CHAPTER TWENTY Six

SOCIOLOGICAL SCHOOL

HE RELATIONS between the individual, society and the State

T have been changing and various theories regarding them have
been propounded from time to time. In the beginning, society was
governed by customs which had only a social sanction. Then came the
supremacy of priests. After that, the secular State emerged and domi-
nated all institutions. As a reaction, the importance of the individual
was asserted by thinkers and philosophers. There were revolutions
and political changes. There was the Industrial Revolution. The neces-
sity of balancing the welfare of the society and individual was real-
ised. There was a tendency towards socialisation. Then came the view
that the importance of the society should be considered in the light of
the individuals and vice-versa. The approaches made from this point
of view are called sociological approaches. The sociological school
gained ascendancy in the first decade of the 20th century.
The sociological school devotes its attention not to the ethical con-
tent and aim of law but to the actual circumstances which give rise
to legal institutions and which condition their scope and operation.
This is the functional view of law, regarded as one and only one of the
many factors in the morphology of society. It is essentially concerned
not with man as an individual but with man-in-association. The whole
theory of the sociological school is a protest against the orthodox con-
cept of law as an emanation from a single authority in the State, or as a
complete body of explicit and comprehensive propositions applicable
by accurate interpretations, to all claims, relationships and conflicts
of interests. The sociological jurists look upon law as a phenomenon.
Law is a social function, an expression of human society concerning
the external relations of its individual members. The jurist should con-
centrate his attention not so much on individuals and abstract right as
"willing agent" as on the social purposes and interests served by law.
524 JURISPRUDENCE AND LEGAL THEORY [CHAP.

Sociological jurisprudence has pointed law towards social justice

and has assumed that law must seek to attain certain ends. What it
needs is "(a) philosophy which will explain its method and furnish it
with a rationale; and (Li) one which will provide the sociological jurist
with tools and show him how to use them by furnishing him with
some scale of values by which he can hew and weigh through the ex-
perimental flux of the sarnp legal order". Dean Roscoe Pound writes:
"The sociological movement in jurisprudence is a movement for prag-
matism as a philosophy of law ... for putting the human factor in the
central place and relegating logic to its true position as'an instrument."
It is a movement that does not disparage the force of logic, or of cus-
tom or of history. It is always busy in combating the exclusive consid-
eration of any one of these factors and of a purely logical completeness
of the law in particular and emphasising the final task of the balancing
of interests.
Ehrlich has written thus: "At the present as well as at any other time,
the centre of gravity of legal development lies not in legislation, nor
in juristic science, nor in judicial decision, but in society itself. This
sentence, perhaps, contains the substance of every attempt to state the
fundamental principles of the sociology of law."
The sociological approach to jurisprudence which resulted out of the
change in the political shift from doctrine of laissez faire, the industrial
and technological revolution and finally the historical school bringing
into focus the relationship between law and social welfare State of the
modern century, has attempted to study law as seeking social origin of
law and legal institutions, testing law as a given social phenomenon
and lastly judging law by its social utility.
Montesquieu (1689-1755)
Montesquieu, the French philosopher, was the forerunner of the socio-
logical method in jurisprudence. He was the first to recognise and take
account of the influence of social conditions on the legal process. In
The Spirit of Laws, Montesquieu wrote that law should be determined
by the characteristics of a nation so that "they should be in relation to
the climate of each country, to the quality of each soil, to its situation
and extent, to the principal occupations of the natives, whether hus-
bandmen, huntsmen or shepherds; they should have relation to the
degree of liberty which the constitution will bear, to the religion of the
inhabitants, to their inclinations, riches, numbers, commerce, manners
and customs". He perceived the importance of history as a mans of
understanding the structure of society and also drew attention to the
part played by economic factors.
 SOCIOLOGICAL SCHOOL 525
Xxvii

Auguste Comte (1708-1857)

The honour of being the founder of the science of sociology belongs
to Auguste Comte, another French philosopher. According to him, the
legitimate object of scientific study is society itself and not any particu-
lar institution of government. He emphasized the fact that men have
ever been associated in groups and it was in the social group and not
in isolated individuals that the impulses originated which culminated
in the establishment of law and government. He definitely rejected the
view that society rests upon an individualistic basis and the individual
is the focal point of law.
According to Comte, society is like an organism and it can progress
when it is guided by scientific principles which should be formulated
by observation and experience of facts excluding all metaphysical and
similar other considerations.
The implications of Comte's theory are many. He had great influ-
ence on the philosophical and scientific thought of his time. In the field
of legal theory, his ideas inspired Durkheim who in his turn inspired
Duguit.
Durkheim (1858-1917)
Emile Durkheim, the great French sociologist, took considerable inter-
est in legal phenomena and added to our understanding of them. He
was one of the earliest thinkers about the criminal process. His view
was that law was the measuring rod of any society. Law "reproduces
the principal forms of social solidarity". There are two basic types of
societal cohesion (whith he called solidarity): mechanical solidarity
to be found in homogeneous societies and organic solidarity which
was found in more heterogeneous and differentiated modern societies
which rest on functional inter-dependence produced by the division
of labour. In a society based on mechanical solidarity, law is essèn-
tially penal. With increased differentiation societal reaction to crime
becomes a less significant feature of the legal system and restitutive
sanction becomes the main way of resolving disputes.
There are serious flaws in the arguments of Durkheim but his for-
mulation on the evolution of law are still worth our attention. His dis-
cussion of the meaning of repressive law is particularly useful to an
understanding of the social significance of crime and punishment..His
emphasis on restitutive law is a corrective to those who think of all
law as puhitive. Twentieth century developments have vindicated his
ideas on contract.
 526 JURISPRUDENCE AND LEGAL THEORY [CHAP.

Herbert Spencer (1820-1903)

The ifant science of sociology received a tremendous impetus from
the works of Herbert Spencer. By calling to aid ethnographical and an-
thropological material, Spencer demonstrated that society resembles
individual organisms. Originating in small beginnings, they develop
complex structures the component parts of which become more and
more inter-dependent while the social organism itself becomes more
and more independent of its constituent units.
In Principles of Sociology, Spencer traced his theory of the origin of
Law. According to him, law arises from four sources: inherited usages
with quasi-religious sanctions, injunctions of deceased leaders, the
will of the predominant man and collective opinion of the community.
Laws of supposedly divine origin are first differentiated from laws of
recognised human origin. Human laws become further differentiated
into those which are sanctioned by the ruler and those which are sanc-
tioned by the aggregate of social interests and of these the latter, in the
course of social evolution, tend more and more to absorb the former.
Ultimately, "law will have no other justification than that gained by
it as a maintainer of the conditions to complete life in the associated
State".
For Spencer, evolution was the key to the understanding of human
progress and legal and social development could best be left to evolve
by a natural selection parallel to that operating in the sphere of biology.
Such a conclusion was regarded as in the highest sense scientific.
Spencer promulgated three fundamental laws of society: the prin-
ciple of the persistence of force, the indestructibility of matter and the
continuity of motion. The combination of these principles with other
laws results in the process of evolution. "Evolution is an integration
of matter and a concomitant dissipation of motion during which the
matter passes from a relatively indefinitely incoherent homogeneity
to a relatively coherent heterogeneity and during which the retained
motion undergoes a parallel transformation".
Prof. Allen writes: "The interdependence of organisms in its socio-
logical aspect means the mature relation of all members of civilised so-
ciety and a distribution of a sense of responsibility far wider than can
be comprised within the formula 'sovereign and subject'. It directed
attention to the necessity of considering law in relation to other social
phenomena."
Duguit (1859-1928)
Leon Duguit was a Professor of Constitutional Law in the University
of Bordeaux in France. He attacked traditional concepts of State, sover-
 XXVII SOCIOLOGICAL SCHOOL 527
eignty and law and sought to fashion a new approach to those matters
from the angle of society.
Principle of Social Solidarity. -According to him, the outstanding fact
of society is the interdependence of the people. This interdependence
has always been there, but it has increased in modern times on ac-
count of the increasing knowledge of man and his mastery over the
physical world. In modern society we cannot live without the services
provided to us bjour fellowmen. Our food, our housing, our clothing,
our recreation and entertainment are always dependent on the activi-
ties of other people. Specialisation has increased to such an extent that
we can exist only by virtue of our membership of a community. So-
cial interdependence is not a theory or a conjecture but a fact. It is an
all-important fact of human life. All human activity and organisation
should be directed to the end of ensuring the harmonious working of
man with man. Duguit calls it the principle of "social solidarity".
As all human activity and organisations are to be judged from the
manner in which they contribute to social solidarity, the State can claim
no special position or privileges. It is only one of the various human
organisations which are necessary to protect the principle of social
solidarity. It can be justified insofar as it defends and furthers the prin-
ciple of social solidarity. It is nothing more than an organisation of men
who issue commands backed by force. If the State acts in a way which
promotes social solidarity, it is entitled to be upheld and encouraged.
If it does not perform that function, the people have a right to revolt
against it and suppress the State itself. The whole idea of sovereignty is
meaningless. All power-is limited by the test of social solidarity. Every
man and every grouping of men is under a duty arising out of the facts
of social existence. That duty is to further social solidarity. To quote
Duguit: "Man must so act that he does nothing which may injure the
social solidarity upon which he depends; and more positively, he must
do all which naturally tends to promote social solidarity".
Implications of Social Solidarity. —Social solidarity is the touchstone of
judging the activities of individuals and all organisations. The State is
a human organisation whose duty is to ensure social solidarity. Duguit
was in favour of strong checks on the abuse of State power through the
establishment of the strict principles of State responsibility. To quote
him: "The State is sovereign, but such sovereignty has its limits. The
foundation for and the determination of these limitations are found,
according to the individualistic doctrine, in the existence of the natu-
ral rights of the individual anterior to the State, which the latter must
respect and guarantee, but to which it can add limitations to the extent
necessary to protect the rights of all". Again, "either the autonomy of
528 JURISPRUDENCE AND LEGAL THEORY [CHAP.

