the purposes of the other.
What I have just been trying to convey is brought to eloquent
expression in the following passage from a treatise on inter-
actional sociology: "Reality, then, in this distinctively human
world, is not a hard immutable thing but is fragile and ad-
judicated —a thing to be debated, compromised, and legislated." 12
It is then, I suggest, no accident that the elements of interaction
that create and give meaning to the law are pushed to one side
and largely ignored by the analytical positivist. If they were not,
he would be in serious trouble in maintaining the basic articles
of his faith.
The remarks just concluded have not been offered in the belief
that they constitute any solution for what is ordinarily called the
problem of the fact-value dichotomy. What I have presented
here has been intended simply to put that question into relation
with the other tenets of positivism. If in this effort I have mis-
represented the positivist position generally, or the views of par-
ticular positivists, especially those designated as the New Ana-
lytical Jurists, I stand ready to be corrected. Spelling out the
other fellow's tacit assumptions is a hazardous business, but some
attempt at it is sometimes necessary if effective communication
is to take place at all.

Before proceeding more directly to my Reply, I should like

to supplement the account just given by referring to two intel-
lectual influences that have, I believe, impinged upon and helped
to shape the thinking of the New Analytical Jurists. One of
these is the common-language philosophy associated with the
name of J. L. Austin; the other is utilitarianism.
In general the practice of ordinary-language philosophy con-
sists in digging out and clarifying the distinctions embedded in

everyday linguistic usage. In whatever field these distinctions are

12. McCall and Simmons, Identities and Interactions (1966), p. 42.

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THE MORALITY OF LAW
found, there seems to be a kind of presumption that they will
prove valid and useful and that once they have been fully
articulated there is no need to go further. An exemplification
of the method is offered by Hart's intense interest in the distinc-
tion between "being obliged" and "having an obligation." Some
useful insights have been derived through this method; there is
indeed a lot of tacit and subtle wisdom concealed in the in-
terstices of everyday speech. But the tendency of the practitioners
of this method has been to regard as an end in itself what ought
to be viewed as a useful adjunct to philosophic thought. As Stuart
Hampshire has observed, there seems to be an assumption among
linguistic philosophers that distinctions disentangled from or-
dinary speech have a utility that is independent of the context
of any particular problem and that these distinctions can be
transferred freely from one problem to another. 13 I agree with
Hampshire that this is a serious mistake.
I shall call attention later to some instances in which the as-
sumptions of ordinary-language have, in my opinion, misled cer-
tain of my critics. For the time being let me just note one illustra-
tive outcropping of the spirit of this philosophy. On pages 124-29
I suggested that the problems involved in maintaining the in-
tegrity of a legal system were characteristic not only of state and
national law, but affected also the creation and administration of
the internal law of such association^ forms as churches, clubs,
universities, and labor unions. I declared therefore that for
purposes of my analysis the internal regulations of these bodies
were "law." Hart calls this assertion "unashamed," 14 while
Summers was so unnerved by it he could find nothing better to
say than that it was another instance of what he regards as my
life-long intellectual dedication, that is, to an activity he calls

13. "J. L. Austin and Philosophy," 62 Journal of Philosophy 511-13

(1965).
14. "This large conception of law, admittedly and unashamedly, in-
cludes the rules of clubs, churches, schools 'and a hundred and one other
forms of human association.' " Supra n. 3, p. 1281.

196
 A REPLY TO CRITICS

"axe-grinding." 15 Surely in a dispassionate analysis one should

be permitted to suggest that the ordinary usages of the word "law"
may obscure, as well as reveal, essential similarities.
A second major influence on the thinking of the New Analytical
Jurists derives from the utilitarian philosophy. It is often con-
sidered that the basic fault of utilitarianism is its tendency to
trivialize ends. The more basic fault lies, I think, in its falsification
of the relation of —
means and ends a fault mitigated but certainly
not cured by what is called rule-utilitarianism. The utilitarian
philosophy encourages us in the intellectually lazy notion that
means mere matter of expediency and that nothing of
are a
general significance can be said of them; it makes us forget that

in a legal system, and in the institutional forms of society gen-

erally, what is means from one point of view is end from another

and that means and ends stand in a relation of pervasive inter-

action.

Is Some Minimum Respect for the Principles of Legality

Essential to the Existence of a Legal System?

In my second chapter I indicated that a sufficiently gross de-

parture from the principles of legality therein set forth would
result in something that was not simply bad law, but not law at all.

Do my critics agree with this conclusion? It would seem they do.

In his Concept of Law, responding in part to points I had
made in our exchange of 1958, Hart indicated his acceptance
of the proposition that to bring law into existence there must be
some minimum respect for what "lawyers term principles of
legality." 16 In a similar vein Cohen writes, "Fuller's 'canons' . . .

are ... a tolerable start at producing a set of conditions necessary

for the presence of a (modern) legal system. . . . One might argue
with Fuller's list, but there can be no doubt that some list of this

15. Summers, review listed on p. 244, at p. 22. In this review Professor

Summers finds occasion six times to characterize passages in my book as
"axe-grinding"; see pp. 15, 18, 19, 20, 22, and 24.
16. P. 202.

197
THE MORALITY OF LAW
sort is correct." 17 Dworkin puts it this way: "I accept Fuller's
conclusion that some degree of compliance with his eight canons
of law is necessary to produce (or equally as important, to apply)
any law, even bad law." 18 Summers is more cautious: "at least
some of [Fuller's] opponents would not deny that if we are to have
law at all, we must have some compliance with [his] 'principles of
legality.'
"*»

My four do not embrace the Kelsenian doctrine

critics, then,
of the Identity of Law and
the State; they do not assert that any-
thing — —
even a grunt or a groan is law provided only it comes
from a source identified by the Rule of Recognition; they share the
view that before what emanates from that source can be called
law, it must conform to certain standards that will enable it to
function meaningfully in men's lives.
On this general issue, then, the agreement between my critics
and me seems, in words at least, complete. To what extent this
appearance of agreement conceals underlying differences cannot,
unfortunately, be answered without some recourse to the for-
bidden concept of Purpose; we have to ask, in other words,
to what end is law being so defined that it cannot "exist" with-
out some minimum respect for the principles of legality? I'm
afraid that when we pursue that inquiry we shall find that my
critics and I have quite different answers to this question of
"why." I shall for the moment, however, postpone that inquiry,
which will find a more congenial environment in my next section.
Meanwhile, I should like to explore briefly a collateral point
raised by Dworkin. This lies in his assertion that the existence of
law cannot be a matter of degree; law exists or it does not, it
cannot half-exist. "Some concepts are almost always matters of
degree (baldness is an example)," but law is not of that class.

If we wish to talk about the existence and non-existence of law

we must "to some extent calibrate the concept of law" by estab-

lishing a kind of "threshold" that will mark the line between law

17. Supra n. 6, at p. 648.

18. See the article cited supra n. 7, at p. 669.
19. See the review listed on p. 244, at p. 25.

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A REPLY TO CRITICS

and non-law. 20 When, through a deterioration in governmental

respect for legality, law passes that threshold it ceases all at once
to exist; in other words, law does not just fade away, but goes out
with a bang.
Dworkin makes no attempt to explain why this should be so
why, in his view, a man can be half-bald, but a country cannot be
ruled by a system that is half-law. I suspect that the distinction
taken by Dworkin is tacitly drawn from the usages of ordinary
language. In ordinary speech the word "law" is indeed an either-
or word; it stands in this respect in contrast with even so close a
cousin as the word "justice." Consider, for example, these two
statements: "The act you propose would be a little bit unjust."
"The act you propose would be a little bit illegal." The second
sentence is infected with an inevitable flavor of irony, which is
not present, or not present to the same degree, in the first. We
are accustomed to thinking 'of justice as something that may be
difficult to define; we do not cringe at an open recognition that its

boundaries may be shaded and uncertain. The word "law," on the

other hand, contains a built-in bias toward the black-and-white.
Since law is a man-made thing, we assume —
and the assumption
—
shapes our use of words that if we but put enough effort into the
task, we shall be able to define with exactitude what is lawful
and what is not. The usages of language in effect express a
resolution not to relax in that effort. We may know perfectly well
that a particular statute is so vaguely drawn that it is impossible
to determine just where its boundaries lie, but our modes of
speaking about the matter will normally continue to run in
either-or terms. And this is so not only of the lawfulness or un-
lawfulness of acts but of the "existence" of a legal system as a
whole.
In fairness to Dworkin I should say that he seems not to take
his own point with great seriousness, though he does not hesitate
to accuse me of a "mistake" in not recognizing the essential dif-
ference between baldness and legality. In any event, neither the

20. Supra n. 7, at pp. 677-78.

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THE MORALITY OF LAW
dictates of ordinary language nor the insistences of the New
Analytical Jurisprudence need cause any serious inconvenience;
ifone wishes to avoid saying that the law of Country A is more
truly law than that of Country B, one can simply affirm that the
government of A displays a greater respect for the principles of
legality than does the government of B. If one is addressing an
audience that has had its tolerance for metaphor and oxymoron
reduced through exposure to ordinary-language philosophy, the
course of prudence will be to choose the second and more routine
form of expression.

Do the Principles of Legality Constitute an "Internal

Morality of Law"?

The title of my second chapter, The Morality that Makes Law

Possible, represents a thesis my four reviewers find thoroughly
unacceptable. In attempting a response to their criticisms I shall
strive to avoid any escalation of polemics, for the level I confront
on this issue is already uncomfortably high. "Axe-grinding,"
"absurd," "bizarre," "grotesque" — these are some of the terms
my critics find necessary in characterizing my thesis that there
is such a thing as an internal morality of law.
According to my four critics the notion of an internal morality
of law betrays a basic confusion between efficacy and morality.
Some respect for the eight principles of legality is essential if law
is to be effective, but that does not mean that these principles
are moral in nature, any more than holding a nail straight in
order to hit it right is a matter of morality. You won't drive the
nail properly if you don't hold it straight and so alsoyou won't
achieve an effective system of law unless you give some heed to
what I have called principles of legality. Neither of these exercises
of common prudence has anything to do with morality.
So runs the argument of my critics. They are not content, how-
ever, with any such prosaic comparison as that offered by the
if there is such a thing
driving of nails. Instead, they assert that
as an internal morality of law-making and law-administering,

200
 A REPLY TO CRITICS

then there must also be an internal morality of even the most

disreputable and censurable of human activities. Cohen asks

whether there is a lapse in morality when a would-be assassin

forgets to load his gun; 21 Dworkin raises a similar question
about an inept attempt at blackmail. 22 As usual, Hart is at
once the most eloquent and most explicit of my critics:
the author's insistence on classifying these principles of
legality as a "morality" is a source of confusion both for
him and his readers ... the crucial objection to the designa-
tion of these principles of good legal craftsmanship as mo-
rality, in spite of the qualification "inner," is that it per-
petrates a confusion between two notions that it is vital to
hold apart: the notions of purposive activity and morality.
Poisoning is no doubt a purposive activity, and reflections

on purpose may show that it has its internal principles.

its

("Avoid poisons however lethal if they cause the victim to

vomit," or "Avoid poisons however lethal if their shape,
color, or size is likely to attract notice.") But to call these
principles of the poisoner's art "the morality of poisoning"
would simply blur the distinction between the notion of
efficiency for a purpose and those final judgments about
activities and purposes with which morality in its various
forms is concerned. 23

I must confess that this line of argument struck me at first as

being so bizarre, and even perverse, as not to deserve an answer.
Reflection has, however, convinced me that I was mistaken in
this. As I now view the matter no issue in the exchange between
me and my critics reveals more clearly the tacit presuppositions
that each side brings to the debate; taking seriously this argument
that the alleged internal morality of law is merely a matter of
efficacy has helped me to clarify not only the unarticulated "start-
ing points" of my critics,but my own as well.

21. Supra n. 6, at p. 651.

22. Supra n. 6, at p. 634.
23. Supra n. 3, at pp. 1285-86.

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THE MORALITY OF LAW
That something is here involved more basic than any mere

quibble about the word "morality" becomes apparent when we

note the fundamental obscurity of my critics' position. Just what
do they have in mind when they speak of efficacy? It is not hard
to see what is meant by efficacy when you are trying to kill a man
with poison; if he ends up dead, you have succeeded; if he is still
alive and able to strike back, you have failed. But how do we
apply the notion of efficacy to the creation and administration
of a thing as complex as a whole legal system? Let me offer an
example drawn from the recent history of the Soviet Union that
will suggest some of the difficulties involved in answering that
question.
At the beginning of the 1960s the problem of economic crimes
(including illegal transactions in foreign currencies) had ap-
parently reached such proportions in Russia that the Soviet
authorities decided drastic countermeasures were in order. Ac-
cordingly in May and July of 1961 were passed subject-
statutes
ing such crimes to the death penalty. These statutes were then
applied retrospectively and convicted men were put to death for
acts which, while not lawful when committed, were not then
subject to the death penalty.
The purpose of the Soviet authorities was obviously to make
people quit stealing from the state. Was a retrospective applica-
tion of the death penalty "inefficacious" for this purpose? One
of the problems of criminal law is to convey to the prospective
criminal that you are not engaged in a game of idle threats, that
you mean what you say. Is there any more effective way of con-
veying that message than the restrospective application of a
criminal penalty? The very fact that it marks a drastic departure
from ordinary practice is, in effect, a pledge of the earnestness
of the lawgiver. Yet there were Russians who were disturbed by
this action of the authorities, as my colleague Harold Berman

reports in the following passage:

I asked a leading Soviet jurist if he could explain the decision

of the Supreme Court of the Russian Republic applying the

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A REPLY TO CRITICS

July law retroactively — in clear violation, it seemed to me,

of the 1958 Fundamental Principles of Criminal Procedure.
He replied, "We lawyers didn't like that" — a statement as
interesting for the "we lawyers" as for the "didn't like
that."24

Now it is reasonable to suppose, I think, that the Soviet lawyer

was not was an in-
asserting that the action of the authorities
effective measure for combating economic crime. He was saying
that it involved a compromise of principle, an impairment of the
integrity of the law. As Berman remarks with reference to this
conversation: "it is the lawyers who understand best of all, per-
haps, the integrity of law, the universality of legal standards
in other words, the threat to legality in general which is posed by
any particular infringement of legality." 25
At this point I can imagine my critics pulling at my sleeve:
"Ah, but you have misunderstood what we meant by efficacy. We
did not have in mind short-run efficacy in meeting some passing
emergency. The Soviet action impaired the efficacy of law because
it tended to undermine public confidence in legal rules generally

and reduced the incentive to obey them. It achieved an immediate

gain at a cost in the damage done to the institution of law gen-
erally." But plainly if my critics begin to expand the notion of
efficacy in this direction, they will soon find themselves drifting
across the boundary they have so painstakingly set up to distin-
guish morality from efficacy. They are likely to get themselves
into the predicament of those who try to convert all moi ality into
enlightened selfishness and who end up with so much enlighten-
ment, and so little selfishness, that they might have saved them-

selves a good deal of trouble by simply talking about morality in

the first place.
I do not think, therefore, that in discussing problems of
legality any useful joinder of issue is achieved by opposing ef-

24. Berman, "The Struggle of Soviet Jurists Against a Return to

Stalinist Terror," 22 Slavic Review 314-20, at p. 315 (1963).
25. Ibid., p. 320.

