CHAPTER THIRTEEN:

SOCIOLOGICAL JURISPRUDENCE

I. INTRODUCTION

Just as manifested by the title of this chapter, the social science associated with sociological juriprudence
is, of course, sociology, and the particular topic within sociology related to sociological jurisprudence is
the sociology of law. Sociological jurisprudence, in other words, is the legal theory which is the result of
understanding the sociology of law.

The sociology of law studies law as a phenomenon in society as one of the important and valuable aspects
of social life. In particular, this concerns the interaction of law with the other aspects of society. Hence, it
involves two questions: how does society affect law and how does law affect society.

The first question concerns the supposition of a legal theory which maintains that society is the source of
law and explains law in terms of this source or origin in the same manner that the historical jurisprudence
of Savigny claimed that the origin of law is the common consciousness or the national spirit of the people
through which an explanation of law may be generated. One noted advocate of this sociological
perspective is Eugen Ehrlich.

The second question involves a theory of law that focuses on the effect of law and discusses how law
functions and operates. These theories provide a rich and fertile source of ideas and may be found in the
legal theories of Dean Roscoe Pound, Roger Cotterrell, and Policy Science Theory as among the
proponents of Sociological Jurisprudence. Other legal theories, such as the American Legal Realism,
American Legal Pragmatism and the Economic Jurisprudence of Richard A. Posner also advocate similar
ideas.

As an example of an exposition of the second question, Dean Pound explains jurisprudence thus:

“For Pound, jurisprudence is not so much a social science as a technology, and the
analogy of engineering is applied to social problems. He is concerned primarily with the
effects of law upon society and only to a lesser extent with the question of the social
determination of law. Emphasis is laid upon the need to accumulate factual information
and statistics and to this end Pound put forward a practical programme, in which the
establishment of an adequately equipped Ministry of Justice looms large. Little attention
is paid to conceptual thinking. The creative role of the judiciary, on the other hand, is in
the forefront, as is the need for a new legal technique directed to social needs. The call is
for a new functional approach to law.”1

Another way of characterizing sociological jurisprudence is in terms of its explaining the so-called
sociological approach to studying the legal order.

“. . . Nevertheless one can pinpoint a number of ideas in the thinking of those who adopt
a sociological approach to the legal order. There is a belief in the non-uniqueness of law;
a vision of law as but one method of social control. There is also a rejection of a
‘jurisprudence of concepts’; the view of law as a closed logical order. The shortcomings
of formal, logical analysis were noticed as new problems emerge for which existing law
did not provide solutions. Further, sociological jurists tend to be skeptical of the rules
presented in the textbooks and concerned to see what really happens, ‘the law in action’.

1
M.D.A. Freeman, Lloyd’s Introduction to Jurisprudence, London: Sweet and Maxwell, Seventh Edn., 2001, p. 673.
 Sociological jurists also tend to espouse relativism. They reject the belief of naturalism
that an ultimate theory of values can be found: they see reality as socially constructed
with no natural guide to the solution of man conflicts. Sociological jurists believe also in
the importance of harnessing the techniques of the social sciences, as well as the
knowledge culled from sociological research, towards the erection of a more effective
science of law. Lastly, there is an abiding concern with social justice, though in what this
consists, and how it is to be attained, views differ. Does law, for example, function as an
instrument outside particular interests in some neutral way, as Pound thought, or is it the
result of the operation of interests, as contemporary conflict jurists argue? Upon the
answer to this question much depends, including whether law can be used for the
purposes of social engineering and, if so, to what effect.” 2

A. The Three Stages of the Sociology of Law

As a further introduction, the sociology of law has been characterized by Philip Selznick, a leading
American sociologist, as composed of three stages. He first defined the sociology of law: “The sociology
of law may be regarded as an attempt to marshal what we know about the natural elements of social life
and to bring that knowledge to bear on a consciously sustained enterprise, governed by special objectives
and ideals. Thus understood, legal sociology follows a pattern similar to that of industrial sociology,
political sociology, and educational sociology. With some prophetic license, we can detect in all these
efforts three basic stages of development.” 3

Thereafter Selznick described the three stages which the sociology of law must go through in order to
attain a level of maturity as a theoretical discipline. The first stage he referred to as primitive or
missionary:

“The primitive or missionary, stage is that of communicating a perspective, bring to a

hitherto isolated area an appreciation of basic and quite general sociological truths, such
as the significance of group membership for individual behaviour. This early phase
characteristically includes much theoretical discussion and analysis of everyday
experience. There may also be some organized research, but what there is mostly
demonstrative in function, more valuable for the educational effect than for anything else.
In law, such demonstrative research, has not been particularly important, in part because
of the role played by fact-guided judicial decisions and by the writings of men with rich
experience in legal affairs. Although most of the theoretical work in this field has been
done by European social scientists, the task of communicating an elementary, not-very-
sophisticated sociological perspective has been accomplished largely by American legal
scholars who were influenced by European thought, and by some of the more articulate
appellate judges.”4

This is how Freeman expounded on the first stage:

“Pound, together with his continental progenitors, belong to the first stage, wherein the
pioneer, the prophet in the wilderness communicates a perspective. So, Pound identified
the task of the lawyer as a ‘social engineer’, formulated a programme of action, attempted
to gear individual and social needs to the values of Western democratic society. The
early Realist writings convey similar orientation. Pound, and Holmes too, was a
2
Id., pp. 659-660.
3
Philip Selznick, “The Sociology of Law,” 1959, in Lawrence M. Friedman and Stewart Macaulay, ed., Law and
the Behavioral Sciences, New York: The Bobbs-Merrill Company, Inc., 1969, pp. 2-3.
4
Id., p. 3.

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 ‘generaliser’, a purveyor of ‘grand theory’: he provides the theoretical context for an
understanding of law in society. But he did little empirical research, though such work
was undertaken by contemporaries. Their writings are characterized by a concern for
substantive legal problems rather then the workings of legal institutions, and by a
penchant for law reform, doubtless inherited from Pound and the Realists. Furthermore,
the initiative for this empirical research was taken by lawyers, not sociologists, and often
by practitioners rather than jurists. Perhaps, as a result, conclusions and implications
were framed in grandiose terms.”5

Then came the second stage.

“The second stage belongs to the sociological craftsman. It is a muscle-flexing period

marked by intellectual self-confidence, a zeal for detail, and an earnest desire to be of
service. At this stage the sociologist seeks more than the communication of a general
perspective. He wants to explore the area in depth, to help to solve its problems, and to
bring to bear quite specific sociological techniques and ideas. There are a number of
signs that the sociology of law is about to enter this stage of development.

...

In the second stage of development of legal sociology the main effort is to apply
sociological analysis to particular problems of legal doctrine and legal institutions.

...

My primary concern is that this middle stage of legal sociology should fulfill its highest
potentialities. It will do so, I suggest, only if it truly makes sociological theory the source
of hypotheses about the law. If it does, I am confident that the problems dealt with will
be significant from the standpoint of jurisprudence.

This second stage properly emphasizes the contribution of sociology. But we shall also
gain as we see the legal problems press the limits of our understanding. It will not be
long before we find that the new basic research is needed—for example, on the meaning
of the integrity of the person—if the assumptions of legal doctrine are to be tested. But I
would rather have our basic understanding challenged than limit our horizons by
becoming mere fact-finders. No doubt there are many matters of fact that lawyers and
law professors would like to ascertain, but such fact-finding, useful as it is, should not be
confused with the scholarly objectives of a sociology of law.

Whatever the difficulties of this stage, they do not include the need to wrestle with the
ultimate problems of definition and of philosophical perspective. A great deal of work
can be carried on, even work of high theoretical content, without worrying too much
about the nature of law itself, or of justice. At this stage, we can accept working notions
of positive law and we can see most of our work as dealing with social sources of legal
change. By taking this practical view, we can facilitate the release intellectual energies; it
does not follow, however, that we must remain forever content with that intellectual
accommodation.”6

5
Freeman, supra. n. 1, pp. 678-679.
6
Selznick, supra. n. 3, pp. 2, 5,

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Freeman explained this stage in more detail.

“The second stage was characterized by a concern for method. The skills of the academic
lawyer and sociologist were synthesised: the jurist often suggested the field of activity
and posed the questions: the sociologist collaborated in the research, adapting his
techniques from the mainstream of sociological inquiry. The Chicago jury project was
the result of one such collaboration. At the same time the jurist trained himself in the
techniques of sociology, the mechanics of social surveys, the use of statistics and other
necessary technological skills. The jurists of this second generation were content to
survey narrower problems and achieve less far-reaching conclusions.” 7

Selznick proceeded to explain the third and final stage.

“The third stage, as I envision it, is one of true intellectual autonomy and maturity. This
stage is entered when the sociologist goes beyond (without repudiating) the role of
technician or engineer and addresses himself to the larger objectives and guiding
principles of the particular human enterprise he has elected to study. He reasserts the
moral impulse that marked the first stage of sociological interest and influence. But the
third stage is of a higher, more sophisticated level than the first because the second stage
has provided a sounder basis for critical analysis.

...

As we approach a more advanced stage of development, all the classic problems of legal
philosophy emerge again. For at this point we should be ready to explore the meaning of
legality itself, to assess its moral authority, and to clarify the role of social science in
creating a society based on justice.

In a consideration of these matters, the central fact is the role of reason in the legal order.
Legality as we know it is based on a combination of sovereign will and objective reason.
The word reason has an old-fashioned ring to it, but its long life is not yet over. Reason
is an authoritative ideal, and the bearers of reason have, inevitably, a creative legal role.
We see this, not only in the idea and practice of grounded judicial-making, but in the vast
body of critical literature produced by legal scholars. Whatever the lawyer’s
commitment to legal positivism, to the belief that law is what the legislatures and the
courts enunciate and enforce, there is at least an implicit recognition that not all law is on
the same level. Some law is inferior because it contains the wrong mixture of arbitrary
sovereign will, including majority will, and right reason. This is especially true of judge-
made law, but legislatures can also make inferior laws. An inferior legality is manifested
in the disposition of judges to give a narrow construction to statutes that depart from
common-law principles, and in the ease with which judicial conclusions are modified or
reversed. An inherent legality is doubtless much influenced by the derivation of a rule—
whether from immediate political pressures or from a larger evolution consonant with
underlying principles of legal order. I think that the quality of legality, and gradations in
it, will be a primary preoccupation of the sociology of law in the future, as it has been in
the past. In this work, moreover, we shall have to study the relation between reason and
social consensus, for we shall not be satisfied with the assumption that community
sentiment, as it bears on law, is basically nonrational.

7
Freeman, supra. n. 1, p. 679.

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 Because reason is legally authoritative, scholarship has a direct significance for law that it
does not have for other fields. This is indicated by the special role of law review articles
and legal treatises cited as authority by the courts. This work usually involves a critical
restatement of common law doctrine, but it also can and does locate new rights. The
restatement aspect does give this work a special status, but there is no fundamental
difference between sociological learning made legally relevant and the kind of analytical
writing found in the law reviews. In any case, like any other inquiry, legal reasoning
cannot but accept the authority of scientifically validated conclusions regarding the
nature of man and institutions. Therefore, inevitably, sociology and every other social
science have a part in the legal order.

The underlying role of reason explains why legal scholarship and the sociology of law are
mainly preoccupied with common law, and therefore with judicial behavior, rather than
with legislation. It is true that somewhat more emphasis in legal training is now placed
on legislation, reflecting the great growth of the legislative process . . .

A concern for the role of reason must bring with it a certain dissatisfaction with what has
come to be known as legal realism. The hard-headed effort to base our notion of law on
actual behavior is certainly congenial to a sociological orientation. But human behavior
is a very subtle mixture of self-restraint and impulse, idealism and self-interest, behavior
guided by a long-range end-in-view and behavior compelled by day-to-day pressures.
We cannot accept as more than a passing polemical formula the aphorism that the law is
what the judges say it is. Taken literally, this settles nothing, for if a consistency is found
in judicial behavior, searching out the underlying premises of a normative system and
upholding the essential ingredients of legality, then all nonpositivist interpretations of law
are still available and the problems they raise are with us still.

The ideal of reason presumes that there are principles of criticism of positive law. It also
presumes, as Lon Fuller has pointed out, that there are principles of criticism of ‘living’
law. Little is gained in any ultimate sense by looking beyond positive law to actual
normative behavior. We must go on to seek out the foundations in reason for choosing
among human norms those that are to be given the sanction of law. This will bring us, I
cannot doubt, to an acceptance of some version of a doctrine of natural law, although it
may not, and perhaps should not, be called that, given its historical associations. A
modern naturalist perspective may be preferable, despite the still-unsettled question of
whether an objective basis of normative order can be discovered, and despite the large
differences between positivism and pragmatism, affecting the ideal of reason in law,
regarding the subjective component of valuation and the role of will in judgment. But
whatever the philosophical auspices, the search for principles on criticism based on social
naturalism must go on. Law based on reason and nature summons man to his
potentialities but sees those potentialities as something that science can identify; law
based on reason and nature locates the weaknesses of the human spirit, such as pride,
apathy, and self-abasement, and works to offset them. The natural order, as it concerns
man, is compact of potentiality and vulnerability, and it is our long-run task to see how
these characteristics of man work themselves out is the structure and dynamics of social
institutions.”8

Freeman noted that Selznick’s later work may have approached the third stage: “Selznick claimed in 1962
that the third stage had not yet been reached. It is the time when sociological jurisprudence will develop

8
Selznick, supra. n. 3., pp. 3, 11-13; emphasis Selznick’s.

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an ‘intellectual autonomy and maturity’, when having learn the necessary skills, the jurists can return to
some of the theoretical questions posed at the outset, the function of law, the role of legality, the meaning
of justice, and a sociology of law will emerge. Selznick, for example, has tried to understand legality
from a sociological position. The development of a sociology of law does suggest that Selznick’s third
stage has been reached.”9

Apart from the sociology of law and the sociology of jurisprudence, there emerged what is called ‘socio-
legal studies’.

“For much of the twentieth century the sociology of law was eclipsed by sociological
jurisprudence. It was Pound, rather than Weber or Durkheim, who was the dominant
figure. From the 1960s the term ‘sociological jurisprudence’ was used less frequently,
and what came to be known as socio-legal studies took its place. Advocates of socio-
legal studies emphasise the importance of placing law in its social context, of using
social-scientific research methods, of recognising that many traditional jurisprudential
questions are empirical in nature and not just conceptual. A pervasive theme is the gap
between legal rules and actually lived social norms. But this gap, often said to be
between ‘law in the books’ and ‘law in action’, was too often only described and too
rarely analysed. For Cotterrell, socio-legal studies was a ‘transition phase’. It had
considerable impact: on the law, on legal education and on law publishing. It helped
focus greater attention on concepts like discretion, institutions such as tribunals, and
different techniques of decision-making and conflict resolution, such as alternative
dispute resolution.

The shortcomings of socio-legal studies were identified by Lawrence Friedman. He

wrote:

‘To many observers, the work done so far amounts to very little: an incoherent or
inconclusive jumble of case studies. There is (it seems) no foundation; some
work merely proves the obvious, some is poorly designed; there are no axioms,
no ‘laws’ of legal behavior, nothing cumulates. The studies are at times
interesting and are sporadically useful. But there is no ‘science’; nothing adds
up. . . . Grand theories do appear from time to time, but they have no survival
power; they are nibbled to death by case studies. There is no central core.’

Socio-legal studies was largely lacking in any theoretical underpinning. The law—note
this often defined narrowly—and the legal system were treated as discrete entities, as
unproblematic, and as occupying a central hegemonic position. There was rarely any
attempt to relate the legal system to the wider social order or to the State. When reforms
were suggested—and as progressive scholars reform was often the aim—they were to
make the legal system operate more efficiently or effectively. And the emphasis was
more on the ‘behaviour’ of institutions rather then on trying to understand the legal
doctrine.”10

II. METHODOLOGY

A. Dichotomy between the Concerns of a Legal Sociologist and of a Legal Philosopher.

9
Id., p. 682.
10
Id., pp. 683-684.

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There allegedly exists a dichotomy between the concerns of the legal sociologist and that of the legal
theorist or philosopher.

“A modern myth about sociological study of law survived until quite recently,
encouraged from within legal philosophy and by some legal sociologists themselves.
According to this myth an inevitable division of labour governed legal inquiry. While
lawyers and jurists analysed law as a doctrine—norms, rules, principles, concepts, and
the modes of their interpretation and validation, sociologists were concerned with a
fundamentally different study: that of behaviour, its causes and consequences. Hence,
the legal sociologist’s task was solely to examine behaviour in legal contexts. Sociology
could contribute little to the understanding of legal ideas, abstracted from their effects on
specific actions. In this sense sociology of law conducted inquiries peripheral or even
external to law as lawyers understood it. Legal sociologists often avoided lawyers’
disputes or theories about the nature of the doctrine as such. They studied primarily
practices of dispute processing, administrative activity or law enforcement, or social
forces operating on legislation, especially as a result of the actions of particular law-
making or policy-advocating groups.

That this division of labor was in no way inevitable is clear from the briefest glance at the
work of the classic founders of the sociology of law. While Max Weber saw sociology’s
object as the study of social action, he treated the nature of legal ideas and the varieties of
types of legal reasoning as central to his sociological concern with law. Emile Durkheim
intended that the enterprise of understanding law as doctrine should itself become a field
of sociology, so that lawyers’ questions would eventually be reformulated through
sociological insight. For Eugen Ehrlich, the lawyer’s understanding of law would be
simultaneously subverted and set on surer foundations by means of sociological inquiry
into popular understandings of legal ideas. Leon Petrazycki considered that law should
be studied as a variety of forms of consciousness and understanding. Equally numerous
contributions to legal philosophy, including modern realist jurisprudence in Scandinavia,
the United States of America, and elsewhere, showed that jurists had serious concerns
with behaviour in legal contexts in their efforts to grasp the nature of legal ideas.

To remove a focus on legal doctrine from sociological inquiry would prevent legal
sociology from integrating, rather than merely juxtaposing, its studies with other kinds of
legal analysis. Without this focus, sociological observation of behaviour might influence
policy expressed in legal doctrine, but this would amount not to a sociology of law but to
a diversity of sociological information presented to legal policy-makers. The old claim
that social science should be ‘on tap rather than on top’ in legal inquiries reflected the
idea that sociology and other social sciences were debarred from offering insight into the
meaning of law (as doctrine, interpretation, reasoning, and argument). Hence, in so far as
proponents of legal sociology accepted the myth of an inevitable division of labour, they
were tempted to argue defensively that lawyers’ debates on doctrine were trivial or
mystificatory, and that real knowledge about law as a social phenomenon was gained
only by observing patterns of judicial, administrative or policing activity, lawyers’ work
and organization, or citizens’ disputing behaviour. Correspondingly, opponents of legal
sociology hastened to dismiss it as unable to speak law at all; fated to remain for ever
‘external’ and thus irrelevant to legal understanding.” 11

11
Roger Cotterrell, “Why Must Legal Ideas be Interpreted Sociologically,” 1998, in M.D.A. Freeman, Lloyd’s
Introduction to Jurisprudence, London: Sweet and Maxwell, Seventh Edn., 2001, pp. 747-749; emphasis
Cotterrell’s.

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B. Value of Sociological Inquiry

Despite these criticisms, it is now widely accepted that sociological inquiry is valuable and necessary in
illuminating the social or historical processes that shape legal doctrine.

“The most powerful current critique of legal sociology—the one which this paper seeks
to examine and respond to—does not deny that sociological inquiry can, in its own ways,
explain aspects of legal doctrine. It argues rather that sociology has no privileged way of
approaching legal ideas—no specially powerful insight which can prevail over others.
Because of this, it has no way of plausibly claiming that its interpretations are better than
those which lawyers themselves can give. It therefore becomes an open question why a
sociological view should be adopted in preference to any other. In other words, the claim
is no longer hat law cannot be understood in sociological terms. It: why should we want
to do so? What is to be gained by doing so, especially for lawyers, or other participants
(for example, litigants or just lay citizens) in legal processes?

These questions are sharpened with additional claims. It is sometimes suggested that
sociology is an exceptionally weak and inadequate explanatory discourse. For example,
it is claimed to have ‘an intriguing inability to constitute its field of study.’ The concept
of ‘the social’ thus remains ‘remarkably unexamined’ in socio-legal studies and, it is said,
no longer provides a focus for them. On the other hand, law is now seen by those
skeptical of sociology’s interpretive capacities as having an intellectual power and
resilience which protects it from social science’s earlier ‘imperial confidence’ that it
could know law better than law knew itself.

In a rich discussion of relationships between law and scientific (including social science)
disciplines, David Nielsen describes the efforts of those disciplines to tell ‘the truth about
law’ as being confronted now with law’s own ‘truth’. What he means is that law has its
own ways of interpreting the world. Law as a discourse determines, within the terms of
that discourse, what is to count as ‘truth’—that is correct understanding or appropriate
and reliable knowledge—for specifically legal purposes. It resists scientific efforts to
interpret it away (for example, in economic cost-benefit terms, psychological terms of
causes and consequences of mental states, or sociological terms of conditioning social
forces). None of these interpretations, it is claimed, grasps law’s own criteria of
significance.

When law borrows from scientific disciplines or practices it appears to do so as it sees fit,
taking what it deems useful, on its own conditions, for its own purposes. Concepts
borrowed are often transformed, turned into ‘hybrid artifacts’, tailored to legal use. And
law goes on the offensive. It provides its own explanations of the social world. It
interprets social life in its own terms. Law is said to provide truth for itself, for its
purposes, which cannot be swept away by sociology, but with which sociology’s
interpretations are fated merely to co-exist. Because of this, sociology cannot reshape
legal understanding; it provides at best a resource of ideas from which law may borrow if
it finds reasons to do so. In a different sense from before, social science is again ‘on tap,
but not on top’.

From the standpoint of sociology the problem is not merely that its insights can be made
to seem irrelevant to legal understanding. It is not just the unpleasantness of rejection
that dominates this scenario, but also the frustration of attempting the impossible. The

353
 argument goes as follows. As sociology tries to understand law, law disappears like a
mirage, the closer the approach to it. This is because as sociology interprets law, law is
reduced to sociological terms. It becomes something different from what it (legally) is;
or rather, from what, in legal thought, law sees itself as being. How can legal ideas be
understood sociologically without, in the process, being turned into sociological ideas?
The ‘legal point of view’, as Robert Samek called it in a neglected discussion of related
themes, disappears; subsumed into a sociological viewpoint and lost. It cannot be
grasped sociologically because it is not sociological. It is a specifically legal point of
view.

Legal sociology’s potential is also challenged from another standpoint. For more than a
decade, concern among progressive legal scholars has been less and less with how law is
produced by society (the traditional outlook of legal sociology) and increasingly with the
way ‘society’ is produced by law. Not only can law stand alone from sociology with its
own basis of understanding, taking or leaving social scientific insights as it sees fit, but it
is said to be able also to create the central objects of inquiry—the very ontological basis
—of sociology itself. According to some influential scholars, law has no need, and no
possibility, of doing more than creating its own normative understanding of its social
environment. But, in a more radical view, law is also seen as responsible, partly at least,
for creating the social categories which sociology itself must work with.”12

C. A Holistic Understanding of Law

Hence, a more holistic understanding of law is necessitated for a sociological understanding of legal
ideas. This, in turn, requires the resolution of two issues.

“For these reasons a sharp line between the legal and the social can no longer be drawn: a
‘more holistic understanding is required. Legal ideas constitute a form of social
knowledge in themselves. The often neglected point that legal speculations once
provided prototypes for early forms of social theory acquires a new significance.

Certainly, some scholars in sociology of law continue to ask for evidence of law’s
ideological effects and to nurse doubts about law’s capacity to influence social
consciousness. The demands and doubts are unsurprising given that the postulated
direction of influence from legal ideas as shaping forces in social life fits uneasily with
legal sociology’s traditional assumption that society shapes law, and that effects of law
on society are always specific matters for empirical study. But newer approaches to the
relationship between the ‘legal’ and the ‘social’ refuse to see law and society as somehow
separate or even competing spheres of influence. They more often treat as self-evident
that law constitutes social life to a significant degree by influencing the meanings of basic
categories (such as property, ownership, contract, trust, responsibility, guilt, and
personality) that colour or define social relations. Hence, when the nature of socio-legal
studies is considered, it is said to be no longer clear (and perhaps never was) whether the
enterprise is legal, social or a mixture of the two. The field remains undefined;
conceptual clarity seems sacrificed to a need to avoid deep controversies about the
foundations of social scientific inquiries about law.

What then could be made of the effort to understand legal ideas (elements of legal
doctrine and the reasoning and forms of interpretations that surround them)

12
Id., pp. 749-750; emphasis Cotterrell’s.

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 sociologically? This paper argues that the main problems that are said to undermine this
effort are in fact, despite their apparent seriousness, solvable or ultimately false. They do
not stand in its way. But they do very properly demand that the nature, aims, and
methods of sociological inquiry be clarified. Nevertheless, the claim to be made here is
not merely that the effort to understand legal ideas sociologically is appropriate. My
claim is that the only way to grasp these imaginatively as ideas about the organization of
the social world is through some form of sociological interpretation.

In the remainder of this paper an attempt is made to address the issues raised above for
sociological understanding of legal ideas by analyzing the two main apparent sources of
difficulty to which these issues relate. The first of these is the nature of law’s own
‘truth’—its capacity to interpret the world in its own way. What is this ‘truth’ which, it is
suggested, law produces or inhabits. What is to be made of the claim that law knows
itself better than sociology can know it? Can we, indeed, speak of law ‘knowing’ or
‘thinking’ anything? The second source of difficulty is the need to clarify what is meant
by the effort to gain ‘sociological understanding’. What kind of understanding is
envisaged here? What is sociology’s ‘truth’, or in Nelken’s phrase, what kind of ‘truth
about law’ can sociology offer? Does this, for example, imply a need to subsume as a
discipline under the hegemony of another academic discipline, such as sociology.

I argue that no such implication is required. Indeed, it would entirely miss the point.
Disciplinary boundaries should be viewed pragmatically; indeed, with healthy suspicion.
They should not be prisons of understanding. The term ‘sociological’ is necessary to
keep firmly in mind certain definite foci in interpreting law, but these foci and their
authoritative definitions are not the property of any particular academic discipline.
Participants in law—not just lawyers but all those who seek to use legal ideas for their
own purposes, to promote or control the interests of others, or more generally for public
purposes of direction or control—understand legal ideas in practical terms. The aim in
what follows is to show that the most practical view of legal ideas is one informed by
sociological insight. Legal ideas are properly understood sociologically.” 13

D. The Legal Perspective

Hence, law has its own way of seeing the world.