the individual comes to limit the power of the State, to determine the
extent of the restrictions which it can bring to bear upon the individuall
activity of each in which case the State ceases to be sovereign, since
there is a will other than its own which comes to determine the limita-
tions upon the manifestations of its own will, and so the sovereignty of!
the State disappears."
Duguit's disbelief in an all-powerful State, combined with his belief'
in the greatest possible divisibn of labour, leads him to put much stress
upon decentralisation and group government. The different classes
cooperate with each other and defend individuals belonging to them
against the excessive claims of other classes as well as against the arbi-
trary actions of the central power.
Another implication of social solidarity is his rejection of the inter-
vention of the State as the decisive factor in turning a social into a le-
gal norm. The conclusions of Duguit in this connection resemble very
much those of the historical and some of the sociological theories. He
writes: "But it is not the intervention which gives the character of a
juridical norm to the rule; it would be powerless to prove it if the rule
did not already possess it itself. An economic or moral rule becomes a
juridical norm when there has penetrated into the consciousness of the
mass of individuals composing a given social group, the notion that
the group itself, or those in it who constitute the greatest force, can
intervene to repress violation of this rule. In other terms, a rule of law
exists whenever the mass of individuals composing the group under-
stands and admits that a reaction against the violation of the rule can
be socially organised."
Another implication of social solidarity is that law is a spontaneous
product of individual consciousness, inspired at the same time by so-
cial necessity and the sentiment of justice. This and only this can be the
norm of law. That being so, legislation can only be conceived of as a
means of expression of the rules of law. The legislator does not create
it; he defines it. Legislation imposes itself only in proportion as it is in
conformity with this rule. Obedience is not owed to laws as such but
only to those laws that give expression to or put into practice a juridi-
cal norm. Likewise, Duguit does not conceive of justice as a rational,
absolute idea, revealed by reason. It is a sentiment belonging to hu-
man nature. The activity of a man is always dominated by the double
sentiment of his social character and his individual autonomy. That is
the sentiment of justice. Every act which attacks it directly, attacks at
the same time social solidarity and is contrary to fundamental social
norm.
 SOCIOLOGICAL SCHOOL 529
XXVI]

Another implication is the denial by Duguit of any distinction be-

tween private and public law. According to him, both must serve the
same end of social solidarity. There is no difference in their nature.
Such a division will elevate the State above the rest of the society which
is not accepted by Duguit. The concept of public service unsettles the
concept of sovereignty as the foundation of public law. The position of
Duguit in this respect is very much akin to Kelsen as both of them have
shown deep distrust in the arbitrariness of authority disguised under
the special status of public law and both have deprecated the distinc-
tion. There is another way where Duguit seems to follow Kelsen in his
rejection of the concept of private rights. In his view, the idea of social
function "crowds out" the concept of subjective right. The necessity of
individual rights disappears with the absence of anyone that can and
must exercise it. As all the governors and the governed cooperate for
the common end by discharging certain functions, the concept of sub-
jective rights either of the State or of the individual becomes superflu-
ous. According to Duguit: "The only right which any man can possess
is the right always to do his duty."
Individuals working in any capacity are parts of the same social or-
ganism and each is to play his part in the furtherance of the same end
of social solidarity. The essence of law is duty.
Prof. Dias points out that while the interdependence of man is a fact,
"social solidarity" is an ideal. In practice it becomes a matter of per
sonal evaluation when the question to be decided is whether a given
course of conduct is conducive to social solidarity or not. The question
is whether a law imposing or forbidding racial segregation promotes
social solidarity or not. The view of Dias is that it is difficult to see how
this question can be answered objectively and otherwise than in the
light of political, religious and moral evaluations. Another question
is whose evaluation of social solidarity is to prevail. There is evidence
that the forces of social disruption are as potent as those of solidarity.
The view of Dias is that Duguit fell into the error of enlarging a limited
truth into an absolute.
The view of Duguit is that a law which does not stand the test of so-
cial solidarity is not a valid law. He denies that statutes and decisions
make law in themselves. There are three formative laws, namely, re-
spect for property, freedom of contract and liability only for fault. The
precepts of positive law should conform to these formative laws, and
they only achieve validity when received and approved.by the mass of
public opinion "A rule of law exists whenever the mass of individuals
composing the group understands and admits that a reaction against
the violation of the rule can be socially organised". Public opinion is
530 JURISPRUDENCE AND LEGAL THEORY [CUAP.

thus the expression of the social solidarity principle by which the va-
lidity of law should be judged. Dias points out that the vagueness and
unsatisfactory nature of mass opinion are obvious and it is difficult to
say how that is to be discovered. Situations very frequently arise as
to which no particular feeling exists and others as to which opinion is
divided. It is unrealistic to suggest that a court will, or will be allowed
to, decline to receive an enactment as law because it can be shown that
public opinion does not subscribe to it.'
Criticism. —Though Duguit is a positivist and excludes all metaphys-
ical considerations from law, his principle of social solidarity itself is a
natural law ideal. His special emphasis is on the valuation of law on a
social plan. The facts of social life to which he confines his study, tend
to become a theory of 'justice' in practice. Duguit wants to establish
an absolute and uncontestable rule of law. Like 'natural law' theories,
he establishes the standard of social solidarity to which all positive
law must conform. It is nothing but natural law in a different form. It
has rightly been said that Duguit "pushed natural law out through the
door and let it come by the window".
If a question arises whether a particular act or rule furthers social
solidarity or not, the matter has to be decided by judges and that might
prove to be dangerous. Judges have their weaknesses and limitations
and that may lead to judicial despotism.
The idea of social solidarity can be differently interpreted and used
to serve divergent purposes and actually that has been done. Duguit's
insistence on the identity of interests of the various groups in society
and the minimisation of conflicts was used by the Fascists to serve an
absolutely different end. They used it to glorify the State by giving
it a towering personality. They also used it to suppress trade unions.
Duguit himself would not have approved those interpretations. The
jurists of the Soviet Union have used the theory of Duguit to establish
that individuals have no rights. His denial of the distinction between
private and public law, his idea of minimising State intervention were
welcomed by the jurists of the Soviet Union.
While defining law, Duguit confused it with what law ought to be.
His view was that if law does not further social solidarity, it is not law
at all. His definition of law confused it as was done by the advocates
of natural law.
Duguit advocated the minimisation of State intervention at a time
when the State was becoming all important. He overlooked the fact
that the social problems of a modern community were becoming corn-
plex and could be tackled only by the State. With the development of
I /urlsprled('I,a', pp. 607-8.
XXVI] SOCIOLOGICAL SCHOOL 531

society, the sphere of State activity has expanded tremendously and

instead of the State withering away, it has become stronger.
Duguit was inconsistent at many places. On the one hand, he ex-
pressed faith in the biological evolution of society. On the other hand,
he attacked the idea of collective personality. He denied any personal-
ity to State or groups distinct from the individuals who constitute it.
After recognising the services of Duguit to jurisprudence by empha-
sizing that law is essentially the product of social forces, Prof. Allen
writes: "But he goes far beyond any sociological theory of law which
had yet been advanced when he attempts to evaporate all ethical con-
tent out of law. To banish the notion of right wholly from law, as M.
Duguit seeks to do, is to make it meaningless and to revolt an instinct
which is deepseated in human nature."
Paton points out that solidarity may be filled with any content we
desire. It is not an end in itself but a mere means to the purposes which
man wishes to achieve. Men may join together to collect the scalps of
their neighbours or to preserve the peace of the world. A community
of masters and slaves may have greater cohesion than a democracy.
While law is based on facts, it is created only when men use their wills
to choose between one set of facts and another. Rules are created be-
cause men say that "this is better than that" and because they agree to
place their wills at the service of the chosen end. No theory is satisfac-
tory which divorces law from the wills of men.
Contribution of Duguit.—In spite of various defects in his theory, the
contribution and influence of Duguit were great. His approach was
comprehensive and sincere. Though his theory ultimately became a
theory of natural law or a theory of justice, the idea of justice we find
in him is in perfectly social terms and was derived from social facts.
He shaped a theory of justice out of the doctrines of sociology. Though
proceeding from different premises, many later jurists reached similar
conclusions as Duguit had reached, particularly about the State, rights
and public and private law. Both the National Socialists and the So-
viet jurists adopted many of the principles from the theory of Duguit,
but they interpreted it in such a way as to suit their purpose or took
only such part of the theory which supported their activities. Inspired
by Duguit's emphasis on the importance of "group", many later ju-
rists like Hauriou and Renard propounded the "institutional theory".
Though Duguit's theory holds good on hardly any point, he is given
the credit for his original and comprehensive approach which inspired
many jurists to propound new theories.
Prof. Dias writes thus about Duguit; "His functional approach to
laws, his denial of the distinction between public and private law and
532 JURISPRUDENCE AND LEGAL THEORY [CHAP.