203
THE MORALITY OF LAW
ficacy to morality; certainly nothing is attained that justifies treat-
ing the use of the word "morality" in this connection as an exer-
cise in obfuscation. In truth, the appeal of "efficacy" does not lie
in any definiteness of meaning, but in the tough-sounding,
its

positivistic flavor of the word; it suggests an observer clear-eyed

and result-oriented, not easily misled by fuzzy concepts of pur-
pose. In other words, my critics' preference for "efficacy" over
"morality" reflects the influence of deep-seated and largely un-
articulated resolutions of the mind, rather than any reasoned-out
conclusion about a specific issue.
I confront therefore the most unwelcome task of demonstrating
that my critics' rejection of an internal morality of law rests on
premises they have not themselves brought to expression in
their writings. Let me make it clear, however, that I do not
purport to explore unavowed emotional biases; my efforts lie
in the realm of the intellect, in the exploration of an implicit
structure that shapes my critics' thought processes. If their con-
clusions do not imply the premises I ascribe to them, they are
at liberty to set me straight.
Proceeding then to the task at hand, I perceive two assump-
tions underlying my critics' rejection of "the internal morality of
law." The first of these is a belief that the existence or non-
existence of law from a moral point of view, a matter of in-
is,

difference. The second is an assumption I have already described

as characteristic of legal positivism generally. This is the assump-
tion that law should be viewed not as the product of an interplay
of purposive orientations between the citizen and his government
but as a one-way projection of authority, originating with govern-
ment and imposing itself upon the citizen.
In the literature of legal positivism it is of course standard
practice to examine at length the relations of law and morals. With
respect to the influence of morals on law it is common to point
out that moral conceptions may guide legislation, furnish stan-
dards for the criticism of existing law, and may properly be taken
into account in the interpretation of law. The treatment of the
converse influence — that of law on morality —
is generally more

204
 A REPLY TO CRITICS
meager, being confined chiefly to the observation that legal rules
long established tend, through a kind of cultural conditioning, to
be regarded as morally right.

What is generally missing in these accounts is any recognition

of the role legal rules play in making possible an effective realiza-
tion of morality in the actual behavior of human beings. Moral
principles cannot function in a social vacuum or in a war of all

against all. To live the good life requires something more than
good intentions, even if they are generally shared; it requires the
support of firm base lines for human interaction, something that
— in modern society at least —only a sound legal system can
supply.
"Do not take what belongs to another" is about as trite an
example of a moral precept as can be found in the books. But
how do we decide what belongs to another? To answer that
question we resort not to morals but to law. In some contexts
we can, of course, talk meaningfully of a person's being morally
entitled tosome object of property. For example, an ailing
mother has two daughters. One of them foregoes marriage and
devotes herself for many years to looking after the invalid parent;
the other selfishly refuses to go near her mother or to contribute
anything to her care. On the mother's death it is found that she
left no will; under the law the two daughters succeed equally to
their mother's meager estate. Here we may say that the faithful
daughter morally entitled to the whole estate, even though the
is

law apportions it equally. Indeed, in court decisions involving

have described, a strain in the judicial process
situations such as I
can often be plainly discerned and doubtful interpretations of
fact and of law are sometimes indulged in to give the deserving
daughter what she ought to have. At the same time, it is perfectly
clear that no society could function on the basis of the principle,
"Let property be apportioned in accordance with moral de-
all

sert." So it is that the moral precept, "Do not take what belongs
to another," must of necessity rest on standards borrowed from
the law; without that support it could not achieve reality in the
conduct of human affairs.

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THE MORALITY OF LAW
Again, all would agree, I suppose, that the institution of
marriage has moral implications — indeed, many of them. But
this institution can scarcely function —morally or legally — with-
out some fairly definite rule that will enable us to know when
the marital state exists. An illustration drawn from Hoebel's
chapter, "The Eskimo: Rudimentary Law in a Primitive An-
archy," may be instructive here. 26 It appears that among the
Eskimos the concept of marriage exists, but there are lacking
clear signposts "which might demarcate the beginning and the
end of a marital relationship." The result is that what one man
views as a fair contest for the lady's favors, the other may see as an
adulterous invasion of his home; in Hoebers words there are "no
cultural devices signalizing marriage in such a way as to keep out
trespassers." In consequence Eskimo society is beset by an in-
ordinate number of violent quarrels arising out of sexual jealousy
and these quarrels in turn produce a high rate of homicide. Plainly
the remedy here is not to be found in preaching, but in some
explicit legislative measure that will define and set visible bound-
aries around the marital relation. The Eskimos simply lack the
social machinery needed to accomplish this task; the consequent
non-existence of needed law may be said to impoverish seriously
the quality of their lives.
So when we speak of "the moral neutrality of law" we cannot
mean that the existence and conscientious administration of a
legal system are unrelated to a realization of moral objectives
in the affairs of life. If respect for the principles of legality is

essential to produce such a system, then certainly it does not seem

absurd to suggest that those principles constitute a special moral-
ity of role attaching to the office of law-maker and law-admin-
istrator. In any event the responsibilities of that office deserve
some more flattering comparison than that offered by the practices
of the thoughtful and conscientious poisoner who never forgets to
tear the chemist's label off before he hands the bottle to his
victim.

26. The Law of Primitive Man, Ch. 5, at pp. 83-85 (1954).

206
 A REPLY TO CRITICS

To regard as morally indifferent the existence or non-existence

of law assume that moral precepts retain the same meaning
is to
regardless of the social context into which they are projected.
It thus illustrates what I have previously described as an ab-

straction from the social dimension; it brings to expression a

distaste for phenomena of interaction characteristic of positivistic
thought. This bent of mind comes openly to the fore in the second
assumption underlying my critics' rejection of the notion of an
internal morality of law. This is the assumption that the essential
reality of law is perceived when we pictureit as a one-way pro-

jection of authority originating with government and imposing

itself upon the citizen. Since this assumption is shared by un-
reflective common sense, and finds tacit recognition in the or-
dinary usages of language, be well to examine in some
it will

detail what wrong with it.

is

Let me begin by putting in opposition to one another two forms

of social ordering that are often confounded. One of these is

managerial direction, the other is law. Both involve the direction

and control of human activity; both imply subordination to au-
thority. An extensive vocabulary is shared by the two forms:

"authority," "orders," "control," "jurisdiction," "obedience,"

"compliance," "legitimacy," — these are but a few of the terms
whose double residence is a source of confusion.
A general and summary statement of the distinction between
the two forms of social ordering might run somewhat as follows:
The directives issued in a managerial context are applied by the
subordinate in order to serve a purpose set by his superior. The
law-abiding citizen, on the other hand, does not apply legal rules
to serve specific ends set by the lawgiver, but rather follows them
in the conduct of his own affairs, the interests he is presumed to

serve in following legal rules being those of society generally.

The directives of a managerial system regulate primarily the re-
lations between the subordinate and his superior and only col-
laterally the relations of the subordinate with third persons. The
rules of a legal system, on the other hand, normally serve the
primary purpose of setting the citizen's relations with other

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THE MORALITY OF LAW
citizens and only in a collateral manner his relations with the
seat of authority from which the rules proceed. (Though we
sometimes think of the criminal law as defining the citizen's
duties toward his government, its primary function is to provide
a sound and stable framework for the interactions of citizens with
one another.)
The account just given could stand much expansion and quali-
fication; the two forms of social ordering present themselves in
actual life in many mixed, ambiguous, and distorted forms. For
our present purposes, however, we shall attempt to clarify the
essential difference between them by presupposing what may be
called "ideal types." We shall proceed by inquiring what implica-
tions the eight principles of legality (or analogues thereof) have
for a system of managerial direction as compared with their im-
plications for a legal order.
Now five of the eight principles are quite at home in a man-
agerial context. If the superior is what he wants through
to secure
the instrumentality of the subordinate he must, first of all, com-
municate his wishes, or "promulgate" them by giving the sub-
ordinate a chance to know what they are, for example, by posting
them on a bulletin board. His directives must also be reasonabl}
clear, free from contradiction, possible of execution and noi
changed so often as to frustrate the efforts of the subordinate tc
act on them. Carelessness in these matters may seriously irr
pair the "efficacy" of the managerial enterprise.
What of the other three principles? With respect to the require-
ment of generality, this becomes, in a managerial context, simpl)
a matter of expediency. In actual practice managerial control i?

normally achieved by standing orders that will relieve the superioi

from having to give a step-by-step direction to his subordinate'!
performance. But the subordinate has no justification for com
plaint if, in a particular case, the superior directs him to depar
from the procedures prescribed by some general order. Thh
means, in turn, that in a managerial relation there is no roon
for a formal principle demanding that the actions of the superioi
conform to the rules he has himself announced; in this contex

208
 A REPLY TO CRITICS

the principle of "congruence between official action and declared

rule" loses its relevance. As for the principle against restrospec-
the problem simply does not arise; no manager retaining a
tivity,

semblance of sanity would direct his subordinate today to do

something on his behalf yesterday.
From the brief analysis just presented it is apparent that the
managerial relation fits quite comfortably the picture of a one-
way projection of authority. Insofar as the principles of legality
(or, perhaps I should say, their managerial analogues) are here
applicable they are indeed "principles of efficacy"; they are in-
struments for the achievement of the superior's ends. This does
not mean that elements of interaction or reciprocity are ever
wholly absent in a managerial relation. If the superior habitually
overburdens those under his direction, confuses them by switch-
ing> signals too frequently, or falsely accuses them of departing
from instructions they have in fact faithfully followed, the morale
of his subordinates will suffer and they may not do a good job
for him; indeed, if his inconsiderateness goes too far, they may
end by deserting his employ or turning against him in open revolt.
But this tacit reciprocity of reasonableness and restraint is some-
thing collateral to the bask relation of order-giver and order-
executor.
With a legal system the matter stands quite otherwise, for
here the existence of a relatively stable reciprocity of expecta-
tions between lawgiver and subject is part of the very idea of a
functioning legal order. To see why and in what sense this is true
it is essential to continue our examination of the implications
now to their implications for a
of the eight principles, turning
system of law. Though the principles of legality are in large
measure interdependent, in distinguishing law from managerial
direction the key principle is that I have described as "con-
gruence between official action and declared rule."
Surely the very essence of the Rule of Law is that in acting
upon the citizen (by putting him in jail, for example, or declaring
invalid a deed under which he claims title to property) a govern-
ment will faithfully apply rules previously declared as those to be

209
THE MORALITY OF LAW
followed by the citizen and as being determinative of his rights
and duties. If the Rule of Law does not mean this, it means
nothing. Applying rules faithfully implies, in turn, that rules will
take the form of general declarations; it would make little sense,
for example, if the government were today to enact a special law
whereby Jones should be put in jail and then tomorrow were
"faithfully" to follow this "rule" by actually putting him in jail.
Furthermore, if the law is intended to permit a man to conduct
his own an obligation to observe certain re-
affairs subject to

straints imposed by superior authority, this implies that he will

not be told at each turn what to do; law furnishes a baseline for
self-directed action, not a detailed set of instructions for accom-
plishing specific objectives.
The twin principles of generality and of faithful adherence by
government to its own declared rules cannot be viewed as offering
mere counsels of expediency. This follows from the basic differ-
ence between law and managerial direction; law is not, like man-
agement, a matter of directing other persons how to accomplish
tasks set by a superior, but is basically a matter of providing the
citizenry with a sound and stable framework for their interactions
with one another, the role of government being that of standing as
a guardian of the integrity of this system.
I have previously said that the principle against retrospective
rule-making is without significance in a context of managerial
direction simply because no manager in his right mind would be
tempted to direct his subordinate today to do something yester-
day. Why do things stand differently with a legal system? The
answer is, I believe, both somewhat complex and at the same time
useful for the light it sheds on the differences between managerial
direction and law.
The first ingredient of the explanation lies in the concept of
legitimation. If A purports to give orders to B, or to lay down
rules for his conduct, B may demand to know by what tide A
claims the power to exercise a direction over the conduct of other
persons. This is the kind of problem Hart had in mind in for-
mulating his Rule of Recognition. It is a problem shared by law-
making and managerial direction alike, and may be said to involve

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A REPLY TO CRITICS

a principle of external legitimation. But the Rule of Law demands

of a government that it also legitimate its actions toward citizens
by a second and internal standard. This standard requires that
within the general area covered by law acts of government toward
the citizen be in accordance with (that is, be authorized or vali-

dated by) general rules previously declared by government itself.

Thus, a lawful government may be said to accomplish an internal
validation of its acts by an exercise of its own legislative power. If
a prior exercise of that power can effect this validation, it is easy
to slip into the belief that the same validation can be accomplished
retrospectively.
What has been said may explain why retrospective legisla-
just

tion is hand as utterly nonsensical. Kdoes_not,

not rejected out of
h owever pxplainjvhy retrospective law-makingj^m jn some n-
,

stanc es actually servejhe cause of legality. To see why this is so

we need to recall that under the Rule of Law control over the
citizen's actions is accomplished, not by specific directions, but

by general rules expressing the principle that like cases should be

given like treatment. Novvjib^isjeijmdj^
of a legal system may impair this princjple_andjrequire asji cure
retrospec tive legislation. The retrospective statute cannot serve
as a baseline for the interactions of citizens with one another, but
itcan serve to heal infringements of the principle that like cases
should receive like treatment. I have given illustrations of this in
my second chapter. As a further example one may imagine a
situation inwhich a new statute, changing the law, is enacted and
is conveyed to all the courts in the country
notice of this statute
except those in Province X, where through some failure of com-
munication the courts remain uninformed of the change. The
courts of this province continue to apply the old law; those in the
remaining portions of the country decide cases by the new law.
The principle that like cases should be given like treatment is

seriously infringed, and the only cure (at best involving a choice
of evils) may lie in retrospective legislation. 27 Plainly problems

27. In Anatomy of the Law (1968), pp. 14-15, 1 have given an historical
example of retroactive (and "special") legislation designed to cure a
judicial departure from legality.