“. . . The strongest current arguments for law’s capacity to declare sociological

understanding of legal ideas irrelevant are arguments emphasizing these kinds of
indicators. In one way or another, these indicators make possible what Nelken terms
‘law’s truth’. When attempts are made to specify the indicators, however, they seem
remarkably limited. They may amount to no more than a consistent focus in any context
on marking a distinction between the ‘legal’ and the ‘illegal’; right and wrong in terms of
specifically legal definitions. Otherwise, law might be said to be distinctively concerned
with institutional rather than brute facts, and with considerations of authority, integrity,
fairness, justice, acceptability, and practicability. It has to use ‘arbitrary cut-off points’ in
argument, and often chooses not to look behind its presumptions. It seeks to provide
certainty and to relate to common sense. It may adopt or reject scientific (including
social scientific) knowledge or reasoning in order to pursue these objectives. It gathers
and presents facts in ways tailored to adjudicative needs. It operates by means of
practical reasoning and argumentation that may be more or less specific to its

13
Id., pp. 751-752; emphasis Cotterrell’s.

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governmental, dispute processing or social control tasks. But any enumeration of
characteristics of law’s truth will miss the point for ‘what truth means for law is the result
of its own processes.’ ‘Ultimately,’ as Arthur Leff puts it, ‘law is not something we
know but something we do.’ It is not grasped by definition from ‘outside’ but by
working and thinking within it.

Thus law tends to become, in arguments about ‘law’s truth’, an abstract site of
understanding removed from particular kinds of social relations . . .

From a sociological standpoint, however, it is an empirical question how far and in what
forms this cohesion, distinctiveness or specificity may exist. Lawyers operating between
different legal systems can experience different ‘truths’ of law, and sometimes have
difficulty in establishing a shared discourse. Even within the same system, outlooks on
almost all matters legal may sometimes differ radically as between different participants
in legal processes. As Balkin suggests, there may be much disagreement on matters of
method no less than on the interpretation of particular matters of doctrine. And it
contributes little to envisage all these actual or potential disagreements as part of an
ongoing conversation on the justice or integrity of law. Such a conversation may exist
only because the structure of political power forces those who wish to have access to or
protection from that power to adjust their claims and arguments. It may force them to
press these claims and arguments in ways that distort the particular legal ‘truth’ which
they would otherwise wish to express.

Law’s basic ‘truth’ may be merely the provisional, pragmatic consensus of those legal
actors who are perceived at any given time to be supported by the highest forms of
authority within the legal system of the state. Another way of putting the matter would
be that there is no ‘law’s truth’, no single legal point of view, but only the different—
sometimes allied, sometimes conflicting—viewpoints expressing the experience,
knowledge, and practices of different legal actors and participants. What links all of
these as ‘legal’ in some official sense is their varied relationships with matters of
government and social control and with institutionalized doctrine bearing on these
matters.

Undoubtedly, law is presented professionally as a more or less unified, specialized

discourse. But, as Balkin notes, it is an intellectually vulnerable, open discourse, liable to
invasion by many kinds of ideas, including sociological ones. Ultimately, it is given
discursive coherence and unity only because its intellectual insecurity, its permanent
cognitive openness, is stabilized by political fiat. The political power of the state which
guarantees the decisions of certain official legal interpreters, puts an end to argument,
determines which interpretive concepts prevail, asserts favoured normative judgments as
superior to all competing ones, and guarantees normative closure by the threat of official
coercion. The voluntas, or coercive authority, of law, centralized by political structures
and organized through legal hierarchies, stabilizes and controls potentially unlimited,
often competing and conflicting, elaboration of ratio—reason and doctrinal principle—in
a host of diverse sites and settings of legal argument and interpretation.

Seen in sociological perspective, this is the nature of law’s truth as a unified, distinctive
discourse; a contingent feature of particular social environments. Sociological
interpretation both reveals law’s character and is, like many other forms of knowledge,
available to enrich law’s debates, colour its interpretations, and strengthen or subvert the
strategies of control to which legal discourse is directed. Sociological insight is

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 simultaneously inside and outside legal ideas, constituting them and interpreting them;
sometimes speaking through them and sometimes speaking about them; sometimes
aiding, sometimes undermining them. Thus a sociological understanding of legal ideas
does not reduce them to something other than law. It expresses their social meaning as
law in its rich complexity.

At the same time law defines social relations and influences the shape of the very
phenomena that sociology studies. Thus legal and other social ideas interpenetrate each
other. A line between law and society is, as has been seen, no longer capable of being
sharply drawn. Law constitutes important aspects of social life by shaping or reinforcing
modes of understanding of social reality. It would be remarkable if the power of law as
officially guaranteed ideas and practices could have no such effects. One might indeed
wonder what law as an expression of power is for, if not for this. But a sociological
perspective makes it possible to observe and understand this effect of legal discourses
and situate it in relation to the social effects of other kinds of ideas and practices. Law
constitutes society in so far as it is, an aspect of society, a framework and an expression
of understanding that enable society to exist. A sociological perspective on legal ideas is
necessary to recognize and analyse the intellectual and moral power of law in this
respect. To interpret legal ideas without recognizing, through sociological insight, this
dimension of them would be to understand them inadequately. It would be to treat them
as less significant and less complex than they are made to appear in a broader
sociological perspective.”14

E. The Sociological Perspective

Thereafter Cotterrell explained the sociological perspective, and showed why it has a privileged status as
compared to the economic or psychological viewpoint, for example. It has three characteristics. It is to
view and understand law as a social phenomenon, empirically and systematically.

“Is it, however, really necessary to invoke the word ‘sociological’ here? Why privilege
sociology? Nelken argues that sociology is sometimes presented as supreme only by
downgrading law’s disciplinary status. He doubts that sociology can ultimately transcend
its own methods of argument and style. The legal sociologist may stand too close to
sociology to understand law. And, in any case, why should a sociological, rather than,
for example, an economic or psychological viewpoint be favoured? Why should
sociology impose its understandings? On the other hand, if it does not do so, its analyses
of law can be criticized as being parasitic on law’s own definitions of the ‘the legal’.

But most of the problems surely disappear once it is recognized that use of the word
‘sociological’ does not imply adherence to the distinct methods, theories or outlook of the
academic discipline called sociology. It is appropriate to claim that a sociological
perspective is indispensable in orienting oneself, whether for practical (participatory) or
theoretical purposes, to contemporary law as a social phenomenon. But the term
‘sociological’ must be taken in a methodologically broad and, at the same time,
theoretically limited sense. This rejects any implication of attachment to a specific social
scientific or other discipline. Sociological understanding of legal ideas is
transdisciplinary understanding. But it is the need to reinterpret the law systematically
and empirically as a social phenomenon. This terminology also suggests, however, that a
legal outlook can itself be sociological, involving a systematic, empirical view of the

14
Id., pp. 752-754; emphasis Cotterrell’s.

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 social world, though it need not be so. As noted earlier, sociological understanding is
simultaneously inside and outside legal ideas.

The essence of a sociological interpretation of legal ideas lies in three postulates. First,
law is to be seen as an entirely social phenomenon; law as a field of experience is to be
understood as an aspect of social relationships in general, as wholly concerned with the
co-existence of individuals in social groups. Secondly, the social phenomena of law must
be understood empirically (through detailed examination of variation and continuity in
actual historical patterns of social co-existence, rather than in relation to idealized or
abstractly imagined social conditions). And thirdly, they must be understood
systematically, rather than anecdotally or impressionalistically; the aim is to broaden
understanding from the specific to the general. It is to be able to assess the significance
of particularities in a wider perspective; to situate the richness of the unique in a broader
theoretical context and so provide orientation for its interpretation.

...

Approaches to legal inquiry that are set up are in some way opposed to sociological
perspectives that are, to the extent that they are presented in this competitive way, often
ultimately more restricted forms of understanding of law as a social phenomenon to the
extent that they actually exclude sociological insight in certain ways. Otherwise, most
productively, these other approaches are best seen as allied with and (in so far as they
seek to offer social insight) even appropriately organized by means of a (perhaps
implicit) sociological perspective. They should be treated as specialized co-workers with
sociological inquiry.

Equally, sociological inquiry needs to be open and receptive to a variety of forms of legal
inquiry that are not generally thought of as sociological. It must recognize their special
power and merit and draw from and interact with them. Sometimes, indeed often, these
forms of inquiry produce sociological insights while declaring justifiably that their ideas
and approaches are directed to quite different purposes, and founded on quite different
bases, from those that they associate with sociological studies.” 15

Finally, this sociological perspective provides the basis and framework with which legal ideas should be
interpreted.

The term sociology of law’ remains useful as a label for identifying a vitally important
body of research on legal processes and as an important focus of self-identification for
scholars committed to extending this research. But it is a somewhat unsatisfactory and
misleading term when it is used to refer to the sociological study of legal ideas. It often
suggests a sub-discipline or a specialism, a branch of sociology or a distinct compartment
of legal studies. In considering the interpretation of legal ideas it would be better to
speak of sociological perspectives or insights, or sociological understanding or
interpretation.

Sociological interpretation of legal ideas is not a particular, specialized way of

approaching law, merely co-existing with other kinds of understanding. Sociology of law
in this particular context is a transdisciplinary enterprise and aspiration to broaden
understanding of law as a social phenomenon. It certainly insists on its criteria of the

15
Id., pp. 754-755; emphasis Cotterrell’s.

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social, the systematic, and the empirical, reflecting—as will be further illustrated
subsequently—the conviction that these criteria are inscribed in some sense and in some
degree in participant understandings of the nature of law itself as a social phenomenon. It
seeks to go beyond many such understandings. But sociology of law is otherwise
inclusive rather than exclusive. Sociological insight is found in many disciplinary fields
of knowledge and practice.

If sociological inquiries about law have an intellectual and moral allegiance, then this is
to law itself—that is, to its enrichment through a radical broadening of the perspectives of
the varied participants in the legal processes, practices, and forms of knowledge.
Sociological inquiry is critical because it insists that the legal perspective of many of
these participants (whether lawyers or non-lawyers) are insufficiently systematic and
theoretically informed or sensitive to empirical variation, and have too narrow an
awareness of law’s social character. But it is also constructive because it cannot merely
condemn existing legal ideas without also asking at all times how law might be re-
interpreted and so re-imagined and reshaped consistently with its social character, when
understood better in a broader sociological perspective.

It should be clear that the discussion above of sociological understanding of legal ideas
takes for granted the need to reject the familiar dichotomy between internal and external
views of law, or between insider and outsider perspectives. This dichotomy is familiar
within legal philosophy. The dichotomy is familiar within legal philosophy. Its assertion
is a device that accompanies the false assertion of the uniqueness of the ‘law’s truth’. As
Nelken properly points out, the internal-external distinction is, for the most part, merely a
feature internal to lawyers’ thinking. It reflects especially a professional self-image in
terms of a special kind of reasoning and understanding. When legal thinking is
understood sociologically, the distinction disappears between internal (legal participant)
views of law and external (for example, social scientific observers’) views. It is replaced
by a conception of partial, relatively narrow or specialized participant perspectives on
(and in) law, confronting and being confronted by, penetrating, illuminating, and being
penetrated and illuminated by, broader, more inclusive perspectives on (and in) law as a
social phenomenon.

It might be asked what happens to justice and legal values in sociological understanding.
Can a sociological understanding of legal ideas address questions of justice? The answer
is, clearly, yes. It was noted earlier that sociological insight should both inform and
interpret legal ideas. The question of whether sociology is ‘inside’ or ‘outside’ law
becomes redundant. It is both inside and outside; and so the inside-outside demarcation
is meaningless in this context. The line between law and society, and thus between legal
and sociological interpretation becomes indistinct. Law constitutes society in certain
respects; social understanding informs law in certain ways. But in so far as sociological
interpretation of legal ideas relates them to the entire context of social relationships in
general it focuses attention on the patterning of those relationships, which is the specific
concern of justice.

Justice is a perception of social relations in balance. It is one aspect of a sense of social

cohesion or integration. The radical broadening of perspective which sociological
interpretation seeks makes it possible to enrich understandings of the social condition of
justice. The consistent focus of sociological inquiry on the social, the systematic, and the
empirical provides the essential dimensions of this enriched understanding. Sociological
inquiry cannot abolish disagreement as to what justice demands in any particular

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situation. But it can reveal the meaning of justice claims in a broader perspective by
systematically analysing the empirical conditions that provide postulates underlying these
claims.

If sociological interpretation of legal ideas is to be characterized in these ways, can we

say anything concrete and specific about its methods? As noted earlier, settled
methodology is the unifying feature which, according to Jack Balkin, law so crucially
lacks. Can such a settled methodology be attributed to sociological inquiry?

The answer must recognize a crucial claim made earlier. This is that, if sociological
inquiry about legal ideas is to be treated as having any specific intellectual allegiance, it
is to law as a social phenomenon, not to an academic discipline of sociology or to any
other social science discipline. Hence the sociological understanding of legal ideas
reflects methodologically law’s own fragmentary and varied methodological
characteristics as understood by those who participate in or are affected by legal
practices. This is inevitable because of the interdependence of legal and sociological
understanding referred to earlier. Sociological interpretation extends legal analysis; it
broadens the perspectives of legal participants.

It does not necessarily replace those perspectives or contradict them by the use of a
specific methodology foreign to the diverse methods already used by legal participants.
If it did so generally this would be to replace law with sociology; to fall into the trap
which, as noted earlier, has been said by some commentators to ensnare all sociological
attempts to grasp truth. Thus, the methodology of sociological understanding of legal
ideas is the deliberate extension in carefully specified directions of the diverse ways in
which participants themselves think about the social world in legal terms. It seeks
radically to extend the already partially systematic and empirical characteristics of this
legal thinking, and thereby sets out to transform legal ideas by reinterpreting them.

An illustration may help to clarify this argument. The English law of trusts has
developed a strange impasse in one narrow and somewhat arcane area of legal doctrine.
While property can be held on trust by trustees to benefit individuals or groups of
individuals in a wide variety of ways, English law, unlike some other common law
jurisdictions, has declared that property may not be held on trust for abstract non-
charitable purposes—for example, to promote press freedom, or sport outside an
educational context.

When it is asked why English law takes this particular stance on private purpose trusts
and how the law in this area should be developed in the light of the precedents, answers
are not particularly straightforward. The cases refer to particular private purpose trusts as
illustrations, and offer various reasons for a tradition of judicial hostility to them. The
matter is dealt with by the courts partly by looking at what has been decided in the past,
partly by detailing technical problems that would be faced by law if private purpose trusts
were to be declared generally valid (for example, problems of enforcement), and partly
by offering policy arguments about the social or economic rights and wrongs of allowing
particular kinds of trusts to be set up.

Legal thinking in this area is empirical up to a point, looking at what has been decided
and the specific judicially stated circumstances in which particular legal decisions were
taken. It considers how law in this area has been and can be enforced. It tries also to be
systematic, seeking general principles which can unite the judicial approaches taken (but

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it ultimately admits failure, declaring that cases in which some private purpose trusts
have been upheld are anomalous). It is also aware of the nature of the law in this field as
an expression of social relations. Thus it considers policy, for example, the social and
economic pros and cons of restrictions on alienation of property and of particular
testamentary freedom. But legal analyses do not seem to remove the deep-rooted
controversies surrounding the law in this area. Commentators take a variety of positions
on the issues, some supporting the general legal hostility to private purpose trusts, others
declaring it unjustified. And the controversy has continued for decades. In other
jurisdiction matters have been dealt with by legislative reform.

A sociological approach to doctrine in this area attempts to extend established methods of

legal thought in new relatively unfamiliar ways. First, it puts the development of doctrine
into a far wider historical context, noting the changing social and economic contexts in
which trust law as a whole has developed. By this means it suggests that the institution
of the trust has been thought of in ways that have changed radically over time. This
change becomes recognizable when attention shifts from the development of a particular
line of precedents, as in orthodox legal analysis, to changing patterns of legal ideas about
the nature of trusting relationships seen as interrelated with broader social, economic, and
moral ideas. Thus, the inquiry broadens the idea of law as a social phenomenon by
treating legal ideas as an aspect of social ideas in development. This is not to reduce the
former to the latter, but to see each as inseparable from the other.

Similarly, empirical inquiry is broadened beyond the observation of previous decisions to

include much wider observation of the particular social contexts and implications of these
decisions. It considers their relation with other legal developments in areas that may be
legally distinct from but socially interconnected with the area of private purpose trusts,
viewed as an area of legally structured social relationships. Thus, sociological inquiry
seeks a broader, systematic view of the law by reinterpreting the relationship of ideas
which the lawyer identifies. It puts them into an intellectual context that allows the
identification of other relationships and other connections. And these in turn help to
explain the law as it stands and point to ways of rethinking and developing it.

When sociological inquiry is used in the ways outlined above it ceases to appear as the
pursuit of a methodology alien to law, or the invocation of a competing academic
discipline with the aim of colonizing law. It is seen as the radical extension and
reflexivity of legal participants’ understanding of law. Viewed in this way, it appears as
a necessary means of broadening legal understanding—the systematic and empirical
understanding of a certain aspect of social life which is recognized as ‘legal’.

It proceeds from participant understandings, but because it seeks to systematize legal

understanding beyond the needs of particular participants, it goes beyond their
perspectives. For example, it certainly does not reject—but does not treat (for its
purposes) as adequate—personal or anecdotal accounts of legal experience, particular
narratives which cannot be generalized. Because it treats very seriously the requirement
that systematizations of legal or social knowledge must be grounded in empirical
observation, it resists speculations that it considers as taking inadequate account of
empirical variation. And because it emphasizes law’s character as a social phenomenon,
it examines law’s social character far more extensively and broadly than most
participants need to do. Hence, for example, it is led to extend its conception of the legal
as a social phenomenon beyond the forms of law familiar to lawyers or some other
categories of legal participants.

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 Viewed in this way the enterprise of sociological interpretation of legal ideas is not a
desirable supplement but an essential means of legal understanding. Legal ideas are a
means of structuring the social world. To appreciate them in this sense and to recognize
their power and their limits, is to understand them sociologically.” 16

F. Three Last Words

Brian Z. Tamanaha adds three last words that is offered by socio-legal studies:

“Socio-legal Studies

The first last word involves drawing out the tripartite social science related interaction
woven through the course of this work. This involved exploring the complementary
aspects of participant reports, behaviourism and interpretivism. In everyday terms, these
coincide with listening to what people say, carefully observing what they do, and trying
to figure out how it all comes together. These are the elements of ordinary social
interaction. The development of socio-legal studies has been stunted by the disregard for
the participant view, its initial positivism-induced obsessive focus on behaviour to the
exclusion of meaning, and more recently by the opposite error of rejecting positivism for
interpretivism.

Although each of the three makes an integral contribution to the understanding of social
life, and I have tried to treat them in a balanced fashion, at the same time I have given a
particular prominence to the participant view. My first reason for doing this is to offset a
strong tendency among critical scholars and social scientists, positivists as well as
interpretivists, to reject participant accounts as biased or deluded. This tendency, I
believe, says more about the occupational insecurity of social scientists and academics
than it does about the reliability of participant accounts—‘[c]oncern with the right to
speak with authority is an artifact of academic life’. . . .

My second reason is the substantive one that interpretivism (and the Charity Principle)
requires that a presumption of credibility be extended to participants. A core tenet of
interpretivism is that meaningful actions and beliefs substantially constitute social life.
This presupposes that people generally know what they are doing,and that the result of
intentional actions are generally as people intend. There are two major exceptions: the
unintended consequences of action, and mistake. These can result from a lack of
attention or information, or from inadequate reasoning, but neither entails fake
consciousness or systematic and widespread self-delusion. False consciousness is a real
phenomenon, but one that arises under extreme circumstances like brainwashing of
prisoners, indoctrination into cults, or cradle to grave socialization and access to
information as has occurred, for example, in North Korea. In each of these instances
there is a concerted, intentional, and overwhelming effort by certain actors to inculcate a
particular set of attitudes and beliefs in a target group. Seldom do these circumstances
hold in the arena covered by Anglo-American socio-legal studies. Socio-legal
discussions of false consciousness presuppose a social teleology—Marx’s class dynamics
—which operates in a law-like fashion behind the backs of everyone, oppressors and
oppressed alike. These ideas are simply incompatible with interpretivism. Nothing
prohibits socio-legal scholars from arguing that participants/subjects are unaware of the

16
Id., pp. 755-758, emphasis Cotterrell’s.

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negative implications of their ideas and beliefs, or that these beliefs operate against their
interests. This approach fills the explanatory role now filled by ideology, it points to
phenomena which are amenable to observation and verification, and it accords a greater
measure of moral respect for participants/subjects.

While an understanding of social life requires input from all three sources, they are not on
an entirely equal footing. Behaviourism has a slight priority, for the sound reason
captured by the adage that actions speak louder than words. Behaviourism goes only so
far, however, because behaviour is underdeterminative with regard to meaning.
Participant reports come close to behaviourism, because it always helps to know what
people think they are doing. Knowing this and knowing whether they are actually doing
what they say or think they are doing, is essential to an understanding of any situation.
Interpretivism, when it consists of the observations of outsiders, simultaneously promises
to offer the most insight—by informing participants of a perspective on their own
activities they might otherwise be oblivious to—or the least insight, when it reveals what
is obvious or already known. And it entails the greatest risk of error, because outsiders
observers often have their own agenda which they project onto their subjects in the
course of interpretation, and they lack the understanding of an activity which can only
come from experience. That is not to demean interpretivism—many of my own
observations in this work are interpretivist—but to remind us that engaging in
interpretivism invokes participating in ordinary social discourse, a fact which tends to be
obscured by the heavy overlay of theory talk and citation to authorities.

On the level of application, I have tried to demonstrate that these three perspectives can
be fruitfully combined by working on what I have called the behaviour/talk (including
meaning) axis. This methodological orientation has dominated throughout, leading to
repeated comparisons and contrasts between: what people do and what they say, the rules
legal actors enforce and the rules in the law books, the behaviour of people in the
community and the rules in the law books, what judges do and what they think they are
doing, what judges do and what observers say they are doing, what legal theorists do and
what they claim they are doing. That is the focus I have single-mindedly pursued. The
behaviour/talk axis roughly matches the positivism-interpretivism distinction, and thus
joining the latter two naturally leads to a focus on the former two.

In addition to establishing comprehensively the theoretical base, I have tried to

demonstrate the power of the realistic approach by applying it to explore issues of
relevance to legal theory, including the concept of law, law’s role in maintaining social
order, legal positivism’s claim to being grounded in social behaviour, the problem of
indeterminacy, and the nature of the practice of judging. The cost of this focus is that I
said very little about many other aspects of the social presence of law; I have not
extensively reviewed empirical studies of law other than those dealing with judging; and
I have especially neglected how non-legal actors use and view the law. There is much
more to learn about law that the realistic approach, and the social theory of law
articulated herein, is well suited to uncover.

Finally, I should admit that the approach I have set out is so mundane that to give it a
name—‘realistic approach’—is pretentious. My description of this ‘approach’—keep an
eye on what people are doing and listen to what they are saying, strive to be impartial and
observe closely, test when possible, be open to information from all sources—consists of
common sense rules of thumb we should follow whenever we embark upon an attempt to
understand any aspect of social life. Were it not for the overheated atmosphere (with

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contributors from all sides), much of what I say would be truistic. Rather than claim to
have set out an approach, perhaps, I should say that this book has been a sustained
argument for doing socio-legal studies more realistically.

Legal Theory

The second last word is on the misplaced focus of legal theory. In the course of taking up
some of the more prominent issues in legal theory, I have attempted to shift the way in
which these issues are approached in the direction of a social theory of law. My
conviction is that legal theorists are talking in old ways when the world of law has
changed, and that much of what is said is irrelevant to the everyday reality of law . . . .

The assumption that law represents consensual social order (that it selects prevailing
social norms), and the assumption that legitimation matters (which underwrites the
practice of legal theory), have long been taken for granted by legal theory. These two
assumptions are connected: a legitimate law is one that represents a consensual social
order. From a descriptive standpoint, however, both assumptions are suspect. In Chapter
Four on the concept of law and Chapter Five on legal positivism and the social theory of
law, I pressed the points that, descriptively speaking, legal institutions are apparatuses of
the state, complexes of co-ordinated actions which are coercive resources of power that
do all things with norms, and are used for all kinds of purposes and have all kinds of
functions. Consent and social order are connected to social patterns of behaviour, more
so than legal, and legal norms are only contingently (if at all) connected to social norms.

Although what I describe applies in various ways and degrees to law everywhere, it is
most evident in situations of recently transplanted law, especially in developing
countries, where the laws are not the consensual norms of society and the law often does
not substantially contribute to the maintenance of the social order (though it is still a
significant presence in society). In many countries the law operates to: keep rulers in
power and dissenters quiet; serve as a source of income for legal actors; facilitate
commercial transactions; give appearance of modernity (despite lying unused), etc.
Furthermore, the infrastructure of commercial legal rules that are contained within many
legal systems and are steadily spreading around the world have their own impetus and
momentum, and generate their own needs and requirements. Consent, at least general
social consent, seems to have little to do with the actual formulation or application of a
great deal of the law, and social order is substantially generated by social phenomena
other than law, yet they remain enthroned within the legal theory view of law.

The necessity, role and influence of legitimation are also, from a descriptive standpoint,
highly questionable. A good deal of legal theory assumes that legitimation—or
delegitimation—is of central importance. Descriptively speaking, however, at least in
Western countries, law just is. Law is a social presence with a concrete and rather stable
form that is here to stay as long as society does not collapse. Its existence is strongly
rooted in its own institutional and meaning-based permanence and it has increasingly
been insinuated as an aspect of social transactions. Many people do law or have
something to do with law; it is grounded in legal and academic institutions; it undergirds
economic and political institutions; it is carried generation after generation as a tradition,
collection of habits and practices, and body of meaning. Law has a social existence
entirely apart from legal rules, and this existence is the basis upon which it is perpetuated.

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Legal theory generated legitimation—‘law provides one right answer’—or delegitimation
—‘law is politics’—alike seem largely beside the point to the massive internal presence
of law in the United States and perhaps elsewhere in the West. The source of whatever
legitimation or delegitimation that does occur, at least in relation to members of society,
comes from the mass media: news reports, dramatic series, sensational cases. As for
judges and lawyers, their views of law largely come from the practices they engage in
every day, practices which theories about legitimation almost completely ignore,
regardless of claims about the internal view. Much of the work in legal theory today has
little apparent connection to the actual practice of law.