his advocacy of a form of the 'withering away' of centralised author-

ity and its replacement by a decentralised 'administration of things'
had some attraction to the early Marxist interpreters. His work had
influence in another direction also. The emphasis that he placed on the
importance of the group, coupled with advances in later sociological
thought shifted the focus of attention to group behaviour."'
The view of Gurvitch is that the great merit of Duguit lies more in
pointing out the existence of certain problems which had escaped Du-
rkheim than in having solved them. Basically, he continued and ap-
plied to his time the researches of the doctrinaires who pointed out
the existence of a jural framework of society opposed to the State. His
contribution to the sociology of law lies rather in his struggle againFt
certaui consecrated dogmas and in his description of the recent trans
formation of law than in a methodical study of the problem. Duguit's
work in jurisprudence influenced and stimulated different movements
of thought.
Gierke (1841-1921)
Gierke, a German jurist, was one of the most important original think-
ers in the early fields of sociological jurisprudence. According to him,
the reality of social control lies in the way in which groups within so-
ciety organise themselves. He proceeded to trace the progress of cocial
and legal development in the form of the history of the law and prac-
tice of associations. He propounded a classification of associations on
the following lines: firstly, he contrasts collective persons organised on
a territorial scheme among which is numbered the State, with those or-
ganised on a family or extra-territorial scheme. Secondly, he contrasts
associations based on the idea of fraternal collaboration with those
which are based on the idea of domination. In his own period, Gierke
felt that the collaborative principle had prevailed and the State encour-
aged the growth of independent collaborative organisations within its
own framework.
Gierke represents the final reaction against 18th century individ-
ualism. He was the pioneer of the modern approach to society. His
doctrine of the real personality and will of the group was a fascinating
anticipation of the lines of enquiry of modern psychology. He himself
never found it easy to reconcile his doctrine of the independence of
autonomous corporate bodies with the Supreme corporate power of
the State. His writings are an illustration of the new organic approach
to society. Though he himself disclaimed the use of the biological term
in connection with corporate associations, his work runs on the lines
parallel to those of Comte and Spencer.
2
jurisprudence, p. 609.
XXVII SOCIOLOGICAL SCHOOL 533

Hauriou (1856-1929)
The theory of I-lauriou is best appreciated in conjunction with the
theories of Gierke and Duguit. It has the following three essential ele-
ments:
(i) The idea of an undertaking or enterprise which is realised and
persists juridically in a social milieu,
(ii) For the realisation of this idea, a power is organised which
gives it organs.
(iii) Between the members of the social group interested in the
realisation of the idea, manifestations of communion arise
which are directed by the organs and regulated by rules of
procedure.
According to Hauriou, there are two kinds of institutions: 'institzi-
tions-personnes" (groups of human beings) and "institutions-choses"
(institution-things, e. g. rules of law, marriage). However, he devel-
oped seriously only the former type. He approached the problem of
the institution as a sociologist. He saw in it the synthesis of subjec-
tive will and objective reality. To him, the institution was not only an
analysis of social facts but also a juristic ideal as the best combination
of sovereignty and liberty. In the institution, individuals communicate
through combined action. The institution becomes something more
than an intellectual creation when individuals communicate through
combined action. From the three elements which constitute the essence
of an institution results the personification of an organised group bent
on the realisation of a common purpose. The objective reality of the in-
stitution is not only a sOcial reality, but also the source of legal person-
ality. Hauriou considers the formal incorporation of an institution as of
subordinate importance. Through the participation of all its members
in the government of the institution and the consequent passing of the
idea of the institution into the consciousness of all its members, moral
personality is achieved.
Hauriou was a pluralist. He did not integrate the institution in the
State as the highest type of institution.
Hauriou repudiated the organic theory, but his definition of an insti-
tution as a social organism in which those who have the power have to
submit to the idea which inspires the enterprise is, in fact, an organic
theory. Whether the institution is a commercial company, a political
party, a trade union or the State, the myth of its super-personal pur-
pose demands obedience and subordination.
The institution is the medium through which individual activity
serving a higher cause fulfils the divine purpose.
 534 JURISPRUDENCE AND LEGAL THEORY [CHAP.

The theories of Spencer, Gierke, Duguit and Hauriou all lead to a

similar result which is the subordination of the individual to a new so-
cial discipline and service to a collective. All tnse jurists were strongly
inspired by the idea of corporate autonomy. In different ways they dis-
liked the idea of a State-Leviathan. However, their theories were fated
to lead to a new State despotism which cunningly used the idea of
devotion to a collective for the glorification of individual power.
Hauriou took account of only those ideas which are innate in men
as social animals and in the very nature of social life, i. e., principles of
constitution and regulation without which no kind of group activity
would be possible.
Hauriou's theory about the formation and development of institu-
tions, their personality and their relations with the State etc. throw
light on the sociological aspect of law.
Max Weber (1864-1920)
Max Weber started his career as a lawyer, both as a teacher and practi-
tioner, but social science and economics became his dominating inter-
est.
Weber's Sociology of Law has for its main theme the analysis of the
transformation of law from a "charismatic" finding of a law to a state
of rationalisation. This transformation is followed up in various legal
phenomena: in the gradual distinction of public from private law, in
the evolution from the decision of individual cases to general princi-
ples and eventually a systematisation of law, in the development from
the early formal status-contract to the elastic and formless purpose-
contract, from the autonomous legal personality of the Middle Ages
to the modern State monopoly of the creation of legal personality. All
these legal developments are closely linked with social, political and
economic factors. Thus, a development of an exchange economy with
its increasing use of money leads to the development of modern con-
tract with its free assignability. The most interesting part of Weber's
analysis is concerned with the influence of legal professionalism and
of different forms of political government on the development of law.
Weber has made a valuable contribution to jurisprudence and
earned for himself a place among the sociological jurists. His historical
method links him with Sir Henry Maine but the principles which he
deduces from the course of development is Marxian.
Rudolf von Ihering (1818-1898)
Ihering was born in 1818 at Aurich in East Friesland. He became a
teacher of Roman Law and published his magnum opus from 1852 to
1865 in four volumes under the title The Spirit of the Roman Law in the
XXVII SOCIOLOGICAL SCHOOL 535
Various Stages of its Development. This publication was translated into
many European languages and that brought him recognition. In 1867,
he became Professor in the University of Vienna. The busy life of Vi-
enna interfered with his academic work and therefore he joined the
Gottingen University where he spent the last decades of his life in pio-
neering a new school of jurisprudential thought.
Ihering developed his legal philosophy through an intensive study
of the spirit of Rbman law. Reflections on the evolution of Roman law
and the genius of Roman jurisprudence led him to detest more and
more what he called the jurisprudence of concepts. The study of Ro-
man law taught him that its wisdom lay not so much in the logical
refinement of concepts as in the moulding of concepts to serve social
purposes. Through his studies, Ihering became aware of the para-
mount necessity for law to serve social purposes. That made Ihering
a utilitarian. The philosophical basis of his utilitarianism is the recog-
nition of purpose as the universal principle of the world, embracing
all creation. The purpose of human action is not the act itself but the
satisfaction derived from it. The debtor pays his debt in order to free
himself from it.
According. to Ihering, the purpose of law is the protection of interests.
He defined interest as the pursuit of pleasure and avoidance of pain.
Individual interest is made partly of a social purpose by connecting
one's own purpose with the interests of other people. By converging
interests for the same purpose, cooperation is brought about and com-
merce, society and the State result from it.
The problem beforelhering was to reconcile individual and collec-
tive interests and he did so by means of the principle of levers of social
motion. In those levers, he combined egoistic and altruistic motives.
The existence of society is made possible by a combination of the two.
The egoistic levers are reward and coercion. The desire for reward pro-
duces commerce and the threat of coercion makes law or State possi-
ble. Ihering joins those to whom coercion is an essential element of law
and State alike. The altruistic or moral levers of social motion are the
feelings of duty and love. The four combine to make society possible.
The object of society is to secure the satisfaction of human wants.
lhering divides into the following three categories the totality of hu-
man wants:
(1) Extra-legal (solely belonging to nature) human wants offered
to man by nature with or without effort on his part, e.g., the
produce of soh.
(ii) Mixed-legal human wants, i.e., conditions of life exclusive to
man. In this category are the four fundamental conditions of
 JURISPRUDENCE AND LEGAL THEORY ICIIAP.
536

social life viz., preservation of life, reproduction of life, labour

and trade. These are specific aspects of social life, but inde-
pendent of legal coercion.
(iii) The purely legal conditions which depend entirely on legal
command, such as the command to pay debts or taxes. No
legislation is needed for such matters as eating and drinking,
or the reproduction , of the species.
The realisation of the social purpose, i.e., the conditions of social ex-
istence, may be pursued by morality, ethics or law. The characteristic
approach of law is by means of the power of the State Which exercises
external coercion.
According to Ihering, the content of law not only may but must be
infinitely various. Purpose is a relative standard and hence law must
adapt its regulations to the varying conditions of the people, accord-
ing to the degree of their civilisation and the needs of the time. Ihering
opposed the idea of natural law as giving certain permanent and uni-
versally valid contents to law.
If law is coercion, the question arises how it can coincide with the
pursuit of individual interest. The reply of Ihering is that the basis of
all legal measure is undoubtedly man, whether the measures belong
to private, criminal or public law. Social life adds to man as a simple
being, man as a social being, as a member of a higher unit, e.g., State,
church or association. The jurist must conceive a higher legal subject,
society, as standing above the particular individual. The individual is
enabled to desire the common interest, in addition to his own. The law
never secures the good of the individual as an end in itself, but only
as a means to the end of securing the good of society. Ihering was op-
posed to Kant's atomistic conception of society.
According to Ihering, property exists not solely for the owners but
also for society. Law must try to reconcile the interest of the owner
with that of society. In this way, it justifies expropriation or legal re-
striction imposed upon the exercise of individual property rights. Ex-
propriation solves the problem of harmonising the interests of society
with those of the owner. Ihering was the first jurist who developed a
theory of balance of purposes or interests. His classification of three
main groups of interests—those of the individual, the State and the
society, was later on developed by Roscoe Pound.
According to Ihering: "Law is the sum of the conditions of social life
in the widest sense of the term as secured by the power of the State
through the means of external compulsion."
In The Struggle for Law published in 1872, Ihering developed the the-
sis that the origin of law is to be found in social struggles. To quote him:
XXVI] SOCIOLOGICAL SCHOOL 537