211
THE MORALITY OF LAW
of this sort cannot arise in a managerial context, since managerial
directionis not in principle required to act by general rule and has

no occasion to legitimate specific orders by showing that they con-

form to previously announced general rules.
We have already observed that in a managerial context it is

difficult to perceive anything beyond counsels of expediency in

the remaining principles of legality — those requiring that rules or
orders be promulgated, clear in meaning, noncontradictory, pos-
sible of observance, and not subject to too frequent change. One
who thinks of law in terms of the managerial model
assume will

as a matter of course that these five principles retain the same

significance for law. This is particularly apt to be true of the
desideratum of clarity. What possible motive, one may ask, other
than sheer slovenliness, would prompt a legislator to leave his
enactments vague and indefinite in their coverage?
The answer is that there are quite understandable motives
moving him in that direction. A government wants its laws to be
clear enough to be obeyed, but it also wants to preserve its free-
dom to deal with situations not readily foreseeable when the laws
are enacted. By publishing a criminal statute government does
it also imposes on itself
not merely issue a directive to the citizen;
a charter delimiting powers to deal with a particular area of
its

human conduct. The loosely phrased criminal statute may reduce

the citizens' chance to know what is expected of him, but it ex-
pands the powers of government to deal with forms of mis-
behavior which could not be anticipated in advance. If one looks
at the matter purely in terms of "efficacy" in the achievement of
governmental aims, one might speak of a kind of optimum posi-
tion between a definiteness of coverage that is unduly restrictive
of governmental discretion and a vagueness so pronounced that
it will not only fail away from a general area
to frighten the citizen
of conduct deemed undesirable, but may also rob the statute of
its power to lend a meaningful legitimation to action taken pur-
suant to it.

Opposing motivations of this sort become most visible in a

bureaucratic context where men deal, in some measure, face to

212
 A REPLY TO CRITICS

face. Often managerial direction is accompanied by, and inter-

twined with miniature legal systems affecting such matters as dis-

cipline and special privileges. In such a context it is a common-
place of sociological observation that those occupying posts of
authority will often resist not only the clarification of rules, but
even their effective publication. Knowledge of the rules, and free-
dom to interpret them to fit the case at hand, are important
sources of power. One student in this field has even concluded
that the "toleration of illicit practices actually enhances the con-
trolling power of superiors, paradoxical as it may seem." 28 It

enhances the superior's power, of course, by affording him the

opportunity to obtain gratitude and loyalty through the grant of
absolutions, at the same time leaving him free to visit the full
rigor of the law on those he considers in need of being brought
into line. This welcome freedom of action would not be his if he
could not point to rules as giving significance to his actions; one
cannot, for example, forgive the violation of a rule unless there is

a rule to violate. This does not mean, however, that the rule has to
be free from obscurity, or widely publicized, or consistently en-
forced. Indeed, any of these conditions may curtail the discretion
of the man in control —a discretion from which he may derive not
only a sense of personal power but also a sense, perhaps not
wholly perverse, of serving well the enterprise of which he is a
part.
It may seem that in the broader, more impersonal processes of
a national or state legal system there would be lacking any im-
pulse toward deformations or accommodations of the sort just
suggested. This is far from being the case. It should be remem-
bered, for example, that in drafting almost any statute, par-
ticularly in the fields of criminal law and economic regulation,
there is likely to occur a struggle between those who want to
preserve for government a broad freedom of action and those
whose primary concern is to let the citizen know in advance where
he stands. In confronting this kind of problem there is room in

28. Blau, The Dynamics of Bureaucracy (2d ed. 1963), p. 215.

213
THE MORALITY OF LAW
close cases for honest differences of opinion, but there can also
arise acute problems of conscience touching the basic integrity
of legal processes.Over wide areas of governmental action a
still more fundamental question can be raised: whether there is

not a damaging and corrosive hypocrisy in pretending to act in

accordance with preestablished rules when in reality the functions
exercised are essentially managerial and for that reason demand
—and on close inspection are seen to exhibit —a rule-free re-
sponse to changing conditions.
What has just been said can offer only a fleeting glimpse of the
responsibilities, dilemmas, and temptations that confront those
concerned with the making and administering of laws. These
problems are shared 'by legislators, judges, prosecutors, commis-
sioners, probation officers, building inspectors, and a host of
other officials, including —above — all the patrolman on his beat.
To attempt to reduce these problems to issues of "efficacy" is .to

trivialize them beyond recognition.

Why, then, are my critics so intent on maintaining the view
that the principles of legality represent nothing more than maxims
of efficiency for the attainment of governmental aims? The answer
is simple. The main ingredients of their analysis are not taken
from law at all, but from what has here been called managerial
direction. One searches in vain in their writings for any recog-
nition of the basic principle of the Rule of Law —that the acts of
a legal authority toward the citizen must be legitimated by being
brought within the terms of a previous declaration of general
rules.
This omission is conspicuous throughout Hart's Concept of
Law. His only extended treatment of the principle of generality,
for example, seems plainly inspired by the managerial model:

Even in a complex large society, like that of a modern state,

there are occasions when an official, face to face with an in-
dividual, orders him to do something. A policeman orders a
particular motorist to stop or a particular beggar to move
on. But these simple situations are not, and could not be,

214
 A REPLY TO CRITICS

the standard way in which law functions, if only because

no society could support the number of officials neces-
member of society was officially
sary to secure that every
and separately informed of every act which he was re-
quired to do. Instead such particularized forms of con-
trol are either exceptional or reinforcements of general
forms of directions which do not name, and are not ad-
dressed to, particular individuals, and do not indicate a par-
ticular act to be done. (Pp. 20-21.)

Other comments by Hart on the principle of generality, while

less explicit, in no way qualify the statement just quoted. (See pp.
38, 121, 202, 236.) All run in terms of providing "instruments of
and of enabling "social control to function."
social control"
With respect to what I have called the principle requiring
"congruence between official action and declared rule," Hart's
comments again relate to the problem of achieving "effective
control" over the citizen's actions; failure of this control is said to
be illustrated when the criminal law is so laxly enforced that the
public ends by ignoring it. (See pp. 23, 82, 141.) The only de-
parture from what may be called the managerial frame of ref-
erence found in some remarks (pp. 156, 202) about an abstract
is

affinitybetween the ideal of justice and an efficiently run legal

system; both are said to respect the principle that like cases
should be given like treatment. Thus "we have, in the bare notion
of applying a general rule of law, the germ at least of justice."
There is no intimation that a government has toward the citizen
any obligation to realize this "germ of justice" in the way it makes
and administers laws; the point seems to be simply that if we
happen to observe a well-run legal system in operation we shall
discover in it a certain formal resemblance to justice.
Thus, it willbe seen that Hart's concept of law, being based
essentially on the managerial model, 29 contains no element in-
29. It may be well at this point to mention briefly one possible source of
misunderstanding. A reader generally familiar with Hart's Concept of Law
may recall that he explicitly rejects Austin's "command theory of law." To
one who does not have in mind just what this rejection implies, it may seem

215
THE MORALITY OF LAW
consistent with the view that law is a one-way projection of au-
thority. This does not mean, of course, that the lawgiver can
bring a legal system into existence by himself; like the manager
he requires the acquiescence and cooperation of those subject to
his direction. This is recognized quite explicitly and with his
usual aptness of phrasing by Hart himself:

if a system of rules is to be imposed by force on any, there

must be a sufficient number who accept it voluntarily. With-

out their voluntary cooperation, thus creating authority,
the coercive power of law and government cannot be estab-
lished. (P. 196.)

There is no suggestion here that the citizen's voluntary coopera-

tion must be matched by a corresponding cooperative effort on
the part of government. There is no recognition in Hart's analysis
that maintaining a legal system in existence depends upon the
discharge of interlocking responsibilities — of government toward
the citizen and of the citizen toward government.
If we assume, as I do here, that an element of commitment by
the lawgiver is implicit in the concept of law, then it will be well to
attempt to spell out briefly in what form this commitment mani-
fests itself. In a passage headed by his translator "Interaction in
the Idea of Law," Simmel suggests that underlying a legal system

that in disapproving of the command theory Hart is also rejecting what I

have here described as a managerial theory of law. This would, however, be
to misunderstand Hart's argument. Hart rejects the command theory chiefly
on two grounds: (1) it sees the force of law as residing in the threat of
sanctions, rather than in an acceptance of authority; (2) Austin's theory
presupposes direct communication between lawgiver and legal subject.
But, plainly, effective managerial direction rests, much more obviously
than does law, on a willingness to accept authoritative direction. Further-
more, managerial directions need not be conveyed in a face-to-face manner;
they are in fact commonly embodied in something like a manual of opera-
tions or may be set forth on a bulletin board. The crucial point in distin-
guishing law from managerial direction lies in a commitment by the legal
authority to abide by its own announced rules in judging the actions of the
legal subject. I can find no recognition of this basic notion in The Concept
of Law.

216
 A REPLY TO CRITICS

is a contract between lawgiver and subject. 30 By enacting laws

government says to the citizen,' "These are the rules we ask you to
follow. If you will obey them, you have our promise that they are
the rules we will apply to your conduct." Certainly such a con-
struction contains at least this much truth: if the citizen knew
in advance that him government would pay no
in dealing with
attention to its own declared rules, he would have little incentive
himself to abide by them. The publication of rules plainly carries
with it the "social meaning" that the rulemaker will himself abide
by his own rules. On the other hand, any attempt to conceive of a
legal system as resting on a contract between lawgiver and subject
not only stirs inconvenient historical associations, but has a certain
incongruity about it, especially when we recall that in a demo-
cratic society the same citizen may be both lawgiver and legal
subject.
There is an old-fashioned legal term that may offer an escape
from our predicament. This is the word "intendment." Our in-
stitutions and our formalized interactions with one another are
accompanied by certain interlocking expectations that may be
called intendments, even though there is seldom occasion to bring
these underlying expectations across the threshold of conscious-
ness. In a very real sense when I cast my vote in an election my
conduct is directed and conditioned by an anticipation that my
ballot will be counted in favor of the candidate I actually vote for.
This is true even though the possibility that my ballot will be
thrown in the wastebasket, or counted for the wrong man, may
never enter my mind as an object of conscious attention. In this
sense the institution of elections may be said to contain an intend-
ment that the votes cast will be faithfully tallied, though I might
hesitate to say, except in a mood of rhetoric, that the election au-
thorities had entered a contract with me to count my vote as I had
cast it.

A passage from Lilburne quoted at the head of my second

chapter is eloquently in point on this matter of institutional

30. See the references supra pp. 39-40.

217
THE MORALITY OF LAW
intendments. This is the passage in which Lilburae demands to
know "whether ever the Commonwealth, when they chose the
Parliament, gave them a lawless and unlimited power, and at their
pleasure to walk contrary to their own laws and ordinances before
they have repealed them?" Lilburae is suggesting that underlying
the institution of parliamentary government there is an intend-
ment — that is, a generally shared tacit expectation — that parlia-
ment will act toward the citizen in accordance with its own laws
so long as those laws remain unrepealed. A tacit commitment by
parliament to that effect is so taken for granted that, except when
things go wrong, there is no occasion to talk or even to think about
it.

It is, I am aware, quite unfashionable today to say such things

as that institutions have or contain intendments. One might cast
about for some linguistic cover more acceptable to modern taste;
one might, for example, speak of the "role expectations" that ac-
company the assumption of legislative powers. But by whatever
name we call it, we must not ignore the reality of the commitment
implied in lawmaking, nor forget that it finds expression in em-
pirically observable social processes; it is not something pro-
jected on those processes by a moralistic outside observer.
Silent testimony to the force of this commitment can be found
in the strenuous efforts men often make to escape its grip. When
we hear someone say he is going to "lay down the law" to some-
one else, we tend to think of him as claiming a relatively un-
fettered right to tell others what they ought to do. It is therefore
interesting to observe what pains men will often take not to "lay
down law." When a person in a position of authority is asked to
make some concession in a particular case he will not infrequently
on an understanding that his action shall not be taken "to
insist

What he dreads and seeks to escape is the com-

set a precedent."
mitment contained in the Rule of Law: to conform his actions
toward those under his direction to general rules that he has ex-
plicitly or tacitly communicated to them. That the stipulation
against setting a precedent often turns out in practice to be in-
effective simply provides further evidence of the force of the

218
 A REPLY TO CRITICS

commitment men tend to read into the acts of those having au-
thority over them.
A similar struggle over the meaning to be attributed to exer-
cises of authority is a familiar accompaniment of the managerial
allocation of duties among subordinates. An employer, for ex-
ample, directs A to perform certain tasks, at the same time assign-
ing a different set of tasks to B. If this division of labor con-
tinues for some time any reallocation of functions may arouse
resentment and a sense of injury. An employee may resist the

assignment of new duties to him, saying, "That's not my job."

Conversely, he may oppose the assignment to anyone else of tasks
he is accustomed to perform on the ground that these tasks fall

within his "jurisdiction." Here the employer thinks of himself as

discharging a purely managerial function, free from the re-
straints that attach to a legislative role. The employees, on the
other hand, are apt to read into the employer's actions an ele-
ment of commitment; they attempt to bring his decisions
juristic

within the Rule of Law.

The commitment implied in lawmaking is not, then, simply an
element in someone's "conceptual model"; it is a part of social
reality. I have been emphasizing that obedience to rules loses its

point if the man subject to them knows that the rulemaker will not
himself pay any attention to his own enactments. The converse
of this proposition must also be kept in mind, namely, that the
rulemaker any incentive to accept for himself the re-
will lack
straints of the Rule of Law if he knows that his subjects have no
disposition, or lack the capacity, to abide by his rules; it would
serve little purpose, for example, to attempt a juristic ordering of
relations among the inmates of a lunatic asylum. It is in this sense
that the functioning of a legal system depends upon a cooperative
effort —an effective —
and responsible interaction between law-
giver and subject.
A complete failure in this interaction is so remote from ordi-
nary experience that the significance of the interaction itself tends
to be lost from our intellectual perspective. Yet in numberless
instances, all about us, we can perceive the ways in which the

219
THE MORALITY OF LAW
success of law depends on a voluntary collaboration between the
citizen and government, as well as upon a coordination of
his
effort among the various agencies of government concerned with
the making and enforcing of law.
In the regulation of traffic the dependence of law on voluntary
cooperation often becomes painfully visible. The example I am
about to give is by no means entirely hypothetical. In a university
city located on the Atlantic seaboard traffic congestion has during
the last thirty years presented an increasing problem; at one
street intersection in particular the situation has for some time
approached a state of crisis. At were until
this intersection there

recently no stop-and-go signals addressed to pedestrians, and the

—
common law of the situation as understood by police and pedes-
trians alike —
was that the pedestrian was free to take his own
chances in crossing against the flow of vehicular traffic, though if

he were particularly foolhardy he might receive a verbal dressing-

down from the officer in charge. About three years ago a reform
took place; pedestrian signals were installed and signs were posted
warning "jaywalkers" that they would be arrested and fined.
For a short time this measure brought an improvement in the
situation. Soon, however, a deterioration commenced as pedes-
trians, discovering that during the slack hours of vehicular traffic

no officer was present, began during those hours to disregard the

stop signals addressed to them. This disregard then spread into
the hours of heavy traffic, quickly reaching such a volume that
any police action to restrain it, according even a minimum re-
spect to the principle of "equal justice under law," would have
required arrests on such a scale as to have overwhelmed the
traffic courts. Despite this epidemic of pedestrian law-breaking,
motorists continued for a period to observe the signals directed
to them. In time, however, the deterioration progressed to the
point where the motorist, held up by trespassing pedestrians
while the light was in his favor, often found his first opportunity
to cross just as the red light turned against him; this opportunity
he began increasingly to embrace. Finally, the law-abiding pedes-
trian, intent on his own bodily integrity, might discover that the

220
 A REPLY TO CRITICS

only safe course for him was to join a phalanx of stalwart law-
breakers, instead of waiting timidly for the signal legalizing a
crossing he would have to negotiate alone, unprotected, and per-
haps against a flood of delayed motorists seizing their first oppor-
tunity to cross.
When a system of legal controls has suffered this degree of
breakdown it is often difficult to allocate blame or to discern what
curative measures will be effective. Each human element involved
will contend that any mending of its own ways would be rendered
pointless by a failure in the performance of complementary roles.