Legal theory must be prompted to bring the conversation closer to reality. If the reality is
that, at least in the West, legal systems have acquired a social permanence, a fixed and
largely unmoveable form that can only be patched and trimmed here and there, weighed
down by the legal tradition that is passed on to each new generation, what does that
mean? Is law one of those social realities that has achieved objectification (like the
morning rush hour), not just as a matter of reification but as a matter of sedimented social
fact? We don’t know because these are not the questions being asked by legal theorists.
Descriptions which shake existing assumptions will be an effective means of prompting
legal theorists to move in this direction. This is where realistic socio-legal studies have
something to offer.

To say that legal theory has little influence in relation to the views of members of the
community at large, and few connections to the realities of judging and the practice of
law today, does not mean that it will not have an influence on the shape that law takes in
the future. The Legal Realists had a monumental impact in prompting the instrumental
turn in law. The various critical schools of legal theory that dominate the discussion
today also have the potential for leading to a change to a longer term.

These critical schools, however, are in a different position from the Realists. First,
because the Realists already prompted the overdue paradigm shift in US law away from
mechanistic analysis and conceptual formalism, toward more open consideration of social
purposes and justice in the individual case, no further major change is possible unless we
give up rules altogether for a completely substantive justice regime, which would be
deeply problematic given the pluralistic circumstances of modern society. Secondly,
much of the critical theory of the past ten years is too theoretical to make a difference.
Hermeneutics, Wittgenstein’s language analysis, anti-foundational philosophy, and post-
modernism, I have argued, either address the conditions of our existence, which cannot
be changed and therefore discussing them changes nothing, or address issues within
philosophical debates (like the nature of truth) which have absolutely no impact on
everyday activities. Ironically, the point of all of these theories is that what counts as
ongoing social practices, and that to make a difference one must give up the view that
theory can govern from above and engage in the practices on their own terms . . ., leading
to change from within. For all the espousal of pragmatism, the recent flight to theory is
precisely what the pragmatists argued against.

Nonetheless, it is presently impossible to assess the full impact of CLS and its critical
compatriots and progeny, including critically oriented socio-legal studies. In the short
term it appears impotent in relation to the practice of law. What we don’t know yet is the
long term impact on generations of law students influenced by this literature (assuming it
is read). The resilience of practice, grounded in outgoing activities and needs, suggests
that it will have little effect. But the more subtle influence will operate in the realm of

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attitudes. If the next generation of judges are raised on the belief that law is a fraud, and
whoever becomes a judge aggressively and without restraining manipulates the law in
every case to achieve the outcome they desire, law will be a fraud.

Concern about this possible outcome is what led me to respond to the indeterminacy
thesis. Law can certainly be made indeterminate, if judges so desire. But their actions
show that by and large they do not act in this way, thereby rendering law determinate.
My application of social science to refute the indeterminacy argument is not a repudiation
of the critical position. Rather, it indicates that blame was being laid by critical scholars
in the wrong place. The problem is not with the judges or with the liberal system of rule
application (which has opened up to considerations of substantive justice); the problem
is, first, with the substantive content of legal rules and, secondly, with the inequitable
structures and distributions of wealth and opportunity in society. These are political,
economic, and social problems. To be sure, the liberal rule of law system enforces and
perpetuates these inequities, but so would any legal system except one run by benevolent
dictators.

Law is law, not politics. State law is a collection of institutions attached to the state,
having to do with the subject of law, involving the community of those trained in law.
Law is a resource which can be used or called upon to advance political purposes. CLS
got the idea wrong. Instead of ‘law is politics’, the rallying cry should have been ‘law for
politics’. To draw upon law for politics is to take action in the world, utilizing what law
has to offer, as every dedicated legal aid attorney or public interest lawyer does, often at
significant personal sacrifice.

Politics

The final last word is about politics, and about why I have aggressively promoted a
descriptive, non-normative approach. It is a reaction against what I believe to be a
profoundly mistaken attitude and approach that exists today in socio-legal studies. My
conviction is that critical scholars have harmed their cause far more so than advanced it.
Critical scholars made the mistake of attacking everything about law from every
conceivable angle. The wholesale and unrestrained resort to criticism and skepticism
carried two consequences that have haunted them ever since. The first consequence is
that the failure to be judicious in the critique led to a failure to recognize that the law does
much good for many people. Critical scholars were defenceless when it was argued in
response that rights talk has been a powerful tool in the advancement of the treatment of
minorities. In their well nigh total denouncement of the rule of law and of rights, they
were living in the elites-only world of theory, out of touch with reality below . . . .
People teaching at law schools might not need law (though they are not reluctant to use it
when the need arises), but the people they were trying to help sometimes do because they
have nowhere else to resort to in times of trouble. Destroying law does not further any
political interest other than that of those in society so powerful, so able to call upon
resources, that they have the capacity to thrive regardless of law. Contrary to the
intentions of the critical scholars, the politically inspired systemic assault on law—the
attack on the rule of law and legal liberalism in the absence of any viable alternatives—
advances only the interests of the elite.

The second consequence is that after the orgy of criticism, there was no basis upon which
to build. It is easy to show that there are serious problems with law. The hard part is
suggesting what to do about it. Their almost total silence on this, with the exception of

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Roberto Unger’s utopian proposals, has led more than anything else to the demise of the
movement. Critique without construction is indulgence in negativism. Suggestions by
critical scholars that more conversation is needed, or more theory, or attention to context,
would be laughable were they not so disappointing.

Ironically, matters have come full circle. In recent exchanges, the leftist self-declared
‘postmodernists’ who were spawned by CLS, at least indirectly by taking CLS views to
their logical extension, are now being criticized by CLSers as lacking in any positive
normative vision . . . . Mark Tushnet, who in his CLS salad days declared . . . that,
‘critique is all there is,’ now complains that postmodernists have taken the critique so far
that the very possibility of normative argument has been destroyed. A related
development can be found in other schools with connections to CLS, including certain
versions of critical feminism and critical race theory. Drawing upon the theory as well as
the tactics of CLS, group-based advocates are setting themselves up with a kind of
epistemological privilege, claiming to represent a particular point of view which must be
judged by its own internal standards (which, according to some theorists, are superior to
the middle-aged white male standards). Although we have learned a great deal from
these schools of thought about the silent biases contained within law, the long term
destructive potential entailed by such exclusive and excluding group-bound-standards is
reason for concern. What used to be plain old disagreement is now construed as
incommensurable discourse and a battle against hegemonic ideology. Promoting a cause
of social justice shared by many of the mainstream, left-leaning academics in law
faculties, CLS took its trashing of law to such an extreme that it left nowhere to go except
ever narrower spin-offs.

Socio-legal studies have also been harmed by these developments. The close association
of socio-legal scholars with CLS, either as participants or cheering on the sidelines, has
had a negative influence on the field. A good deal of socio-legal work is avowedly
critical, with no constructive suggestions. Much of it transparently perpetuates the leftist
view of the world and thus is easily dismissed as pure politics. Like much CLS work,
these critical socio-legal studies are read mostly by people who already agree (the rest of
the group), and largely ignored by everyone else. As a form of transformative politics, it
is an abject failure.

It is time to switch tactics. It is time for socio-legal studies to get back to its scientific
basics, to get back to impartial and disinterested investigation, to give up the impotent
politics and the debunking anti-law attitude. The accumulation of knowledge is a
valuable project that stands on its own merit. Socio-legal scholars can no more
completely efface their biases than can judges, of course, but they can at least strive to
meet the level of success attained by many judges, as indicated by social scientific studies
of judicial decision-making. Only in this way can we uncover what specifically is wrong
with law and how it can be made better.

To critics who assert that I have revived the fact/value distinction buried by
postmodernism, my response is that I have built a non-foundational version of that
distinction out of philosophical pragmatism (which presaged modernism). I would not
assert, as Llewellyn did, that the ‘ought’ should be put on hold while figuring out the ‘is’.
Rather, I am proposing a division of labour: legal theory continues with the ought, as it
has always done; realistic socio-legal studies takes care of the is. For those who claim
this is an abdication of moral responsibility, I respond, with Dewey, that science has an
inherently critical capacity in relation to values because it provides the check and testing

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 ground for ideas and beliefs. In this work I have applied science to test the beliefs of
legal and socio-legal theorists across the political spectrum.

A commitment to engage in non-political social scientific inquiry is, I believe, a political

commitment, made in the faith that increased understanding of the truth—the facts of the
matter about law—is a necessary prerequisite to positive change.” 17

III. EHRLICH’S THEORY OF LAW

“Ehrlich’s (1862-1922) thesis was that laws found in formal legal sources, such as
statutes and decided cases, give only an inadequate picture or what really goes on in a
community, for the norms which in fact govern life are only imperfectly and partially
reflected in them. He drew a distinction between norms of decision, which correspond to
that which is traditionally understood to be laws, and norms of conduct, which govern life
in society. There is often a considerable divergence between them. Thus, a commercial
usage may develop, but it is only after the lapse of some time that courts will
acknowledge it and import it into contracts. Eventually it may become embodied in a
statute, but by this time modifications of it and fresh usages may have developed. So the
process goes on. There will always be an inevitable gap between the norms of formal
law and of actual behaviour. The point that Ehrlich was seeking to make was that ‘living
law’ of society has to be sought outside the confines of formal legal material, in other
words, in society itself. One learns little of the living law in factories, for example, by
reading only the Factory Acts, the enactments and the common law relating to master and
servant, trade unions, etc. One needs to go into the factory if one is to observe how far
the formal law is followed, modified, ignored and supplemented. Only a minute fraction
of social life comes before courts, and even then it usually represents some form of
breakdown of social life. The task of formal law-makers is to keep it as nearly abreast of
the living law as possible.”18

A. Law Consists in the Inner Order of Associations.

In the beginning, Ehrlich explained what juristic science is all about.

“It is the function of juristic science, in the first place, to record the trends of justice that
are found in society, and to ascertain what they are, whence they come, and whither they
lead; but it cannot possibly determine which of these is the only just one. In the forum of
science, they are all equally valid. What men consider just depends upon the ideas they
have concerning the ends of human endeavour in this world of ours, but it is not the
function of science to dictate the final end of human endeavour on earth. That is the
function of the founder of a religion, of the preacher, of the prophet, of the preacher of
ethics, of the practical jurist, of the judge, of the politician. Science can be concerned
only with those things that are susceptible of scientific demonstration. That a certain
thing is just is no more scientifically demonstrable that is the beauty of a Gothic cathedral
or of a Beethoven symphony to a person who is insensible to it. All of these are
questions of emotional life. Science can ascertain the effects of a legal proposition, but it
cannot make these effects appear either desirable or loathsome to man. Justice is a social
force, and it is always a question whether it is potent enough to influence the disinterested
persons whose function it is to create juristic and statute law.

17
Brian Z. Tamanaha, Realistic Social Theory, Oxford: Oxford University Press, 1997, pp. 246-255.
18
R.W.M. Dias, “Sociological Approaches,” Jurisprudence, 4th Edn., London, Butterworths: 1976, pp. 588-589.

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 But although science can teach us nothing concerning the end, once the end is
determined, it can enlighten us as to the means to that end. The practical technical rules
that perform this function are based on the results of pure science. There is no science
that teaches men that they ought to be healthy, but practical medical science teaches men
who desire to be healthy what they can do, to bring about the result. Practical juristic
science is concerned with the manner in which the ends may be attained that men are
endeavouring to attain through law, but it must utilize the results of the sociology of law
for this purpose. The legal proposition is not only the result, it is also a lever of social
development; it is an instrumentality in the hands of society whereby society shapes
things within its sphere of influence according to its will. Through the legal proposition
man acquires a power, limited though it be, over the facts of the law; in the legal
proposition a willed legal order is brought face to face with the legal order which has
arisen self-actively in society.”19

Ehrlich continues by talking about the main concerns of the sociology of law.

“The sociology of law must begin with the ascertainment of the living law. Its attention
will be directed primarily to the concrete, not the abstract. It is only the concrete that can
be observed. What the anatomist places under the microscope is not human tissue in the
abstract but a specific tissue of specific human being; the physiologist likewise does not
study the functions of the liver of mammals in the abstract, but those of a specific liver of
a specific mammal. Only when he has completed the observation of the concrete does he
ask whether it is universally valid, and this fact, too, he endeavours to establish by means
of a series of concrete observations, for which he has to find specific methods. The same
may be said of an investigator of law. He must first concern himself with concrete
usages, relations of domination, legal relations, contracts, articles of association,
dispositions by last will and testament. It is not true, therefore, that the investigation of
the living law is concerned only with ‘customary law’ or with ‘business usage.’ If one
does any thinking at all when one uses these words—which is not always the case—one
will realize that they do not refer to the concrete, but to that which has been
universalized. But only the concrete usages, the relations of domination, the legal
relations, the contracts, the articles of association, the dispositions by last will and
testament, yield the rules according to which men regulate their conduct. And it is only
on the basis of these rules that the norms for decision that the courts apply and the
statutory provisions that alone have hitherto occupied the attention of jurists arise. The
great majority of judicial decisions are based on concrete usages, relations of possession,
contracts, articles of association, and dispositions by last will and testament, that the
courts have found to exist. If we would comprehend the universalizations, the reductions
to unity, and the other methods of finding forms that the judge and the lawgiver employ,
we must first of all know the basis upon which they were carried out. To this extent
Savigny was right when the said that the law—and by law he means above all the legal
proposition—can be understood only from its historical connection; but the historical
connection does not lie in the hoary past, but in the present, out of which the legal
proposition grows.

But the scientific significance of the living law is not confined to its influence upon the
norms for decision which the courts apply or upon the content of statutes. The

19
Eugen Ehrlich, “Principles of the Sociology of Law,” Lloyd’s Introduction to Jurisprudence, M.D.A. Freeman,
London: Sweet and Maxwell, Seventh Edn., 2001, p. 719.

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 knowledge of the living law has an independent value, and this consists in the fact that it
constitutes the foundation of the legal order of human society. In order to acquire a
knowledge of this order we must know the usages, relations of domination, legal
relations, contracts, articles of association, declarations by last will and testament, quite
independently of the question whether they have already found expression in a judicial
decision or in a statute or whether they will ever find it. The provisions contained in the
German Commercial Code regulating stock exchanges, banks, publishing houses, and
other supplementary provisions were full of gaps when they were enacted and, for the
most part, have become antiquated. Modern commerce has meanwhile created an
enormous number of new forms, which ought to be the subject matter of scientific study
as well as those that have been enumerated in the statute. Very much that is of genuine
value can be found on this point in the literature on the science of commerce that is
blossoming forth so abundantly. A part of the order in the sphere of mining and
navigation has been made accessible to legal science through mining law, maritime law,
and the law of inland navigation, but for the most part this has long since become
antiquated. The factory, the bank, the railroad, the great landed estate, the labour union,
the association of employers, and a thousand other forms of life—each of these likewise
has an order, and this order has a legal side as well as that of the mercantile
establishment, which is being regulated in detail only by the Commercial Code. In
addition there are countless forms in which the activity of these associations manifests
itself outwardly, above all the contracts. In studying the manufacturing establishment,
the legal investigator must pursue the countless intricate paths that lead from the
acceptance of the order to the delivery of the finished products to the customer.” 20

Then he arrived at the main thesis of his book, a primary principle in the sociology of law and a
comprehensive observation about law: “At the present and at any other time, the center of gravity of legal
development lies not in legislation, nor in juristic science, nor in judicial decision, but in society itself.” 21
From this he arrives at his own meaning of law, that “law consists of the inner order of associations.” He
strove to prove this by means of a lengthy, comprehensive, historical, sociological, and empirical study of
society.

1. The proof of the definition

Ehrlich first explained that all the studies in the field of social science, among this the study of law, is
based on the concept of society. In other words, Ehrlich proposed that if law is to be scrutinized deeply
enough, the study must focus on society and there will be found the origin of law. He placed significance
on the development of society as “the sum total of all human associations that have mutual relations with
one another.”22 He continued his proof by means of a long, empirical, and historical exposition of the
various kinds of societies according to rank. He demonstrated that by means of this exposition that these
associations have an inner order which reflect the law of the organization. Hence, if society is composed
of the various human associations, the law is composed of the inner order of these associations.

a. The Various Kinds of Organized Associations in Society and the Kinds of Society according to Rank

There exist various organized associations in society; there are two comprehensive classifications of these
associations; there are three kinds of society in Europe according to historical or chronological age, there
20
Id., pp. 719-720.
21
Eugen Ehrlich, “Law and the Inner Order of Associations,” The Nature of Law, edited by M.P. Golding (New
York: Random House, 1997), reprinted from Ehrlich, Fundamental Principles of the Sociology of Law (Cambridge,
Mass.: Harvard University Press, 1936), p. 200.
22
Id., p. 201.

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are other non-European societies, and various roles and duties of the members of these associations
within society. In any case, whatever the association or society, the law of society consists of the inner
order of these associations.

These associations which make up human society are many and distinct from each other. Ehrlich
itemized them.

“. . . The state, the nation, the community of states which are bound together by ties of
international law, i.e. the political, economic, intellectual, and social association of the
civilized nations of the earth extending far beyond the bounds of the individual state and
nation, the religious communions and the individual churches, the various sects and
religious groups, the corporations, the classes, the professions, the political parties within
the state, the families in the narrowest and in the widest sense, the social groups and
cliques—this universe of interlacing rings and intersecting circles—constitute a society to
the extent that acting and reacting upon another is at all perceptible among them.” 23

Apart from this, Ehrlich classified these organized associations into two: the primitive, genetic association
and the non-genetic association. “From these various kinds of groups of human beings, we must select,
first of all, a certain kind of organized association, which we shall hereafter designate as the primitive
(genetic) association. We meet with it in primitive times in various forms as clan ( Geschlect, gens,
Sippe), family, house community.”24 These genetic associations merge into larger associations which are
no longer genetic. “(T)he family develops into the house community, which is usually also called the
family. Out of the union of genetic associations, clans, families, house communities, grows the tribe, and,
in course of time, the nation.” 25 Within the larger association can be found the numerous and various
non-genetic associations, which have already been itemized.

In the history of mankind, there have arisen three kinds of societies: the early primitive, the middle feudal
and the present civilized. When society has reached the highest stage, there arise various and many
associations and the role and value of the genetic associations in society is no longer as great. There
emerge many and various non-genetic associations which change and which take upon the role of what
the previous genetic associations assumed and because of this they enjoy a pervasive and widespread
effect on the kind of life the individuals in society live.

“In the primitive stage, the whole legal order consists in the inner order of the human
associations, of which, indeed the state is one. Each association creates this order for
itself, even though it is true that an association often copies an order existing in other
associations, or in the case of splitting up of an association, takes over an order and
continues it. Because of these facts, to which must be added the similarities caused by
the similarity of the relations, common features will not be lacking. To an observer from
the outside these common features might appear to constitute a common law of the
nation. But this is only a generalization made by the observer himself on the basis of
what he has seen and heard. Tacitus makes a number of statements about the legal
relations of the ancient Germans, but a cursory glance at his account suffices to show that
it contains no legal propositions, but only statements about what the Germans
customarily did and left undone. Society, if one may use the term with reference to those
times, maintained its balance not by means of rules of law, but by means of the inner
order of its associations.”26
23
Id.
24
Id.
25
Id., p. 202.
26
Id., pp. 203-204.

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From this viewpoint, Ehrlich scrutinized the law of these three kinds of societies, the law of the lower
primitive or original cultures which predated the civilized nations of Europe, the feudal law of Europe
and the law of a higher culture, that of the civilized nations of Europe itself. He also discussed the law of
non-European societies. He demonstrated that whatever the society or culture, law consists of the inner
order of associations.

b. The Law of Primitive Society which Gave Rise to the Civilized Nations of Europe

The law of the earlier societies, from where emerged the civilized nations of Europe, differ from the law
of today: the law as “a fixed rule of law, formulated words, which issues from a power superior to the
individual, and which is imposed upon the latter from without.” 27 Very rarely did this kind of law surface
during primitive times.

“. . . Their law is chiefly the order of the clans, families, houses. It determines the
prerequisites and the consequences of a valid marriage, the mutual relation of the
spouses, of parents and children, and the mutual relations of the other members of the
clan, family, and household. Each association creates this order for itself quite
independently. It is not bound by the order which exists in other associations for the
same relations. And if the orders in associations of the same kind differ very little from
each other, this must be attributed to the similarity of the conditions of life; often to
borrowing; but by no means to a uniform order in some manner prescribed for them from
without. In the language of German scholarship, there may possibly be a general law
(allgemeines Recht) in these associations, but not a common law (gemeines Recht). ”28

So too is the law of property the law of the inner order of associations.

“As soon as ownership of land becomes established, law arises concerning it, but without
any general rules of law. Each settlement creates its own land law; each landlord
imposes it independently upon his villeins; each royal grant, quite independently of all
others, makes provision for the legal status of the estate it grants. There are concrete
legal relations in the various communes, settlements, and manors, but no law of
ownership in land such as is found in the corpus juris or in modern statute books.”29

It is likewise true that the law of contracts is based on this inner order; more exactly, it is based only on
the contents of these contracts which have been attested to, and there are no universal legal propositions
which govern the agreement. Therefore:

“In the primitive stage, the whole legal order consists in the inner order of associations,
of which, indeed, the state is one. Each association creates this order for itself, even
though it is true that an association often copies an order existing in other associations, or
in case of a splitting up of an association, takes over an order and continues it. Because
of these facts, to which must be added the similarities caused by the similarity of the
relations, common features will not be lacking. To an observer from the outside these
common features might appear to constitute a common law of the nation. But this is only
a generalization made by the observer himself on the basis of what he has seen and heard.
Tacitus makes a number of statements about the legal relations of the ancient Germans,

27
Id., p. 202.
28
Id., p. 203.
29
Id.

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 but a cursory glance at his account suffices to show that it contains no legal propositions,
but only statements about what Germans customarily did and left undone. Society, if one
may use the term with reference to those times, maintained its balance not by means of
rules of la, but by means of the inner order of its associations.” 30

c. European Law during Feudal Times

Ehrlich expanded his thesis by means of an explanation of European law during feudal times. Once
again, the law is not merely one kind of orderly association but is the product of agreement.

“. . . the chief characteristic of the feudal state is the fact that it has no constitution, but
only agreements. The relation between the king and the great lords to whom he has
granted fiefs is a contractual one. Likewise the relation between the great lords and those
whom they have enfeoffed; likewise the relation between the latter and those whom they,
in turn, have enfeoffed. On the lowest rung of the ladder are the serfs. Of course, one or
more rungs may be omitted, and the feudal lords have serfs at any level in this scale. In
order to write an exhaustive description of the feudal state, one must be able to state the
content of all the agreements entered into between the lords and their liegemen and of the
relation between the lords and the villeins, which often is merely contractual. The
agreements and the relation between the lord and the villeins may be very much alike in a
certain district and among a certain people. But this similarity also is based upon the
similarity of the attendant circumstances, upon direct imitation or borrowing, not a
general rule. What is called ‘feudal law’ is primarily a scientific elaboration of the
common element in the individual agreements, which at a later period is transformed into
a general rule of law which ekes out the content of the agreements.” 31

Contemporary resolutions made by associations of feudal times “did not contain legal propositions in the
modern sense of the term. They are merely expressions of the common will, and their legal significance
is based upon the fact that they are being accepted by the feudal lord, and thereby become collective
agreements with the feudal lord.”32

However, a feudal constitution is part only of the contents of the societal order of a feudal state.
Nevertheless, it does not follow that feudal law cannot be found in the inner order of associations. There
existed also cities, which were placed outside of the feudal constitutions, where there arose and grew
many social associations and vibrant legal ways of life. “Here for the first time fully developed legal
institutions were expressed in a number of legal propositions: the law of real property, of pledge, of
contract, of inheritance.”33

“But these legal propositions constitute an infinitesimal part of the legal order. In the
feudal state as well as elsewhere, the great bulk of the legal order is not based upon the
legal proposition, but upon the inner order of the social associations, of the older ones
(the clan, the family, the house community), as well as of those of more recent origin—
the feudal association, the manor, the mark community, the urban community, the guilds
and trade unions, the corporations and foundations. If one would obtain a knowledge of
the law of mediaeval society, one must not confine oneself to a study of the legal
propositions, but must study it in the deeds of grant, the charters, the land registers, the

30
Id., pp. 203-204.
31
Id., pp. 204-205.
32
Id., p. 205.
33
Id.

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 records of the guilds, the city books, the regulations of the guilds. Even at this period, the
center of gravity of the law lies in the inner order of the human associations.” 34

d. The Law of European Civilization at Present

Contrary to the first two ages, contemporary thought is dominated by the viewpoint that the law consists
only of legal propositions. This is because, due to the passage of time, great value is placed upon the
legal proposition, which is expressed and enacted by those in authority.

However, this viewpoint brought about numerous contradictions. These inner rules are not contained in
the Public Law or in the Administrative Law or in Remedial Law; however, if the actual operation of
government of the city administrations is observed, it will be perceived that the law consists not only of
legal propositions. If substantive law is to be examined, the contradiction will become more evident.

“. . . On the other hand, the legal rules barely touch the surface of the modern order of the
family. The law of corporations and of foundations is based in the main upon the articles
of association. In spite of the detailed provisions of the law of contracts, the content of
the contract is of greater importance in the law of inheritance than the rules of law
concerning it. Every judge, every administrative official, knows that, comparatively
speaking, he rarely renders a decision based solely on legal propositions. By far the
greatest number of decisions are based upon documents, testimony of witnesses or
experts, contracts, articles of association, last wills and testaments, and other declarations.
In other words, in the language of jurists, in a much greater number of instances
judgment is being rendered on questions of fact than upon questions of law. And the fact
is a matter of the inner order of the human associations, as to which the judge obtains
testimony from the testimony of witnesses and experts, from contracts, agreements
among heirs, declarations by last will and testament. Even today, just as in primitive
times, the fate of man is determined to a much greater extent by the inner order of the
associations than by legal propositions.”35

In truth, man and society come first, human behavior in society, and the interaction and coordination of
the people with each other in society before law has been enacted by the state government. In other
words, the concrete precedes the abstract. Hence, law originates merely from the inter-actions of the
people.