"The birth of law, like that of men, has been uniformly attended by the
violent throes of childbirth".
In Law as a Means to an End, the first volume of which appeared in
1877, Ihering showed that law is a system of reconciling conflicting-
interests. To quote him: "Purpose is the creator of the entire law" Re-
ferring to the philosophical school, he declared: "You might as well
hope to move a loaded wagon from its place by means of a lecture on
the theory of motion as the human will by means of the categorical
imperative. The real force which moves the human will is interest," The
doctrine of the historical school that law evolves spontaneously like
language was attacked by Ihering. He wrote pungently that according
to the historical school, the Roman law of debtor slavery grew in the
same way as "the grammatical rule that cum governs the ablative."
He was modern in the sense that he recognised the coercive charac-
ter of law and thus could meet the positivists on common ground. His
approach to law is not a denial of the efficacy of analytical jurispru-
dence but a convincing demonstration of its inadequacy. He did not
claim that he was solving the problems of law and society. His task was
merely to reconcile the conflicting interests although he did not tell us
in which direction that was to be done. Although he drew our atten-
tion to the problems of society, he did not solve them.
According to Ihering, law is not the only means to control the social
organism. It alone cannot protect and further all the social purposes.
Law is only one factor among many others. There are some conditions
of social life for which no intervention by law is needed. There are
some others where oiciy part intervention is made by law. However,
there are some conditions of social life which are secured exclusively
by law.
According to Ihering: "Human conduct is determined not by a 'be-
cause' but by a 'for' by a purpose to be effected, the 'for' is as indis-
pensable for the will as is the 'because' for the stone. The stone cannot
move without a cause, no more can the will operate without a 'pur-
pose".
Criticism—Dr. Friedmann writes that with Ihering, utilitarianism
ceased to mean the pursuit of individual pleasure and became the
balance between individual and communal interests. In that respect,
Iherings system represented a further step away from Bentham, in the
direction shown by Mill, Through the development of the idea of bal-
ance as the purpose of law. Ihering became the father cf inodern sociological
jurisprudence. He prepared the more elastic legal technique required to
meet new and changing legal problems by hi4'ght against the "Juris-
prudence of Concepts". Moreover, his insistence that law is realised
 JURISPRUDENCE AND LEGAL THEORY [CHAP.
538

through struggle and self-assertion was opposed to the romantic con-

ception of an unconscious manifestation of the Volksgeist through the
law. By insisting at the same time on coercion as the characteristic of
law and making the power of the State the instrument of the law, Iher-
ing created the essential foundations of a modern ;urisprudence, suita-
ble for the practical lawyer, because it was in much closer contact with
the social realities of the 19th and 20th centuries than Kant's idealism
or the romanticism of Savigr'iy.
Prof. J . Stone writes that "Ihering had drunk deeply from the ortho-
dox 19th century juristic springs. When he attacked his former teach-
ers, he did so in terms which they could not but understand. His icono-
clasm operated from within the juristic fold, rejecting the absolutism
of a priori theories of justice and individualism of both the Kantians
and Benthamites. As a result, his criticism entered the mainstream of
juristic thought and all who have followed him had to reckon with his
achievement.113
Ihering's theory of justice was generally labelled as social utilitar-
ian. He pressed the "fundamental idea that the highest principle of
classification from the philosophical point of view is the subject for
whose sake the law is made; and that in addition to the individual and
the State, society also, in the narrower sense, must be recognised as a
subject". Looked at from the viewpoint of the subject, this was an as-
sertion of the primacy of interests or claims. Ihering drew the attention
of those who were seeking an ideal of law in some absolute a priori
concepts, to the relative elements of all theories of justice.
One criticism of Ihering is that he built his system upon an assumed
egocentric individual who gradually developed into the socially-
minded member of the group and in the modern sense such sharp
opposition of individual and society is false.
Ihering did not provide us with a criterion of justice at all. While
he drew attention to the conflicting purposes which lie behind law, he
gave no satisfactory guide for deciding whether this compromise em-
bodied in the law is a just one or how a more just one could be attained.
To say that individual purposes must give way to social purposes, is
no answer at all: The question is how much way they should give. It is
also difficult to distinguish social interests from individual interests.
According to many critics, law protects 'will' and not purpose. How-
ever, Korkunov has very stoutly defended Ihering's theory of purpose
by presenting a number of illustrations to show that law protects pur-
pose and not will.

The Province and Function of Law. p. 311.

 XXVI] SOCIOLOGICAL SCHOOL 539
His Contribution_As regards the contribution of Ihering, he ren-
dered invaluable services to the science of jurisprudence. He was an
investigator of ancient law, a philologist and an anthropologist and
made study of various legal systems by the comparative method. He
traced the evolutionary character of law and declared that law devel-
ops by conscious efforts. He launched a vigorous attack on Savigny's
historical theory, philosophical theory and natural law theory. In the
fulfilment of social purposes, he found the fruition of individual pur-
poses which later on became the motto of the socialist States.
By pointing out the coercive character of law, by indicating that law
has only a relative value, by evaluating it with the social context and by
speaking of it as an instrument to secure social purpose, Ihering laid
the foundations of sociological jurisprudence. One finds in him all the
chief traits of sociological jurisprudence.
J. Stone writes that to admit the ultimate failure of Ihering's social
utilitarianism is not to deny its significance. Fundamentally, that sig-
nificance lay in powerfully drawing attention to the stuff to be weighed
in the scales of justice. He did for German and perhaps for continental
thought what Bentham and his followers had already done for English
thought. He did even more. He insisted on the relativism of justice
which Bentham's calculus of pains and pleasures tended in practice to
obscure. He insisted that there were some important interests to which
the law must have regard which cannot be easily fitted into a calculus
of pains and pleasures. He insisted that thought in terms of society
naturally finds room for the individual, but thought in terms of the
individual tends to overlook those interests which are not easily iden-
tifiable in terms of the individual."
Ihering inspired the sociological school of jurisprudence. Prince Leo
Gallitizin, a Russian prince who was one of his disciples, referred to
Ihering as the Prometheus who had brought the light of jurisprudence
to mankind. Ihering's work was taken up by his disciple, Eugen Ehr-
lich. Earnest Fuchs, leader of the German free law school, derived his
inspiration from Ihering. The American School of Sociological Juris-
prudence was also influenced by the works of Ihering.
Eugen Ehrlich (1862-1922)
Ehrlich was born in 1862 at Czernowitz in the Duchy of Bukowina
which at that time was a part of A ustria-Hungary. He became Profes-
sor of Roman Law at the University of Czernowitz. He was primarily
concerned with the social basis of law. According to him, law is de-
rived from social facts and depends not on State authority but on social

The Province and Function of Law, p.313.

 JURISPRUDENCE AND LEGAL THEORY [CHAP.
540

compulsion. Law differs little from other forms of social compulsion

and the State is one among many associations. The real source of law,
is not statutes but the activities of society itself. To quote him; "The
centre of gravity of legal development lies not in legislation, nor in
juristic science, nor in judicial decision, but in society itself. There is
a "living law" underlying the formal rules of the legal system and it
is the task of the judge and jurist to integrate these two types of laws.
Commercial law, as embodied in statutes and cases, involves a con-
stant attempt to try to keep up with commercial usage, for the "centre
of legal gravity lies ... in society itself." Hence, great emphasis is placed
on fact-studies, as against analytical jurisprudence, in exploring the
real foundations of legal rules, their scope and meaning and potential
development.
The view of Ehrlich was that laws found in formal legal sources such
as statutes and decided cases, give only an inadequate picture of what
really goes on in a community. He drew a distinction between norms
of decision and norms of conduct. There will always be an inevitable
gap between the norms of formal law and those of actual behaviour.
The "living law" of society has to be sought outside the confines of
formal legal material. It is to be sought in society itself. One learns lit-
tle of the living law in factories by reading only the Factories Acts, the
enactments and the common law relating to master and servant, trade
unions etc. One has to go to a factory if one is to observe how far the
formal law is followed, modified, ignored and supplemented. Only a
very small fraction of social life comes before courts and even then it
usually represents some form of breakdown of social life.
According to Ehrlich, certain facts underlie all laws. Those are us-
age, domination, possession and declaration of will. Propositions of
law with reference to them arise in three ways: by endeavouring to
give effect to the relations (they create, by controlling or invalidating
them or by attaching consequences to them- A formal concept of law
consists of the synthesis of generalisations constructed from the vari-
ous propositions of law. According to Ehrlich, 'living law' is to be dis-
covered from judicial decisions, modern business documents against
which judicial decisions have to be checked and observation of people
by living among them and noting their behaviour.
According to Ehrlich, a statute which is habitually disregarded is no
part of the living law. Enforcement by the State is not the distinction
between formal and living law. The difference lies in social psychol-
ogy. Some types of rules evoke different feelings from others. There
are many reasons why a person obeys even a legal rule other than fear
of State enforced sanction. The characteristic of formal rules lies in the
XXVI] SOCIOLOGICAL SCHOOL 541
kind of feelings they arouse by virtue of their generality and social
significance. Different societies and even the same society at different
times, have had different feelings about what is socially important, the
line between legal and moral and social rules has constantly shifted.
According to Ehrlich, the real law of the community is not to be
found in the traditional formal legal sources. The norms governing life
in society are imperfectly and partially reflected in the formal law of
that society. A commercial usage becomes established as it is conven-
ient and efficient. With the passage of time, it is recognised by courts
and incorporated into contracts. Ultimately, it is given a statutory form
as in the Sale of Goods Act, 1893. As fresh commercial usages grow up,
those are also ultimately incorporated in the law of the country. The
net result is that the formal law can never catch up with the "living
law". There is always a gap between what the law says about a given
topic and the way in which people actually behave in the context of
that topic. In certain cases, law contradicts the practice of that topic.
Sir Carleton Allen writes: "The London Stock Exchange, despite the
express provisions of Leeman's Act, persistently refuses to specify the
serial numbers of the shares in a contract for the sale of banking shares;
underwriters constantly disregard Section 4 of the Marine Insurance
Act, 1906 which provides that every insurer of a cargo or bottom must
have an insurable interest in the same". Likewise, it is provided in the
Moneylenders Act, 1900 that if interest is excessive and the transaction
is harsh and unconscionable, the borrower may obtain relief. "When it
is found that the interest charged exceeds the rate of 48 per cent per an-
num, there is a presumtion that the interest charged is excessive and
that the transaction is harsh and unconscionable." In spite of this, there
are moneylenders who charge interest @ 48 per cent per annum and
although thousands of transactions take place on that basis, no cases
are brought before the courts by the borrowers. Obviously, the prac-
tice differs from law. Likewise, a large number of technical assaults
and batteries are committed, but those are not brought to the notice of
courts. In actual practice, the police also do not prosecute all those who
are guilty of various offences, particularly when it is considered inex-
pedient to do so. The conclusion of Ehrlich is that if we want to know
the living law of a society, we cannot confine ourselves, to the formal
legal material but we have to go beyond that in order to find out how
people actually live in society.
Ehrlich does not find any difference between law and custom. It ap-
pears to him that both of them have the same sanction in the form
of social pressure. Whether the norm is a statute or the practice of a
group, the reason for its observance is exactly the same and that is
the communal urge which arises from the facts of social life. To quote
542 JURISPRUDENCE AND LEGAL THEORY [CHAP.