And it should be noted that in the case of the intersection just

described the roster of those implicated may extend much be-
yond those already mentioned. It may be that the basic difficulty
arises from an unwise routing of traffic through the city as a
whole, or from a failure of the taxpayers to finance a police force
adequate to its task in numbers and training, or from the action
of a transportation authority in relocating a bus stand in such a
manner as to render inappropriate the existing disposition of
traffic signals. Even the performance of the city electrician may
enter into the account. If he fails to keep the automatic traffic
lights functioning properly, and as a result they operate erratically,
then pedestrians, motorists, and the police may all lose any incen-
tive to act in accordance with the signals; conversely, if the elec-
trician knows that the signals will be ignored even if they are in
perfect order, doing his job right will lose its point.
It is unfortunate that the interdependencies involved in the suc-
cessful operation of a legal system are by no means generally so
visible as they are in the regulation of traffic. If we could come to
accept what may be called broadly an interactional view of law,
many things would become clear that are now obscured by the
prevailing conception of law as a one-way projection of au-
thority. It would become clear, for example, that a disregard of
the principles of legality may inflict damage on the institution of
law itself, even though no immediate harm is done to any in-
dividual. This point, along with some others, is ignored in a
rhetorical question posed by Dworkin in refutation of my sugges-

221
THE MORALITY OF LAW
tion that legal moralityembraces a principle against contradic-
tory laws: "A an overlooked
legislature adopts a statute with
inconsistency so fundamental as to make the statute an empty
form. Where is the immorality, or lapse of moral ideal?" 31
Now in the first place even to imagine a case such as Dworkin
supposes requires a fantastic set of assumptions. Suppose, for
example, a statute is passed affecting the validity of foreign di-
vorces; as applied to a particular situation of the fact the statute
seems in one paragraph to say that A is married to Y, while by
the terms of another provision it would appear that he is still

married to X. To make a harmless blank cartridge of such a

statute we would have to suppose that any layman could see,
without having to pay a lawyer to tell him, that the statute was
he could confidently foresee that no judicial
self-cancelling, that
ingenuity would suffice to rescue it from nullity, and that with the
dead corpse of the statute removed from the scene the true legal
situation would become immediately obvious. But let us, in favor
of Dworkin's point, indulge ourselves in all these exercises in
whimsy. The case then becomes like that of a man who tells me
a reckless falsehood, but leaves me uninjured because before I

act on what he me I happen to learn the truth for myself. In

told
such a case though I may not have suffered any immediate injury,
damage has certainly been done to my relations with the man who
told me the falsehood and my trust of him in any future dealings
will have been impaired.
If we view the law as providing guideposts for human inter-
action, we be able to see that any infringement of the de-
shall
mands of legality tends to undermine men's confidence in, and
their respect for, law generally. It is worth recalling in this con-
nection that there is an ancient crime of disturbing boundary

markers and a very modern crime of moving, destroying, or de-

facing official highway signs. Neither of these crimes requires that
the perpetrator's action inflict any direct injury on anyone. Part
of the basis for such laws is that if the physical pointers by which

31. Supra n. 7, at p. 675.

222
 A REPLY TO CRITICS

men guide their actions toward one another are sufficiently tam-
pered with, those that remain intact will lose their meaning and

men no longer feel secure in relying on them. If this is true

will

when men tamper with well-placed markers, what shall we say

of the engineer who puts the signs up in the wrong places to start
with, or of the legislator who bungles the job of laying out the
vital written paragraphs by which men's rights and duties toward
one another are defined?
My colleague Henry M. Hart offers us a refreshing reorienta-
tion in our usual ways of thinking and talking about law when he
reminds us that law may be regarded as a facility enabling men
to live a satisfactory life in common. 32 If this facility is to serve
its intended beneficiaries, they must use it well. But those whose
task it is to design and install the facility itself have an even

heavier responsibility, which is that of doing their job right in the

first place. It is this onerous and often complex responsibility that
I have tried to describe by the phrase, "the internal morality of
law."
That such a morality could have any intelligible meaning at all
is an idea that is emphatically —not to say, vehemently — rejected
by my have tried to show that our differences on this
critics. I

issue stem from a basic disagreement about law itself. This dis-
agreement I have attempted to express by contrasting a view of
law that sees it as an interactional process and one that sees in it
only a unidirectional exercise of authority. My reviewers have, of
course, criticized a number on specific issues taken in
of positions
my book that I have left unmentioned and undefended here. I
believe that most, though not all, of these disagreements on sub-
sidiary matters have their origin in the same fundamental di-
vergence in starting points that I have just examined at length.
This is particularly true of my critics' rejection of the suggestion
that governmental respect for the internal morality of law will
generally be conducive toward a respect for what may be called

32. "The Relations between State and Federal Law," 54 Columbia Law
Review 489, 490 (1954).

223
THE MORALITY OF LAW
the substantive or external morality of law. The interested reader
will find a defense of my position on this issue in a paper I pre-
sented in April 1965. 33

Some Implications of the Debate

In conclusion I should like to explore briefly certain issues that

have not been directly raised in the criticisms aimed at my book
by the New Analytical Jurists. My reason for going into these
issues is that I believe an exploration of them will serve to clarify

further the basic differences in viewpoint that underlie our whole

debate. The first problem I propose to discuss is that of interpreta-
tion**
This is a subject treated at some length in my second chapter,
where I viewed it as an aspect of the task of maintaining "con-
gruence between official action and declared rule." At the con-
clusion of my discussion (page 91) I wrote: "With all its subtleties,

the problem of interpretation occupies a sensitive, central posi-

no other
tion in the internal morality of the law. It reveals, as
problem can, the cooperative nature of the task of maintaining
legality."
Despite the basic significance of interpretation for every aspect
of the legal enterprise, it has never been a subject with which
analytical positivism has felt comfortable. This is precisely be-

33. Supra n. 6, pp. 661-66.

34. Three recent publications deal helpfully with the problem of inter-
pretation: Dworkin, "The Model of Rules," 35 University of Chicago Law
Review 14-46 (1967); Gottlieb, The Logic of Choice (1968); and Hughes,
"Rules, Policy and Decision Making," 77 Yale Law Journal 41 1-39 (1968).
There is one vital problem affecting interpretation that I have not at-
tempted to deal with here and that is not mentioned in the articles by
Dworkin and Hughes. This is the problem interactional sociologists call
"defining the situation." (See, for example, McHugh, Defining the Situation,
1968.) When a court applies a rule or a set of rules to the decision of a case
one can distinguish two operations: (1) determining the relevant facts; (2)
determining the meaning of the relevant rules for these facts. We tend to
think that it is our knowledge of the rules that enables us to sift out ir-
relevancies and to determine what are the legally operative facts. In reality,
however, our definition of the situation is generally conditioned by a host

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cause it brings to open expression "the cooperative nature of the

task of maintaining legality." Close attention to problems of
interpretation is something that comports awkwardly with any
attempt to conceive of law as a unidirectional exercise of control
over human behavior.
It will be instructive to note briefly how writers in the positivis-
tic mood have dealt with the problem of interpretation and have
sought to redefine it in terms congenial to their intellectual com-
mitment. In his 1957 35 lecture Hart seemed to assert that in the
ordinary run of cases the application of a statute is controlled
more or less frictionless manner by the common or dictionary
in a
meaning of its words. In these usual or normal cases there is no
occasion to engage in any conjecture concerning the policies
sought to be promoted by the statute or the intentions of its drafts-
men. It is only in an occasional borderline or "penumbral" situa-
tion that any attempt to fathom legislative purpose becomes
necessary. In this lecture Hart inveighed against a disease of
jurisprudential thinking which he called "preoccupation with the
penumbra." His seemed to be that we should build our
thesis
edifice of legal philosophy on the routine or run-of-the-mine case
and pass over, as irrelevant for the basic analysis of legal phe-
nomena, the occasional difficulties presented in "penumbral"
situations. In The Concept of Law the word "interpretation" is
not to be found in the index, though the thoughts of the Holmes
lecture are repeated with some modification on pages 120-32
and 200-01 the viewpoint differs from that expressed in the lec-
;

ture chiefly in being somewhat less explicit.

Like Hart, his great predecessor, John Austin, largely excluded
interpretation from the basic structure of his theory. Unlike Hart,
however, when Austin came finally to deal with the subject his

of tacit assumptions that do not appear in the explicit rules at all. Gottlieb's
book has some valuable observations on this point in Chapter IV, "The
Facts," particularly on pages 56-57, where he remarks that "non-legal
standards are infused at a crucial step [that is, in defining the relevant facts]
in the process of applying legal rules."
35. Supra n. 1, pp. 606-15.

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 .

THE MORALITY OF LAW

treatment was complex and beset with internal stresses. He dis-

tinguished the interpretation of statutory law from the method

of "induction" used in applying "judiciary law." 36 At no point
did he argue that a statute can or should be applied without ref-
erence to legislative purpose, though he asserted that the "literal

meaning" of a statute should be taken as the "primary index" of

legislative intention. 37 So far from abandoning a purposive inter-
pretation he wrote: "If the causes of laws and of the rights and
obligations which they create be not assigned, the laws them-
selves are unintelligible." 38
In The Pure Theory of Law 39 Kelsen devotes a few concluding
pages to the subject of interpretation, asserting in effect that ex-
cept as a particular result may be excluded by the logical struc-
ture of a statute, judicial interpretation is simply a form of legis-
lation, the motives which shape legislation by judges being as
irrelevant for analytical positivism as those that move a legis-

lature to pass one kind of statute instead of another. For Kelsen

interpretation is, in short, not a part of juristic analysis at all, but
belongs rather to politics and sociology.
A different tack in dealing with the embarrassment of interpre-
tation was taken by Gray and some of the American Legal
Realists. Since a statute onlybecomes "hard law" after its mean-
ing has been judicially determined, Gray proposed that we treat
statutes as not being law at all, but only sources of law. 40
By this
moved downward
device the definition of law was intended to be
so as to coincide with its application to human affairs. Gray's
realism was marred, however, by the fact that much law is ap-
plied by bureaucrats, sheriffs, patrolmen, and others acting with-
out judicial guidance. Accordingly, some of the Realists pro-

36. II Lectures on Jurisprudence (1 879), pp. 648-5 1

37. Ibid., pp. 644-45.
38. Ibid., p. 1113.
39. (1967), Ch. VIII, pp. 348-56. (This is a translation of the second
German edition.)
40. Nature and Sources of the Law (2d ed. 1921), Ch. IV, pp. 300-25
et passim.

226
 A REPLY TO CRITICS

posed that we define law as "the behavior patterns of judges and

other public officials." 41 This conceit represented the final de-
fault, since it left to the onlooker to decide for himself by what
standards he should discern and interpret the "behavior patterns"
that constitute the ultimate reality of law.
These diverse ways of confronting a shared predicament sug-
gest that there is something fundamentally wrong with the pre-

mises that serve to define the problem. I suggest that the difficulty
arises because all of the writers whose views have just been
summarized start with the assumption that law must be regarded
as a one-way projection of authority, instead of being conceived
as a collaborative enterprise. If we discern, as a basic element of
law, a commitment by government to abide by its own law in
judging the acts of its subjects, then interpretation will occupy in
theory the central place it has always occupied in our everyday
thinking about law. This emphatically does not mean that the
problem become simple; on the contrary its hidden com-
will

plexities will come to light and we shall no longer be able to pre-

tend that it is a peripheral matter to be left to unreflective com-
mon sense.
In seeking a more fruitful approach to interpretation, it may
be well to begin with some observations about language itself.

The first of these observations is that among human activities

language represents the interactional phenomenon par excellence;
itsforms arise out of and live by interaction. Communication by
words is not a matter of shipping packages of meaning from one
head to another; it involves an effort to initiate in another mind
perceptual processes that will as closely as possible match those
taking place in the mind of the communicating party. If I direct
words toward you in a situation where some precision in com-
munication is demanded, I shall have to ask myself what precisely
I mean by the words I am using, what you would mean if you

were using the same words, and what you would suppose I would

41. See the reference supra, n. 10.

227
THE MORALITY OF LAW
be likely to mean by them in the context of our relationship — not
to speak of even more complex lines of reciprocating expecta-
tions.
Writers in the positivist mood have generally sought escape
from complexities of the sort just intimated by adopting a sim-
plistic view of language which I have described (page 84) as "a

pointer theory of meaning." For present purposes it will be useful

to disregard, for the moment, the complications caused by the
intervention of language and consider how the problem of inter-
pretation appears when the task is to discern the meaning, not of
words, but of actions.
Suppose for example that in some area of commercial practice
certain kinds of dealings have for a long time been directed by
tacitly accepted and complementary expectations, each partici-

pant guiding his conduct toward the other by these expectations.