“. . . The state existed before the constitution, the family is older than the order of the
family, possession antedates ownership; there were contracts before there were was a law
of contracts; and even the testament, where it is of native origin, is much older than the
law of last wills and testaments. If the jurists think that before a binding contract was
entered into, before a valid testament was made, there must have been in existence a legal
proposition according to which agreements or testaments are binding, they are placing the
abstract before the concrete. Perhaps it seems more readily understandable to a jurist that
a legal proposition concerning the law of contracts or the law of wills might be binding
than that of a contract or will might be binding without a legal proposition. But the
mental processes of nations and of men, excepting the jurists among them, do not
function in this fashion. It can be shown that the idea that prevailed among men in the
past was that their right had arisen from a contract or from a grant; the idea that it had
arisen from a legal proposition was altogether foreign to them. And at the present time,

34
Id., pp. 205-206.
35
Id., pp. 206-207.

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 unless legal theory exerts its influence, men generally assume that their rights arise not
from legal propositions but from relations of man to man, from marriage, contract, last
will and testament. That anyone might owe his rights to a legal proposition, is a notion
that even today is current only among jurists. Social phenomena, however, can be
explained not by construing them juristically but by inferring from facts the modes of
thought that underlie them.”36

e. The law of the non-European Nations

The same thing happens in law if the societies of the primitive races and the undeveloped countries of the
East, and in the Eastern and Southern parts of Europe are considered. The “traditional order of the small
association, of the household, of the family, of the clan, is followed.” 37

The comprehensive, historical and sociological analysis reaches only one conclusion:

“The inner order of associations of human beings is not only the original but also down to
the present time, the basic form of law. The legal proposition not only comes into being
at a much later time, but is largely derived from the inner order of associations. In order
to explain the beginnings, the development, and the nature of law, one must first of all
inquire into the associations. All attempts that have been made until now to comprehend
the nature of law have failed because the investigation was not based on the order of the
associations but on the legal propositions.”38

2. Law as the Inner Order of the Associations of Human Society.

According to Ehrlich, all the attempts to study law during his time were by means of the legal proposition
and not the inner order of associations. It is not surprising therefore that all these attempts proved
fruitless. Consequently, there arises the need for an explanation of law with regard to its origin, its
growth and development, and its nature based on the inner order of associations.

There is a great difference between legal norms and legal propositions. The legal proposition “is the
precise, universally binding formulation of the legal precept in a book of statutes or in a law book.” 39 On
the other hand, a legal norm “is the legal command, reduced to practice, as it obtains in a definite
association, perhaps of very small size, even without formulation in words.” 40 Thus, a legal rule may be
considered as an effective legal proposition.

Ehrlich argued that the inner order of associations consists in legal norms, and not legal propositions. In
every society, legal norms are more plentiful or numerous than legal propositions. The dominance of the
legal norm may be explained as follows:

“A social association is a plurality of human beings who, in their relations with one
another, recognize certain rules of conduct as binding, and, generally at least, actually
regulate their conduct according to them. These rules are of various kinds, and have
various names: rules of law, of morals, of religion, of ethical custom, of honor, of
decorum, of tact, of etiquette, of fashion. To these may be added some of lesser
importance, e.g. rules of games, the rule that one must wait one’s turn, for instance at the
36
Id., pp. 207-208.
37
Id., p. 208.
38
Id.
39
Id., p. 209.
40
Id.

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 ticket window or in the waiting room of a busy physician. These rules are social facts,
the resultants of the forces that are operative in society, and can no more be considered
separate and apart from society, in which they are operative, than the motion of the waves
can be computed without considering the element in which they move. As to form and
content, they are norms, abstract commands and prohibitions, concerning the social life
within the association and directed to members of the association. In addition to rules of
conduct of this kind, there are rules that are not norms because they do not refer to the
social life of human beings: e.g. the rules of language, of taste, or of hygiene.

The legal norm, therefore, is merely one of the rules of conduct, one of the same nature as
all other rules of conduct.”41

a. The Very Limited Role of State Law in the Making of Law

According to the predominant concept of the nature of law, a rule is a legal norm if it is posited by the
state as a legal norm. this means that the rule, from wherever it came, becomes a legal norm only if it is
recognized by the state as a legal norm, and it is surrounded by rules of the second order, rules concerning
punishment, methods, and administrative regulations.

Ehrlich already established that this concept is mistaken because a rule becomes a legal rule only if the
state enacted it as a legal rule. The order of the houses in Rome, mediaeval haciendas, and primitive
communities are not part of law according to the above conception.

It is true that state law has a great influence on the state of the law today.

“. . . By creating constitutional and administrative law, the state has created its own law
for its own needs. It has fused into various groups that are occupying its territory into a
unified people of the state (Staatsvolk) and by doing so has prepared the way for a unitary
development of law. Through its courts and administrative tribunals, with the aid of its
secondary norms, penal law, police law, procedural law, it has brought about for the state
and social institutions an increased measure of security. It has established ownership as
distinguished from possession, and made possible the right of succession in collateral
relatives. It has created rentes and monopolies. By its prohibitions and limitations it has
exerted a powerful influence upon social institutions, upon communal life, relations of
domination, ownership, possession, contract, succession.”42

This does not mean, however, that the state has no role in creating state law. The law is the result only of
the interaction and coordination between the state and society. Even juristic law is shaped in accordance
with the influence of society.

“As soon as state law has actually become part and parcel of everyday life, and has
exerted a moulding influence upon it, jurists will no longer confine their attention to the
words of the statute but will be concerned with the forms of life that have come into
being under its influence. The universalizations which they arrive at in doing this, the
norms which they find, will, of course, be juristic law. This happened in Rome in the
case of the Lex Falcidia and of the senatusconsultum Velleianum, and has happened
again and again since that time. English commerce is regulated by the Statute of Frauds
to such an extent that the English were unwilling to change it although it is quite

41
Id., pp. 209-210.
42
Id., p. 210.

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 antiquated, but took it over in apart almost verbatim into the Sales of Goods Act of that
year 1893. Inasmuch as the German testament is derived from the Roman testament, the
Lex Falcidia was received into German law together with the latter, and has become a
part of the living German law no less than the testament. It is well known and generally
understood that the canon law prohibition against usury is in exactly the same case. It
has all the hall-marks of state-made law. The church, which promulgated it, was an
association partaking of the nature of the state, and was, in this case, as the state is in
other cases, an agency of society for the purpose of creating law. Through its own courts
and through its influence upon the courts of the state, the church was enabled to give
effect to its law as readily as the state.” 43

Hence, the state has a very limited role in the making of law. Nonetheless, we completely believe in
ideas such as the unlimited power of the state, and the analogous ideas such as: “the power to legislate is
the highest power in modern society, and that resistance to it is to be condemned under all circumstances;
that there cannot be any law within the territory of the state that is in conflict with statute law; and that a
judge who in the administration of law disregards a statute is guilty of a gross violation of duty.” 44

This opinion constitutes great error. The center of gravity of the development of law is society, even if
the rules to be used by the courts for judging are being referred to.

“But the basic legal institutions, the various legal associations, especially marriage, the
family, the clan, the commune, the guild, the relations of dominance and of possession,
inheritance, and legal transactions, have come into being either altogether or to a great
extent independently of the state. The center of gravity of legal development there from
time immemorial has not lain in the activity of the state but in society itself, and must be
sought there at the present time. This may be said not only of the legal institutions but
also of the norms for decision. From time immemorial the great mass of norms for
decision has been abstracted from the social institutions by [juristic] science and by the
administration of justice, or has been freely invented by them; and legislation by the state,
too, can generally find them only by following the social institutions and by imitating
scientific or judicial methods.”45

Hence, a more complete analysis of law is required, an analysis that is focused on society and not at the
law of the state. This cannot significantly prove or establish that the actual state of the law does not
conform to the legal norms that have been promulgated or enacted by the state.

“In order to understand the actual state of the law we must institute an investigation as to
the contribution that is being made by society itself as well as by state law, and also to the
actual influence of the state upon social law. We must know what kinds of marriages and
families exist in a country, what kinds of contracts are being entered into, what their
content is as a general rule, what kinds of declarations by last will and testament are
being drawn up, how all of these things ought to be adjudged according to the law that is
in force in the courts and other tribunals, how they are actually being adjudged, and to
what extent these judgments, and other decisions are actually effective. An investigation
of this sort will reveal that although the legislation of two different countries may be
identical, e.g. of France and Roumania, the law of one country may differ from that of the
other; that in spite of the fact that the courts and other tribunals of Bohemia, Dalmatia,

43
Id., p.
44
Id., p. 212.
45
Id., p. 212.

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 and Galicia apply the same code, the law of these countries is by no means the same; and
that because of the differences in the actual state of the law, there is no uniform law even
in the various parts of Germany in spite of the Civil Code, quite apart from the particular
divergences of legislation.”46

B. Comments and Criticisms on the Theory of Ehrlich

A theory of law is a theory about what the law is. Ehrlich stressed that he had already answered this
problem. He based his answer on his methodical and comprehensive research and study of various
cultures, societies, and civilizations, included in this the associations which make them up and in his
detailed investigations and observations of the interaction between law and society. From these
comprehensive studies, he reached the conclusion that the law is nothing but the inner order of
associations which contain the legal rules.

Hence, Ehrlich is a theorist based on the phenomenon of what the law is. Nonetheless, the law that
Ehrlich refers to is a law distinct from that which should be the concern of a legal theorist. The law that
he refers to is the law that is truly obeyed, followed, complied with, and made by the individuals and
officials in society. On the other hand, the legal theorist has in mind the positive law, the state law as
Ehrlich calls it, or the law that the individual citizen follows, that is taken up by the students in the law
colleges, that is argued by the lawyers in the courtrooms, and the law that is applied by the courts.

It cannot be denied that the law actually complied with, followed, and made in society comprises a
valuable field of knowledge, it is only that it is more appropriately an aspect of the sociology of law and
not of legal theory. Apart from these, I myself maintain that this sociological studies provide meaningful
understanding and comprehension towards a complete knowledge of positive law; and, because of this,
ought to constitute a valuable aspect of legal theory. That being said, these two senses of law must be
explained, that one may not be confused with the other, and that the legal theorist has as his concerns the
positive law and not the law that is actually followed or complied with.

Consequently, Ehrlich was mistaken when he maintained that the inner order of associations or the legal
rules are truly valid law. His mistake is similar to that of the Classical Natural Law theorists when they
opined that the real or actual valid law is the natural law. This is the mistake which substitutes two
distinct kinds of phenomena or two distinct meanings of ‘law’. The legal theorist is not interested in the
question of what the real or actual law is. For him, there are various kinds of law and various senses of
‘law’. He is interested only in one kind of law, the law in its positive sense. As long as the many kinds of
law provides valuable knowledge and understanding of the phenomenon of the positive law, the legal
theorist accepts the conclusions that arise from an investigation and analysis of these kinds of law.
However, he is not concerned with these kinds of law. He would then become a different kind of theorist.
Whether it be the real or actual law, he is also not interested. His only concern is the positive law. This
does not mean that the positive law is the real or actual law, but this is the law that he analyzes and
attempts to understand.

1. The Definition of Positive Law according to Ehrlich

Nonetheless, Ehrlich’s theory of law may be amended to create a legal theory that may be said to explain
or illuminate positive law. Under this interpretation, the law that is made and applied by society is not
considered the real or actual law but only the source or origin of positive law. The true or actual positive
law may be explained as a legal rule in the meaning of Ehrlich or as a law that consists in the inner order

46
Id., pp. 212-213.

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of associations. So long as the putative law does not manifest the rules that are obeyed, complied with,
and made in society, it may not become real or actual law.

Thus, this may constitute a definition of positive law according to Ehrlich: “A putative law is valid when
it is a legal rule that is found in the inner order of human associations.”

This definition of positive law, nevertheless, may create confusion which has been explained by Kelsen,
and this confusion concerns the validity or efficacy of law. If Ehrlich were to explain a valid law that is
followed or complied with, he is only stating the conditions for the effectivity of law and not its validity.
These are two different concepts.

For example, the traffic law in the Philippines is known not to be complied with. In truth, when my uncle
had a foreign visitor and he was showing him the sights of Manila, the foreigner was taken aback when he
saw a car keep on going despite a red light. He suddenly blurted out: “Why is it that that car kept on
going despite the red light?” My uncle replied: “In the Philippines, there are many shades of green.”

Nonetheless, the law like the traffic laws in the Philippines may be valid but not effective. Practically no
one, just as in the example, stops at a red light. However, the non-compliance with this rule does not
signify that the validity of that law has been reduced rather than when it is followed. If not, consult the
unlucky motorist who has been caught beating a red light. He may argue with the policeman as much as
he likes but this does not mean that his arrest should be considered as lacking in validity. On the other
hand, a rule may be effective but not valid.

In totality, Ehrlich’s legal theory is placed in a dubious situation. It may be possible that his doubts about
the law, just like the inner order of associations, may be considered a definition of positive law or as a
source of positive law. If the former is referred to, this is where Ehrlich erred concerning the bindingness
or validity of law. These refer to two different kinds of law, which Ehrlich clearly confused. If the latter
is meant, his theory is not very helpful to the legal theorist, for the reason that it does not respond to the
fundamental question of legal theory as to what is the law. Nonetheless, this does not dispute that Ehrlich
offered many valuable insights into the phenomenon of law, that without which the state of legal theory
today would not be as developed as it presently is.

IV. POUND’S SOCIAL ENGINEERING

A. The Programme of the Sociological School

According to Dean Roscoe Pound, the programme of the Sociological School consisted of eight points:

“(1) Study of the actual social effects of legal institutions, legal precepts and legal
doctrines.
(2) Sociological study in preparation for law-making.
(3) Study of the means of making legal precepts effective in action.
(4) Study of juridical method.
(5) A sociological legal history; study of the social background and social effects of
legal institutions, legal precepts, and legal doctrine, and of how these effects have
been brought about.
(6) Recognition of the importance of individualized application of legal precepts—of
reasonable and just solutions to individual cases.
(7) In English speaking countries, a Ministry of Justice.

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 (8) That the end of juristic study, toward which the foregoing are but some of the
means, is to make effort more effective in achieving the purposes of the law.” 47

B. A Transfer of Focus from Human Will to Human Wants

This programme was in line with what Pound indicated was the new way of doing legal theory; focus
was transferred from the human will to human wants.

“At the end of the last and the beginning of the present century, a new way of thinking
grew up. Jurists began to think in terms of human wants or desires or expectations rather
than of human wills. They began to think that what they had to do was not simply to
equalize or harmonize wills, but, if not to equalize, at least to harmonize the satisfaction
of wants. They began to weigh or balance and reconcile claims or wants or desires or
expectations, as formerly they had balanced or reconciled wills. They began to think of
the end of law, not as a maximum of self-assertion, but as a maximum satisfaction of
wants. Hence for a time they thought of the problems of ethics, of jurisprudence, and of
politics as chiefly one of valuing; as a problem of finding criteria of the relative value of
interests. In jurisprudence and politics they saw that we must add practical problems of
the possibility of making interest effective through governmental action, judicial or
administrative. But the first question was one of the wants to be recognized—of the
interests to be recognized and secured. Having inventoried the wants or claims or
interests which are asserting and for which are asserting and for which legal security is
sought, we were to value them, select those to be recognized, determined the limits
within which they were to be given effect in view of other recognized interests, and
ascertain how far we might give them effect by law in view of the inherent limitations
upon effective legal action. This mode of thinking may be seen, concealed under
different terminologies, in more than one type of jurist.

Three elements contributed to shift the basis of theories as to the end of law from wills to
wants, from a reconciling or harmonizing of wills to a reconciling or harmonizing of
wants. The most important part was played by psychology which undermined the
foundation of the m eta-physical will philosophy of law. Through the movement for
unification of the social sciences, economics also played an important part, especially
indirectly through the attempts at economic interpretation of legal history, reinforcing
psychology by showing the extent to which law had been shaped by the pressure of
economic wants. Also the differentiation of society, involved in industrial organization,
was no mean factor when classes came to exist in which claims to a minimum human
existence, under the standards of the given civilization, became more pressing than
claims to self-assertion. Attention was turned from the nature of law to its purpose, and a
functional attitude, a tendency to measure legal rules and doctrines and institutions by the
extent to which they further or achieved the ends for which law exists, began to replace
the older method of judging law by criteria drawn from itself. In this respect the thought
of the present is more like that of the seventeenth and eighteenth centuries than that of the
nineteenth century. French writers have described this phenomenon as a ‘revival of
juridical idealism.’ But in truth the social utilitarianism of today and the natural-law
philosophy of the seventeenth and eighteenth centuries have only this in common: Each

47
Roscoe Pound, “Outlines of Jurisprudence,” 5th edn., 1943, in M.D.A. Freeman, Lloyd’s Introduction to
Jurisprudence, London: Sweet and Maxwell, Seventh Edn., 2001, p. 723.

380
 has its attention fixed upon phenomena of growth: each seeks to direct and further
conscious improvement of the law.”48

Pound likened the tasks of the lawyer to engineering. The aim of social engineering is to build as
efficient a structure of society as possible, which requires the satisfaction of the maximum of wants with
the minimum of friction and waste. 49 In other words, law, to him, is an ordering of conduct so as to make
the goods of existence and the means of satisfying claims go round as far as possible with the least
friction and waste. Pound regards these claims as interests which exist independently of the law and
which are ‘pressing for recognition and security’. To a theory of interests thus I now turn.

C. A Theory of Interests

Pound developed a theory of interests.

“A legal system attains the ends of the legal order (1) by recognizing certain interests,
individual, public, and social; (2) by defining the limits within which those interests shall
be recognized and given effect through legal precepts developed and applied by the
judicial (and today the administrative) process according to an authoritative technique;
and (3) by endeavoring to secure the interests so recognized within the defined limits.

For the present purpose an interest may be defined as a demand or a desire or expectation
which human beings, either individually or in groups or associations or relations, seek to
satisfy, of which, therefore, the adjustment of human relations and ordering of human
behavior through the force of a politically organized society must take account. It will be
noticed that while this is put psychologically, it seeks to avoid controverted questions of
group psychology. It does not speak of group demands or desires but of the strivings of
men, in, or perhaps we should say through, groups and associations and relations (and
institutions in Haurious’s sense) to satisfy certain demands or desires. The legal order or
the law, in the sense of the body of authoritative guides to or grounds of determination of
controversies, do not create these interests. There is so much truth in the old idea of a
state of nature and a theory of natural rights. Interests in this sense would exist if there
were no legal order and no body of authoritative guides to conduct or decision. Claims of
human beings to have things and to do things existed wherever a number of human
beings come into contact. There has never been a society in which there has been such a
surplus of the means of satisfying these claims or of room for every one to do al that he
sought and urged a claim to do, that there has not been competition to satisfy them.
Conflicts or competition, between interests arise because of the competition of
individuals with each other, the competition groups or associations or societies of men
with each other, and the competition of individuals with such groups or associations or
societies in the endeavor to satisfy human claims and wants and desires.” 50

Pound continued first by specifying the necessary ingredients for determining the scope and subject
matter of a legal system, which consists of interests, by classifying those interests into three, individual,
public, and social, and finally by making a reasoned inventory of these interests.

“We begin, then, with the proposition that the law does not create these interests. It finds
them pressing for recognition and security. First, a legal system classifies them and
48
Roscoe Pound, “Philosophy of Law,” rev. ed., in M.D.A. Freeman, Lloyd’s Introduction to Jurisprudence,
London: Sweet and Maxwell, Seventh Edn., 2001, p. 721.
49
Roscoe Pound, Social Control Through Law, p. 65.
50
Roscoe Pound, Jurisprudence, vol. III, St. Paul, Minn.: West Publishing Co., 1959, pp.16-17.

381
recognizes a larger or smaller number. Second it fixes the limits within which it
endeavors to secure the interests so selected. These limits may be fixed in view of other
interests which are also recognized, either directly or indirectly by the limitations
imposed on directly recognized interests. Or the limits may be fixed in view of the
possibilities of effectively securing them through the judicial or administrative processes.
Third, a legal system works out means by which the interests may be secured when
recognized and delimited. It prescribes canons of values for determining what interests to
recognize, for fixing the limits of securing recognized interests, and for judging the
weight to be accorded in any given case to the practical limitations on effective legal
action.

Hence in determining the scope and subject matter of a legal system we have to consider
five points. (1) We must make an inventory of the interests which press for recognition
and must generalize them and classify them. (2) We must select and determine the
interests which the law should recognize and seek to secure. (3) We must fix the limits of
securing the interests so selected. (4) We must weigh the means by which the law may
secure interests when recognized and delimited. We must take account of the limitations
upon effective legal action which may preclude complete recognition or complete
securing of interests which otherwise we should seek to secure. (5) In order to do these
things we must work out principles of valuation of interests. Their chief importance is in
determining what interests to recognize; in selection of interests to be recognized. But
we must use them also in fixing the limits of securing recognized interests, and in judging
of the weight to be attributed in any given case to the practical limitations upon effective
legal action.

Interests, that is, the claims or demands or desires for which or about which the law has
to make some provision if civilization is to be maintained and furthered and society is not
to be disrupted or dissolved, are asserted by individual human beings. But they are not
for that reason all individual interests. We must not confuse interest as claim, as jurists
use the term, with interest as advantage as economists use it. Thinking of the claims and
demands which men assert and press upon the legal order, interests fall conveniently into
three classes, individual interests, public interests, and social interests. Individual
interests are claims or demands or desires involved in and looked at from the standpoint
of the individual life, immediately as such—asserted in the title of the individual life.
Public interests are the claims or demands or desires asserted by individuals involved in
or looked at from the standpoint of political life—life in politically organized society.
They are asserted in the title of that organization. It is convenient to treat them as the
claims of a politically organized society thought of as a legal entity. Social interests are
claims or demands or desires, even some of the foregoing in other aspects, thought of in
terms of social life and generalized as claims of the social group. They are the claims
which are involved in the maintenance, the activity and the functioning of society; the
wider demands or desires asserted in title of social life and looked at from the standpoint
of social life in civilized society.

Every claim does not necessarily go once and for all in one of these categories
exclusively. The same claim may be asserted in different titles and may have to
be looked at from different standpoints. It may be asserted in title of more than
one aspect of life. Thus my claim to my watch may be asserted as an individual
interest of substance when I sue some one who walks off with it without my
consent, either to recover possession of it or to obtain its money value as
damages for depriving me of it. But my claim may be looked at also as

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 subsumed under a social interest in the security of acquisitions and may be
asserted as such when I, by making due complaint, procure the public prosecutor
to prosecute for larceny some one who has stolen it from me.

Our first step, then, in considering the scope and subject matter of a system of law is to
take a reasoned inventory of the claims or demands or desires which are or have been
made which press or have pressed for recognition. But these are so many and so varied
that we must classify them in order to understand them. I take them up, therefore,
according to the threefold classification just indicated, classifying them further under
each head.”51

1. The Kinds of Interests

a. Individual Interests

The classification of individual interests may be done as follows:

“Individual interests may be classified as (a) interests of personality, the claims or

demands involved in the individual physical and spiritual existence; (b) domestic
interests, the claims or demands involved in what has been called ‘the expanded
individual life’; and (c) interests of substance, the claims or demands involved in the
individual economic life.”52

i. Interests of personality

The interests of personality may in turn be classified thusly:

“What then are the claims or demands which the individual makes or may make which
jurist and lawmaker must consider and provide for? One might seek to ascertain them
logically by inquiring what claims, demands, desires are logically presupposed by or
involved in the individual existence in civilized society. He might seek to formulate the
jural postulates of the civilization of the time and place as a measure of interests to be
recognized and secured. Or he might seek to ascertain them psychologically by
considering the so-called instincts or fundamental behavior tendencies of men and the
claims, demands, desires which they involve. Or he might attempt no more than to
catalogue and classify the claims, demands, desires which they involve. Or he might
attempt no more than to catalogue and classify the claims, demands, desires, which he
finds men actually asserting; the claims that have pressed or are pressing for recognition.
What I seek to do is to generalize the claims or demands which the law, past or present,
has had to take account of or has been seeking to secure and those which may be seen
pressing for recognition or for more complete recognition in the immediate present. It is
convenient to take them up under five heads: (1) The physical person, (2) freedom of the
will, (3) honor and reputation, (4) privacy and sensibilities, and (5) belief and opinion.

(1) The physical person. Inviolability of the physical person is universally put first
among the demands made by the individual. This interest, called by Paulsen the interest
in body and life, includes the so-called rights of physical integrity and of personal liberty
(or as Spencer calls free motion and locomotion) better called the right of free choice of

51
Id., pp. 21-24.
52
Id., p. 28.

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location. The latter has to do both with integrity of the physical person and with freedom
of the individual will. Passing for the moment consideration of the limits within which
this interest must be kept when recognized by the law, three questions arise: (1) What is
the extent of the interest as an individual interest; that is, what, as indicated by
experience, do individuals demand in this connection which, therefore, is to have a place
in the scheme of recognized interests? (2) How far has the interest been recognized by
developed systems in the past and how has legal recognition of this interest developed?
(3) How far is this interest secured by law today?

As to extent, the first and most obvious claim is to immunity of the body from direct or
indirect injury. Second and closely related is the preservation and furtherance of bodily
health. These have long been recognized. Two more have become important with the
progress of civilization, namely, immunity of the mind and the nervous system from
direct or indirect injury and the preservation and furtherance of mental health, that is,
freedom from annoyance which interferes with mental poise and comfort. Perhaps it
might be objected that there is no warrant for thus distinguishing mental health and the
security of the nervous system from bodily health and the security of bone and muscle.
But history and certain practical considerations make it expedient to keep them apart.

Injuries to the body are among the first wrongs dealt with in the history of law. But they
are not thought of at first as infringements of an individual interest. They are thought of
as rather as involving, on the one hand, injury to the interest of a group of kindred, affront
to the kin whose kinsman is assailed, and on the other hand, injury to a social interest in
peace and order, in that a desire for vengeance is awakened and hence there is danger of
private vengeance and private war. It is not an individual interest which is regarded, but
a group interest. Hence at first the remedy (composition) is imposed to secure a social
interest in peace and order, not to vindicate an individual interest or private right. Often
in primitive law a composition is payable to the kindred not to dependents; it is exacted to
satisfy vengeance for an insult to the kindred, not to compensate for those who are
deprived of support. Thus at first the ideas are (1) a group interest against insult, and (2)
a social interest against disorder, rather than an individual interest in the physical person.
Out of these there evolves gradually the idea of an individual interest secured by an
individual right.

...