Ehrlich: "The individual is never actually an isolated individual; he is

enrolled, placed, embedded, wedged into so many associations that
existence outside of these would be unendurable."
The view of Ehrlich was that law which is not habitually observed
is not a part of the living law of the community. His calculation was
that about one-third of the sections of the Austrian Civil Code had no
influence whatsoever upon the life of the people.
According to Ehrlich, the traditional scope of jurisprudence was
hopelessly narrow and the same must be enlarged if the subject is to
have contact with reality. The jurists should study not only the formal
legal system but also the rest of the living law. He must see to it that
the formal law keeps pace with the way in which people actually lived.
To quote Ehrlich: "The law does not consist of legal propositions but of
legal institutions. In order to be able to state the sources of the law, one
must be able to tell how the State, the church, the commune, the fam-
ily, the contract, the inheritance came into being, how they change and
develop." If one were to follow the process suggested by Ehrlich, a life-
time would be required to deal with one Act. Without "disrespect to
the labours of a very learned, sincere and original jurist", Allen has at-
tempted to term this kind of project as "megalomaniac jurisprudence".
However, some limit has to be drawn because otherwise jurisprudence
will dissipate its energy over too wide an area.
Ehrlich advised the jurists to come out of their ivory tower of ana-
lytical jurisprudence and walk on the fields of actual life where law
must work and be tested. His work was undoubtedly stimulating and
beneficial. However, Ehrlich did not attach sufficient importance to the
way in which formal law itself influences and reforms the practices of
society. The view of Ehrlich that formal law merely confirms the real
norms of social law tends to give to conscious law-making only a rub-
ber stamp efficacy and deprives it of its creative power. It is true that
reforming legislation is very often the formal expression of a public
feeling, but there are cases where legislation imposes a novel idea of
public opinion and it is only in course of time that public opinion ac-
cepts it and approves of it. This aspect of the matter was not given due
recognition by Ehrlich.
The central point in Ehrlich's approach is his minimisation of the
differences between law and other norms of social compulsion. The
difference is relative and smaller than usually asserted because the es-
sential compulsion behind legal and social norms is social compulsion
and not State authority. Tribal allegiance, family and religion provide
motives of obedience to social norms, including most legal norms.
Many legal norms never find expression in legal provisions even in
 XXVII SOCIOLOGICAL SCHOOL 543
developed systems. Law is something much wider than legal regula-
tion. The State is only one of a number of legal associations. The State,
as the principal source of law, is to Ehrlich historically a much later
development. It remains at all times essentially an organ of society.
Ehrlich distinguishes between static and dynamic rinciples of jus-
tice. Such institutions as contract, succession, the interest in one's own
labour, have certain ideal forms. Justice deman 's the perfect econom-
ic contract or thelegal prohibition to enrich oneself by the labour of
someone else.
Dr. Friedmann points out that Ehrlich's work is full of stimulating
s uggestions for a scientific approach to law which relates the law more
closely to the life of society. It has played a leading part in the reaction
of legal thinking towards the turn of the century against the surfeit
of analytical jurisprudence which had characterised iegal thinking of
the preceding generation. The practical impact of his teaching was the
stimulus given to fact-study in law. His approach was more scientific
and com prehensive. He suggested the study of law in its social con-
text and emphasized its close relation with the life of society. Though
Ehrlich appears to have adopted Savigny's line of thought, he differs
from him in many respects. In Savigny's view, law is tied to the primi-
tive consciousness of the people. However, Ehrlich locates law in the
present-day institutions of society. While legal provisions were ad-
dressed to courts and administrative officials, there is living law which
dominates life even though it may not have been formulated as living
proposition, Ehrlich's approach is more practical and purposeful. He
concentrates more on the present than on the past law. He emphasises
the social function of law. In making and administering law, the re-
quirements of society should be taken into consideration.
The view of Dias is that the work of Ehrlich was a powerful influence
in inducing jurists to abandon purely abstract preoccupations and to
concern themselves with the problems and facts of social life.'
Criticism of Ehrlich. _Dr.
Friedmann refers to three main weaknesses
in the work of Ehrlich. In the first place, Ehrlich gives no clear criterion
by which to distinguish a legal norm from any other social norm. The
interchangeability does not diminish the need for a clear test of distinc-
tion. Ehrlich's sociology of law is always on the point of becoming a
general sociology. Secondly, Ehrlich confuses the position of custom as
a "source" of law with custom as a type of law. In primitive society as
in the international law of our time, custom prevails bOth as source of
law and the chief type of law. In modern society, it is still important in
the first, but less and less important in the second, role. Modern society
Jurisprudence, p. 590.
 JURISPRUDENCE AND LEGAL THEORY [CHAP.
544
demands articulate laws made by a definite lawgiver. Thirdly, Ehrlich
refuses to follow up the logic of his own distinction between specific le-
gal State norms and legal norms where the State merely adds sanction
to social facts. As modern social conditions demand more and more
activecontrol, the State extends its purposes. Consequently, custom
recedes before deliberately made law, mainly statute and decree. At
the same time, law emanating from central authority as often moulds
social habits as it is moulded itself .6
Dias also points out certain drawbacks in Ehrlich's philosophy. The
difference between formal and living law is necessary and important,
but there is some danger of a merely verbal discussion as to whether
both should be called law, or only one, and if so which. He deprived
formal law of any creative activity and gave it too much the appearance
of trailing in the wake of social developments. It is true that reforming
legislation is sometimes the formal expression of a tide of public feel-
ing, but it is also true that many norms of behaviour have been given
shape and direction by the constant enforcement of law. Ehrlich's dis-
tinction between norms of decision and norms of behaviour is impor-
tant, but he failed to emphasise sufficiently their mutual interaction.
Ehrlich's contentions were somewhat outmoded even when he pro-
pounded them. State organisation is now and has been for a long time
playing an ever increasing part in the regulation of social life. It is not
merely ancillary to the living law. It occupies a place of transcendent
importance. The picture drawn by Ehrlich was truer of the past than of
today and it was ceasing to be true even in his own day. His conception
of jurisprudence could make it unwieldy and amorphous. The way in
which Ehrlich proposed to conduct the study of society would all but
submerge the significance of laws and might lead to th death of juris-
prudence as a subject!
The view of Lord Lloyd is that Ehrlich unduly belittled the primary
role of legislation in creating new law, both in the public and private
sector. A grasp of underlying social phenomena may not in itself point
the way to appropriate solutions, either in new legislation or decisions
of the courts. The legal process may need to be invoked as in itself an
educative factor, as, for instance, in the attempt in the United States
to impose desegregation by judicial decree and so set the educative
forces in motion which might ultimately produce a change in the social
climate, rather than yielding to existing social pressures. The same is
the case with such reforms as town-planning or the abolition of capital

Legal Theory, pp. 202-3.

Jurisprudence. p. 590.
XX VII: SOCIOLOGICAL SCHOOL 545

punishment which may have to be forced by a progressive minority

upon a recalcitrant majority for the time being.'
According to Dr. Gurvitch, the essential defect in the philosophy of
Ehrlich is the total lack of micro-sociological and differential analy-
sis, that is to say, any accounting for the forms of sociality and jural
types of groupings. Ehrlich's sociological and jural pluralism is an ex-
clusively vertical one. It leads him to confuse under the term "law of
society" a series of different kinds of law and this confusion is repeated
with respect to rules of decision and abstract propositions. According
to him, whatever is institutional or spontaneous in law comes from
society opposed to State and has the character of internal law of as-
sociation. Contractual law, law of property and law of unilateral domi-
nation are only masked forms of law of society and the objective and
spontaneous order of individual law does not exist. At the same time,
the State is seen only under the form of abstract legal propositions as
though there were not levels of depth within the order of the State and
as though there did not exist a spontaneous political union distinct
from other spontaneous unions. The absence of micro-sociology and
jural typology of groupings leads to sharply monastic conceptions.
The law of society is artificially impoverished by being confined solely
to the sphere of the spontaneous, as though it did not have its own
abstract propositions in autonomous statutes of groups and its own
rules of decision elaborated in the functioning of Boards of Arbitration
and similar bodies.
Roscoe Pound (1870-1964)
In the words of Dr. Guritch, the sociology of law in the United States
had its most elaborate and detailed, its most broadly conceived and
subtle, expression in the rich scientific productions of Dean Pound,
the unchallenged chief of the school of sociological jurisprudence. His
thought was formed by a constant confrontation of sociological prob-
lems, philosophical problems, problems of legal history and problems
of the work of American courts. This multiplicity of centres of interest
and of points of departure aided Pound to broaden and clarify the very
vast perspective of legal sociology and to develop gradually its differ-
ent aspects:
The view of Sir C.K. Allen is that Pound was "a moderate of mod-
Crates—a relativist with a strong conviction of the provisional nature
of all legal creeds and expedients".' It is not correct to describe his
attitude as purely pragmatic or utilitarian. He was not ah enemy of ab-
stract philosophy of law. He did not underestimate the part played by

Introduction to Jurisprudence, p. 355.