A somewhat unusual situation arises and a dispute develops
between the parties as to the implications of established practice
for their respective rights. An arbitrator or judge is called upon to
decide the dispute. His task is to interpret the meaning of estab-
lished practice for a special situation of fact which had not pre-
viously been directly operative in shaping the expectations of the
transacting parties.
Now it is plain that in such a case the chief guide for the
arbiter's decision would be found in a principle hardly intimated
in positivistic discussions of interpretation, namely, that the result
reached should be such as to fit harmoniously into the system of
complementary expectations expressed in past dealings. The
problem would not be one of "logical" consistency, but of what
might be called purposive compatibility; the question asked would
be, What decision will serve best to keep the established practices
"a playable game?" To impose a result incongruent with estab-
lished expectations would be to disrupt a functioning and ac-
cepted system which served to regulate the parties' relations with
one another. Plainly, in order to reach a satisfactory resolution of
the dispute the arbitrator must be able to perceive and compre-
hend the implications contained in existing practice; his decision

228
 A REPLY TO CRITICS

cannot be a just and fitting one if he lacks the imagination neces-

sary to put himself in the place of those whose past conduct to-
ward one another he is interpreting.
In the situation just discussed a good decision would, then,
exemplify two interrelated qualities; a respect for systematic
structure and an understanding of the social context. Now I sub-
mit that these desiderata are also applicable to the interpretation
of written law. To be sure, if we think of a statute after the
analogy of a military order, as being aimed at controlling the ac-
tions ofone not admitted to the larger strategy, then the task of the
interpreter will be to discern as besthe can the desires of the high
command. On the other hand, if the function of law is to create
an orderly interaction among citizens and to furnish dependable
guideposts for self-directed action, the problem assumes a differ-
ent aspect and the principles governing the interpretation of
words will not be seen as radically different from those applicable
to the interpretation of interactive behavior. In particular, a
respect for systematic structure, and a capacity to perceive the
needs of the situation, will both be seen as essential for the wise
interpretation of written law.
It may be objected that a concealed bias must inevitably infect

any analysis which begins, like that just concluded, with an

example drawn from commercial practice. It may seem perverse
to suggest that the law against murder is intended, except in a
remote and largely irrelevant sense, to provide "dependable guide-
posts for human it is true, as I have
interaction." Certainly
throughout proper solution to problems of inter-
insisted, that the
pretation depends on context. But even in the case of murder, the
crucial issues for interpretation are likely to relate to such matters
as the plea of self-defense. Any statutory language governing that
issue is apt to be vague and general. Those who
interpret the law
(which in this case will in reality include both judge and jury)
must, if they are to do their job well, put themselves in the posi-
tion in which the accused found himself and ask what can reason-
ably be expected of a human being so placed. A knowledge of
life, a capacity for empathy, and a sense of what kind of rule will

229
THE MORALITY OF LAW
provide a workable guide to action, are all essential for a proper
decision.
In my second chapter I dealt at some length with the "anti-
nomies" that may confront those responsible for maintaining
legality, frequently some miscarriage in the legal enterprise will
create a situation in which it is impossible to escape some com-
promise of legality, so that the essential task is to reduce the
dimensions of that compromise. The most obvious example of this
predicament is presented by situations in which a resort to retro-
spective legislation will seem the lesser of two evils.
In subtle ways interpretation is permeated with problems of
this sort. Suppose, for example, that a statute is passed for the
purpose of putting in better order some area of human relations.
On its face, we may suppose, the enactment is reasonably clear,
but it suffers from the fundamental defect that it is based on a
misconception of the situation it is intended to correct, the legis-
lature being in this respect like a physician who prescribes a
course of treatment for one disease when the patient is in fact
suffering from another. By what standards should a court con-
strue such a statute? A tolerably literal application of its terms
may be said to carry out the legislative intent as it actually was,
though not as it would have been had the legislature known what

it was doing. Furthermore, the interpreter must consider the

interest of the occasional citizen who, being an outsider to the
situation regulated, may take the statute at its face value, experi-
encing no qualms in doing so precisely because he is as ignorant
as the legislature was of the real nature of the situation addressed
by the statute. On the other hand, those who are the primary
addressees of the statute, that is, who actually live in and
those
with the situation the statute is intended to correct, may be able to
see in it only obscurity, confusion, and perversity. Reading the
statute in the light of their more perceptive definition of the situa-
tion which is a part of their own lives, they may regard the statute
as a kind of non-law. Here there no easy way out
is for the court.
Cases of the sort just supposed provide only one illustration of
the perplexities presented when a court has to ask itself how far

230
 A REPLY TO CRITICS

it is free to correct the mistakes of the legislature. An obvious mis-

print may present no difficulty. But deciding what the legislature
would have said had been able to express its intention more
if it

precisely, or had not overlooked the interaction of its statute

if it

with other laws already on the books, or if it had realized that the
supreme court was about to reverse a relevant precedent these —
and other like questions can remind us that there is something
more to the task of interpreting statutes than simply "carrying out
the intention of the legislature."
The remarks just concluded may seem to suggest that what is

demanded of an interpreting agency is simply that it achieve a

balance of restraint and initiative in correcting the errors and
oversights of superior authority. But, of course, the problem is

more complex. The interpreting agency must recall, for example,

that its perceived standards of interpretation are likely to create
expectations among those affected by them and that sudden shifts

in those standards may impair the collaborative effort essential

for achieving and maintaining legality. Let us suppose, for ex-
ample, that the courts of a given jurisdiction have traditionally
interpreted statutes in a narrow and restrictively literal manner.
An anticipation that this practice will continue is almost certain
to enter into the calculations of the legislature; the draftsman will
be likely to phrase his statute so that it will, as it were, come out
right after having had its scope reduced by restrictive judicial
interpretation. A sudden shift by the courts toward freer stan-
dards of interpretation may alter the meaning of legislation in a
way contrary to the intention of those who enacted it and perhaps
in a way that will be confusing for all concerned.
Similarly when a court has occasion to apply the law of a
foreign jurisdiction, it is not enough to know the text of the law;

that textmust be read as it would be read by native jurists, that is,

as it would be understood by those sharing the tacit assumptions
that enter into the functioning of the legal system of which it is a
part. This consideration was brought to unaccustomed explicit-
ness.in a decision of the United States District Court sitting in
Massachusetts. The disposition of the case required the applica-

231
THE MORALITY OF LAW
tion not of Federal but of Massachusetts law. Several precedents
of the Massachusetts Supreme Judicial Court were in point, and
the question was whether that court, if the controversy were
before it, would qualify the language of its precedents and make

an exception for the case at hand. In answering that question in

the negative, Judge Charles Wyzanski considered it essential to
look not simply to the language of the Massachusetts decisions
but to the general spirit in which those decisions would be ap-
proached by the court that rendered them:

Subtle variations and blurred lines are not characteristic of

[the Massachusetts Supreme Judicial Court]. Principles are
announced and adhered to in broad magisterial terms. The
emphasis is on precedent and adherence to the older ways,
not on creating new causes of action or encouraging the use
of novel judicial remedies that have sprung up in less con-
servative communities. 42

This exercise in applied anthropology is not the sort of thing

one ordinarily encounters in judicial opinions. It can serve to re-
mind us, however, how much of our written law is in reality un-
written; it can help us to see that an understanding of the law in
the books requires an understanding of the shared assumptions
that enter into the making and interpreting of it. 43
The mention of anthropology offers an easy transition to my
next general topic, which has to do with customary law and inter-
national law. Like the problem of interpretation, neither of these
subjects has ever found a comfortable haven in positivist theory.
As with interpretation, legal positivists in their attitude toward
these forms of law waver between icy rejection and acceptance in
a bone-crushing embrace. For Austin customary law and interna-
tional law were simply not law at all, but a kind of pseudo-law that
should properly be called positive morality. Kelsen takes the op-

42. Pomerantz v. Clark, 101 F. Supp. 341, at p. 346 (1951).

43. In Anatomy of the Law (1968) I have tried to trace some of the in-
teractions between what I have there called "made law" and "implicit law."
(See especially pp. 43-84.)

232
 A REPLY TO CRITICS
posite tack of reshaping these two forms of law so that they can be
accommodated to his theory, though at the cost of so distorting
their premises that the subjects themselves become largely un-
recognizable.
Plainly the conception of law as a unidirectional assertion of
control over human behavior is not a view that can easily be ap-
plied to customary and international law. These two manifesta-
tions of law have been described as horizontal forms of order,
while the law that a state imposes on its citizens we tend to think
of as having only a vertical dimension. Stated in another way, the
difficulty of conceiving of customary and international law as

being properly law arises from the notion that the concept of law
involves at the very minimum three elements: a lawgiver and at
least two subjects whose relations are put in order by rules im-
posed on them by the law-making authority. The question that
gives trouble is, How can a person, a family, a tribe, or a nation
impose law on itself that will control its relations with other per-
sons, families, tribes, or nations? Unlike morality, law cannot be
a thing self-imposed; it must proceed from some higher authority.
Now I suggest that all these questions would require radical
redefinition if we were to recognize one simple, basic reality,
namely, that enacted law itself presupposes a commitment by
the governing authority to abide by its own rules in dealing with
its subjects. There is, in this sense, a horizontal element in what

positivism views as vertically imposed law. If this basic principle

of law-making and law-administering were accepted, then most of
the embarrassments that beset discussions of international and
customary law would be seen as also affecting "real" law. For
example, does the governmental obligation to abide by its own
rules rest on a "legal" or a "moral" commitment? If the commit-
ment is said to be "legal" then the question will arise, How can the
authority that makes and unmakes law bind itself by law? If the
commitment is "moral" in nature, then we shall face a different
kind of embarrassment. It will then appear that the crucial quality
law from managerial direction, or mili-
that serves to distinguish
tary command, or sheer power, is itself infected with a moral ele-

233
THE MORALITY OF LAW
ment so that the essential distinction between law and morality is

fatally compromised.
If, however, we disregard these conceptual tangles and allow
our minds to participate vicariously in the responsibilities involved
in maintaining the Rule of Law within a modern state, we shall

see that meeting those responsibilities requires a complex, col-

laborative effort, not different in kind from that demanded by sys-
tems of customary and international law. We shall also find our-
selves forced to deal with the role of custom in systems of law that
purport to be wholly enacted. This role becomes obvious where
custom is explicitly made a standard of decision, as it is in this
country in the frequent references to commercial usage in the
Uniform Commercial Code. But customary law (by which we
mean primarily the tacit commitments that develop out of inter-
action) plays an important, though usually silent role, not only
in the interpretation of written law, but in helping to supply the
gaps that will always be perceived in any body of enacted law.
Among the different systems of enacted law the generally incon-
spicuous role of custom will vary considerably, but it is safe to
say that the tacit expectations that make up customary law will
always enter into any practical realization of the ideal of legality.
Fidelity to the Rule of Law demands not only that a government
abide by its verbalized and publicized rules, but also that it respect
the justified expectations created by its treatment of situations not
controlled by explicitly announced rules. Even more plainly it re-
quires that government apply written rules in accordance with
any generally accepted gloss written into those rules in the course
of their administration. Taking all these complications into ac-
count will, of course, embarrass the construction of neat juristic
theories. it will ease the transition of legal thought from state-
But
imposed codes to the somewhat messier seeming manifestations
of law exemplified in international and customary law.
In today's world customary law is no longer merely a matter
of theoretical interest. The newly emerging nations in Africa,
Asia, and elsewhere are engaged in a painful and often hazardous
transition from tribal and customary law to national systems of

234
 A REPLY TO CRITICS

enacted law. Legal experts from the western nations, particularly

from the United an important role as advisers
States, are playing
Those who have performed this func-
in facilitating this transition.
tion have often regretted that they were not more adequately pre-
pared for it by a deeper understanding of legal anthropology. If
they had had a better training in that subject, they believe that
they would have had a better comprehension of the meaning of
customary law for those who live by it.
I would suggest that equally needed is a more adequate an-

thropology of our own legal system. In my second chapter I speak

repeatedly of law as an "enterprise" and I realize that this expres-
sion has grated on some ears. But for those who have never at-
tempted to create or live by a system of explicitly enacted rules,
law is indeed an enterprise and a very hazardous one. In such a
context the neat geometry of legal positivism is not merely largely
irrelevant, but becomes positively dangerous.
It should not be supposed that theories about law play no role
in the practical business of assisting tribal peoples to subject them-
selves to a regime of enacted law. Plainly they require some
toward which to work. Recently there has
definition of the goal
been published a symposium under the title Africa and Law —
Developing Legal Systems in African Commonwealth Nations. 44
The leading article in this collection contains the following state-
ment on its first page:

Professor Harvey has defined law as "a specific technique of

social ordering, deriving its essential character from its re-

liance upon the prestige, authority, and ultimately the re-

served monopoly of force of politically organized society."
It is a value-neutral tool. In this view, law has no moral au-

thority merely because it is law; rather, it embraces every

aspect of state power. Indeed, as Hans Kelsen has pointed
out, there is no difference between the state and law; they are

44. T. W. Hutchinson, ed\, 1968. The quotation is from p. 3 of the

article by Robert B. Seidman.

235
THE MORALITY OF LAW
merely different sides of the same coin. Every state institu-

tion is a manifestation of state power and can be viewed

either institutionally or legally.

The precise role played by this conception of law in its author's

thinking is not clear; he ultimately reaches the conclusion that
neither customary law nor the received English law is adequate to
the needs of the new African nations. At the same time, I have to
say that I cannot imagine a more inappropriate context for the
conception of law conveyed in the words just quoted. (I am quite
aware that my critics among the New Analytical Jurists do not
explicitly embrace the doctrine of the identity of law and the state.
But I ask in all what tenet of their philosophy, what
seriousness,
principle or standard enunciated by them, offers a stopping place
short of this ultimate reductio ad absurdum of the positivist point
of view?)
Among those concerned in this country with programs for
world peace there appears to have developed a certain polarity
of viewpoints. One side opts for the earliest possible realization of
something like a world legal order, "vertical style." The opposing
view is advanced by those who recommend, as the surest route
accommodations
to peace, efforts toward achieving reciprocal
among nations, accommodations that may take the form of ex-
plicit treaties, but that may also develop through tacit adjustments
that will gradually harden into law. Insofar as this difference in
strategies is based on a candid and realistic appraisal of alterna-
tives, it is useful and the debate about it should be continued. I

cannot escape the conclusion, however, that at least some of

those who are content with nothing short of a world legal authority
are influenced not by political and sociological realities but by an
impulse toward conceptual neatness, by a conviction that nothing
counts as law that does not fit our accustomed definitions of
domestic law. A reexamination of those definitions might put the
problem of international order in a different light and soften some-
what the present opposition of viewpoints.
It would be inappropriate to leave the twin subjects of inter-

236
 A REPLY TO CRITICS
national law and customary law without calling attention to a re-
cent book by Michael Barkun, Law without Sanctions: Order in
Primitive Societies and the World Community (1968). Barkun
has many perceptive things to say about the damage done to
thinking in the fields of his concern by simplistic theories about
law in general. He calls particular attention to the dangers in-
volved when and anthropologists base their defini-
sociologists
tions of law on those that have become current in dealing with
domestic law:

Despite the social scientist's abhorrence of mixtures of fact

and value, he has tended to look at stateless societies, both
international and primitive, from the received perspective of
domestic law. Domestic law is unavoidably a highly visible
part of his environment. We have here a kind of unconscious
cultural bias in which the theoretical framework of the legal
profession, which appears to cover law adequately (as we
normally see it), has been unquestioningly imported into
social science. But once we accept the premise that theories
are constructed and not discovered in a sphere of Platonic
archetypes, there is little to justify this kind of uncritical
appropriation. (P. 11.)