While an interest infringed by injury to the body is recognized at an early stage of legal
development, the law has been slow to take account of injury to the nervous system, of
mental injury, and injury to sensibilities in the absence of any physical injury.
Development at this point has halted partly because of practical limitations on the
enforcement of legal precepts and hence upon the securing of interests thereby, partly
because of the need of weighing other interests as to which difficult questions of balance
or of values appeared to be involved, and perhaps partly because the law grew up before
human nerves became so sensitive as they are today and rules became in a measure fixed
in a period of legal stability. Moreover, in the common-law system ideas of legal liability
had grown up around the actions of trespass and trespass on the case and so were
hampered in their development by the idea of trespass. Hence injury to the nervous
system, mental injury, and injury to sensibilities, where there was no physical impact
(ground of an action of trespass) or no injury to substance or to any relation, seemed to
involve difficulties beyond those growing out of all liability upon weighing of conflicting
and overlapping interests. For a time and to a great extent the question was treated as one

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of recoverable damages rather than as one of liability and was put as one of ‘the parasitic
element of damage.’

...

Where the injury is to mental comfort only, the practical difficulties are much greater.
Hence the law can recognize an ‘interest in the peace and comfort of one’s thoughts and
emotions’ only to a limited extent. An objective standard is required here by the social
interest in free individual action and the social interest in the general security as one
against imposture and use of the legal system to extort with which the social interest in
the individual life (under which the individual interest is to be subsumed for purposes of
comparison) must be weighed. Accordingly, the tendency of the law is to secure an
interest in mental comfort only to the extent of ordinary sensibilities of ordinary men, and
then only when the mental suffering is caused by and involved in the infringement of
some other interest. Here, again, the law does not secure the whole demand which the
individual may make, but it does secure the interest in case of ordinary sensibilities
against a wanton attack or where there is objective injury. Thus, no doubt, it secures the
interest in the general run of cases for the average man. No more may well be attempted
as the possibilities of proof are at present and in view of the applicability to such injuries
of the means of redress known to our law.

(2) Freedom of will. In one aspect the interest in freedom of the will is behind the legal
right of ‘free choice of location’ or, as the common-law authorities have called it, the
right of ‘personal liberty.’ Interference with this right involves a trespass upon the
physical person and calls for nothing in addition to what has been said above in that
connection. But overcoming another’s will may be achieved either by force or threat of
force applied to the physical person or by wrongful pressure applied to the will without
any aggression upon corporal integrity. Hence the claim to free exercise of the will, free
determination of what one will do and what transactions and relations he will enter into,
made as part of one’s personality, presses for recognition and security beyond and apart
from security of the body.

...

(3) Honor, reputation. What might be called inviolability of the spiritual person is of no
less importance than integrity of the physical person, although more difficult to secure
through law. Men will fight in defense of their honor no less than in defense of their
physical persons. Hence the most elementary of social interests, the interest in general
security, demands that the one individual interest be secured no less than the other, and
for much the same reasons. The exaggerated importance of individual honor in primitive
and in pioneer society illustrates this. In a condition of feeble law, adequate securing of
this interest, which is difficult to secure through law under any circumstances, is quite
impossible, and the insistence of the individual on protecting and vindicating it for
himself becomes a serious menace to the peace and order of society.

In determining the nature and extent of the individual interest in honor it is important to
distinguish this interest from the individual interest in reputation as a part of one’s
substance or, in other words, as an asset. Lord Holt, in an action for malicious
prosecution, said that one might maintain such an action for any of three sorts of damage:
(1) ‘damage to the fame [i.e. reputation], if the matter whereby he is accused be
scandalous;’ (2) injury to his person by imprisonment; and (3) injury to his property by

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putting him to cost and expense unlawfully. The second is obviously an infringement of
an interest of personality. The first may involve personality or substance or both. . . .

...

(4) Privacy. Another phase of the individual interest of personality is the demand made
by the individual that his personal private affairs shall not be laid bare to the world and
discussed by strangers. Such an interest is the basis of the disputed legal right of privacy.
It is a modern demand growing out of the conditions of life in the crowded communities
of today, and presents difficult problems. The interest is clear. Such publicity with
respect to private matters of purely personal concern is an injury to personality. It
impairs the mental peace and comfort of the individual and may produce suffering much
more acute than that produced by a mere bodily injury. But as the injury is mental and
subjective, the difficulties already considered must, at least, confine legal securing of the
interest to ordinary sensibilities. Here, as in many other cases, in a weighing of interests
the over-sensitive must give way. For over and above the difficulties in mode of proof
and in applying legal redress (since injunction is the only effective remedy) social
interests in free speech and dissemination of news have also to be considered. On such
grounds a legal right of privacy which fully secures this interest has not been recognized
anywhere. For the most part, the interest has been secured incidentally, as it were, by
taking account of infringement thereof as an element of damage where well recognized
legal rights have also been violated. But while the law has been slow in recognizing this
interest as something to be secured in and of itself, the aggressions of a type of
unscrupulous journalism, invasions of privacy by reporters in competition for a ‘story,’
the activities of photographers, and the temptation to advertisers to sacrifice private
feelings to their individual gain, call upon the law to do more in the attempt to secure this
interest than merely take incidental account of infringements of it. Of late it has been
getting increased protection both by legislation and by judicial decision.

Another interest, closely connected, is one in religious sensibilities, not to have them
needlessly affronted or wounded. The social interest in the general morals is also
involved here and it is usually secured by prosecution to vindicate the social interest. In a
striking case where the claim was that the plaintiffs, who were Mohammedans were
wrongfully deprived of ‘the religious or sentimental gratification’ of carrying tabuts
(representations of the shrine of Husain) along a road, a civil action was denied.

A man’s feelings are as much a part of his personality as his limbs. The actions that
protect the latter from injury may well be made to protect the former by the ordinary
process of legal growth. The problems are rather to devise suitable redress and to limit
the right in view of other interests involved.

Extent of protection of the interest in body and life and related interests. The interest in
body and life is not only the first to receive the protection of the law, but it is, on the
whole, the interest with respect to which individual demands are the most insistent and
the social interest under which they may be subsumed is the most obvious. Yet the law,
as has been seen, does not cover the whole field of this interest. It does not secure all the
demands with respect to physical and mental integrity which the individual may make.
The reasons are of two kinds. On the one hand they are historical, growing out of the
mode in which the law on this subject has developed, and in particular out of the
procedure and the remedies worked out to give it effect. For example, the hesitation of
the common-law courts as to immunity of the mind and the nervous system from injury

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 was largely due to the exigencies of our mode of trial by jury and our remedy for
damages. Some development of such a remedy as that afforded by the action for
honorable amends in the civil law and resort to specific relief where possible, as is done
in Continental Europe, would enable the legal system to extend the scope of its protection
of this interest. But the most effective remedy in this connection is prevention. The
backwardness of preventive justice in American law has been a grave defect. In
connection with interests of personality, where redress by way of damages is often
obviously inadequate, the long continued hesitation of our law to apply preventive
remedies was unfortunate and without just excuse. In the present generation much has
been gained in this respect. The old doctrine that equity would act only to protect
interests of substance has been given up. The reason for that doctrine was to be found
largely in the unsatisfactory mode of trial in equity which lasted in the federal courts till
1913 and was general until the last third of the nineteenth century.

...

(5) Belief and Opinion. As an individual interest, the claim of the individual to believe
what his own reason and conscience dictate and approve, and to express freely the
opinions involved in such belief is closely connected with the interest in body and life.
With good reason Spencer deduces it as a sort of free mental motion and locomotion.
But it must be looked at in connection with a social interest in free belief and free
expression of opinion as guaranteeing political efficiency and promoting general
progress, economic, political, and cultural. Except as interference with free belief and
free expression of opinion takes the form of interference with the physical person, the
subject is better treated from the standpoint of social interest. In our bills of rights,
however, individual free speech is always guaranteed as an individual natural right. In
other words, we have been accustomed to treat it from the standpoint of the individual
interest. Undoubtedly there is such an interest and there is the same social need of
securing it as of securing other interests of personality. The individual will fight for his
beliefs no less than for his life and limb and for his honor. Hence the social interest in the
general security is involved in interference with the former as well as in interference with
the two latter. Moreover, free exercise of one’s mental and spiritual faculties is a large
part of life. As civilization proceeds it may become the largest part. No one who is
restrained in this respect may be said to live a full moral and social life. Thus the social
interest in the moral and social life of the individual is also involved.” 53

ii. Domestic Relations

Secondly, there are the individual interests in domestic relations, which may be classified in turn.

“1. Nature of the Interests. It is important to distinguish the individual interests in

domestic relations from the social interest in the family and marriage as social
institutions. This social interest must play an important part in weighing it with the social
interest in the individual life to determine what individual interests in such relations are
to be secured and how they are to be secured. Yet its chief significance is not in
connection with securing interests in the domestic relations against the rest of the world
but rather in connection with conflicting interests of the parties to such relations among
themselves, the curtailments of normal legal capacity or even of normal legal rights
which the maintenance of these relations as social institutions may involve or may render

53
Id., pp. 30-64.

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expedient, and the recognition in whole or in part of the family as an economic entity
whose interests of substance ma require securing even at the expense of the individual
interests of substance of particular members.

In the present connection we have to do only with the individual interests of the
individual parties to domestic relations in the maintenance and integrity thereof and with
the securing of these interests both against the world at large and between the parties.
They are wider than the individual personality, they involve more than the individual
body and life, and yet they are intimately related thereto. Also they have an economic
side. But they are not wholly economic like the interests of substance. The relations
themselves are both personal and economic. Hence the individual interests in (demands
with respect to) these relations partly involve the individual personality, the feelings, the
affections, the honor of the individual, but also partly involve the individual substance so
far as the relations incidentally give individual economic advantages.

Accordingly, two elements must be taken into account in securing interests in domestic
relations. On the one hand, there is the individual spiritual existence. From the
beginning the social interest in the general security has required that the law secure
adequately this feature of these relations, since injuries to them touch men on their most
sensitive side, and no injuries are more certain to provoke self-redress and even private
war. With the development of civilization, the social interest in individual life, the claim
of the individual to a social existence as a human being, reinforces this requirement. On
the other hand, there is the individual economic existence in which the purely economic
side of such relations may be of great importance. Here, sometimes, along with the social
interest in the individual life, the social interest in the relations as social institutions may
require careful securing of the purely economic advantages. An example may be seen in
legal provisions for support of dependent wives and children. At other times the social
interest in the individual life may demand that the individual economic advantages of one
of the parties to the relation be less regarded. For example, in a weighing of marital
interests with the individual interests of the wife, it may be expedient to leave the purely
economic claim of the husband unsecured as against the wife or secured but partially.

2. Development of Securing Individual Interests in Domestic Relations. Individual

interests in the domestic relations require to be secured in two aspects. On the one hand,
they must be secured as between the parties thereto. On the other hand, they are to be
secured as against the rest of the world. As it is commonly put, the law has to give effect
to the right of one party to the relation against the other and enforce the corresponding
duty toward the former, and also to give effect to the right of each against the whole
world not to have the relation interfered by outsiders. The law has never attempted to
deal fully with the first of these tasks. Religion, boni mores, and the internal discipline of
the household have largely sufficed to secure the interests of the members of the
household among themselves, and little has been needed beyond legal recognition and
limitation of domestic discipline. The other task, on the contrary, has called forth a great
deal of law. Here, as elsewhere, individual interests have been developed from group
interests. But a further development has been required, namely, a development of
individual interests of dependent members of the household, not only as against the world
at large but also as against the husband or parent.

3. Interests of Parent and Child. There are four types of individual interests in the
domestic relations which the law is called upon to secure. These are: (1) Interests of
parents, demands which the individual may make growing out of the parental relation; (2)

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interests of children, demands which the individual may make growing out of the parental
relation; (3) interests of husbands, demands which the individual husband may make
growing out of the marital relation; and (4) interests of wives, demands which the
individual wife may make growing out of the marriage relation. Wigmore, in the best
analytical discussion of the subject which has appeared, states the interests of parents as
against the world at large thus:

‘A parent has an interest in his relation with his child. The elements of the
interest are three: (1) The industrial services received from the child; (2) the
social pleasure ministered by the child; (3) the chastity of a female child, as
ministering to the parent’s sentiments of family, self-respect and honor.’

Restating these to conform to the order in which other interests have been stated, we may
say that the parent has three interests which require securing against the world at large.
(1) The first, as parents may urge it, should perhaps be put more broadly than Wigmore
needed to state it for the purposes of the law of torts. Parents may and do claim not
merely the society of their children as ministering a social pleasure, but the custody and
control of them, especially while they are of tender years, and the authority to dictate
their training, prescribe their education, and form their religious opinions. All these
things are claimed, as it were, as a part of the person’s personality. (2) The chastity of a
female child, also, is intimately connected with the honor of the family and the self-
respect and mental comfort of the parent that the interest in maintaining it is asserted as a
phase of the parent’s interest of personality. (3) The remaining claim, the claim to the
services of the child, is an interest of substance, and as a purely economic claim does not
differ from the interest in other economically advantageous relations. As between parent
and child immediately the parent may claim obedience and respect as matters related to
his personality, and, as interests of substance, service for the profit of the household and,
in case the parent is infirm and indigent, support from a child of age, capacity, and
sufficient means.

...

Turning to the claims of the parent against the child, legal security is given to the interest
in respect and obedience, as far as such interests admit of effective securing through law,
by the internal discipline of the household backed up by the legal privilege of ‘moderate
correction.’ Today this is reinforced to some extent by the powers of juvenile courts with
respect to truancy and incorrigibility. The claim of the parent to the services of the child
for the profit of the household is secured in the same way and also by the legal right of
the parent, as between parent and child, to the latter’s earnings. But legal recognition of
this interest is much restricted today in view of the social interests which are secured by
legislation as to child labor. On the other hand, the interest of the indigent parent in
support by a child of age, capacity, and sufficient means, an interest which is reinforced
by the moral sentiment of mankind and by the social interest in the individual life, was
not recognized by the strict law.

...

As against the world at large a child has an interest in the relation because of the support
he may expect by virtue thereof while an infant or, after majority, because circumstances
precluding self-support render it improper or impossible for him to be left to himself.
Also he has an interest in the society and affection of his parent, at least while he remains

389
in the household. But the law has done little to secure those interests. At common law
there were no legal rights securing them. In case the parent is killed through the
wrongful act of another, the legislation which goes by the name of Lord Campbell’s Act
usually takes account directly of the interest of the independent children. Also in many
jurisdictions the ‘civil damage acts,’ which create liability for sale of intoxicating liquor
to a parent whereby through intoxication the parent is killed or disabled or rendered
incompetent to provide, secure immediately the interest of the child in the relation which
involves support and protection.

As against the parent, the child may claim: (1) Support during infancy; (2) education and
training so far as the situation of the parent permits, and (3) in case of indigent children of
nature years who are unable to support themselves, maintenance at least so far as the
parent can afford. The first two, however, are not secured directly by our law, and derive
their effective support almost entirely from morals. There has been legislation permitting
an action by the child against the parent to enforce a statutory duty of support. But the
courts have refused equitable enforcement at suit of the child where there is no more than
the statutory duty. The statutes are considered to secure a social rather than an individual
interest and the social interest is weighed with the social interest in the security of
domestic institutions. This construction of the statutes is clear as to legislation making
desertion of wife and child a crime or providing for compulsory education. In Roman
law and in the civil-law world the third interest is secured by the doctrines as to
reciprocal duties of support of ascendants and descendants heretofore considered.

...

4. Marital Interests. As against the world at large, the claims which the husband may
assert with respect to the marital relation are four. (1) He has an interest in the society of
his wife which may be infringed by abducting her, by enticing her away, or by so injuring
her as to deprive the husband of her companionship. While this interest is not entirely
separable from that in the economic advantage in the relation, it is, on the whole, more
nearly an interest of personality. (2) He has an interest in the affection of the wife which
may be infringed by persuasion or pressure addressed to her mind and will. This interest
also is intimately connected with his spiritual existence and mental comfort as to be in
effect an interest of personality. (3) He has an interest in the chastity of the wife, which
is so related to his feelings of self-respect and to his honor as to be in effect an interest of
personality. (4) He has an interest in the services of the wife in the household. Perhaps it
would be better to call this an interest in the relation as economically advantageous.
Obviously it is in effect an interest of substance. All four of these interests are secured at
common law by legal rights redressed by an action on the case. The first and fourth are
not very clearly differentiated. In either event the deprivation of the wife’s services is
often spoken of as the significant thing. Yet in an old case the judges spoke of the action
as brought ‘for the loss and damage of the husband for want of her company and aid.’
And although under modern statutes the wife’s time and earnings may be her own and
there may be no valuable right to her services, the husband may maintain an action for an
injury to the wife which deprives him of her companionship. In effect, therefore, the
action may be for loss of consortium without any loss of service. It is clear also that there
is at common law a cause action where the wife’s affections are alienated without more,
and in this action for alienation of affections and even more in the action for criminal
conversation with the plaintiff’s wife, which secures the husband’s interest in the chastity
of the wife, the essential point is the injury to honor and ‘domestic comfort’ of the
husband. So far, then, as interest that have to do with personality may be protected

390
through actions for money damages, the common law covers the whole field of the
husband’s interests in this relation. The defect of specific and preventive remedies
already noted in the case of interests of personality, obtains here also. But there is more
excuse in the present connection in that anything in the nature of specific relief would be
futile in the general run of cases and usually preventive relief would be impossible. It is
seldom that danger of injury to this relation is apprehended before the injury is complete
and the acts which threaten injury are likely to be too subtle and intangible to permit of
judicial interference in advance.

...

As against the wife, the first interest of the husband is a claim to the wife’s society. The
claim used to be put more strongly as one to a certain degree of custody and control of
the wife’s person and to obedience. But it can hardly be put in this way today except
where older ideas of the subjection of women still linger, and if a stronger claim were
asserted, the individual interests of the wife and the social interest in her individual moral
and social life should be deemed decisive. Formerly our legal system secured the interest
of in the wife’s society in three ways, namely, by a marital privilege of restraint and
correction, by a suit for restitution of conjugal rights, and by the writ of habeas corpus
directed to one who harbored the wife apart from the husband. But the privilege of
restraint and correction is no longer recognized, the suit for restitution and correction is
no longer recognized, the suit for restitution of conjugal rights, an ecclesiastical
proceeding for the correction of morals, is obsolete, and the writ of habeas corpus can be
used only when the wife is detained from the husband against her will. Thus the writ of
habeas corpus now operates chiefly to secure her interest and is available to secure the
interest of the husband only when his interest and hers happens to coincide. Today the
husband’s interest in the wife’s society has no security beyond morals and the opinion of
the community.

...

A second interest of the husband as against the wife is a claim to the services of his wife
for the benefit of the household. Formerly a wider claim was asserted to the wife’s
services generally. It may be assumed, however, that no such claim would be advanced
today and it is clear that today the law nowhere recognizes so wide an interest. At
common law the interest was secured by the privilege of marital correction already
considered and by a legal right to the wife’s earnings. The Roman law of the classical
period, as has been seen, did not secure the husband’s interests as against the wife. In the
Middle Ages the Germanic law brought a large measure of marital control back into the
law of Continental Europe which has only just disappeared. In France, the law of 13 July
1907 has given the wife control over her earnings. Likewise the German Civil Code of
1900 makes the wife’s earnings ‘privileged property,’ exempt from the control of the
husband.

A third interest may be suggested, not unlike the claim of ascendants and descendants to
support, namely, a claim of an infirm and indigent husband to support from a wife of
means and ability. It need not be said that no such interest is recognized at common law.
Modern legislation, moreover, in taking away from the husband all control over the
wife’s property and earnings and committing it solely to the wife, has preserved the duty
of the husband to support the wife, even if she has property and he has none, without in
most cases recognizing any corresponding claim against her.

391
...

A wife may assert against the world at large four claims growing out of the marital
relation. (1) She has an interest in the society of her husband, quite apart from an
economic advantage, as something so related to her spiritual existence as to be in effect
an interest of personality. (2) She has an interest in the affection of the husband, in all
respects analogous to the interest of the husband in the affection of the wife, which is
clearly an interest in personality. (3) She has an interest in the chastity and constancy of
the husband, involving her self-respect and honor, and hence obviously an interest of
personality. (4) She has an interest in the relation as an economically advantageous
relation, providing her with support and shelter, which is manifestly an interest in
substance. These interests, however, are not all of them recognized to their full extent
and are not fully secured even in legal theory. As in the case of interests of the husband,
the first and fourth are often closely connected in practice and have not been well
differentiated. The clearest recognition is to be seen in cases where the husband is
enticed or induced to abandon the wife or divert his earnings which should be devoted to
her support. Where these interests are infringed by physical injury to the husband or by
abduction of the husband, a difficulty arises in that the husband has an action in which he
may recover for diminution of his earning power, loss of earnings, and impairment of his
ability to support those dependent upon him. The same question arises in case of like
interests of children. The reason for not securing the interest of wife or child in these
cases seems to be that our modes of trial are such and our mode of assessment of
damages by the verdict of a jury is necessarily so crude that if husband and wife were
each allowed to sue, instead of each recovering an exact reparation, each would be pretty
sure to recover what would repair the injury to both. Moreover, the injury to wife or
child is very hard to measure in money. Hence on a practical weighing of interests the
wife is usually denied an action.

...

The second interest (and first when involved along with it) is protected by an action for
alienating the husband’s affections or for criminal conversation with the husband,
recognized by the overwhelming preponderance of American authority. At first the third
interest was at most but partially and only indirectly secured. An action based solely
upon his interest was denied. It is only in very recent times that views as to the relation
of the sexes have made such an interest in the wife notable. Recovery of damages might
be had, however, incidentally in an action based on the second or fourth. An action by
the wife against another woman for criminal conversation was allowed in New York in
1923. Perhaps it need not be said that the observations with respect to the difficulties
involved in practical securing of the corresponding interests of the husband apply here
also.

...

As against the husband, the claims of the wife growing out of the marital relation are two:
(1) A claim to the society and affection of the husband, and (2) a claim to support. As to
the first, it need not be said that no legal sanctions can control human affections. The
interest in society of the husband was formerly secured by a suit of the restitution of
conjugal rights. But this has everywhere become obsolete or has lost its efficacy for
reasons considered in connection with the corresponding interest of the husband. On the

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 other hand, the interest in support is fully recognized and thoroughly secured by
proceedings in equity for maintenance, by the legal doctrine that the husband’s credit is
pledged for necessaries to the wife, so that if he fails in his duty any one may provide
them and hold the husband therefore, by orders of support under modern statutes,
especially in domestic relations courts in the United States and in summary proceedings
before magistrates of England, and by criminal prosecutions for non-support which,
however, primarily secure a social interest. Moreover, as the Married Woman’s Acts,
giving the wife full control of her separate property do not affect the common-law duty of
the husband to support his wife, a wife who has supported herself out of her earnings can
sue her husband for restitution.

Reviewing the whole subject of individual interest in domestic relations, it will be seen
that on the surface the interests of the parent and of the husband have been more
completely secured than those of the wife and the child. But under modern legislation
and in view of the course of modern decision the difference is often more superficial than
substantial. Quite apart from historical survivals, three difficulties are involved in the
attempt to secure those interests, which will account for most of the logical anomalies in
the legal systems on this point. In the first place, the interests which have to be weighed
with them are more numerous and important than in other cases. There is not only the
individual interest of the other party to the relation, but in more primitive social
conditions there is the group interest of the family or kindred, and in modern social
conditions there are the social interests in the family as a social institution, in the
protection of dependent persons, and in the rearing and training of sound and well bred
citizens for the future. Again serious infringements of the individual interests in the
domestic relations, such as tale-bearing and intrigue, are often too intangible to be
reached by legal machinery. In some types of case attempt to secure the interest against
the world at large involves too much interference with individual liberty. Finally, in so
far as these interests are in effect interests of personality, they are so peculiarly related to
the mental and spiritual life of the individual as to involve in the highest degree the
difficulties incident to all legal reparation or prevention of injuries to the person.” 54

iii. Substance

Next are the individual interests of substance, which concern economic life.

“1. NATURE AND CLASSIFICATION. Having considered (first) individual claims

with respect to one’s personality, physical and spiritual, and (second) individual claims
with respect to the family relation, we come (third) to individual claims asserted in title of
economic life—interests of substance. The economic life of the individual in society, as
we know it, involves four kinds of claims. Under one head come claims to the control of
corporeal things, the natural media on which human existence depends—claims to
property in the narrower sense. A second head includes claims to freedom of industry
and contract; liberty to engage in enterprises, take up callings, and undertake
employment, and to make and enforce bargains. A second head includes claims to
freedom of industry and contract; liberty to engage in enterprises, taking up callings, and
undertake employment, and to make and enforce bargains. The liberty is claimed as an
individual asset, apart from the free exercise of one’s natural faculties as a phase of
personality, since in a highly organized economic society the general existence may
depend to a large extent upon individual labor in specialized occupations and so the

54
Id., pp. 68-101.

393
power to labor freely at one’s chosen occupation may be his chief asset. Yet this power
is very closely related to personality, as shown, this power is very closely related to
personality, as shown, for example, by the difficulties encountered by equity in
enforcement of contracts of personal service. The power of working for reward may
involve infringement of liberty if treated as property. Thus this interest raises different
questions from those raised by the claim to control corporeal things. For example, even
if all corporeal things were excluded from individual control and held to be exclusively,
as it were, social assets, there would remain a question whether all individual control over
individual productive activity should be excluded and all individual potential labor
should be treated as no more than a social asset. Third, there are claims to promised
advantages; to promised performances of pecuniary value, since in a complex economic
order, with minute division of labor and enterprises extending over long periods, credit
more and more replaces corporeal things as the medium of exchange and agency of
commercial activity, and becomes an increasingly important form of wealth. Promised
advantages are commonly called incorporeal property. Fourth, there are claims to be
secured against interference by outsiders with economically advantageous relations with
others, whether contractual, social, business, official, or domestic. Not only do relations
which have an economic value involve claims against the other party to the relation,
which one may demand that the law secure, but they also involve claims against the
world at large that these advantageous relations, which form an important part of the
substance of the individual, shall not be interfered with. Legal recognition of these four
types of individual claims, securing of individual interests of substance, is at the
foundation of our economic organization of society.