Law in the Making, p. 34.
546 JURISPRUDENCE AND LEGAL THEORY [CHAP.

speculative idealism in the development of legal institutions. However,

he was impressed by certain limitations of legal philosophy which his-
tory had constantly illustrated. Philosophical theory is conditioned by
the circumstances of time and place. Again and again, whole trends
of thought have been coloured by the desire to justify a theory of gov-
ernment, to solve a pressing problem of the government, to resolve
doubts created by a phase of social change or to bridge transition from
one order of society to another. Though each in its turn has considered
itself a decisive revelation of truth, none of them is or can be final. The
conclusion is that all juristic truth is relative truth.
The whole trend of Pound's legal philosophy is cautiously experi-
mental—to the point where some may think that it is hesitating and
unsatisfying, but there is much warrant in experience for believing
that modesty of objective in social experiment is more fruitful in the
long run than a vaulting ambition which overlaps itself. Pound's legal
philosophy is essentially one of practical compromise.
Roscoe Pound was born in Lincoln, Lebraska. He was devoted to
classics and botany in his youth. In 1901, he was appointed an auxil-
iary judge of the Supreme Court of Lebraska. In 1903, he became Dean
of the Law School of the University of Lebraska. He was Dean and
Carter Professor of Jurisprudence at the Harvard University from 1916
to 1936. It was from Harvard that he published a series of articles on
Sociological Jurisprudence.
Among the advocates of the sociological method, the name of Ro-
scoe Pound stands preeminent. He, more than any other in recent
times, was responsible for the growth of the functional attitude in ju-
ridical science, the attitude of looking to the working of law rather than
to its abstract content and regarding law as a social institution which
it should be our endeavour to improve by conscious and intelligent
effort along lines which jurists shall determine as the most efficacious
for achieving the ends and purposes to be served. In his book Interpre-
tations of Legal History, Pound wrote: "Law is the body of knowledge
and experience with the aid of which a large part of social engineering
is carried on. It is more than a body of rules. It has conceptions and
standards for conduct and for decision, but it has also doctrines and
modes of professional thought and professional rules of art by which
the precepts for conduct and decision are applied and developed and
given effect. Like an engineer's formulae, they represent experience,
scientific formulations of experience and logical development of the
formulations, but also inventive skill in conceiving new devices and
formulating their requirements by means of a developed technique."
XXVI] SOCIOLOGICAL SCHOOL 547

According to Pound, sociological jurisprudence should ensure that

the making, interpretation and application of laws take account of so-
cial facts. In order to achieve that end, there should be a factual study
of the social effects of legal administration, social investigations as
Preliminaries to legislation, a constant study of the means for mak-
ing laws more effective, which involves the study, both psychological
and philosophical, of the judicial method, a sociological study of legal
history, allowance for the possibility of a just and reasonable solution
of individual cases, a ministry of justice in English-speaking countries
and the achievement of the purposes of the various laws. This compre-
hensive programme covers every aspect of the social study of laws.
According to Pound, the common law Still bears the impress of in-
dividual rights. In order to achieve the purposes of the legal order,
there has to be a recognition of certain interests, individual, public and
social, a definition of the limits within which such interests will be
legally recognised and given effect to, and the securing of those in-
terests within the limits as defined. When determining the scope and
subject-matter of the system, the following five things have to be done:
(i) preparation of an inventory of interests, classifying them, (ii) selec-
tion of the interests which should be legally recognised, (iii) demarca-
tion of the limits of securing the interests so selected, (iv) consideration
of the means whereby laws might secure the interests when those have
been acknowledged and delimited, and (v) evolution of the principles
of valuation of the interests.
Theory of Social Engineering. -Pound likened the task of the lawyer
to engineering and ha repeated that analogy frequently. The aim of
social engineering is to build as efficient a structure of society as pos-
sible which requires the satisfaction of the maximum wants with the
minimum of friction and waste. In involves the balancing of competing
interests. For that purpose, interests were defined by Pound as claims
or wants or desires (or expectations) which men assert defacto, about
which law must do something if organised societies are to endure. It
is the task of the jurists to assist the court by classifying and expatiat-
ing on the interests protected by law. For facilitating the tasks of social
engineering, Pound classified the various interests which are to be pro-
tected by law under three heads: private interests, public interests and
social interests.
(i) Private Interests: The private interests to be protected by law are
the individual's interests of personality. These include his physical
integrity, reputation, freedom of volition and freedom of conscience.
They are safeguarded by the criminal law, law of torts, law of contracts
and by limitations upon the powers of the government to interfere in
548 JURISPRUDENCE AND LEGAL THEORY [CHAP.

the matter of belief and opinion. Individual's interests in domestic re-

lations include marriage, relations of husband and wife and parents
and children and claims to maintenance. Interests of substance include
proprietary rights, inheritance and testamentary succession, occupa-
tional freedom, freedom of association, freedom of industry and con-
tract, continuity of employment etc.
(ii) Public Interests: Public interest are claims or demands or desires
asserted by individuals invblved in or looked at from the standpoint
of political life. There are two kinds of public interests: interests of the
State as a juristic person and interests of the State as a guardian of
social interests. They include the integrity, freedom of action and hon-
our of the Stats'c personality, and claims of the politically organised
society as a corporation to property acquired and held for corporate
purposes.
(iii) Social Interests: Social interests ar' claims or demands or desires
thought of in terms of social life and generaiised as claims of the social
group. Social interests are said to include (a) social i nterest in the gen-
eral security, (b) social interest in the security of social iititutions, (c)
social interest in general morals, (d) social interest in the conservation
of social resources, (e) social interest in general progress and (f) soc 'l
interest in individual life.
Social interest in the general security embraces those branches of
the law which relate to general safety, general health, peace and order,
security of acquisitions and security of transactions.
Social interest in the security of social institutions comprises do-
mestic institutions, religious institutions, political institutions and eco-
nomic institutions. Divorce legislation may be adduced as an example
of the conflict between the social interests in the security of the institu-
tion of marriage and the individual interests of the unhappy spouses.
There is tension between the individual interest in religious freedom
and the social interest in preserving the dominance of an established
church.
Social interest in general morals covers a variety of laws, e.g., laws
dealing with prostitution, drunkenness and gambling.
Social interest in the conservation of social resources covers conser-
vation of social resources and protection and training of dependents
and defectives, i.e., conservation of human resources.
Social interest in general progress has three aspects: economic
progress, political progress and cultural progress. Economic progress
covers freedom of use and sale of property, free trade, free industry and
encouragement of inventions by the grant of patents. Political progress
covers free speech and free association. Cultural progress covers free
XXVI] SOCIOLOGICAL SCHOOL 549

science, free letters, free arts, promotion of education and learning and
aesthetics.
Social interest in individual life involves self-assertion, opportunity
and conditions of life.
The problem which juridical science faces is the evaluation and bal-
ancing of these interests. For facilitating that process, Pound provided
what he called the jural postulates of civilised society. In 1919, he summa-
rised those postulates as follows: Every individual in civilised society
must be able to take it for granted that:
(i) he can appropriate for his own use what he has created by
his own labour and what he has acquired under the existing
economic order;
(ii) that others will not commit any intentional aggression upon
him;
(iii) that others will act with due care and will not cast upon him
an unreasonable risk of injury;
(iv) that the people with whom he deals will carry out their un-
dertakings and act in good faith.
In 1942, Pound added to that list the following three new postulates:
(i) that he will have security as a job-holder; (ii) that society will bear
the burden of supporting him when he becomes aged; (iii) that society
as a whole will bear the risk of unforeseen misfortunes such as disable-
ment.
The jural postulates are to be applied both by the legislators and
the judges for evaluatihg and balancing the various interests and har-
monising them. Justice Cardozo writes: "If you ask how he is to know
when one interest outweighs another, I can only answer that he must
get his knowledge from experience and study and reflection; in brief
from life itself."
Criticism. —Pound's theory of social engineering has been criticised
on various grounds. It is contended that the classification of interests
by Pound is in the nature of a catalogue to which additions and chang-
es have constantly to be made and which is neutral as regards the rela-
tive value and priority of the interests enumerated. As soon as interests
are ranked in a specific order or given any appearance of exclusiveness
or permanence they lose their character as instruments of social engi-
neering and become political manifesto. Pound himself has inserted a
certain evaluation by describing the Interest in individual life as the
most important of all. However, there is a danger of an implicit evalu-
ation in the grading of interests as either individual, public or social.
What is an individual and what is a social interest is itself a matter
of changing political conceptions. Many interests come under differ-
 550 JURISPRUDENCE AND LEGAL THEORY [CHAP.