So far I have been discussing the implications of my debate

with the New Analytical Jurists for problems that arise within a
framework that is largely "legal" in nature. I should like now to
turn briefly to the implications of that debate for the concept of
morality.
In the opening portions of this Reply I suggested that analytical
legal positivism "lacks a social dimension." As a cure for this
defect Ihave recommended "an interactional theory of law." I
am convinced that the concept of morality adopted by my critics
suffers, in some measure at least, from the same defect and would
profit from the same correction.
In rejecting my notion of an internal morality of law, Hart
seems one point to suggest that the utilitarian principle is itself
at
largely capable of taking over all the functions I have assigned to

237
THE MORALITY OF LAW
the eight principles of legality. These principles should be valued,
Hart asserts, "so far only as they contribute to human happiness
and other substantive moral aims of the law." 45 In the same pas-
sage he indicates that retroactive laws are generally to be con-
demned simply because they "make no contribution to human
happiness" and, if they result in punishment, "inflict useless

misery." In commenting on these assertions I would remark that

even if we were willing to accept the utilitarian principle as the
ultimate test of goodness, any meaningful application of that
principlemust presuppose some stability of interactional pro-
cesses within a societyand this stability is in turn heavily depen-
dent upon the guidelines furnished by a conscientiously adminis-
tered legal system. One cannot trace the consequences of a
particular action through the fabric of society unless that fabric
itself preserves some measure of integrity.
A neglect of the interactional dimensions of morality is general-
ly to be found, I think, in my critics' treatment of what I have
called the internal morality of law. None
them seems willing to
of
pass an adverse moral judgment on the legislator who, through
indifference to the demands of his role, confuses or misplaces the
legal guideposts by which men coordinate their actions. Cohen
asserts, for example, that there is nothing

morally outrageous about passing contradictory laws. This is

not to say, of course, that such laws might not be passed for
reasons that would make them immoral or that a situation
inadvertently created might not be abused in an immoral
way. 46

In the same vein Dworkin condemns the legislator who departs

from the principles of legality in order to achieve the "deliberate
entrapment" of some innocent victim, 47 but is unwilling to cen-
sure the legislator who through a neglect of his job brings about a

45. Supra n. 3, p. 1291.

46. Supra n. 6, p. 652.
47 Supra n. 6, p. 637.

238
 A REPLY TO CRITICS
condition of legal uncertainty that may give someone else an
opportunity to do the entrapping.
Dorothy Emmet has done a great service to ethical philosophy
in her book, Rules, Roles and Relations (1966), by reintroducing
in a cogently argued and perceptive way the ancient concept of
social role. Role morality is patently a morality of interaction.
But the modes of analysis appropriate to problems of role morality
are also relevant to moral problems which do not involve the per-
formance of roles that have been recognized as such. It is for this
reason that I believe a study of the complex demands of the in-
ternal morality of law would deepen our insight into moral prob-
lems generally.
In particular, a close study of the problems encountered in try-
ing to achieve and maintain legality would confront us in an un-
mistakable way with the problem I have referred to as that of
"antinomies," that is, with the sort of dilemma we face when it
is necessary to depart from one principle of legal morality to save
another. In my my illustrations of this phenome-
second chapter
non have do with cases where the correction of some
chiefly to
mishap or oversight requires a departure from the normal prac-
tices of legality, as by demanding curative legislation which is by
necessity retrospective.
That ethical philosophers are not universally prepared to deal
with this kind of dilemma shown when Cohen raises the ques-
is

tion whether I do not "give my case away" when I "admit" that

under some circumstances retrospective legislation may be bene-
ficial. 48 Had I said that in my opinion telling lies is immoral, but
that an exception should be made when a lie is told to save an
innocent life, I don't think Cohen would have said that in recog-
nizing this exception I had "given away my case" against lying.
In both cases the qualification derives from a special social con-
text. The difference one case the demands of this con-
that in
—
is

text are highly visible understood one can imagine a

and easily
lunatic erupting on the scene and demanding to know where his

48. Supra n. 5, p. 652.

239
THE MORALITY OF LAW
intended victim is hiding —while in the other case the social con-
text is complex and the interactions involved are indirect and in-
conspicuous.
If Cohen has difficulty with my "admission" that retrospective
statutes curing past departures from legality may, on net balance,
be beneficial, he has even more difficulty in absorbing the notion
that antinomies among the principles of legal morality may be
encountered in the design of legal institutions. After dealing with
the "admission" involved in my comments on curative statutes,
Cohen continues:

But Fuller's concessions go further. He concedes that when-

ever a judge decides a case for which the standards are un-
clear he makes law retroactively. This strain of legal realism
is unexpected in Fuller, and is not wholly consistent with

hissound claim that unless the judge decides such cases "he
duty to settle disputes arising out of an existing
fails in his

body of law." 4 »

The statement just quoted could hardly come from one able
to visualize a context in which two litigants, in an argument over
the significance of a statute for their respective rights, take then-
dispute to a judge and ask him to resolve it. Would Cohen have
the judge say, "You gentlemen have performed a public service
in calling attention to a serious ambiguity in this statute. Though
the arguments are about equally balanced, I hereby resolve your
dispute about the meaning of the statute in favor of the contention
made by A . Since, however, I do not wish to make retrospective
law, this interpretation shall be effective only for situations that
may arise in the future. As for the specific controversy between
you two, I leave that undecided." A soliloquizing ethics will, of
course, have little occasion to recognize or deal with problems of
this sort; a morality concerned with social interaction will in-

evitably confront them and solve them as best it can, which means
that it will often be forced to weigh the advantages and disadvan-

49. Ibid.

240
 A REPLY TO CRITICS

tages of one course of action, or of one institutional design, against

those of another. 50
I come now finally, and with a measure of reluctance, to some

brief mention of the issue of positivism v. natural law. If the pres-

ent controversy had arisen thirty years ago, this issue would
probably have been seen as central to the whole debate. There was
a time, certainly within living memory, when to speak disrespect-
fully of legal positivismwas to open oneself up to the suspicion of
being an adherent of some darkly conceived, darkly motivated,
metaphysical, and probably ecclesiastical version of natural law.
Fortunately, the winds of doctrine seem to have changed their
direction. Positivism is now coming under attack on many fronts,
notably in linguistics and in the philosophies of science and of art.
In sociology and legal anthropology there is a discernible trend
away from structural theories and toward a study of interactional
processes; I am told a similar shift has taken place during the last
fifteen years in psychiatryand psychoanalysis. As for the law, one
of the most uncompromising of my critics, Ronald Dworkin, has
recently published what he himself describes as an "attack on
positivism." 51 In this new climate of opinion there is no longer
any need to apologize for being critical of positivism, nor does one
run any serious risk that a rejection of positivism will be taken to
imply a pretension that one has established contact with Absolute
Truth.
In the reorientation that seems to be taking place, one hopes
that there will develop a little more tolerance for, and interest in,
the great tradition embodied in the literature of natural law. One
will find in this literature much and much that is un-
foolishness
acceptable to modern intellectual tastes; one will also find in it
practical wisdom applied to problems that may broadly be called
those of social architecture. St. Thomas Aquinas stands for many
as a kind of symbol of all that is dogmatic and theological in the

50. In Anatomy of the Law (1968), pp. 84-1 12, 1 have attempted a com-
parison in these terms between the Anglo-American common law and
systems based on comprehensive codifications.
51. Supra n. 34.

241
THE MORALITY OF LAW
tradition of natural law. Yet as one writer has recently pointed
out, 52 Aquinas in some measure recognized and dealt with all
eight of the principles of legality discussed in my second chapter.
I know of no writer in the positivist vein who has concerned him-
self in more than a perfunctory way with the general problem of

achieving and maintaining legality.

In the philosophy of science the reorientation associated with
the names of Michael Polanyi and Thomas Kuhn has been marked
by a shift of interest away from the conceptualization and logical

analysis of scientific verification and toward a study of the actual

processes by which scientific discoveries are made. Perhaps in
time legal philosophers will cease to be preoccupied with build-
ing "conceptual models" to represent legal phenomena, will give
up their endless debates about definitions, and will turn instead to
an analysis of the social processes that constitute the reality of
law.

52. Lewis, "The High Court: Final ... but Fallible," 19 Western Re-
serve Law Review 528-643, at p. 565 (1968). (It may be stretching things
a bit to say that Aquinas recognized the principle of congruity between
official action and declared rule.)

242
 .

REVIEWS OF THE MORALITY OF LAW

Andrews, 89 Library Journal 3012 (1964).

Bartholomew, 58 American Political Science Review 984 (1964).
Baum, 10 St. Louis University Law Journal 435-41 (1966).
Bedau, The Nation (April 12, 1965), pp. 398-401.
Beras, The National Review (August 1 1 1 964), pp. 690-9 1
,

Binkley, 1965 Duke Law Journal 668-70 (1965).

Blackshield, Reading Guide of the University of Virginia Law
School, (Feb. 1965), pp. 1 1-16.
Boye, Revue Historique de Droit Francois et Stranger (July-Sept.
1965), pp. 504-05.
Brady, 43 Texas Law Review 258-59 (1964).
Braybrooke, 3 Dialogue 441-44 (1965).
Burrus, 17 Hastings Law Journal 861-64 (1966).
Campbell, 28 Modern Law Review 370-73 (1965).
Denonn, 50 American Bar Association Journal 1077 (1964).
Dias, 1965 Cambridge Law Journal 157-59 (1965).
Dowrick, 81 Law Quarterly Review 602-03 (1965).
Golding, 76 Ethics 225-28 (1966).
Gross, 40 New York University Law Review 1220-29 (1965).

243
THE MORALITY OF LAW
Grunbaum, Church & State 473-75 (1966?).
Hanft, 43 North Carolina Law Review 238-44 (1964).
Hart, 78 Harvard Law Review 1281-96 (1965).
Hosking, 40 California State Bar Journal 90-94 ( 1 965).
Hughes, 17 Stanford Law Review 547-59 (1965).
Jacobs, F. G., 10 N.S., Juridical Review 92-93 (Edinburgh,
1965).
Jacobs, Francis, 75 N.S. Mind 605-07 (1966).
Johnson, 33 Tennessee Law Review 563-65 (1966).
129 Justice of the Peace and Local Government Review 44 (Lon-
don, Jan. 16, 1965).
Kurczewski, Studia Filozoficzne 274-80 (Warsaw, 1967).
235 Law Times 502 (London, Sept. 4, 1964).
Lewis, 17 Western Reserve Law Review 349-57 (1965).
McDowell, 44 Boston University Law Review 587-90 (1964).
Mandelbaum, 10 New York Law Forum 648-50 (1964).
Meyer, 10 McGill Law Journal 380-83 (1964).
Montrose, 1 6 University of Toronto Law Journal 45 1-55 (1966).
Morison, 5 Sydney Law Review 181-85 (1965).
Perelman, 10 Natural Law Forum 242-45 (1965).
Review of Metaphysics, p. 367 (December 1966).
Rose, 39 Tulane Law Review 387-95 (1965).
Savarese, 53 Georgetown Law Journal 250-58 (1964).
Schwartz, 359 Annals of the American Academy of Political and
Social Sciences 190 (1965).
Selznick, 30 American Sociological Review 947-48 (1965).
Summers, 1 8 Journal of Legal Education 1-27 (1965).
Tucker, 40 Indiana Law Journal 270-79 (1965).
Tunc, 3 Revue Internationale de Droit Compare 519-21 (1965).
Wasserstrom, 19 Rutgers Law Review 581-86 (1965).
Woozley, 16 Philosophical Quarterly 89-90 (St. Andrews Univ.,
1966).
Wroblewski, Ruch Prawniczy, Ekonomiczny i Socjologiczny 224-
30(Poznan,1966).

244
 APPENDIX: THE PROBLEM OF
THE GRUDGE INFORMER

By a narrow margin you have been elected Minister of Justice of

your country, a nation of some twenty million inhabitants. At
the outset of your term of office you are confronted by a serious
problem that will be described below. But first the background
of this problem must be presented.
For many decades your country enjoyed a peaceful, constitu-
tional and democratic government. However, some time ago it
came upon bad times. Normal relations were disrupted by a
deepening economic depression and by an increasing antagonism
among various factional groups, formed along economic, political,
and religious lines. The proverbial man on horseback appeared
in the form of the Headman of a political party or society that
called itself the Purple Shirts.
In a national election attended by much disorder the Headman
was elected President of the Republic and his party obtained a
majority of the seats in the General Assembly. The success of the
party at the polls was partly brought about by a campaign of
reckless promises and ingenious falsifications, and partly by the
physical intimidation of night-riding Purple Shirts who frightened

245
APPENDIX
many people away from the polls who would have voted against
the party.
When power they took no steps to
the Purple Shirts arrived in
repeal the ancient Constitution or any of its provisions. They also

left intact the Civil and Criminal Codes and the Code of Pro-

cedure. No official action was taken to dismiss any government

official or to remove any judge from the bench. Elections con-

tinued to be held at intervals and ballots were counted with ap-

parent honesty. Nevertheless, the country lived under a reign of
terror.
Judges who rendered decisions contrary to the wishes of the
party were beaten and murdered. The accepted meaning of the
Criminal Code was perverted to place political opponents in jail.

Secret statutes were passed, the contents of which were known

only to the upper levels of the party hierarchy. Retroactive stat-

utes were enacted which made acts criminal thatwere legally

innocent when committed. No attention was paid by the govern-
ment to the restraints of the Constitution, of antecedent laws, or
even of its own laws. All opposing political parties were dis-
banded. Thousands of political opponents were put to death,
either methodically in prisons or in sporadic night forays of terror.
A general amnesty was declared in favor of persons under sen-
tence for acts "committed in defending the fatherland against
subversion." Under this amnesty a general liberation of all prison-
erswho were members of the Purple Shirt party was effected.
No one not a member of the party was released under the amnesty.
The Purple Shirts as a matter of deliberate policy preserved an
element of flexibility in their operations by acting at times through
the party "in the streets," and by acting at other times through
the apparatus of the state which they controlled. Choice between
the two methods of proceeding was purely a matter of expediency.
For example, when the inner circle of the party decided to ruin
all the former Socialist-Republicans (whose party put up a last-

ditch resistance to the new regime), a dispute arose as to the

best way of confiscating their property. One faction, perhaps

246
 THE GRUDGE INFORMER
still influenced by prerevolutionary conceptions, wanted to ac-
complish this by a statute declaring their goods forfeited for
criminal acts. Another wanted to do by compelling the owners
it

to deed their property over at the point of a bayonet. This group

argued against the proposed statute on the ground that it would
attract unfavorable comment abroad. The Headman decided in
favor of direct action through the party to be followed by a
secret statute ratifying the party's action and confirming the tides
obtained by threats of physical violence.
The Purple Shirts have now been overthrown and a democratic
and constitutional government restored. Some difficult problems
have, however, been left behind by the deposed regime. These
you and your associates in the new government must find some
way of solving. One of these problems is that of the "grudge
informer."
During the Purple Shirt regime a great many people worked
off grudges by reporting their enemies to the party or to the gov-
ernment authorities. The activities reported were such things as
the private expression of views critical of the government, listen-
ing to foreign radio broadcasts, associating with known wreckers
and hooligans, hoarding more than the permitted amount of
dried eggs, failing to report a loss of identification papers within
five days, etc. As things then stood with the administration of
justice, any of these acts, if proved, could lead to a sentence of
death. In some cases this sentence was authorized by "emer-
gency" statutes; in others it was imposed without statutory war-
rant, though by judges duly appointed to their offices.
After the overthrow of the Purple Shirts, a strong public de-
mand grew up that these grudge informers be punished. The
interim government, which preceded that with which you are as-
sociated, temporized on this matter. Meanwhile it has become a
burning issue and a decision concerning it can no longer be post-
poned. Accordingly, your first act as Minister of Justice has been
to address yourself to it. You have asked your five Deputies to
give thought to the matter and to bring their recommendations