In civilized society men must be able to assume that they may control for purposes
beneficial to themselves what they have discovered and appropriated to their own use,
what they have created by their own labor, and what they have acquired under the
existing social and economic order. This is a jural postulate of civilized society as we
know it. The law of property in the widest sense, including incorporeal property and the
growing doctrines as to protection of economically advantageous relations, gives effect to
the social want or demand formulated in this postulate. So also (although proceeding on
another postulate) does the law of contract in an economic order based on credit. A
social interest in the security of acquisitions and a social interest in the security of
transactions are forms of the interest in the general security which give the law most to
do. The general safety, peace and order, and the general health are secured for the most
part by police and administrative agencies. Property and contract, security of acquisitions
and security of transactions, are the domain in which law in the second sense is most
effective and is chiefly invoked. Hence property and contract are the two subjects about
which philosophy of law has had the most to say.

2. PROPERTY. We begin with the claims of the individual to control what he discovers
and reduces to his power, what he creates by his own labor, physical or mental, and what
he acquires under the prevailing social, economic, or legal system by exchange, purchase,
gift, or succession. The first or second have always been spoken of as giving a ‘natural’
title to property. Thus the Romans spoke of them as modes of ‘natural acquisition’ by
occupation, or by specification, that is, making a species—creation. Indeed, taking
possession of what one discovers is so in accord with a fundamental human behavior
tendency that discovery and occupation have stood in the books ever since substantially
as the Romans stated them. A striking example of the extent to which this doctrine
responds to deep-seated human tendencies is afforded by the customs as to discovery of
minerals upon the public domain upon which American mining law is founded and by the

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custom of the whale fishery as to fast-fish and loose-fish which were given effect by the
courts. But there is a difficulty in the case of creation or specification in that, except
where the creature is mental only, materials must be used, and the materials or tools
employed may be another’s or the time may have been let to another. Hence Grotius
reduced creation by labor to occupation, since if one made from what he had discovered
the materials were his by occupation, and, if not, the title of the other to the materials was
decisive. In modern times the claim of one who creates by labor has been urged once
more by a long line of writers beginning with Locke and culminating in the socialist
writers of the nineteenth century. The Romans spoke of what one acquired under the
prevailing social, economic, or legal system as held by ‘civil’ acquisition, and the precept
suum cuique tribuere secured the thing so acquired as one’s own.

...

Theories by which men have sought to give a rational account of private property as a
social and legal institution may be arranged conveniently in six principal groups, each
including many forms. These groups may be called : (1) Natural-law theories, (2)
metaphysical theories, (3) historical theories, (4) psychological theories, (5) positivist
theories, and (6) sociological theories. On closer analysis, they disclose two types. The
one type, the first four of the groups just enumerated, seeks an absolute, universal
justification for property as a necessary, universal institution. The other type, including
the two groups just named, seek only a relative foundation for property as an institution
of time and place.

...

To summarize, we now have in legal systems:

(1) Custody (natural possession)—a conception of pure fact, not in any degree dependent
upon law. The law secures the physical person of the one who has custody, not the
relation to the thing.

(2) Possession (juristic possession)—a conception of fact and law, existing as a pure
relation of fact independent of legal origin but protected and maintained by law.

(3) Ownership—a purely legal conception, having its origin in and depending on the law.
Who is in possession is chiefly a question of fact. Who is owner (certain facts being
ascertained) is purely a question of law.

(4) Iura in re aliena, limited real rights—rights of definite persons, of a limited and
defined nature with respect to property which usually is owned by others but in which,
according to recent codes and to some extent in our law, they may have for the time being
other proprietary rights also.

In general, historical development of the law of property follows the line thus indicated
by analysis. In the most primitive social control, nothing more than natural possession is
recognized, and interference with natural possession is not distinguished from
interference with the person or injury to the honor of the person whose physical contact
with the physical object is meddled with. In the earlier legal social control the all
important thing in the development of proprietary rights is seisin or possession, that is,
actual enjoyment of an object claiming to control it as one’s own. This is analytically a

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juristic possession, a conception of both fact and of law, but primarily a bare relation of
fact, independent of legal origin. Such things in the common law as our treating one in
adverse possession as an owner in fee against all the world but the true owner, and
tortious conveyance by the person seised are common in an early stage of legal
development. They show that the law secured primarily the relation to an object of one
who had possession and protection of possession by interdicts is later than dominium.
But there is evidence of an older idea analogous to seisin out of which dominium is
developed. The ideal of dominium or ownership as we now understand it was first
worked out thoroughly in Roman law and modern legal systems got their own conception
of it, as distinguished from seisin, from the Roman books.

...

Succession and testamentary disposition. Closely connected with the so-called natural
right of property are the so-called natural rights of succession to property and of
testamentary disposition. One American state court asserted that the ‘right to take
property by inheritance or by will is a natural right protected by the Constitution which
cannot be wholly taken away or substantially impaired by the legislature. More usually
the natural right is put as a right to dispose of one’s property by will. That idea has been
much urged by nineteenth-century writers on the philosophy of law. Most of them have
recognized a right of free gift and bequest and have deduced it from the very idea of
property. Let us look first at the supposed natural right of succession or natural right of
inheritance.

...

3. FREEDOM OF INDUSTRY AND CONTRACT. Logically the interest here seems

one of personality. It seems a phase of the so-called natural right of personal liberty or of
a broader claim including Spencer’s right of free contract and of free industry, referable
ultimately to the social interests of the individual life.
But in a crowded world and highly specialized age, one’s ability to do a specialized form
of work or his ability to do such work as may be at hand to be done may be his chief or
his only means of subsistence or of acquisition. Hence in nineteenth-century natural law,
particularly in America, a natural right to pursue any lawful calling and to contract freely
for the letting of one’s own services and for hiring the services of others, came to be
insisted on very strongly. In American constitutional law these appeared in the
application of the Fourteenth Amendment as (1) a right (i.e. liberty) to follow the lawful
calling, and (2) a right (i.e. liberty) of free contract. Both came to be held property rights,
i.e. interests of substance, as well as rights of liberty, i.e. interests of personality.

We must concede that there are such individual interests in following any rightful (i.e. not
socially objectionable) calling in which the individual may secure a competence and in
freedom to make such bargains as he may. They are his claim to free exercise of his
faculties looked at from an economic standpoint. But there are very important social
interests to be taken into account with each of these. The first, the right to pursue a
lawful calling, was often asserted in an extreme form, and it was carried so far in some
jurisdictions as to suggest throwing down all bars to the learned professions and inviting
every one to experiment and try his hand freely to see what he could accomplish at the
expense of the public. In the New York cases of the last century, freedom to pursue a
calling was secured even to the extent of serviously interfering with sanitary laws in
cities. In the same way, liberty of contract as a natural right was carried to an extreme by

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American courts in the last quarter of the nineteenth century. However, between 1906
and 1916 an entire change of opinion took place with respect to the importance of these
rights. It was seen that the social interest in the general security was to be maintained by
supervision of the professions and of callings which have special social importance and
that other aspects of the social interest in the individual life are to be secured by
limitations upon the contracts which the individual may make.

...

4. PROMISED ADVANTAGES. In a developed economic order the claim to promised

advantages is one of the most important of the individual interests that press for
recognition. If it is a task of the legal order to secure reasonable individual expectations
so far as they may be harmonized with the least friction and waste, in an economic order
those arising from promises have a chief place. Credit is a principal form of wealth. It is
a presupposition of the whole economic order that promises will be kept. Indeed the
matter goes deeper. The social order rests upon stability and predictability of conduct, of
which keeping promises is a large item. From the Greek philosophers of social control
who recognized this stability and predictability if conduct as fundamental the morally
binding force of a promise has been a starting point in systems of ideal or natural law. As
Strykius put it, in arguing as to the basis of politically organized society, “Agreements are
to be kept . . . this maxim has proceeded from the mouth of God, and for that reason God
is bound by a pact, and the devil and the prince, and there is no greater justice than to
observe pacts.’ But the law has been slow in coming toward this demand of the
economic order, and Anglo-American law has not yet fully secured individual interests in
promised advantages to the extent of the jural postulate of the economic order. The
reason is historical. Moreover, philosophical discussion has been largely influenced by
the condition of the law as determined by history and hence has been directed more to
justification of fallings short of what the jural postulate calls for or what a weighing of
the interest with reference to conflicting or overlapping interests demands.

What is the extent of this interest? What may the individual demand in this respect? In a
commercial age wealth is largely made up of promises. A very important part of one’s
substance is made up of advantages which others have promised to provide or render
him; of claims which he may make not against the world at large but against particular
individuals to have the advantages promised him. Thus, applying the method I have
sought to use in other connections, the individual claims to have secured to him the
performance of advantageous promises—the satisfaction of reasonable expectations
created by promises and agreements, and ought to be secured in this interest unless there
is some countervailing interest. This is further than jurists generally have gone. But their
philosophical views have been influenced by the historical jurisprudence of the last
century, by the law of the time and place and by the history of the law on this subject.

...

To repeat, then, it is submitted that from the standpoint of the interests to be taken into
account we have on the one hand (1) the individual interest of the promise to be secured
in the expectation created which has become part of his substance, and (2) the social
interest in the stability of promises as a social and economic institution—the social
interest in the security of transactions which is a phase of the social interest in the general
security. On the other hand, there are individual interests of personality of the promisor,
e.g. in case of specific enforcement of contracts for personal service of a confining nature

397
or under the supervision of the promise as to details, or where enforcement involves
interference with privacy or personal liberty, which are ultimately referable to the social
interest in the individual life. Also the social interest in the individual life must be taken
into account in cases of economic inequality, as in recent labor legislation, the social
interest in the general morals in certain agreements against public policy, and the social
interest in the general security where danger of fraud or imposition by false evidence has
to be guarded against. But restriction of enforcement of promises has grown much more
out of the history of the subject than out of a weighing of those interests.

The history of the law of contract shows a gradual progress toward recognizing the
interest, both individual and social, in the performance of promises merely as such. The
history of the law of contract has been largely a history of the development of the element
of securing promised advantages at the expense of the older ideas upon which only a few
types were given legal efficacy. This is not the place, however, for a complete sketch of
the history of contract. It will be enough to set forth what will indicate the origin and
persistence of the reluctance of legal systems to secure promised advantages to the full
extent to which fulfillment of reasonable expectations in view of other significant
interests would require.

...

5. ADVANTAGEOUS RELATIONS WITH OTHERS. Not only do various relations

which involve economic advantage raise demands against the other party to the relation
which he may claim the law should secure, but they also raise demands against every one
that these advantageous relations, which form an important part of the substance of the
individual shall not be interfered with. These relations, which the individual may claim
to be secured against interference by outsiders, may be: (a) domestic, (b) official, (c)
contractual, (d) business, (e) social. Domestic relations have been spoken of sufficiently
in another connection. As to official relations, at common law offices, ‘which are a right
to exercise a public or private employment and to take the fees and emoluments thereunto
belonging’ were incorporeal hereditaments. One could have an estate in an office in fee
or for life or for a term of years or at will except that offices of public trust could not be
granted for years since if so granted they might vest in executors or administrators. As to
an office held for life or in fee, the office holder was said to have a freehold and a grant
to another of an office of doing the same things and receiving the fees therefore was said
to be a disseisin. Hence the common law gave an action for depriving one wrongfully of
the profits or emoluments of public office. But strong interests, both social and public,
must be taken into account. The later cases have settled that this power of removal after
investigation may be given to executive officials or boards. The idea of property in a
public office must be at least much modified.

...

6. FREEDOM OF ASSOCIATION. Closely connected with the foregoing is the so-

called natural right of association, the interest of the individual in associating himself
with others in such undertakings, enterprises, and organizations for collective action as he
sees fit. Partly this is an interest of personality, a phase of his interest in personal liberty.
Largely today it is an interest of substance in that such associations have an economic
advantage and the power to enter into them and to be secured in membership in them is
economically valuable. But there are strong public and social interests to be weighed in
connection with this individual interest. First, there is often danger to the state, to the

398
personality of the political organization of society, in such associations. For this reason
the law has always been jealous of them. Second, the power of collective action is so
great that such associations, even when not politically active (as they tend to be or to
become) may have an anti-social operation in whole or in part. Probably nothing is more
difficult in modern legislation than to strike a proper balance in this connection. In order
to set up and maintain a legal order politically organized society had a long struggle with
kin-organizations and religious organizations. Hence the law began in an attitude of
hostility to all associations. The Roman law forbade any but certain trade guilds,
religious cults, charitable societies, and partnerships. In the common law there was long
a settled attitude of suspicion reflected in the doctrine that every corporation had a visitor
and in the doctrine as to conspiracy. Industrial development has led to stringent
legislative forbidding or regulation as to some types of organization (e.g. trusts and
cartels) and to increasing and today substantially complete liberality as to others (e.g.
trade unions) with no settled or wholly consistent theory of policy as to associations
generally.

...

7. CONTINUITY OF EMPLOYMENT. We are not concerned here with the claim,

much asserted of late, that it is the moral or political duty of the state to guarantee or
provide employment. What is to be considered under individual interests is the demand
that permanence and security in the relation of employer and employee be guaranteed to
the employee as against ‘unfair labor practices.’ In effect, there has long been a
continually more insistent claim of a vested right of an employee in his job. Employment
in industry has ceased to be a matter of an ordinary contract between employer and
employee. The National Labor Relations Act guarantees to employees ‘the right to self-
organization, to form, to join, or assist labor organizations, to bargain collectively,
through representatives of their own choosing, and to engage in concerted activities for
the purpose of collecting bargaining or other mutual aid and protection.’ It defines as
‘unfair labor practices’ (1) interference, restraint or coercion of employees in the exercise
of guaranteed rights, (2) dominating or interfering with the formation or administration of
any labor organization, (3) discrimination as to hire or tenure of employment or any term
or condition of employment to encourage or discourage membership in any labor
organization, (4) discharge of or discrimination against an employee for filing charges or
giving testimony under the act, and (5) refusal to bargain collectively with representatives
of the employees. Accordingly there is not, as at common law, an action for damages for
breach of contract in case of discharge without legitimate cause, nor is there an
employment at will, from which there could be a discharge at pleasure of the employer.
The employee can have the benefit of a fully protected collective agreement and on the
expiration of that agreement can require a new bargain, likewise fully protected, and is
secured as to tenure and against discrimination in that the employer may be ordered to
reinstate him with back pay. There has been like legislation in a number of states. As to
employees in industry, so far as within the purview of federal legislation, security of
tenure in employment is now well provided for. Security and opportunity in obtaining
employment where the relation has not therefore existed is provided for only to the extent
of making refusal to hire in order to discourage membership in a labor organization an
unfair labor practice. The further question of discrimination and unfair practices whereby
an individual is prevented from obtaining employment has been considered in another
connection. These are relatively newly urged interests. Recognition of them is very
recent and it is likely to be a long time before experience will have shown how to adjust

399
 them to other conflicting and overlapping interests and develop a just body of law
consistently fitting into the legal system as a whole.” 55

b. Public Interests.

The second kind of interests is public interests. They too may be classified.

Ҥ92. PUBLIC INTERESTS. A second great class of interests which a legal system has
to secure as it may is public interests, i.e. the claims asserted in title of a politically
organized society; as one might say for convenience, the claims of the state, the political
organization of society—as Bluntshli puts it, the politisch organisierte Volksperson.
Ultimately these come down to a social interest in the security of social institutions, of
which political institutions in the world of today have taken the first place. But the very
existence of a political organized society involves certain claims or demands which may
conveniently be thought of as those of the political organization as such; certain demands
involved in its existence and efficient functioning and de facto asserted by those who
wield political power under the organization. The law has long taken account of them as
such.

As we see them in our law, they may be classified thus:

1. Interests of the state as a juristic person.

(a) Personality—the integrity, freedom of action, honor or dignity of the state personally,
as we may regard it for juristic purposes.

i. Security of the political organization, recognized in Anglo-American legal systems by

the law as to treason and the doctrine that any lesser threat or injury to the organization is
at least a common law demeanor.

ii. Efficient functioning of the machinery of government, recognized and secured in the
common law as to misdemeanors.

iii. The dignity of the political organization of society, recognized and secured by certain
privileges which are considered below.

(b) Substance—claims of the politically organized society as a corporation to property

acquired and held for corporate purposes, as distinguished from social resources as to
which it exercises imperium rather than dominium; power of regulating the use rather
than leadership.

2. Interests of the state as guardian of social interests. What these social interests are
will be considered in another connection.

1. Interests of the state as a juristic person. No small part of international law is taken
up with the interests of states which international law should secure against infringement
of other states. Thus it has usually been said that the absolute or natural rights of states,
meaning the interests which it is held should be secured are: (1) The right of self-
preservation and independence. This is analogous to the so-called natural rights of

55
Id., pp. 101-235.

400
 physical integrity and personal liberty ascribed to the individual. It is analogous to an
individual interest in personality. (2) The right of exclusive legislation and jurisdiction
within its territory. This, too, is an interest of personality. It is an interest akin to the
interest of the individual in being allowed to manage his own affairs freely. Juristically,
it is secured as a liberty. Just as in private law we have to consider along with the liberty
of using (ius utendi) of an owner of property the like interests of other individuals,
subsume then under social interests, and endeavor to value and compare them, so in
international law we have to balance against this claim of a state to exclusive legislation
and jurisdiction within its own territory the interests of other nations and endeavor to
weigh and value them as those of the community of nations. This may at times justify
interference with the internal concerns of a state which, for example, fails to secure
adequately the lives or the property of foreigners. (3) Rights of equality and dignity and
rights of legation, of sending and receiving diplomatic representatives. The latter is
chiefly an interest in honor, and both are interests of personality. Although usually
treated separately they may well be put in one category. This was formerly of much
greater importance in international law than it is now, as shown by the stress upon it and
space devoted to it in older books. It should be compared with the stress upon honor in
the beginnings of private law. An ancient law for a long time looked at interests of
personality and interests of substance as matters of honor, so does international law even
largely today. It feebly developed political organization of society the task of the legal
order to keep the peace. Insult is the conspicuous cause of private desire for vengeance
and private war. Not only must the law deal vigorously with insult but it must be very
tender of the dignity of the individual wrongdoer in its method of bringing him before its
tribunals and inducing him to abide trial and judgment. Legal procedure was held back
for a long time by difficulties growing out of this, and the interest of dignity and honor of
the state makes like difficulties for international law. (4) There are said to be rights of
property. But this is not an interest of substance. Certain territory and the persons and
material objects within it are subjected to the territorial supremacy of the imperium of the
state. To think of this as property comes from the seventeenth century, the formative era
of international law, when states could be thought of in terms of absolute personal
sovereigns. But we are only concerned here with the interests of states recognized in
international law in that they show how the analogy of individual interests has been
applied to public interests.

...

2. Interests of the state as guardian of social interests strictly are not public interests.
The significant interests are the social interests looked directly as such. What these social
interests are will be considered fully in another place. Here we have only to see how
effect is given them through what may be called the guardianship of the state.

At common law, social interests were largely secured by the doctrine that the king was
parens patriae, father of his country. That is, he was the guardian of public and social
interests of all kinds and hence his courts of law and of equity had a general
superintendence of all matters where ‘public rights’ (i. e., social interests or public
interests) might be jeopardized.”56

...

56
Id., pp. 235-264.

401
c. Social interests

Finally, the third kind of interests is social interests.

“§ 93. SOCIAL INTERESTS.—1. THEORY AND CLASSIFICATION. Some years

ago one of the justices of the highest Court, dissenting from the judgment of that Court in
the Arizona Emplyers’ Liability Cases, told us that there was a ‘menace in the . . .
judgment to all rights, subjecting them unreservedly to conceptions of public policy.’
Undoubtedly, if certain legal rights were definitely established by the Constitution there
would be a menace to the general security if the Court which must ultimately interpret
and apply the provisions of that instrument were to suffer a state legislature to infringe
those legal rights on mere considerations of political expediency. But it was only the
ambiguity of the term ‘right,’ a word of many meanings, and want of clear understanding
of what our law has been seeking to achieve through the obscure conception of ‘public
policy’ that made it possible to think of the decision in question in such a way. The
‘rights’ of which Mr. Justice McKenna spoke were not legal rights in the same sense as
my legal right to the integrity of my physical person or my legal right of ownership in my
watch. They were individual expectations, individual claims, individual interests, which
it was felt ought to be secured through legal rights or through some other legal
machinery. In other words, there was a policy of securing them. The Fourth Amendment
did not set up these or any other individual interests as absolute legal rights. It imposed a
standard upon the legislator. It said to him that if he trenched upon these individual
interests as absolute legal rights. It imposed a standard upon the legislator. It said to him
that if he trenched upon these individual interests he must not do so arbitrarily. His
action must have some basis in reason. It is submitted that that basis must be the one
upon which the common law has always sought to proceed, the one implied of the very
term ‘due process of law,’ namely, a weighing or balancing of the various interests which
overlap or come in conflict and a rational reconciling or adjustment. Thus the public
policy of which Mr. Justice McKenna spoke is seen to be something at least on no lower
plane than the so-called rights. As the latter term refers to individual interests which we
feel ought to be secured by law, the former refers to social interests which we feel the law
ought to or which in fact the law does secure in delimiting individual interests and
establishing legal rights. There is a policy in the one case as much as in the other. The
body of the common law is made up of adjustments or compromises of conflicting
individual interests in which we turn to some social interest, frequently under the name of
public policy, to determine the limits of a reasonable adjustment.

In the common law we have been wont to speak of social interests under the name of
‘public policy.’ Thus when a great judge was called on to weigh certain claims with
reference to the social interest in the security of political institutions, he said that a ‘great
and overshadowing public policy’ forbade applying the law to the case one of the most
fundamental principles of the law. Again, when it seemed to a majority of the Supreme
Court of the United States that the validity of an acquisition from the Federal
Government ought to be put at rest as against a claim of fraud, although limitation did not
run against the Government, the Court spoke of the ‘policy’ behind the statute of
limitations and invoked the doctrine of election of remedies as expressing the same
policy. So, too, when a great teacher of law wished to say that another fundamental legal
doctrine was sometimes limited in its application because of the social interest in the
general security, he stated that ‘except in certain cases based on public policy’ the law of
today makes liability dependent upon fault. But this limitation of the application of
principles, of setting off of exceptions, on grounds of public policy, was felt to be

402
something abnormal. The classical expression of this feeling is the opinions of the judges
in Everton v. Lord Brownlow. Although the case was decided ultimately on the ground
of public policy, the remarks of the judges have colored all subsequent judicial thinking
on the subject. From the seventeenth century to the end of the nineteenth, juristic theory
sought to state all interests in terms of individual natural rights.

Questions of public policy came up in three forms: (1) in connection with the validity of
contracts or similar transactions; (2) in connection with the validity of conditions in
conveyances and testamentary gifts; (3) in connection with the validity of testamentary
dispositions. Thus different social interests were weighed against a policy in favor of
free contract (‘right’ of free contract) and a policy in favor of free disposition of property
which was taken to be involved in the security of acquisitions and to be a corollary of
individual interests of substance (rights of property). Accordingly, distrust of public
policy, grew out of a feeling that security of acquisitions and security of transactions
were paramount policies. For example: ‘which more than another public policy requires
it that men of full age and competent understanding shall have the utmost liberty of
contracting,

...

§ 94. SOCIAL INTERESTS—2. THE GENERAL SECURITY. In such a survey and

inventory, first place must be given to the social interest in the general security—the
claim or want or demand, asserted in social life in civilized society and through the social
group, to be secure against those forms of action and courses of conduct which threaten
its existence. Even if we accept Durkheim’s view that it is what shocks the general
conscience, not what threatens the general security, that is repressed, I suspect that the
general conscience reflects experience or superstition as to the general safety. A
common-law judge observed that there would be no safety for human life if it were to be
considered as law that drunkenness could be shown to negative the intent element of
crime where a drunk man kills while intoxicated though he would never do such a thing
when sober. It should be noted how the exigencies of the general security outweighed the
traditional theory of the criminal law.

This paramount of social interest takes many forms. In its simplest form it is an interest
in the general safety, long recognized in the legal order in the maxim that the safety of the
people is the highest law. It was recognized in American constitutional law in the
nineteenth century by putting the general safety along with the general health and general
morals in the ‘police power’ as a ground of reasonable restraint to which natural rights
must give way. In another form, quite as obvious today but not so apparent in the past,
before the nature and causes of disease were understood, it is an interest in the general
health. In another form, recognized from the very beginnings of law, it is an interest in
peace and public order. In an economically developed society it takes on two other
closely related forms, namely, a social interest in the security of acquisitions and a social
interest in the security of transactions. The two last came to be well understood in the
nineteenth century, in which they were more or less identified with individual interests of
substance and individual interests in freedom of contract. Yet a characteristic difference
between the law of the eighteenth century and the law of the nineteenth century brings
about their true nature. Eighteenth-century courts, taking a purely individualist view,
regarded the statute of limitations as something to be held down as much as possible and
to be evaded in every way. Lord Mansfield in particular, under the influence of natural-
law ideas and thinking of the statute only as an individual plea which enabled the

403
individual interest of a plaintiff to be deprived of legal security, sought out numerous
astute contrivances to get around its most obvious provisions. If one said, ‘I am ready to
account, but nothing is due you,’ if he made provision in his will for the payment of his
‘just debts,’ if his executors advertised, notifying those who had ‘just debts’ owing them
to present their claims, in these and like cases it was held there was an acknowledgment
sufficing to take a barred debt out of the statute. Modern courts came to see that there
was something more here than the individual interests of plaintiff and defendant. They
came to see that the basis of the statute was a social interest in the security of
acquisitions, which demands that titles shall not be insecure by being open to attack
indefinitely, and a social interest in the security of transactions which demands that the
transactions of the past shall not be subject to inquiry indefinitely, so as to unsettle credit
and disturb business and trade. If we compare the French rule, en tout cas de meuble
possession vaut titre with the Roman doctrine that no one can transfer a greater title than
he has, if we note the growth of the idea of negotiability in the law everywhere, and in
our law both by legislation and by judicial decision, we may see something of how far
recognition of the social interest in the security of transactions went in the maturity of
law.

Other examples of recognition of the security of transactions may be seen in the

presumption as to transactions of a corporation through its acting officers, the stress
which the courts put upon stare decisis in cases involving commercial law, and the
doctrine allowing only the sovereign to challenge ultra vires conveyances of
corporations. As to recognition of the social interest in the security of acquisitions, note
the insistence upon stare decisis where rules of property are involved. In such cases it is
better that the law be settled than it be settled right.

§95. SOCIAL INTERESTS—3. SECURITY OF SOCIAL INSTITUTIONS. Second,

we may put the social interest in the security of social institutions—the claim or want or
demand involved in life in civilized society that its fundamental institutions be secure
from those forms of action and courses of conduct which threaten their existence or
impair their efficient functioning. Looking at them in chronological order, this interest
appears in three forms.