ent categories. The protection of inventions by exclusive patent may

be an individual interest of personality as well as a social interest in
economic progress. It is not only the enumeration of interests as such
but also their respective weight which is a matter of changing political
and social p h ilosophies. Pound's four legal policies for the protection
of general progress can be hotly contested today both in practice and
theory. Freedom of property is subject to increasing limitations accord-
ing to the prevailing s ocialphilosophy ranging from the transfer of
means of production to the community to prevention of the abuse of
rights. The degree to which patents should be protecteçi is a subject of
much controversy in view of the danger of the exclusive right of the
patentee being used for sterilising inventions rather than for econom-
ic and social progress. A conservative legal order would stress most
strongly the freedom of individual rights of established institutions.
A totalitarian system would suppress or severely restrict the interests
of personality in favour of the interests of the State. The very concep-
tion of neutrality in the catalogue of interests, the evaluation of which
depends upon changing political and social systems, is the trait of a
liberal approach.
Pound's metaphor of "Engineering" has been criticised on the
ground that it suggests a system of merely mechanical expedients,
mechanically administered to social exigencies. However, a metaphor
should not be pressed too far. That hardly seems to be the meaning of
Pound. After all, engineering is a matter of nice calculation and ingen-
ious resource as well as of cogs and wheels and levers.
It is also contended that if we stress upon the experimental aspect
of law, we shall be in danger of falsifying the manner in which it does
in fact operate within a large part of its territory, Experiment implies
initiative and a ceaselessly "engineering" law suggests the picture of
a science which is always seeking new instruments, new expedients,
for new needs new goods, in short good life. The picture is accurate
enough for a great deal of what is called social legislation in the mod-
ern state. It is true that in the world of today no enlightened system of
law is content with being merely st. tic. It must also be dynamic and a
great detail of thought and knowledge is necessary to make it usefully
dynamic. Much of the modern law is dynamic. Much is and must be
static in the sense that it aims at regulation of behaviour and mainte-
nance of order. Pound himself has admitted that whole theories of law
in the past have been content with the dominating purpose of keeping
peace and students of English common law are aware how much of it
has grown up round the cardinal notion of King's peace. Hence, if we
are to regard law as an engine, let us think of it as a dynamo. Some-
times the dynamo drives a crane, a drill, a riveter or even a mechanical
XXVII SOCIOLOGICAL SCHOOL 551
shovel, but frequently it also actuates a gyroscope to maintain stabil-
ity.
Sir C. K. Allen points out that if we are to think of "wants and de-
sires" as the essential subject-matter of law, we should give that term the
widest interpretation, so wide that it becomes difficult to draw a line of
demarcation between the scope of sociological jurisprudence and that
of any other kind of jurisprudence. The sociological point of view suf-
fers from the same besetting sin as the utilitarian. It is apt to thrust on
society what society ought to want and desire, just as Bentham offered,
as actual goodness and happiness, what ought to make men good and
happy and what would make men good and happy, if they were not
sometimes strangely obstinate about their likes and dislikes.
The danger in Pound's theory lies in interpreting wants in their sub-
jective immediacy. This is not what Pound intended. However, as his
thesis remains undeveloped, it is open to this interpretation. If the sat-
isfaction of wants is the end of law, then the politician can hardly be
blamed if he estimates demands in terms of letters and telegrams, nor
the judge if he keeps his ear to the ground to catch the public clamour.
Those who demand nothing will get nothing. Those who want little
will get little. Those who make extravagant claims will get less than
they demand but more than they deserve. A need of which people are
not conscious can hardly be counted and one which is unexpressed will
not be likely to be given consideration. According to Prof. Fite, there
is no obligation to respect the personal interests of those who evade
the responsibility of standing for themselves. This attitude results in
the pressure-group thory of government which sees the legislature
as a scene of struggle between competing interests and the cabinet as
made up of the representatives of various classes. Another evil which
attaches to this view is that if justice consists in satisfying as much
as possible of the whole body of existing wants with as little sacrifice
as possible, then there is no injustice in taking care that embarrassing
wants do not arise. Beyond the bare necessaries of life, wants are not
a native endowment. They emerge with widening experience as the
taste for luxuries or music, or they can be created artificially.
The theory is no better if wants are interpreted to include potential
or possible wants. Then the aim would be to create as many wants as
possible in order to satisfy them. It is not clear that a life full of many
wants all of which can be satisfied, is better than a well-ordered life
with simple and noble ends. Wants in themselves are-impulses to ac-
tion and not ends of action. They become ends when that which will
satisfy them is subject to rational consideration. Ends become public
552 JURISPRUDENCE AND LEGAL THEORY [CHAP.

ends, an integral part of public policy and constructive legislation

when the organisation is set which will achieve its realisation.
The judge is not compromising conflicting interests and trying to
conserve as many wants as possible. He is not merely an umpire pre-
siding over a fight between the plaintiff and defendant and trying to
reach a decision that will satisfy as? much as possible of the demands
of each. He is judging the right. Even in cases of private litigation, he
is the representative of the State and gives primary consideration to
the social bearings of his decision. He is guided by the ideals which
control public policy.
Pound's theory shifts the centre of gravity in the legal order from
legislation to court judgments, but the judiciary has its limitations. It
does not have the machinery of enforcing its decisions and therefore
cannot really do effective social engineering. For example, despite the
famous judgment of the Supreme Court of America in Brown v. Board
of Education (1954), discrimination against Negros continues in prac-
tice in the United States. Moreover, in a scientific society the law must
conform to a scientific plan which can be prepared only by legislators.
Judges can give ad hoc judgments on specific issues coming up before
them but they cannot frame a broad plan for restructuring society. Of
course, a judge can focus attention on a pressing social problem and
through his judgment can create a modern legal principle or suggest
some alteration in the law, but he cannot do what the legislature can
do.
The concept of harmonising conflicting social interests raises sev-
eral problems. It presumes that all conflicting social interests can be
reconciled which may not always be true. For example, it is debatable
whether the interests of labour and capital can be reconciled. There
may be certain backward or reactionary interests which should be sup-
pressed and not reconciled if society is to progress. Why should such
interests be harmonised with interests that are progressive in nature?
Pound's theory is in fact "neutralist" or rather status quoist in this re-
spect.
Justice without law can result in total lawlessness and arbitrariness.
The rule of law, that is, the view that decisions should be made by the
application of known rules and principles, was a great achievement of
positivist jurisprudence. To abandon it would be a retrograde step.
Prof. Dias points out that Pound's engineering analogy is apt to mis-
lead. What, for instance, is the "waste and friction" in relation to the
conflict of interests? Further, the construction, for example of a bridge,
is guided by a plan of the finished product and the stresses and strains
to be allved to each part are worked out with a view to producing
XXVI] SOCIOLOGICAL SCHOOL 553

the best bridge of that kind in that place. But with law there can be no
plan, worked out in detail, of any finished product, for society is con-
stantly developing and changing and the pressures behind interests
are changing too. Therefore, the value or importance to be allotted to
each interest cannot be predetermined."'
Dias also points out that Pound assumed that de facto claims pre-
exist laws which are required to "do something" about them. How-
ever, it can be contended that claims are consequent on law, e.g., those
that have resulted from welfare legislation. Moreover, what does "do
something" about them mean? It is not enough to say that law has to
select those that are to be recognised. "Recognition" has many grada-
tions which makes it necessary to specify in what sense an interest is
recognised. It is difficult to say in what sense the law recognises or
does not recognise an interest."
It is not interests as such but the yardsticks with reference to which
they are measured that matter. It may happen that some interest is
treated as an ideal in itself and in that case it is not the interest as an
interest, but as an ideal that will determine the relative importance be-
tween that interest and other interests. Whether the proprietary right
of a slave-owner is to be upheld or not depends upon whether sanctity
of property or the sanctity of the person is considered as the ideal. The
choice of an ideal or even a choice between competing ideals, is a mat-
ter of decision and not of balancing. Lawyers are concerned with the
choice made by the judges and the ideals adopted by them.'2
The balancing metaphor is also misleading. If two interests are to be
balanced, that presupposes some "scale" or "yardstick" with reference
to which they are measured. One does not weigh interests against one
another, even "on the same plane". With reference to some ideal, it is
possible to say that the upholding of one interest is more consonant
with, or more likely to achieve it, than another. That means that with
reference to that given ideal, one interest is entitled to preference over
the other. Moreover, the "weight" to be attached to an interest will
vary according to the ideal that is used. With reference to the ideal of
freedom of the individual, all interests pertaining to individual self-
assertion will carry more weight than social interests. With reference
to the ideal of the welfare of society, the opposite may be true. The
whole idea of balancing is subordinate to the ideal in view. The march

Jurisprudence, p. 601.
Ibid. pp. 601-2.
12
Ibid. p. 602.
554 JURISPRUDENCE AND LEGAL THEORY [CHAP.

of society is gauged by changes in its ideals and standards for measur-

ing interests.0
All questions of interests and ideals should be considered in the con-
text of particular issues as and when they come up for decision. Each
situation has a pattern of its own and the different types of interests
and activities that might be involved are infinitely various. It is for
the judge to translate the activity involved in the case before him in
terms of an interest and to select the ideal with reference to which the
competing interests are to be measured. The listing of interests is not as
important as the views which particular judges take of given activities
and the criteria by which they evaluate them.14
Interests exist and are made articulate when they are presented in
litigation. Lists of interests can be drawn up, not in advance of, but af-
ter the various interests have been contended for in successive cases.'-'
The recognition of a new interest is a matter of policy. The mere
presence of a list of interests is of limited assistance in helping to de-
cide a given dispute. Interests need only be considered as and when
they arise in disputes. What is important is the way in which they are
viewed and evaluated by the particular judge. 16
It is difficult to see how the balancing of interests will produce a co-
hesive society where there are minorities whose interests are irrecon-
cilable with those of the majority. How does one "balance" such inter-
ests? Whichever interest is favoured, the decision will be resented by
those espousing the other. A compromise will most likely be resented
by both. There is a different problem where a substantial proportion
of the population is parochially minded and have little or no sense of
nationhood. The theory of Pound cannot be accepted generally."
.Dias points out that although Pound did not ignore ideals of guid-
ance, he devoted too little attention to them. His awareness of them is
evident in his distinction between "natural natural law" and "positive
natural law". According to him, the former is "a rationally conceived
picture of justice and an ideal relation among men, of the legal order as
a rationally conceived means of promoting and maintaining that rela-
tion, and of legal precepts as rationally conceived ideal instruments of
making the legal order effective for its ideal end". The latter is "a sys-
tem of logically derived universal legal precepts shaped to the experi-
ence of the past, postulated as capable of formulation to the exigencies