247
APPENDIX
to conference. At the conference the five Deputies speak in turn
as follows:

FIRST deputy. "It is perfectly clear to me that we can do nothing

about these so-called grudge informers. The acts they reported
were unlawful according to the rules of the government then in
actual control of the nation's affairs. The sentences imposed on
their victims were rendered in accordance with principles of law
then obtaining. These principles differed from those familiar to
us in ways that we consider detestable. Nevertheless they were
then the law of the land. One of the principal differences between
that law and our own lies in the much wider discretion it accorded
to the judge in criminal matters. This rule and its consequences
are as much entitled to respect by us as the reform which the
Purple Shirts introduced into the law of wills, whereby only two

witnesses were required instead of three. It is immaterial that

the rule granting the judge a more or less uncontrolled discretion
in criminal cases was never formally enacted but was a matter
of tacit acceptance. Exactly the same thing can be said of the
opposite rule which we accept that restricts the judge's discretion
narrowly. The difference between ourselves and the Purple Shirts
is not that theirs was an unlawful government — a contradiction
in terms —but lies rather in the field of ideology. No one has a
greater abhorrence than I for Purple Shirtism. Yet the funda-
mental difference between our philosophy and theirs is that we
permit and tolerate differences in viewpoint, while they attempted
to impose their monolithic code on everyone. Our whole system
of government assumes that law is a flexible thing, capable of
expressing and effectuating many different aims. The cardinal
point of our creed is that when an objective has been duly incor-
porated into a law or judicial decree it must be provisionally ac-
cepted even by those that hate it, who must await their chance
at the polls, or in another litigation, to secure a legal recognition
for their own aims. The Purple on the other hand, simply
Shirts,
disregarded laws that incorporated objectives of which they did
not approve, not even considering it worth the effort involved

248
 THE GRUDGE INFORMER
to repeal them. If we now seek to unscramble the acts of the
Purple Shirt regime, declaring this judgment invalid, that statute
void, this sentence excessive, we shall be doing exactly the thing
we most condemn in them. I recognize that it will take courage

to carry through with the program I recommend and we shall

have to resist strong pressures of public opinion. We shall also

have to be prepared to prevent the people from taking the law

into their own hands. In the long run, however, I believe the
course I recommend is the only one that will insure the triumph
of the conceptions of law and government in which we believe."

second deputy. "Curiously, I arrive at the same conclusion as

my colleague, by an exactly opposite route. To me it seems ab-
surd to call the Purple Shirt regime a lawful government. A legal
system does not exist simply because policemen continue to
patrol the streetsand wear uniforms or because a constitution
and code are on the shelf unrepealed. A legal system pre-
left

supposes laws that are known, or can be known, by those subject

to them. It presupposes some uniformity of action and that like
cases will be given like treatment. It presupposes the absence of
some lawless power, like the Purple Shirt Party, standing above
the government and able at any time to interfere with the ad-
ministration of justice whenever it does not function according
to the whims of that power. All of these presuppositions enter
into the very conception of an order of law and have nothing to
do with political and economic ideologies. In my opinion law in
any ordinary sense of the word ceased to exist when the Purple
Shirts came to power. During their regime we had, in effect, an
interregnum in the rule of law. Instead of a government of laws
we had a war of all against all conducted behind barred doors,
in dark alleyways, in palace intrigues, and prison-yard con-

spiracies. The acts of these so-called grudge informers were just

one phase of that war. For us to condemn these acts as criminal
would involve as much incongruity as if we were to attempt to
apply juristic conceptions to the struggle for existence that goes
on in the jungle or beneath the surface of the sea. We must put

249
APPENDIX
this whole dark, lawless chapter of our history behind us like

a bad dream. If we stir among its hatreds, we shall bring upon

ourselves something of its evil spirit and risk infection from its
miasmas. I therefore say with my colleague, let bygones be by-
gones. Let us do nothing about the so-called grudge informers.
What they did do was neither lawful nor contrary to law, for they
lived, not under a regime of law, but under one of anarchy and
terror."

third deputy. "I have a profound suspicion of any kind of

reasoning that proceeds by an 'either-or' alternative. I do not

think we need to assume either, on the one hand, that in some

manner the whole of the Purple Shirt regime was outside the
realm of law, or, on the other, that all of its doings are entitled
to full credence as the acts of a lawful government. My two col-
leagues have unwittingly delivered powerful arguments against
these extreme assumptions by demonstrating that both of them
lead to the same absurd conclusion, a conclusion that is ethically
and politically impossible. If one reflects about the matter without
emotion it becomes clear that we did not have during the Purple
Shirt regime a 'war of all against all.' Under the surface much
of what we call normal human life went on —
marriages were con-
tracted, goods were sold, wills were drafted and executed. This
life was attended by the usual dislocations —automobile acci-
dents, bankruptcies, unwitnessed wills, defamatory misprints in
the newspapers. Much of this normal life and most of these equal-
ly normal dislocations ofit were unaffected by the Purple Shirt

ideology. The legal questions that arose in this area were handled
by the courts much as they had been formerly and much as they
are being handled today. It would invite an intolerable chaos if
we were to declare everything that happened under the Purple
Shirts to be without legal basis. On the other hand, we certainly
cannot say that the murders committed by members
in the streets
of the party acting under orders from the Headman were lawful
simply because the party had achieved control of the government
and its chief had become President of the Republic. If we must

250
 THE GRUDGE INFORMER
condemn its members, it would
the criminal acts of the party and
seem absurd uphold every act which happened to be canalized
to
through the apparatus of a government that had become, in effect,
the alter ego of the Purple Shirt Party. We must therefore, in this
situation, as in most human affairs, discriminate. Where the
Purple Shirt philosophy intruded and perverted the ad-
itself

ministration of justice from its normal aims and uses, there we

must interfere. Among these perversions of justice I would count,
for example, the case of a man who was in love with another
man's wife and brought about the death of the husband by in-
forming against him for a wholly trivial offense, that is, for not
reporting a loss of his identification papers within five days. This
informer was a murderer under the Criminal Code which was
in effect at the time of his act and which the Purple Shirts had
not repealed. He encompassed the death of one who stood in the
way of his illicit passions and utilized the courts for the realization
of his murderous intent. He knew that the courts were themselves
the pliant instruments of whatever policy the Purple Shirts might
for the moment consider expedient. There are other cases that
are equally clear. I admit that there are also some that are less
clear. We shall be embarrassed, for example, by the cases of mere
busybodies who reported to the authorities everything that looked
suspect. Some of these persons acted not from desire to get rid of
those they accused, but with a desire to curry favor with the party,
to divert suspicions (perhaps ill-founded) raised against them-
selves, or through sheer officiousness. I don't know how these

cases should be handled, and make no recommendation with

regard to them. But the fact that these troublesome cases exist
should not deter us from acting at once in the cases that are clear,
of which there are far too many to permit us to disregard them."

FOURTH DEPUTY. "Like my colleague I too distrust 'either-or'

reasoning, but I think we need to reflect more than he has about
where we are headed. This proposal to pick and choose among
the acts of the deposed regime is thoroughly objectionable. It is,

in fact, Purple Shirtism itself, pure and simple. We like this law,

251
APPENDIX
so let us enforce it. We like this judgment, let it stand. This law
we don't like, therefore it never was a law at all. This govern-
mental act we disapprove, be deemed a nullity. If we pro-
let it

ceed this way, we take toward the laws and acts of the Purple
Shirt government precisely the unprincipled attitude they took
toward the laws and acts of the government they supplanted. We
shall have chaos, with every judge and every prosecuting attorney
a law unto himself. Instead of ending the abuses of the Purple
Shirt regime, my would perpetuate them.
colleague's proposal
There is only one way problem that is com-
of dealing with this
patible with our philosophy of law and government and that is
to deal with it by duly enacted law, I mean, by a special statute
directed toward it. Let us study this whole problem of the grudge
informer, get all the relevant facts, and draft a comprehensive
law dealing with it. We shall not then be twisting old laws to pur-
poses for which they were never intended. We shall furthermore
provide penalties appropriate to the offense and not treat every
informer as a murderer simply because the one he informed
against was ultimately executed. I admit that we shall encounter
some difficult problems of draftsmanship. Among other things,
we shall have to assign a definite legal meaning to 'grudge' and
that will not be easy. We should not be deterred by these diffi-
culties, however, from adopting the only course that will lead
us out of a condition of lawless, personal rule."

fifth deputy. "I find a considerable irony in the last proposal.

It speaks of putting a definite end to the abuses of the Purple

Shirtism, yet it proposes to do this by resorting to one of the most

hated devices of the Purple Shirt regime, the ex post facto criminal
statute. My colleague dreads the confusion that will result if we
attempt without a statute to undo and redress 'wrong' acts of the
departed order, while we uphold and enforce its 'right' acts. Yet
he seems not to realize that his proposed statute is a wholly
specious cure for this uncertainty. It is easy to make a plausible
argument for an undrafted statute; we all agree it would be nice
to have things down in black and white on paper. But just what

252
 THE GRUDGE INFORMER
would this statute provide? One of my colleagues speaks of some-
one who had failed for five days to report a loss of his identifica-
tion papers. My colleague implies that the judicial sentence im-
posed for that offense, namely death, was so utterly disproportion-
ate as to be clearly wrong. But we must remember that at that
time the underground movement against the Purple Shirts was
mounting in intensity and that the Purple Shirts were being ha-
rassed constantly by people with false identification papers. From
their point of view they had a real problem, and the only objec-
tion we can make to their solution of it (other than the fact that
we didn't want them to solve was that they acted with some-
it)

what more rigor than the occasion seemed to demand. How will
my colleague deal with this case in his statute, and with all of
its cousins and second cousins? Will he deny the existence of any

need for law and order under the Purple Shirt regime? I will not
go further into the difficulties involved in drafting this proposed
statute, since they are evident enough to anyone who reflects. I
shall instead turn to my own solution. It has been said on very
respectable authority that the main purpose of the criminal law
is to give an outlet to the human instinct for revenge. There are

times, and I believe this is one of them, when we should allow

that instinct to express itself directly without the intervention of
forms of law. This matter of the grudge informers is already in
process of straightening itself out. One reads almost every day
that a former lackey of the Purple Shirt regime has met his just
reward in some unguarded spot. The people are quietly handling
this thing in their own way and if we leave them alone, and in-
struct our public prosecutors to do the same, there will soon be
no problem left for us to solve. There will be some disorders, of
course, and a few innocent heads will be broken. But our govern-
ment and our legal system will not be involved in the affair and
we shall not find ourselves hopelessly bogged down in an attempt
to unscramble all the deeds and misdeeds of the Purple Shirts."

As Minister of Justice which of these recommendations would

you adopt?

253
 INDEX

Absolute liability. See Strict liability judicial review, 125-29; law con-
Adams, Brooks, 73 n. cerning such review a branch of
Adamson v. California, 102 n. constitutional law, 128-29
Adjudication: not indispensable to a Attainder, bills of, 52 n.
legal system, 55-56; legal system Auden, W. H., 152
may take its start in, 130-31, Austin, J. L., 195-97
144-45: not suited to allocative Austin, John, 48-49, 53 n., 63 n.,
tasks, 46,171-75; not suited to 97, 110, 192, 215-16 n., 225-26
problems of institutional design,
177-81 Baker v. Carr, 178

Aigler, R. W., 63 n. Barkun, Michael, 237

Allen, Francis A., 165 Barnard, Chester, 29 n.
American Arbitration Association, Barth, Karl, 3
113 Baseball, rewards and censures in,
Anastaplo, George, 189 n. 31
Aquinas, St. Thomas, 18-19, 98, Beatification procedures of Catholic
185, 241 church, 32
94
Aristotle, 5, 19, 64, Bentham, Jeremy, 6, 7, 18, 63 n.,
Arnold, Thurman, 50 65 n.
Ash v. Abdy, 86 n. Bergler, Edmund, 8 n.
Aspiration. See Morality of Berman, Harold, 202-03
Associations, voluntary: as admin- Black, Duncan, 177 n.
istering their own legal systems, Black, Hugo, 102 n.
124-29; their decisions subject to Blau, Peter M., 213

255
INDEX
Bonham's Case, 99-101 morality of law, 102-06; judicial
Boorstin, D. J., 146 n. review of disciplinary action in
Brandt, R. B., 5 n. private associations as a branch
Bridgman, P. W., 119 of, 128-29
Brown, Jethro, 49 n. Constitutions, virtues and defects of
written, 114-15
Caligula, 93 Contraception and the law, 153
Campbell, Lord, 86 n. Contradictions in the law, 36, 65-
Censors, boards of, in early Ameri- 70,92,99, 101-02, 111-13, 115,
can history, 177 130; between institutions, 100-
Chafee, Zechariah, 129 01; as affecting managerial or-
Civil Aeronautics Board, 46, 171- ders, 208; whether presenting
75 moral issue, 238
Clarity of laws, 36, 43, 45, 63-65, Cook, W. W., 137 n.
92, 102-03, 107, 115; as affecting Corbin, A. L., 134 n., 136 n.
managerial direction, 208; as pre- Council on Tribunals, 177
senting moral issue in adminis- Criminal law: and retroactivity, 59;
tration of a legal system, 212-14 strict liability under, 77-78; and
Clark, Tom, 165 human responsibility, 163-67;
Cohen, Marshall, 191, 197, 201, abuses of rehabilitative ideal in,

238, 239-40 165

Coke, Sir Edward, 83 n., 99-101 Cruel and unusual punishment, 105
Colleges, judicial review of discip- Customary law, interpretation of,
linary action by, 125-27 227-28; nature of, 233-36; as an
Commodity Exchange Theory of ingredient of "made" law, 232,
Law, 25-26 234; problems of transition from,
Conant, J. B., 120 to enacted law, 234-36
Congruence of official action with
declared rule, 38, 39-40, 45, 48, Declaration of Independence, 156
56, 81-91, 92, 99, 115, 188-89, Del Vecchio, G., 23 n.
190, 191, 193, 194; as affecting Devlin, P. A., 132 n.
managerial direction, 208; as es- Dicey, A. V., on parliamentary
sential to Rule of Law, 209-10; sovereignty, 115-17
as implying commitment by law- Dispute settlement not exclusive
giver, 216-18; as involved in in- aim of law, 55
terpretation of laws, 224, 230-31 Dodgson, Charles, 177
Conseil d'£tat, 177 Due process, 81, 105-06
Constancy of the law through time, Duties: rules imposing, contrasted
37, 45, 79-81, 92; as affecting with rules conferring powers, 93,
managerial orders, 208 134-37; economic allocation can-
Constitution, U.S., 51, 92, 101-03, not be organized by, 170-76;
149 scope of community within which
Constitutional law: and internal duties are meaningful, 181-82