The first is an interest in the security of domestic institutions, long recognized in the form
of a policy against acts affecting the security of domestic relations or in restraint of
marriage. Legislation intended to promote the family as a social institution has been
common. There is a policy against actions by members of the family against each other.
Today, although the law is becoming much relaxed, this social interest is still weighed
heavily against the individual claims of married persons in most divorce legislation. It
still weighs heavily against individual claims in the law as to illegitimate children. At
times this has been carried so far that great and numerous disabilities have attached to
such children lest recognition of their individual interests should weaken as a
fundamental institution. The movement to give independence to married women has had
collateral effects of impairing the security of this interest, and the balance is not easy to
make nor to maintain. The tendency to relax the rules which formerly obtained is
brought out in Russell v. Russell, in which two of the five law lords dissented as to the
application of the policy of ‘preservation of the sanctity of married life,’ and Fender v. St.
John Mildmay, in which again two of five law lords dissented as to the rule concerning
the validity of a promise of marriage before a divorce proceeding has been finally
determined. There are, however, recent cases which tend to uphold the policy formerly
well established.

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 ‘It is no doubt too soon to be sure even of the path which juristic thought of the
immediate future will follow. But increased weight given to the social interest in
the individual life in the concrete, instead of upon abstract liberty, seems to be
indicated. There is emphasis upon the concrete claims of concrete human beings.
. . . Family law, in which there must be a balance between the security of social
institutions and the individual life, is necessarily much affected by such a
change.’

In another part of the law, the social interest in the security of domestic institutions still
weigh heavily, in comparison, however, with general security. A wife is not to be held as
accessory after the fact for harboring a felon husband or helping him to escape. The
common law does not require a wife to choose between fidelity to the relation of husband
and wife and duty to the state. Also legislation as to mothers’ pensions proceeds at least
in large part upon this interest.

A second form is an interest in the security of religious institutions. In the beginning this
is closely connected with the general security. A chief point of origin of the criminal law,
of that part of the law by which social interests as such are directly and immediately
secured, is in religion. Sacrifice of the impious offender who has affronted the gods, and
exclusion from society of the impious offender whose presence threatens to bring upon
his fellows the wrath of the gods, are, in part at least, the originals of capital punishment
and of outlawry. Religious organization was long a stronger and more active agency of
social control than political organization. In the Anglo-Saxon laws the appeals or
exhortations addressed to the people as Christians are at least as important as the threats
addressed to them as subjects. One of the great English statutes of the thirteenth century
recites that Parliament had met to make laws ‘for the common Profit of the holy Church,
and of the Realm.’ It is only in relatively recent times that we have to think of as
blasphemy as involving no more than a social interest in general morals, of Sunday laws
only in terms of a social interest in the general health, of heresy as less dangerous socially
than radical views upon economics or politics, or preaching or teaching of atheism as
involved in a guaranteed liberty. Today what was formerly referred to this interest is
usually referred to the social interest in the general morals. Questions as to the interest in
the security of religious institutions have been debated in all lands.

In a third form the interest is one in the security of political institutions. This interest has
weighed heavily in much twentieth-century legislation too familiar to require more than
attention. When the public called for such legislation for the security of political
institutions, absolute constitutional guarantees of free speech and natural rights of
individual self-assertion, which in other times had moved courts to refuse to enjoin
repeated and undoubted libels lest liberty be infringed, were not suffered to stand in the
way. If the individual interests involved had been conceived less absolutely and had been
looked at in another light, as identified with a social interest in the general progress, they
might have fared better.

Perhaps a fourth form of the interest in the security of social institutions should be added,
namely, an interest in the security of economic institutions. Formerly, these were chiefly
commercial. Today industrial institutions also must be taken into account. Judicial
recognitions of a social interest in the security of commercial institutions are numerous.
In a leading case in which it was determined that a bank note payable to bearer passed
current the same as coin, Lord Mansfield grounded the judgment ‘upon the general

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course of business, and . . . the consequences to trade and commerce: which would be
much incommoded by a contrary determination.’ More than one decision in the last
generation on labor law seems to go upon an interest in maintaining the industrial regime
in the face of persistent pressure from the claims of organized workingmen. Some of the
policies to be considered presently under the social interest in general progress might be
referred to this head.’

§ 96. SOCIAL INTERESTS—4. THE GENERAL MORALS. Third, we may put the
social interest in the general morals, the claim or want or demand involved in social life,
in civilized society to be secured against acts or courses of conduct offensive to the moral
sentiments of the general body of individuals therein for the time being. This interest is
recognized in Roman law in the protection of boni mores. It is recognized in our law by
policies against dishonesty, corruption, gambling and things of immoral tendency; by
treating continuing menaces to the general morals as nuisances; and by the common-law
doctrine that acts contrary to good morals and subversive of general morals are
misdemeanors. It is recognized in equity in the maxim that he who comes into equity
must come with clean hands. Similar provisions are to be found in the private law and in
the criminal law in other lands. Obstinately held ideas of morality may in time come in
conflict with ideas arising from changed social and economic conditions or newer
religious and philosophical views. In such cases we must reach a balance between the
social interest in the general morals, and the social interest in general progress, taking
form in a policy of free political discussion. What was said above as to free speech and
writing and the social interest in security of social institutions applies here also.

§ 97. SOCIAL INTERESTS—5. CONSERVATION OF SOCIAL RESOURCES.

Fourth, there is the social interest in conservation of social resources, that is, the claim or
want or demand involved in social life in civilized society that the goods of existence
shall not be wasted; that where all human claims or wants or desires may not be satisfied,
in view of the individual desires and the limited natural means of satisfying them, the
latter be made to go so far as possible; and to that end, that acts or courses of conduct
which tend needlessly to destroy or impair these goods shall be restrained. In its simplest
form this is an interest in the use and conservation of natural resources, and is recognized
in the doctrines as to res communes, which may be used but not owned, by the common
law as to riparian rights and constitutional and statutory provisions where irrigation is
practiced, by modern game laws, by the recent doctrines as to percolating and surface
water, and by laws as to waste of natural gas and oil. There has been a progressive
tendency to restrict the ius abutendi which the maturity of law attributed to owners. A
crowded and hungry world may yet weigh this interest against individual claims to free
action still further by preventing destruction of commodities in order to keep up prices, or
even cutting off the common-law liberty of the owner of land to sow it to salt if he so
desires. At times overproduction of agricultural products has led to proposals for
restriction of the owner’s ius utendi by regulation of what crops he may raise. At other
times there are projects for administrative appointment of receivers of agricultural land
cultivated or managed by the owner ‘in such a manner as to prejudice materially the
production of food thereon . . . .’ Restrictions with respect to housing proceed on another
aspect of this same social interest.

A closely related social interest is one in protection and training of dependents and
defectives. It might from one point of view be called an interest in conservation of
human assets of society. In one form it was recognized long ago in the common-law
system by the jurisdiction of the chancellor, representing the king as parens patriae, over

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infants, lunatics, and idiots. This jurisdiction has had a significant development in recent
times in the juvenile court, and an extension to youthful offenders beyond the period in
infancy is being urged. Again, there has been an extension of the idea of protection and
training of dependents, on one hand to the reformation of mature delinquents, and on
another hand to protection of the mature who are yet economically more or less
dependent. This has gone a long way in recent times in social security or social insurance
legislation and in small loan legislation. The latter has had a historical background in the
interference of equity to prevent oppression of debtors and necessitous persons. Also
after the first world war there was legislative recognition of a social interest in
rehabilitation of the maimed. Much of the legislation referred to runs counter to the
insistence upon abstract individual liberty in the juristic theory of the last century. It was
formerly often pronounced arbitrary and so unconstitutional by courts whose dogmatic
scheme could admit no social interest other than the general security. There has been a
significant widening of the field of legally recognized and secured social interests. But
for the most part the claims or demands here considered are better treated in connection
with the social interest in the individual life.

§ 98. SOCIAL INTERESTS.—6. GENERAL PROGRESS. Fifth, there is the social

interest in general progress, that is, the claim or want or demand involved in social life in
civilized society, that the development of human powers and of human control over
nature for the satisfaction of human wants go forward; the demand that social engineering
be increasingly and continuously improved; as it were, the self-assertion of the social
group toward higher and more complete development of human powers. This interest
appears in three main forms, an interest in economic progress, an interest in political
progress, and an interest in cultural progress. The social interest in economic progress
has long been recognized in law and has been secured in many ways. In the common law
it is expressed in four policies: the policy as to freedom of property from restrictions
upon sale or use, the policy as to free trade and consequent policy against monopoly, the
policy as to free industry, which has had to give much ground in recent legislation and
judicial decision, and the policy as to encouragement of invention, which is behind patent
legislation and there comes in conflict with the policy as to free trade. All of these
policies have important consequences in everyday law. It may be thought that some of
them should be classified rather as forms of a social interest in the security of economic
institutions. As I read the cases, however, these demands have pressed upon courts and
jurists from the standpoint of their relation to economic progress. If that relation fails,
they are not likely to maintain themselves. Likewise, the law has long recognized a
social interest in political progress. In American bills of rights, and in written
constitutions generally, a policy of free criticism of public men, public acts, and public
officers, and a policy of free formation, free holding, and free expression of political
opinion are guaranteed as identified with individual rights. Moreover, at common law,
the privilege of fair comment upon public men and public affairs recognizes and secures
the same interest. But the third form, the social interest in cultural progress, has not been
recognized in the law so clearly. It may be said to involve four policies: a policy of free
science, a policy of free letters, a policy of encouragement of arts and letters, and a policy
of promotion of education and learning. The last two have been recognized to some
extent in copyright laws and in American constitutional provisions for the promotion of
higher learning. The first two have made their way more slowly because of conflict or
supposed conflict with the security of religious and political institutions.

Closely connected with the interest in cultural progress is a social interest in aesthetic
surroundings, which recently has been pressing for legal recognition. Fifty years ago,

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Sir Frederick Pollock could say with assurance that our law ignored aesthetic relations,
and comparing the English with the French in this respect, could quote Hood’s lines:

Nature which gave them the gout

Only gave use the gout.

In the United States, courts and legislatures were long engaged in a sharp struggle over
billboard laws and laws against hideous forms of outdoor advertising. For a time also the
interest pressed in another way in connection with town planning legislation. It is
significant that the courts are now ready to admit a policy in favor of the aesthetic as
reasonable and constitutionally permissible.

§99. SOCIAL INTERESTS.—7. THE INDIVIDUAL LIFE. Last, and in some ways
most important of all, as we now are coming to think, there is the social interest in the
individual life. One might call it the social interest in the individual moral and social life,
or in the individual human life. It is the claim or want or demand involved in social life
in civilized society that each individual be able to live a human life therein according to
the standards of the society. It is the claim or want or demand that, if all individual wants
may not be satisfied, they be satisfied at least so far as is reasonably possible and to the
extent of a human minimum. Three forms of this social interest have been recognized in
common law or in legislation: individual assertion, individual opportunity, and individual
conditions of life. The first, the interest in free self-assertion, includes physical, mental,
and economic activity. In Spencer’s scheme of natural rights, they appear as a ‘right of
free motion and locomotion,’ a ‘right of free exchange and free contract,’ deduced as a
sort of free economic motion and locomotion; a ‘right of free industry,’ deduced
expressly as a modern outgrowth of free motion and locomotion; as right of free
economic activity; a ‘right of free religious belief and opinion’ and a right of free
political belief and opinion; the two last being deduced also as modern developments of
the same natural right of free motion and locomotion. These are deduced from a ‘law of
equal freedom’ which is taken to have been discovered by observation of social
phenomena and verified by further observation. Without the aid of his ‘law of equal
freedom’ he might have found them by observation of the policies set forth in the law
books. The old common-law policy in favor of freedom, the doctrine that one may
justify action injurious to others by his natural liberty of action, except where his action
takes the form of aggression and so threatens the general security, and in part the policy
of free industry, are examples of recognition of social interest in individual physical self-
assertion. The policy in favor of free speech and free belief and opinion, although related
also to the social interest in political progress, must be referred in part to a social interest
in individual self-assertion. Policies favoring free trade and free industry are in part
referable to a social interest in free economic self-assertion.

But the most important phase of the social interest in individual self-assertion, from the
standpoint of modern law; is what might be called the social interest in freedom of the
individual will—the claim or interest, or policy recognizing it, that the individual will
shall not be subjected arbitrarily to the will of others. This interest is recognized in an old
common-law policy which is declared in the Fifth and Fourteenth Amendments. If one
will is subjected to the will of another through the force of politically organized society, it
is not to be done arbitrarily, but is to be done upon some rational basis, which the person
coerced, if reasonable, could appreciate. It is to be done upon a reasoned weighing of the
interests involved and a reasoned attempt to reconcile them or adjust them. This policy
obviously expresses political and juristic experience of what modern psychology has

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discovered as to the ill effects of repression. For example, it is more and more
recognized today in our penal legislation and in our treatment of offenders. It has come
to be recognized particularly of late as a result of pressure upon courts and lawmakers for
security in the relation of employer and employee. It is coming to be recognized also in
juristic thought in another connection as sociological theories of property replace
metaphysical theories. There are many signs of a growing feeling that complete
exclusion of all but him whom the law pronounces owner from objects which are the
natural media of human existence or means of human activity, must be measured and
justified by a reasoned weighing of the interests on both sides and a reasoned attempt to
harmonize them or to save as much as we may with the sacrifice of as little on the part of
the excluded, no less than on the part of the owner, as we may.

I have called upon a second form the social interest in individual opportunity. It is the
claim or want or demand involved in social life in civilized society that all individuals
shall have fair or reasonable (perhaps, as we are coming to think, we must say equal)
opportunities—political, physical, cultural, social, and economic. In American thinking
we have insisted chiefly on equal political opportunities, since in the pioneer conditions
in which our institutions were formative other opportunities, so far as men demanded
from them, were at hand everywhere. But a claim to fair opportunities is recognized by
laws as to compulsory education of children (although the social interests in general
progress and in dependents are also recognized here) as well as by state provisions for
universities and for adult education; the claim to fair social opportunities is recognized by
civil right laws; and the claim to fair economic opportunities is recognized, for example,
in the legal right to ‘freedom of the market,’ and in the so-called ‘right to pursue a lawful
calling,’ which is weighed with other social interests in regulating training for admission
to professions.

In a third form, an interest in individual conditions of life, the social interest in the
individual life appears as a claim that each individual shall be have assured to him the
conditions of at least a minimum human life under the circumstances of time and place. I
have said minimum, which certainly was all that was recognized until relatively recent
times. But perhaps we should now say reasonable or even equal. A claim for equal
conditions of life is pressing and we can’t put the matter as to what is recognized with
assurance as we could have done a generation ago. Moreover, the scope of generally
asserted demands with respect to the individual life is obviously growing. The Roman
law recognized a policy of this sort, and it has long been recognized in American
legislation. In weighing individual interests in view of the social interest in security of
acquisitions and security of transactions, we must also take account of the social interest
in the human life of each individual, and so must restrict the legal enforcement of
demands to what is consistent with a human existence on the part of the person subjected
thereto. The Roman law imposed such a limitation in the number of cases in what is
called the beneficium competentiae. At common law there were restrictions on what
could be taken in distress for rent, and the thirteenth-century statute providing for
execution by writ of elegit attempts the debtor’s oxen and beasts of the plow and half of
his land. In the United States and recently in continental Europe, this policy is given
effect in homestead laws and in exemptions from execution. In the latter, the social
interest in the family as a social institution is also a factor. But nineteenth-century
opposition to homestead and exemption laws, and in Europe to the beneficium
competentiae, is significant. The nineteenth century sought to treat such cases as if they
involved nothing more than the individual interests of the parties to the debtor-creditor
relation, or, if a social interest was considered, sought to think only of the general

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 security, which here takes the form of security of transactions. Other recognitions of this
interest may be seen in restrictions on the power of debtors or contractors to saddle
themselves with oppressive burdens, as in the doctrines of equity herein referred to, as in
usury laws, and more recently in ‘loan shark’ legislation. A notable instance in recent
judicial decision may be seen in the English doctrine as to covenants not to exercise the
calling for which one has trained himself. Statutes forbidding contracts by laborers take
their pay in orders on company stores, and as to conditions and hours of labor, minimum
wage laws, child labor laws, and housing laws, are recognitions of the same interest.

Again, when the law confers or exercises a power of control, we feel that the legal order
should safeguard the human existence of the person controlled. Thus the old-time sea
law, with its absolute power of the master over the sailor, the old-time ignominious
punishments, that treated the human offender like a brute, that did not save his human
dignity—all such things are disappearing as the circle of recognized interests widens and
we come to take account of the social interest in the individual life and to weigh that
interest with the social interest in the general security, on which the last century insisted
so exclusively.

Such in outline are the social interests which are recognized or are coming to be
recognized in modern law. Looked at functionally, the law is an attempt to satisfy, to
reconcile, to harmonize, to adjust those overlapping and often conflicting claims and
demands, either through securing them directly and immediately, or through securing
certain individual interests, or through delimitations or compromises of individual
interests, so as to give effect to the greatest total of interests or to the interests that weigh
most in our civilization, with the least sacrifice of the scheme of interests as a whole.” 57

2. The Securing of Interests

The securing of interests consists of three phases: (a.) the valuing of interests; (b.) the means of securing
interests; and (c.) the limits of effective legal action.

a. The Valuing of Interests

Ҥ100. VALUING OF INTERESTS. Having determined what the interests are which
the law may be called upon to secure, as they cannot all be secured, much less fully
secured since many of them overlap and many are more or less in conflict, questions arise
which are fundamental for the legislative lawmaker and frequently confront the courts in
choice of starting points for reasoning, in interpretation, and in application of standards,
namely, how are these interests to be weighed. How are they to be valued? What
principle is to determine their relative weight? Which shall give way in case of conflict?

In weighing or valuing claims or demands with respect to other claims or demands, he

must be careful to compare them on the same plane. If we put one as an individual
interest and the other as a social interest we may decide the question in advance in our
very way of putting it. For example, in the ‘truck act’ cases the claim of the employer to
make contracts freely may be thought of as an individual interest of substance. In that
event we must weigh it with the claim of the employee not to be coerced by economic
pressure into contracts to take his pay in orders on a company store, thought of as an
individual interest of personality. If we think of either in terms of a policy we must think

57
Id., pp. 268-324.

410
 of the other in the same terms. If we think of the employee’s claims in terms of a policy
of assuring a minimum or a standard of human life, we must think of the employer’s
claim in terms of a policy of free making and of upholding and enforcing of contracts. If
the one is thought of as a right and the other as a policy, or if the one is thought of as an
individual interest and the other as a social interest, our way of stating the question may
leave nothing to decide.

In general, but not always, it is expedient to put claims or demands in their most
generalized form, i.e. as social interests in order to compare them. But where the
problems are relatively simple, it is sometimes possible to take account of all the factors
sufficiently by comparing individual interests put directly as such. It must be borne in
mind that often we have here different ways of looking at the same claims or the same
type of claims as they are asserted in different titles. Thus individual interests of
personality may be asserted in title of or subsumed under the social interest in the
individual life, or sometimes from different standpoints or in different aspects, under both
of them. Again, individual interests in the domestic relations may be subsumed under
the social interest in the security of social institutions of which domestic institutions are
the oldest and by no means the least important. Again, the public interest in the integrity
of the state personality may be thought of as the social interest in the security of social
institutions of which political institutions are one form. When we have recognized and
legally delimited and secured an interest, it is important to identify the generalized
individual interest behind and giving significance and definition to the legal right. When
we are considering what claims or demands to recognize and within what limits, and
when we are seeking to adjust conflicting and overlapping claims and demands in some
new aspect or new situation, it is important to subsume the individual interests under
social interests and to weigh them as such.

Philosophical jurists have devoted much attention to deducing of some method of getting
at the intrinsic importance of various interests so that an absolute formula may be reached
in accordance with which it may be assured that the intrinsically weightier interests shall
prevail. If this were possible it would greatly simplify the task of legislators, judges,
administrative officials and jurists and would conduce to greater stability, uniformity and
certainty in the administration of justice. Whether it is possible is a fundamental question
of social and political philosophy. The quest of such a method is not, as has been urged,
a mere matter of disinclination to the hard work of thinking upon the difficult practical
problems of adjusting relations in a complex economic order. It grows out of the need of
equality of operation, predictability, and assured certainty of results under known
situations of fact which men feel strongly to be intrinsic in a just ordering of relations and
of conduct. But however common and natural it is for philosophers and jurists to seek
such a method, we have come to think today that the quest is futile. Probably the jurist
can do no more than recognize the problem and perceive that it is put to him as a practical
one of securing the whole scheme of social interests so far as he may; of maintaining a
balance or a harmony or adjustment among them compatible with recognition of all of
them. Recently it has been put as a problem of integration of interests; of taking them all
into account in an adjustment that gives effect to the totality with the least sacrifice. The
last century preferred the general security. The present century shows many signs of
preferring the individual life. It is doubtful whether such preferences can maintain
themselves.”58

58
Id., pp. 327-334

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b. The Means of Securing Interests

Ҥ101. MEANS OF SECURING INTERESTS. A legal system attains its object with
respect to individual interests, that is, in that department which we call private law, (1) by
attributing legal personality to some or all human beings and to certain associations or
even certain aggregates of property; (2) by conferring upon persons, i.e., entities to which
legal personality is attributed, (a) legal rights and legal powers; (3) by leaving individuals
and entities to which legal personality is attributed free in certain situations to exercise
their natural faculties or those involved in legal personality (i.e. recognizing liberties); (4)
by exempting persons on certain occasions from liability for what would otherwise be
breaches of legal duty (i.e. conferring or recognizing privileges); and (5) by imposing
upon persons generally or upon specific persons (a) legal duties correlative to legal rights
and (b) liabilities, i.e. (i) requirements of conformity to certain standards of conduct on
pain of reparation of resulting injury or denial of legal validity to their acts if they do not,
or (ii) requirements of responding for injuries attributable to certain things they maintain
or enterprises they conduct. To distinguish them from the duties to be spoken of
presently in connection with social interests, which have no legal rights (in the strict
sense) corresponding to them, we may call the duties imposed and given effect in private
law ‘relative duties.’

...

So much for the means of securing individual interests. Public interests are secured, first,
by legal rights, powers and privileges attributed to the state or to public corporations as
juristic persons. The state (in Roman law the fisc, i.e. fiscus Caesaris, the purse of
Caesar, the treasury) is regarded as having legal rights analogous to those of individuals,
legal powers, analogous to those of individuals, and privileges, such as that of non-
suability. The personal sovereign at the time modern public law grew up made it natural
to identify the state with him and this mode of securing public interests proved
convenient and effective. Second, they are secured by powers conferred on individuals
where coincidence of public interest and private advantage is relied on to move the
individual to exercise the power and thus vindicate the public interest. Examples are:
Taxpayers’ suits to enjoin unlawful imposition of burdens upon a county or municipality
or illegal disposition of its moneys, and the power of the individual citizen, as relator, to
institute proceedings of mandamus or quo warranto, where he has an individual interest.
Third, they may be secured by privileges conferred on individuals, for example, comment
upon and criticism of the conduct of public officers privileged in order to secure the
public interest in proper administration of public affairs. Fourth, they are secured by
imposing absolute duties enforced by proceedings at the instance of public officers or by
administrative agencies.

Social interests are secured, first, by imposing absolute duties, that is, duties with no
correlative legal right, vindicated by penalty or by criminal prosecution. The criminal
law is the chief agency of legal systems for securing social interests as such, i.e. as
dissociated from any immediate individual interest which might be subsumed under
them. Second, they are secured by legal rights and powers conferred on public
corporations or on the state as guardian of social interests. Third, they are sometimes
secured by conferring rights and powers on private persons. Examples are: Private suits
to abate public nuisances where the private individual is specially affected; statutory
private suits to abate public nuisances; and private actions on the case against public
officers and public agencies. Here the idea is that coincidence of social interest and

412
 private advantage will lead individuals to move and thus to vindicate the social interest.
Fourth, as we have seen for example with respect to privileged communication in case of
defamation, the law sometimes secures social interests by privileging or exempting
certain situations from the operation of ordinary legal precepts. Fifth, more and more
today social interests are secured through administrative agencies.

...

Having conferred or recognized rights, powers, liberties, and privileges, a legal system
has next to provide a means of making them effective for their purpose. The means
which are employed to that end are: (1) punishment, i.e. penalty to prevent by deterrence
and perhaps also to satisfy what we call the retributory instinct—for the desire that
someone be hurt when a wrong has been done is a deep-seated human demand which the
law has not been able to ignore—(2) redress, which may be (a) specific, or (b)
substitutional, and (3) prevention.”59

c. The Limits of Effective Legal Action

Ҥ102. THE LIMITS OF EFFECTIVE LEGAL ACTION. Three important limitations

of law (in the second and third senses) as an enforcing agency must be borne in mind in
determining what interests the legal order may secure and how it ma secure them. These
limitations grow out of (1) the necessity law is under, as a practical matter, of dealing
only with acts, with the outside and not the inside of men and things; (2) the nature of
certain interests pressing upon law for recognition and securing which in that nature do
not admit of effective securing through the machinery of the legal order; and (3) the
necessity law is under of relying on some external agency to put its machinery in motion,
since legal precepts do not enforce themselves. The first requires us to note the
distinction between law and morals in respect of application and subject matter which has
been gone into fully in a previous connection. The second requires us to consider the
limitations upon law as an agency of social control which are involved in application and
subject matter.

1. Limits in respect of application and subject matter. There is a close connection

between the problem of how to enforce the body of precepts for adjusting relations and
ordering conduct by the force of politically organized society which we call law (in the
second sense) and the question how far all that we style law and seek to give effect as law
is capable of enforcement. When we look into the history of the subject we soon see that
much of the problem of enforcing law is really a problem of intrinsic limitations in view
of the nature of many of the interests to be weighed and secured and in view of the nature
of legal precepts and of the means of applying them. Historically it is significant that
while complaint of non-enforcement of legal precepts is as old as the law, it has been
heard chiefly in periods when the law was seeking ambitiously to cover the whole field of
social control or in transition to such periods. But without going into this, it will be
enough to set forth analytically the limitations inherent in the administration of justice
according to law which preclude complete securing through law of all interests which
ethical considerations or social ideals indicate as proper to be secured.