256
 INDEX
Duty, concept of, among Greeks, 5; 193-95; as affecting managerial
in primitive society, 143-44. See direction, 209; as essential to
also Morality of duty Rule of Law, 209-10
Dworkin, Ronald, 189, 190, 192, George III, 156
198-99, 201, 221-22, 224 n., Golden Rule, 20-21
238-39, 241 Good Samaritan, 182-83
Gottlieb, Gidon, 224 n.
Economics: definitions of, 15-17; Gough, J. W., 99
parallels with morality, 17-30; Graham v. Goodcell, 55 n.
adjudication an inept means for Gray, J. C, 49 n., 52 n., 83-84, 97,
solving task of, 170-76. See also 112,226
Exchange; Marginal Utility; Greeks, conception of morality
Reciprocity among, 5, 13-15
Ellesmere, Lord, 68 n.
Emmet, Dorothy, 239 Hale, R. L., 52 n., 103 n.
Escarra, Jean, 143 n. Hall, 78 n.
J.,

Exchange, economics of, compared Hamilton, Alexander, 101

with morality of duty, 19-27, 28. Hampshire, Stuart, 196
See also Marginal Utility; Reci- Harrod, R. F., 16 n.
procity Hart, H. L. A., 5 n.; on defeasible
Expulsions from clubs, schools, and concepts, 29-30, 95 n.; on legis-
associations as subject to judicial lating morals, 132 n.; "the rule of
review, 124-29 recognition," 133-44, 192; rules
imposing duties distinguished
Federal Communications Commis-
from rulec conferring powers,
sion, 46, 171-75
134-37; distinction between a
Federalist, The, 80, 101
legal system and "the gunman
Fidelity to law, obligation of, 39-
situation writ large," 139-40;
41
problem of the persistence of
Findlay, J. M., 5 n.
law, 141-42, 149-50; transition
Force, sanction of, as distinguishing
from primitive society to "the
law from morality, 108-10
legal world," 142-44; on the sig-
Frankfurter, Felix, 102 n.
nificance of the internal morality
Friedmann, W., 107
of law, 153-55, 197; "the pathol-
Friendly, H. J., 172-75
ogy of a legal system," 155, 157;
Fuller, L. L., 18 n., 25 n., 40 n.,
a minimum natural law, 155,
46 n., 84 n., 92 n., 232 n., 241 n.
184-86; criticisms of this book,
Gambling, 6-9 188, 189-91, 196, 201; his anal-
Generality of law, 34, 46-49; con- ysis of law based on managerial

stitutional prohibitions of special model, 214-16, 225, 237-38

and private laws, 47; bills of at- Hart, Henry M., 50 n., 78 n., 180,
tainder, 52 n., 97-98, 110, 131; 223
relation to justice, 157-59, 165, Hayek, F. A., 24, 64-65

257
INDEX

Hector, L., 174 sibilities, 93-94; as expressed in

Heydon's Case, 82-83 the natural-law tradition, 96-
Hitler, German law under, 40-41, 106; treatment of, by positivists,

54-55, 62, 107, 123, 155, 158 97; special attention during 17th
Hochman, C. B., 52 n. century, 99-101; as clarifying re-
Hoebel, A., 108, 206 lation of law and morality, 131-
Hohfeldian analysis, 134, 136-37 32; meaningless when law is ab-
Holmes, O. W., 29, 106, 1 19, 152 stracted from any general pur-
Holt, Lord, 88-89 pose, 147-48; interaction with
Honors. See Rewards substantive aims, 153-67; rela-
Hughes, Graham, 189 n., 224 n. tion to efficacy of law, 155-57;
relation to substantive justice,
Impossibility, laws commanding an, 157-59; necessarily infringed by
36-37, 45, 53-54, 70-79; liability laws directed toward undefinable
founded on fault, 71-72; liability evils, 159-62; requires view of
founded on a wrongful intent, man as responsible agent, 162-
72-73; liability based on unjust 67; whether entitled to be called
enrichment, 73-74; strict civil "morality," 200-23; as affecting
liability, 75-77; strict criminal managerial direction, 208-09.
liability, 77-78; not always dis- See also Clarity of laws; Con-
tinguishable from laws imposing gruence of official action with de-
severe hardship, 79; laws requir- clared rule; Constancy of the law
ing political or religious belief, through time; Contradictions in
79, 92, 99, 100; impossibility of the law; Generality of law; Im-
obedience as affecting managerial laws commanding an;
possibility,
orders, 208 Promulgation; Retroactive laws
Intention of laws, to whom Internal morality of science, 120-
ascribed, 86-87 21
Interaction, as an element in law, International law, 232-34, 236-37
39^0, 191, 193-95, 220-24, Interpretation:as an aspect of
233-34 maintaining congruence between
Internal morality of law: primarily official action and declared rule,
a morality of aspiration, 41-44; 82-91; as demanding creative
whether reducible to fewer than role of the judge, 87; of the
eight principles, 70 n.; as applied
Statute of Frauds, 88-89; of
to secret legislative orders, 91-
laws designed to prevent a "re-
92; departures from, tend to be-
turn of the old saloon," 89-91;
come cumulative, 92; its demands
theories of, implied in dispute
relaxed when laws correspond to
common views of right and with critics, 224-32; of custom,
wrong, 50, 92-93; demands vary 228-29; as affected by antinomies
with branch of law, 93; includes among principles of legality,

both simple and complex respon- 230-3 1 as affected by reciprocal

;

258
 INDEX
expectations within legal system, hierarchic ordering of command,
231-32 110-13, 118, 148-49
Interstate Commerce Commission, Legal morality. See Internal mor-
175 ality of law
Israeli Law of Return, 162 Legality, principles of, some respect
for essential for existence of law,
Jefferson, Thomas, 79, 146 197-200. See also Internal moral-
Jhering, Rudolph von, 66 n. ity of law
Jones, J. W., 5 n. Lewan, Kenneth M., 189 n.
Judge-made law, problem of main- Lewis, Ovid, 242 n.
taining congruence with declared Lilburne, John, 33, 70, 217-18
rule, 82.See also Adjudication Lindsay, A. D., 5 n.
Judicial office,law does not in all Liquor laws, 89-91
cases require, 55-56. See also Ad- Llewellyn, Karl, 192
judication Lloyd, D., 127 n.
Jurisdiction over jobs in industrial
management, 219 Macbeath, A., 5 n.

McCall, George J., 195

Kant, Immanuel, 20, 152; Pashu- McHugh, Peter, 224 n.
kanis' view of, 25-26
Madison, James, 80
Kelsen, Hans, 49 n., 52 n., 65 n.,
Malinowski, B., 169 n.
110-12, 119, 191-92, 198, 227
Managerial direction, distinguished
King, B. E., 189 n.
from law, 207-10, 212-13; juris-
Kingston v. Preston, 87 n.
tic aspects of managerial systems,
Kuhn, Thomas, 242
212-13
Mansfield, Lord, 87
Lamont, W. D., 5 n., 12 n.
Lange, Oskar, 24 n. Marginal utility, principle of: as de-
Language, theories of, involved in fining scope of economic science,

interpretation of law, 84, 227-28 16; economic counterpart to mor-

Law: meaning of, for internal mor-
ality of aspiration, 17-19, 27-29;
alityof law, 91-92; existence of, affects realization of internal

a matter of degree, 122-23; morality of law, 44-46; as mak-

multiple systems of, 123-29; dis- ing adjudicative processes un-
tinguished from morality, 130- suited to allocation of economic
33; limits of resources, 170-77; affects design
its efficacy, 168-70;
whether existence of of institutions, 177-81. See also
is a matter
of Economics; Exchange; Reciproc-
from a moral
indifference
point of view, 204-07 ity

definitions of: as a prediction Marx, Karl, alienation theme in, 26

of state action, 106-07; as public Marxism. See Pashukanis
order, 107, 118; as rules sanc- Mays, Willie, 31
tioned by force, 108, 118; as a Mead, Margaret, 144—45

259
INDEX

Military organization compared 96-97; special quality of, dur-

with legal hierarchy, 113 ing 17th century, 99-101; in
Mill, J. S., 18, 168-69 U.S. Constitution and its inter-

Miscegenation, 161 pretation, 99, 102-06; H. L. A.

Mitigation of damages, 135-36 Hart's conception of, 155, 184-
Model Penal Code, 78 n. 86; maintenance of communica-
Moral community, 181-83 tion basic principle of substantive
Moral scale. See Pointer dividing natural law, 185-86; as an issue
moralities of duty and of aspira- in debate with critics, 241-42
tion Nazi law. See Hitler
Morality: distinguished from law, Newton, N. T., 14 n.
6-7, 9, 130-33; vocabulary of, Nietzsche, F., 95
confusing moralities of aspira- Nottingham, Lord, 86 n.

tion and of duty, 13-15; its prin-

Ochoa v. Hernandez y Morales,
ciples compared with those of
81 n.
economics, 15-30; implications
Ombudsman, 82, 177
of debate with critics for, 237-41
One-way projection of authority,
Morality of aspiration, 5; its view
law viewed as, 191-95
of gambling, 8-9; not concerned
Ordinary-language philosophy,
exclusively with individual val-
195-97, 199. See also J. L. Austin
ues, 12-13; not subject to discur-
Ozawa v. United States, 161
sive demonstration, 14; counter-
part of marginal utility econom- Pappe, H. O., 40 n.
ics, 17-19, 28; governs internal Parliamentary sovereignty, 113-17;
morality of law, 41-44; requires political merits, compared with
affirmative acts, 42-43; implied written constitution, 114-15; de-
in constitutional law, 104. See pendent upon successful func-
also Marginal utility tioning of laws of procedure,
Morality of duty, 5-6; its view of 115, 148; legal theory of, 115-17
gambling, 6-8; relation to reci- Pashukanis, Eugene, 24-26, 113
procity and economic exchange, Patterson, E. W., 49 n.
19-28; achieves highest expres- Penalties, standards for imposing,
sion in a society of traders, 22- 30-32
24; involves restraints rather than Perelman, C, 69 n.
creative acts, 42. See also Rec- Perez v. Sharp, 161
iprocity Perfection: departure from, as a test
of evil, 10-12; ideal of, in rela-
Nagel, E., 18 n., 188 tion to allotment of rewards and
National Labor Relations Board, penalties, 32; in realization of
173 the internal morality of law, 41-
Natural law: and the internal mor- 44
ality of law, 96-106; procedural Plato, 5, 10, 11,14-15
and substantive distinguished, Pointer dividing moralities of duty

260
 1

INDEX

and of aspiration, 9-13, 27-28; duty, 19-27; moral force of rec-

its counterpart, dividing econom- iprocity enhanced by equality,
ics of exchange and of marginal 23, and by possibility of a re-
utility, 28; as applied to internal versal of roles, 23-24; between
morality of law, 42-44; as ap- lawgiver and subject, 39-40, 48,
plied to the range of govern- 61-62, 137-40. See also Inter-
mental action, 170-71 action; Morality of duty
Polanyi, M., 29, 118-21, 242 Redford, E. S., 174
Police lawlessness: inadequacy of Reichenbach, Hans, 1 19 n.
courts to control, 81-82; example Retroactive laws, 35, 44, 51-62;
of, 158-59 constitutional provisions regard-
Pomerantz v. Clark, 42 ing, 51 n., 52 n.; curative laws,
Portalis, J. E. M., 141 53-55, 239-40; as involved in
Positivistic theories of law, 106-18, judicial lawmaking, 55-58, 239-
145-51 40; what constitute, 59-62; com-
Pound, Roscoe, 95, 170 pared with laws correcting effects
Powers, legal rules conferring, dis- of inadvertence, 74; relation to
tinguished from those imposing problem of constancy of laws
duties, 134-37; inapplicability of through time, 80-81, 92, 100;
distinction to basic premises of a laws enhancing the obligation of
legal system, 138-40 contract, 103; Dicey on, 116; as
Precedent, force of, as expressing applied to rehabilitative meas-
commitment by lawgiver to ap- ures, 165-66, 188, 194-95; use
ply declared law, 218-19 of, by Soviet Russia, 202-03; as
Private laws. See Generality of law affecting managerial orders, 209;
Promotions, arbitration of, 3 affecting realization of the Rule
Promulgation of laws, 34-35, 43- of Law, 210-12
44, 49-51; whether necessary for Reviews of this book, 187 n., 188 n.,
rules of internal governmental 243-44
procedure, 50, 54, 92, 98, 105- Rewards, standards for granting,
06, 139-40, 165, 188, 189, 191; 30-32
as affecting managerial direction, Richards, I. A., 14 n.
208 Right: Greek concept of, 5 n.; as
Punishment. See Penalties tending toward absolute, 29
Purposive view of law: objections Robbins, Lionel, 16 n.
to, 145-46; costs of rejecting, Robinson v. California, 105-06,
147-51; Hart's attitude toward, 165
189-90 Role, concept of social, 192-93,
218, 239
Racial discrimination and the law, Rousseau, J. J., 23 n.
159-62, 183-84
Realism, American Legal, 226-27 Samuelson, P. A., 16 n.
Reciprocity: and the morality of Sartorius, Rolfe E., 192

261
INDEX

Science: theories of, compared with Summers, R. C, on "The New

theories of law, 118-21; defined Analytical Jurists," 190-91;
as ability to predict and control, agreement on need for minimum
119; as hierarchic ordering of respect for principles of legality,
knowledge of nature, 119; re- 198
forms of education in, 120; in- Suzman, A., 160 n.
ternal morality of, 120-21
Secession of the Plebs, 49 Talmud, 183
Secret legislative measures, 91-92 Teleology. See Purposive view of
Seidman, Robert B., 235 law
Selective enforcement of laws, 8, Thome, S. E., 68 n„ 100 n.
78,92 Tot v. United States, 62 n.
Sermon on the Mount, 20 Traffic regulation as illustrating col-
Sidgwick, H., 15 laborative nature of legal enter-
Simmel, Georg, 39, 61, 216-17 prise, 220-21
Simmons, J. L., 195 Trustee, right to reimbursement,
Sins, deadly, 15 134-35
Skinner, B. F., 163-64 Tucker, Robert C, 26
Smith, Adam, 6
Smith v. Westfall, 89 n. United States v. Cardiff, 67-68
Social dimension, lack of, in pos- United States v. Thind, 161 n.
itivist theories of law, 193 Utilitarian philosophy, 197; and
Soml6, Felix, 49 n., 53 n.; on retro- retrospective laws, 237-38
active laws, 97 n., Ill n., 112 n.
South African racial laws, 160 "Value judgment," 13
Special laws. See Generality of law Vaughan, C. J„ 33
"Standing" to raise constitutional "Virtue," 15
issues, 81
Statute of Frauds, 88-89, 135-36 Weber, Max, 143 n., 148-^9
Statute of Westminster (1931), 129 Wechsler, Herbert, 48 n.
Stephen, J. F., 168-69 Wicksteed, P. H., 26-27
Strict liability: and laws command- Wittgenstein, L., 138, 186
ing the impossible, 72, 75-78; Workmen's Compensation Law, 76
cannot become a general prin- Written constitutions, 114-15
ciple, 76, 167 Wynne's Lessee v. Wynne, 54 n.
Sturm, Douglas, 189 n. Wyzanski, C. E., 129 n., 232

262