One set of limitations grows out of the difficulties involved in ascertainment of the facts
to which legal precepts are to be applied. This is one of the oldest and most stubborn

59
Id., pp. 334-353.

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problems of the administration of justice. At first, the law sought to settle the facts by
some mechanical device, by some conclusive test which involved no element of personal
judgment on the part of the magistrate and could not be challenged for partiality. At
times and in places the oath has been relied on as a guarantee of the truth. In our law the
chancellor considered that he could ‘search the conscience’ of a party and answer in
chancery had to be under oath. In the civil law an oath in terms of the issue was a mode
of proof and is still in use to some extent. But the ideas which made an oath effective to
assure the truth have at least lost much of their strength; and perjury, false testimony, and
fabricated documents put serious obstacles in the way of thoroughgoing attainment of the
end of law. Bentham said paintings or engravings of the death of Ananias and Sapphira
‘capitally punished on the spot by divine justice for mendacious testimony of the self-
investitive or self-exonerative kind’ ought to be hung in every courtroom. To guard
against this unreliability of oral evidence the law often requires transactions to be
evidenced by writing. Also it requires witnesses to certain instruments other than the
parties and requires some transactions to be entered into before a magistrate or official.
But these necessary precautions, while they prevent frauds, may often preclude the
establishment of meritorious claims. Again, the law has had to proceed cautiously in
securing against nervous and mental injuries and injuries to sensibilities because of
difficulty or even impossibility of clear proof in the absence of objectively manifest
illness. Nor is the difficulty merely one of false swearing. Mistaken observation,
mistaken identification, misunderstanding or misinterpretation of what has been seen and
heard afford many opportunities for honest testifying at variance with the facts. Criminal
procedure provides many checks for the protection of accused persons in view of the
danger, involved in the testimony upon which tribunals must perforce rely. But in spite
of them conviction of the innocent is by no means unknown.

A second set of limitations grows out of the intangibleness of duties which may be
morally of great moment but defy legal enforcement. I have spoken already of futile
attempts of natural law or equity at Rome and in England to make moral duties of
gratitude or of disinterested benevolence into duties enforceable by courts.

In the urban industrial society of today not only duties of care for the health, morals, and
education of children but even truancy, incorrigibility, and want of harmony in the family
have come under the supervision of juvenile courts or courts of domestic relations. But
the moment these things are committed to courts, administrative agencies have to be
invoked to make the legal treatment effective. Probation officers, boards of children’s
guardians, domestic homes and the like at once develop. It may be doubted whether such
institutions or any that may grow out of them will fully take the place of the old time
household discipline by means of which the intangible duties involved in the parental
relation were formerly made effective.

A third set of limitations grows out of the subtlety of modes of seriously infringing
important interests which the law would be glad to secure effectively if it might. Thus
grave infringements of individual interests in the domestic relations by tale-bearing or
intrigue are often too intangible to be reached by legal machinery. Our law has struggled
hard with this difficulty. But the result of the action on the case for criminal conversation
and alienation of affections, which long ago excited the ridicule of Thackeray, does not
inspire confidence nor does the American precedent for enjoining a defendant from
flirting with a plaintiff’s wife assure a better remedy. So also with the ‘right of privacy.’
The difficulties involved in tracing injuries to their source and in fitting cause to effect
compel some sacrifice of the interests of the retiring and the sensitive.

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A fourth set of limitations grows out of the inapplicability of the legal machinery of
precept and sanction to many phases of human conduct, to many important human
relations, and to some serious wrongs. One example may be seen in the duty of husband
and wife to live together and the claim of each to the society and affection of the other.
Today this interest has no sanction beyond morals and the opinion of the community.
That the classical Roman law, the modern civil law and the Anglo-American common
law, as a result of experience, each came in the end substantially to this result speaks for
itself.

Finally, a fifth set of limitations grows out of the necessity of appealing to individuals to
set the law in motion. All legal systems labor under this necessity. But it puts a special
burden upon legal administration of justice in an Anglo-American democracy. For our
traditional polity depends on individual initiative to secure legal redress and enforce legal
precepts. It is true the ultra-individualism of the common law in this connection has
broken down. Yet the possibilities of administrative giving effect to legal principles are
limited also, and there are grave objections to a general regime of administrative
enforcement. On the other hand, legal precepts will not enforce themselves. Human
beings must execute them, and there must be some motive setting the individual in
motion to do this beyond the abstract content of the precept and its conformity to an ideal
justice or an ideal social advantage. Thus we are brought to consider the social
psychological limitations upon enforcement of legal precepts.

2. Social-psychological limitations upon the efficacy of legal precepts. What is still the
best discussion of the limitations upon law, resulting from its dependence upon external
agencies to set its machinery in motion—from its dependence upon enforcement by
agencies outside of itself—is to be found in Jellinek’s Allgemeine Staatslehre.
Functionally, he says, what makes a precept law is that it obtains as a rule of conduct and
of decision and what makes a legal right is that the precept which stands behind it obtains
in action. This means that its psychological efficiency is guaranteed, that is, that the
authority which has prescribed it is so backed by social-psychological power as to be in a
position to give effect to the precept, as a motive for action, in spite of counteracting
individual motives.

...

In other words, to assure enforcement law must largely rely on some immediate and
obvious advantage which it may use either to bring about obedience to its precept or to
furnish a motive to others to vindicate or enforce it. The legal science of the past knew of
no such problem. To the analytical jurist the whole matter was one of executive
inefficiency. To the lawyer it was enough that a precept had obtained the guinea stamp
of establishment by the sovereign. The jurist had no concern with questions of
enforcement. That was for the executive. If the executive did not make the precept
effective in action, then the executive was at fault. To the historical jurist the whole
matter was one of whether the precept did or did not correctly express human experience.
If it was a formulation of what had been discovered by experience, enforcement would
take care of itself. It would be rooted in habits and customs of mankind and would be
secure on that basis. If not, it was a futile attempt to do what could not be done and all
attempt at enforcement would in the end prove vain. To the philosophical jurist the
whole matter was one of the intrinsic justice of the precept—of its appeal to the
conscience of the individual. If as an abstract proposition it was inherently just, its

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appeal to the reason and conscience of the individual would assure obedience from all but
an almost negligible minority who would persist in going counter to their consciences
and might have to be coerced. If not, the attempt to enforce an unjust rule contrary to the
conscience of the individual ought to fail and we ought not to feel badly if it did fail.
Another theory looked at the question in terms of politics. If laws were imposed on the
people they would disobey them. If the people themselves made the laws, they would
obey the laws they made or assented to.

Such simple theories of making legal precepts effective fall to the ground under the
conditions of the urban society of today. We learn quickly that efficient or inefficient
executives alike encounter certain obstacles that seem beyond the reach of efficiency.
We soon find that in such matters as traffic regulation the general security requires us to
make habits instead of waiting for them to develop by experience at the cost of life and
limb. We come to see that the exigencies of general security and of the individual life
require us to prescribe many things the reasons for which are not upon the surface and the
justice of which, clear as it may be to the expert, will not appear at once to every
reasonable and conscientious individual. Also the point is not one of whether the people
at large have assented to or made the precept in question. It is rather, what interest will
move the individuals, through whose initiative the precept must be made effective, to
bestir themselves to see that it is vindicated. Jhering urged the duty of the good citizen to
go to trouble and expense to vindicate his legal rights, even on small occasions, as his
contribution to maintaining the legal order. But in the busy world of today men are less
and less inclined to pursue their legal rights even in matters of no little moment at the
expense of time, money, and energy, they can more profitably employ in their everyday
work.

Hence we have to deal in new ways with the subject of making legal precepts effective.
We must study the limits of effective legal action. We must determine what we may
expect to do through law and what we should leave to other agencies of social control.
We must examine our armory of legal weapons, appraise the value of each for the tasks
of today, and ask what new ones may be devised and what we may expect reasonably to
accomplish by them when devised.

There is here a serious limitation upon the possibility of social progress through law. To
a large extent law (in the second sense) must express progress rather than immediately
bring about progress. The law seeks to secure individual interests because and to the
extent that by being subsumed under social interests they may be made to give effect to
the latter. But it depends for its efficacy chiefly upon the extent to which it can identify
social interests with individual advantage or interest and can rely upon individual
initiative for enforcement of its precepts. Unless individuals can thus be enlisted in the
service of the legal order the law in the books becomes academic. We get something
quite different in action. Herein is the kernel of truth in Savigny’s distrust of conscious
lawmaking and in the lawyer’s distrust of legislation. Abstract formulation of rules is
likely to result in empty formulas because there is only a speculative interest in them as
propositions, not the living interest on the part of individuals whose demands and desires
are affected directly and immediately by observance or non-observance of the precept.
This initiative of the individual bringing controversies into courts and resulting in case
law has been a prime agency in developing the law. We must not allow our faith in the

416
 efficacy of effort to blind us to the limitations upon the efficacy of conscious effort in
making and shaping the law.”60

V. THE POLICY SCIENCE APPROACH

The Policy Science Approach continued the grand theorizing of Pound.

“But ‘grand theory’ did not die with Pound. In Lasswell and MacDougal, we find the
same broad generalizations and ‘grand prospectus’. Their theory is one of decision-
making. There are, they postulate, a number of ‘desired events’, catalogued under such
vague headings as power, enlightenment, wealth, respect for human dignity, health and
well-being, skill, affection, and rectitude. For each of these categories they ask whether
the legal process, in the context of the social system, is achieving a maximum sharing of
the particular value. So, on health and well-being, it is asked whether ‘the legal system
succeed[s] in stimulating and sustaining progress toward safety, health and comfort in
every community.’ Such a value-laden priority as ‘progress’ can be explained by the
articulated democratic and utilitarian aim of the philosophy.” 61

Harold D. Lasswell and Myres S. McDougal sought the reform of legal education in order to train law
students in policy-making which reflects their grand theory of a vibrant liberal and social democracy
which responds to the needs, wants, and welfare of the populace.

“A first indispensable step toward the effective reform of legal education is to clarify
ultimate aim. We submit this basic proposition: if legal education in the contemporary
world is adequately to serve the needs of a free and productive commonwealth, it must be
conscious, efficient, and systematic training for policy-making. The proper function of
our law school is, in short, to contribute to the training of policy-makers for the ever more
complete achievement of the democratic values that constitute the professed ends of
American polity.

This end is not proposed as something utterly new or exotic. Indeed most of the recent
developments in legal education—from ‘sociological jurisprudence’ to neo-Thomism—
have tended, with varying degrees of explicitness, to move in this direction. None who
deal with law, however defined, can escape policy when policy is defined as the making
of important decisions which affect the distribution of values. Even those who still insist
that policy is no proper concern of a law school tacitly advocate a policy, existing social
institutions in a sort of timeless status quo; what they ask is that their policy be smuggled
in, without insight or responsibility. But neither a vague and amorphous emphasis on
social ‘forces,’ ‘mores,’ and ‘purposes,’ nor a functionalism that dissolves legal
absolutism for the benefit of random and poorly defined ends, nor a mystical invocation
of the transcendental virtues of an unspecified ‘good life,’ can effect the fundamental
changes in the traditional law school that are now required to fit lawyers for their
contemporary responsibilities. Their direction is toward policy but their directives are at
too high a level of abs traction to give helpful guidance. What is needed now is to
implement ancient insights by reorienting every phase of law school curricula and skill
training toward the achievement of a clearly defined democratic values in all the areas of
social life where lawyers have or can assert responsibility.

60
Id., pp. 353-373.
61
Freeman, supra. n. 1, p. 679.

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It should need no re-emphasis here that these democratic values have been on the wane in
recent years. The dominant trends of world politics have been away from symbols and
practices of a free society and toward the slogans, doctrines and structures of despotism.
The outburst of racialism in Germany is but one of several profound recessions from the
ideal of deference for the dignity and worth of the individual. Wherever democratic
attitudes have declined, institutions connected with democracy have weakened or
vanished. In post-Weimar Germany, as in post-parliamentary Italy and certain other
countries, elections have ceased to be free and have become ceremonial plebiscites—
rituals of tribal union. Balanced public discussion has given way to discussion directed
by a monopoly of government and party. The multiple party system has yielded to
something called a ‘party,’ though in fact an ‘order,’ a privileged monopolist of policy-
making. In place of dynamic executive and judicial balance, there has arisen extreme
executive concentration. Where institutions named parliaments yet survive, they are
mummified into assemblies for the performance of rites of ceremonial ratification of
executive decisions. Where there was a balance between centralized and local authority
and control, there has arisen extreme centralization. The balance between governmental
and private organization is unhinged as the tide moves toward the governmentalization of
all organized life. With the sweep of regimentation, the balance is lost between private
zones of living and the zones appropriate to official direction. The entire structure of
open and competitive markets has been actively threatened by an economic structure of
closed and monopolistic markets. Processes of production and distribution that were
once carried on by bargaining and pricing depend on negotiation and rationing.

These sweeping transformations in the institutional structure of world politics may be

summarized by saying that the balanced skill state has been yielding to the bureaucratic
state. This is a reversal of nineteenth century trends. Despite local deviations, the over-
all development of the world was toward the spread of free markets and free
governments, and the resulting rise in influence of the specialist on bargaining, the
businessman. He shared power with other skill groups—the propagandist, whose skill is
the manipulation of symbols of mass appeal; the party boss, whose skill is the negotiation
of favors; the civil official, whose skill is administration; the military men, whose skill is
the management of violence. With the eclipse of the balanced skill state, the bureaucratic
state has grown to behemoth dimensions. The line of development can be summarized
by saying that the business state, with the balance of skill, gives way to the monopolist
state, the propagandist state, or the party state; and that, if militarization continues, the
garrison state will come out on top.

Looking at the plight of freedom in the world today, can we fail to ask how the policy-
makers of a free society have come to experience such catastrophic rebuffs? Through
what deficiencies of skill or character have they failed to keep the trend of world
development in line with their basic objective? Such chronic failure suggests that the
policy-makers of recent times have arrived at their decisions without a firm grasp on
reality, and that they have allowed their focus of attention to be absorbed with trivial non-
essentials. Long before the present storm, clouds of difficulty were plainly visible. Yet
decision-makers in business, government, and in all branches of public life were either
oblivious to these portents or remained sterile and ineffective.

The question may be asked whether the lawyer can be held responsible in any significant
degree for the plight in which we find ourselves. For a moralist, the question is whether
the lawyer can be ‘blamed;’ for a scientist, whether he is an important casual variable; for
a reformer, whether he can be acted upon to produce change. The answer to all of these

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 questions is: most assuredly, yes. It should need no emphasis that the lawyer is today,
even when not himself a ‘maker’ of policy, the one indispensable adviser of every
responsible policy-maker of our society—whether we speak of the head of a government
department or agency, of the executive of a corporation or labor union, of the secretary of
a trade or other private association, or even of the humble independent enterpriser or
professional man. As such an adviser the lawyer, when informing his policy-maker of
what he can or cannot legally do, is, as policy-makers often complain, in an unassailably
strategic power to influence, if not create, policy. It is a familiar story, too, of how
frequently lawyers who begin as advisers on policy are transformed into makers of
policy: ‘the law’ is one of the few remaining avenues to ‘success’ open to impecunious
talent. Successful practitioners of law often receive sufficiently large incomes, from
advice and investment, to become powers in their own right and hence gravitate into
positions of influence in industry. How frequently lawyers turn up in government—
whether as legislators, executives, or administrators, or as judges (where they have a
virtual monopoly)—is again a matter of common knowledge. Nor can the policy-making
power of lawyers as executors, trust administrators, administrators in insolvency, and so
on, be ignored. Certainly it would be difficult to exaggerate either the direct or indirect
influence that members of the legal profession exert on the public life of this nation. For
better or worse our decision-makers and our lawyers are bound together in a relation of
dependence or of identity.”62

Lasswell and McDougal go in further detail as to the requirements of an education in policy training.

“What, then, are the essentials of adequate training for policy? Effective policy-making
(planning and implementation) depends on clear conception of goal, accurate calculation
of probabilities, and adept application of knowledge of ways and means. We submit that
adequate training must therefore include experiences that aid the developing lawyer to
acquire certain skills of thought: goal-thinking, trend-thinking, an scientific-thinking.
The student needs to clarify his moral views (preferred events, social goals); he needs to
orient himself in past trends and future probabilities; finally, he needs to acquire the
scientific knowledge and skills necessary to implement objectives within the context of
contemporary trends.

Goal-thinking requires the clarification of values. In a democratic society it should not,

of course, be an aim of legal education to impose a single standard of morals upon every
student. But a legitimate aim of education is to seek to promote the major values of a
democratic society and to reduce the number of moral mavericks who do not share
democratic preferences. The student may be allowed to reject the morals of democracy
and embrace those of despotism; but his education should be such that, if he does so, he
does it by deliberate choice, with awareness of the consequences for himself and others,
and not by sluggish self-deception.

How can incipient lawyers be trained in the clarification of values? Whatever the
difficulties of communication, any statement of values must begin with words of high
level abstraction, of ambiguous reference. No brief definition can convey to anyone else
much of what the definer means. Too many persons jump to conclusions about the
meaning of terms, regardless of the rules of interpretation intended by the speaker. At the
risk of misconstruction, we offer our brief statement of democratic morals. The supreme

62
Harold D. Lasswell and Myres S. MacDougal, “Legal Education and Public Policy: Professional Training in the
Public Interest,” Yale Law Journal, Vol. 52, 1943, pp. 206-209.

419
value of democracy is the dignity and worth of the individual; hence a democratic society
is a commonwealth of mutual deference—a commonwealth where there is full
opportunity to mature talent into socially creative skill, free from discrimination on
grounds of religion, culture or class. It is a society in which such specific values as
power, respect, and knowledge are widely shared and are not concentrated in the hands of
a single group, class, or institution—the state—among the many institutions of society.
The formula is not new. On the contrary, it states the implicit or explicit assumptions of
most of the traditional moralists of democracy. But such a statement of democratic
values—and this is the point of our present emphasis—cannot be understood, or
implemented, unless it is amplified by rules of interpretation of varying degrees of
generality, that show how observers of specific situations can validly use the terms in
describing concrete reality and promoting the occurrence of relatively specific events in
harmony with the definition. This task of spelling out values in terms of consistent
propositions of varying degrees of generality or of relating general propositions to
operational principles, is a long and arduous process. But it is indispensable to clarity
and, hence, to the education of policy-makers.

Clarification of values, by relating general propositions to operational principles in

representative and specific contexts, must for effective training be distinguished from the
traditional, logical, derivation of values by philosophers. Such derivation—that is,
exercises by which specialists on ethical philosophy and metaphysics take sentences that
define moral standards and deduce them from more inclusive propositions or vice versa
—is a notorious blind alley. Divorced from operational rules, it quickly becomes a futile
quest for a meaningless why, perpetually culminating in ‘some inevitably circular and
infinitely regressive logical justification’ for ambiguous preferences. From any relative
specific statements of social goal (necessarily described in a statement of low-level
abstraction) can be elaborated an infinite series of normative propositions of ever
increasing generality; conversely, normative statements of high-level abstraction can be
manipulated to support any specific social goal. Prospective lawyers should be exposed,
by way of warning and sophistication, to the work of representative specialists in
derivation; relatively little time should be required, however, to teach them how to
handle, and how to achieve emotional freedom from, the ancient exercises.

Implementation of values requires, first, trend-thinking. This considers the shape of

things to come regardless of preference. His goals clarified, a policy-maker must orient
himself correctly in contemporary trends and future probabilities. Concerned with
specific features of the future that are ever emerging from the past, he needs to be
especially sensitive to time, and to forecast with reasonable accuracy passage from one
configuration of events to the next. For this purpose he must have at his disposal a vast
array of facts properly organized and instantly accessible. No one, much less a policy-
maker, can do without expectations about the future—expectations about the probability
of a short or a long-drawn-out war, of mounting or diminishing taxes, of rising or falling
standards of living. To think developmentally is to be explicit about these anticipations
of the shape of things to come. Every policy proposal and decision, including our
recommendations about legal training, turns in part upon a picture of significant changes
in the emerging future. The nature of our picture of recent trends, together with our
interpretation of the principal cross-currents of the near future, have been briefly
indicated in our description of the wane of democratic values and of the unrealistic
orientation of contemporary policy-makers. The results of trend-thinking must
continually be evaluated by the policy-maker in the light of his goals; the task is to think

420
creatively about how to alter, deter, or accelerate probable trends in order to shape the
future close to his desire.

Implementation of values requires, next, scientific-thinking. While trend information is

indispensable, it is not sufficient to enable us to mould the future. Trends have a way of
changing direction; and often we can contribute to these changes by the skillful
management of factors that condition them. A trend is not a cause of social change; it is
a register of the relative strength of the variables that produce it. We do not learn about
causal factors by passively observing trend; we must compare many examples of trend
before we can build up a body of scientific knowledge. The laws and propositions of
science state invariant interrelations. We do not have scientific knowledge when we
know, for example, that there was a trend toward world war in 1939; it is only when we
can, by comparing war periods, relate war to conditioning factors that we have science.
When we look toward the future our aim is not to draw a fatalistic series of trend curves
in the direction they have been moving in the past. To extrapolate in this way is
necessary, but it is a prelude to the use of creative imagination and of available scientific
knowledge in deciding how to influence the future. The very act of taking thought and of
acting on the basis of thought are among the factors that determine the future trend of
events. In a democratic society a policy-maker must determine which adjustments of
human relationships are in fact compatible with the realization of democratic ideals.
Which procedures actually aid or hamper the realization of human dignity? How can the
institutions of legislation, adjudication, administration, production, and distribution be
adjusted to democratic survival? What are the slogans and doctrines—in which contexts
of experience—that create acceptance of democratic ideals and inspire effort to put them
into practice? In short, the policy-maker needs to guide his judgment by what is
scientifically known and knowable about the causal variable that condition the
democratic variables.

Effective training in scientific thinking requires that students become familiar with the
procedures by which facts are established by planned observation. Most of our sources
of information about human experience are not deliberately created records. For the most
part we must rely upon whatever inferences can be drawn from ‘accidental’ residues of
the past. In recent decades, and especially with the rapid expansion of the social and
psychological sciences, the observing of human conduct has become progressively more
technical and exhaustive. It is not too much to say that the great contribution of modern
specialists on the human sciences is less in the realm of general history than in the
perfecting of method by which ancient speculations can be confirmed, modified or
rejected. From the laboratory of the psychologist, the field expedition of the ethnologist
and the clinic of the physician have come illuminating bodies of data; and the procedures
of observation invented in these special situations have stimulated the development of
ways of studying men and women under normal circumstances in our own civilization.
The effect of many kinds of human environment—in family, factory, school, army,
prison, market—have been subjected to careful scrutiny. The results are continually
applied and retested in the selecting of personnel in business, government, army and
other social structures. Systems of incentive (the granting of indulgence or the inflicting
of deprivation) are explored for their efficacy in raising production and reducing
disciplinary problems. Modes of phrasing are pretested to evaluate their effectiveness as
modifiers of buying, giving, voting. Throughout the length and breadth of modern
society decisions are modified on the basis of what is revealed by means of intensive or
extensive observation of human life, the procedures varying all the way from the

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 prolonged interviews of a psychoanalytic psychiatrist to the brief questions of the maker
of an opinion poll.

Acquaintance with various methods of observation not only furnishes a sound basis for
policy planning; it contributes directly to skill in the practical management of human
affairs. Another glance at the job analysis of the modern lawyer set forth above indicates
something of the range of management problems with which he must grapple. Success
calls for skill in direct personal contact with client, partner, clerk, opposing counsel,
investigator, witness, jurymen, judge (to name some conspicuous examples); likewise,
there is need of skill in public relations (in the handling of grand jury investigations,
conducting trials, conducting legislative hearings).

From all the emphasis which we have placed upon certain ways of thinking, observing
and managing, it should not be inferred that we propose to discard or neglect the
traditional skills and knowledge of the lawyer. It is the lawyer’s mastery over
constitutions, statutes, appellate opinions and textbooks of peculiar idiom, and his skill in
operating the mechanics (procedure) of both governmental institutions (courts,
legislatures, administrative boards, executive offices) and private associations
(corporations, partnerships, trade associations, labor unions, consumers’ cooperatives),
that set him apart from, and give him a certain advantage over, such other skill groups in
our society as diplomats, economists, social psychologists, social historians and
biologists. But much of what currently passes for instruction in law schools is a waste of
time because it consists of the reiteration of a limited list of ambiguous terms cut asunder
from any institutional context that would set a limit to their ambiguities. Thus, a student
may learn that if discussion begins with ‘contract’ it must then proceed by rearrangement
of certain meanings to be assigned to a small list of well-known words, such as ‘offer and
acceptance,’ ‘consideration,’ ‘mistake,’ ‘performance,’ ‘condition,’ and so on; but he
knows very little unless he has also learned to complete the meaning of these terms by
reference to representative institutional contexts and important social values. What we
propose is that training in the distinctive core of the lawyer’s repertory of skills and
information be given a new sense of purpose and new criteria of relevance. It is a
fundamental truth of practical and scientific psychology that purpose increases ease of
learning; students can be expected to acquire more rather than less mastery of legal
technicality when the comparatively small repertory of key legal terms is considered in
relation to the goals and the vital problems and processes of democracy, rather than in a
formalistic framework, unoriented toward policy. The lawyer’s traditional storehouse of
learning is already too tightly stuffed with legacies from the past to be thoroughly
mastered by anyone in a lifetime of devoted scholarship; a student must, if he is not to
choke on triviality, have extrinsic criteria of relevance. There comes a time, as Mr.
Justice Holmes long ago remarked, when energy can be more profitably spent than in the
reading of cases. Given a new sense of purpose and trained in the skills and information
which should be common to all policy-makers, the lawyer cannot escape becoming a
better lawyer. Schools which prepare themselves to emphasize such purposes and to
offer such training may succeed in becoming more truly vocational even as they grow
more genuinely professional.”63

VI. CONCLUSION

63
Id., pp. 212-216.

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There is no doubt that much can be learned from the sociology of law, as it progressed into the sociology
of jurisprudence and socio-legal studies. Many of its observations and insights provide important and
valuable material for legal theorizing. However, as a legal theory itself, it has its drawbacks.

First it is more interested, not in legal doctrine, but in social data, the interrelation between law and
society, as they mutually affect each other. Whereas these data are important to understand law, they are
not the focus of legal theory. At most they only provide raw material for theorizing. A theoretical
account of law must include investigations into legal doctrine. Whereas it is not denied that society
affects legal doctrine, it does not comprise the central aspect of it. Understanding law as a system of
doctrine requires direct investigation into that doctrine, and social data merely provide background
information.

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