Ibid. P. 602.
' ]bid. P. 603.
Ibid. P. 603.
" Ibid. P. 603.
Ibid. P. 604.
XXVI] SOCIOLOGICAL SCHOOL 555

of universal problems and so taken to give legal precepts of univer-

sal validity." The view of Dias is that it would have been preferable if
Pound had enlarged on the criteria of evaluating interests instead of
developing particular interests. His work has not much practical im-
pact on account of his sterile preoccupation with interests and too little
attention to the criteria of evaluation.1
Pound on Social Justice. —Pound also advanced and elaborated a the-
ory of social justice. Although his theory of justice was avowedly in-
spired by German sociological jurisprudence, it expressed tendencies
clearly recognizable in English and American judicial and legislative
practice. As his theory is in fact the development of Bentham's theory
of utility as applied in the sphere of law, many English lawyers who
have received the tradition of utilitarian doctrine are disposed in its
favour.
Pound wrote thus in 1912: "In general, sociological jurists stand for
what has been called the equitable application of law, that is, they con-
ceive of the legal rule as a general guide to the judge, leading him
towards the just results but insist that within wide limits he should
be free to deal with the individual case so as to meet the demands of
justice between the parties and accord with the general reason of ordi-
nary men."
In Justice According to Law Pound said: "We come to an idea of a
maximum satisfaction of human wants or expectations. What we have
to do in social control and so in law, is to reconcile and adjust these
desires—wants or expectations, so far as we can, so as to secure as
much of the totality of tl*tem as we can."
In dealing with a specific social problem, Pound stressed that the
just solution could only be achieved if the interests involved were as-
sembled within one of these classes. He was inclined to resolve most
social problems by weighing or adjusting the relevant social interest.
Many will conflict so that all cannot be satisfied in full. Before a just
order of that society can be achieved, some selection of the interests
which are to be satisfied must be made.
While not denying that dispensing justice according to fixed rules
has the advantages of certainty and uniformity, Pound suggested that
in order to harmonise conflicting interests in modern dynamic society,
the judge will often have to dispense "justice without law", that is,
without following any prescribed rule or precedent. That was due to
the fact that in view of the fast changes in industrial society, new situa-
tions and problems were cropping up which had no precedent and for
which law has laid down no rule.

1 1 Ibid. pp. 604-5.

 556 JURISPRUDENCE AND LEGAL THEORY [CHAP.

Pound argued that while on the one hand society was fast changing
in the era of science and technology, men seek stability due to their
desire for security. Therefore, the problem was put in these words by
Pound: "Law must be stable and yet it cannot stand still."
Pound's solution to the problem was his concept of "justice without
law", that is, decisions given not on the basis of any fixed legal norm
but in a purely ad hoc, empirical manner. This notion leads to the law-
lessness of the realist school which had an important impact on Ameri-
can jurisprudence.
Pound's Contribution. —Pound's contribution to jurisprudence is con-
siderable. He, more than anyone, helped to bring home the vital con-
nection between laws, their administration and the life of society. His
work set the seal on prior demonstrations of the responsible and crea-
tive task of lawyers, specially the judges. Insofar as his theory laid such
heavy emphasis on the existence of varied and competing interests and
the need for adjustment between them, it will have enduring value)9
The legal philosophy of Pound was free from all dogmas. He took a
middle way avoiding all exaggeration. He spoke of values , but called
them relative. He put emphasis on "engineering" but did' not forget
the task of maintaining a balance. His approach was experimental.
His theory stood on a practical and firm ground and inspired great
practical field work. He put emphasis on studying the actual working
of legal rules in society. He stressed the importance of social research
for good law-making. He pointed out the great constructive function
performed by law. He pointed out the responsibility of the lawyer, the
judge and the jurist and gave a comprehensive picture of the scope and
field of the subject. His influence on modern legal thought was great.
The view of Lord Lloyd is that Pound leaned heavily on Ihering,
Ross, Ward and Small and contrived to impart to the American ap-
proach a distinctive flavour which brought it into harmony with con-
temporary trends in the United States.2°
Pound can rightly be called the father of sociological jurisprudence
in the United States. It is true that there were sociological jurists before
him like Ross, Ward and Small, but no one before him had created such
an elaborate theory which had such a large impact on legal thought.
D. Wigoder writes: "Pound was the perfect type to direct the trans-
mission of new learning to an intellectually rigid profession... . His
legal theory was marred by its contradictions and ambivalence, but
there was nothing ambivalent about his influence. In the last analysis,

'° Dias: Jurisprudence, p. 601.

211
Introduction to Jurisprudence, p. 356.
XXVI] SOCIOLOGICAL SCHOOL 557
his most important legacy was in the questions he posed rather than
the answers he provided.""
Karl Renner
Renner is a socialist. He attacks the capitalist system of law on the
ground that under that system the formal legal concepts do not coin-
cide with the actual contents of the concepts in practice. In the begin-
ning, the concept of ownership was a relation between an individual
and a thing. However, due to economic evolution, it now implies a
complex aggregate of things known as capital. Through capital, the
capitalist exercises power over others. The result is that ownership
now indicates a relationship between man and man which was not
so in the beginning. Under the name of ownership, the capitalist has
assumed a power of command over men which is a public power. Ren-
ner maintains that ownership in modern times must be recognised as
a branch of public law and the State must intervene to protect the citi-
zen. He stands for creating legal norms which may completely express
the trend of social development. His view that legal concept must be
accompanied by and based on economic reality may be described as
"functional jurisprudence" under Marxian colour. He pleads forceful-
ly the need for revaluation of legal concepts so that they coincide with
the economic conditions of society. He also says that legal norm has its
own creative force.
Pashukanis
Pashukanis is a Marxist from the Soviet Union. His main thesis is that
law, like the State, is an instrument of oppression in a capitalist society.
When means of production pass into the hands of the community, it
withers away.
Many other Soviet jurists have given their theories regarding the de-
velopment and end of law but very little of it has any place in textbooks
on jurisprudence because much of it has only propaganda value.
Parsons
Parsons sees the major function of the legal system as integrative. To
quote him: "It serves to mitigate potential elements of conflict and to
oil the machinery of social intercourse. It is, indeed, only by adher-
ence to a system of rules that systems of social interaction can func-
tion without breaking down into overt or chronic covert conflict."
Parsons insists on the analytical separation of the "legal system" and
the "political system", though he admits that they are closely related.
The analytical separation is made easier by Parsons' assertion that the

21
Roscoe Pound: Philosophy of Law, (974), p. 287.
558 JURISPRUDENCE AND LEGAL THEORY [CHAP.

interpretative work of the courts is the central feature of the legal or-
der. The legislature which is the centre of the political system, formu-
lates policy.
Stone
Prof. Stone is a representative of modern sociological jurisprudence in
arguing for theory to enable us to use the social and economic order in
its complex unity. According to him, one of the main faults of classical
sociological jurisprudence was its ad hoc approach, the treatment of
particular problems in isolation. "The sociological jurist of the future
will generally have to approach his problems througha vast effort at
understanding the wider social context." The view of Stone is that in
spite of its defects and faults, the Parsonian "social system" is the type
of model to which sociological jurists must aspire. A common malaise
in sociological jurisprudence is its prevalent methodology of working
outwards from legal problems to the relevant social science. What is
needed is "a framework of thought receptive of social data which will
allow us to see the 'social system' as an integrated equilibration of the
multitude of operative systems of value and institutions embraced
within it."
Conclusion
About the sociological school of law, Prof. Dias writes that the great-
est practical contribution of various sociological approaches has been
fieldwork in examining the interaction between law and its social mi-
lieu. Another outcome is likely to be a pointer to the evolution of ideals
on an empirical basis. It has been abundantly demonstrated that laws
play a significant and creative role in society and such a dynamic func-
tion presupposes the existence of ideals which provide directing force.
The transcendental idealism of the past suffered a blow at the hands
of positivism from which it could never hope to recover. Positivism in
turn faltered in the face of the problems that confronted it. The rise of
sociological study has made possible a synthesis between the two by
restoring ideals in a way that could satisfy and give life to the exacting
positivist discipline. It is no coincidence that the functional approach
has heralded a revival of natural law in the 20th century. It was a neces-
sary precursor.
Howsoever divergent the views of various sociological jurists may
appear, they have one common point that law must be studied in rela-
tion to society. This view has a great impact on modem legal thought.
Paton writes that the greatest achievement of the functional school
is that it has infused new life into both the body and development of
Jurisprudence. p. 616.
XXVI] SOCIOLOGICAL SCHOOL 1
559

law. A promising beginning has been made from which much can be
expected in the future. The actual functioning of certain parts of law
has been intensively studied. Perhaps the most valuable results are a
new understanding of the judicial method and a broader outlook both
in the universities and in the courts. A determined attempt is now be-
ing made to teach law as a function of society instead of a mere ab-
stract set of rules, while the courts are canvassing freely the reasons of
social policy which lie behind certain rules of law. Allen says that "the
whole theory of the sociological school is a protest against the ortho-
dox conceptions of law as an emanation from a single authority in the
State or as a complete body of explicit and comprehensive proposi-
tions applicable by accurate interpretation to all claims, relationships
and conflicts of interests."
Critics of the sociological school of law point out that its advocates
desire to teach a little of everything except law. A textbook on sociol-
ogy cannot become a work on jurisprudence by merely changing the
title. A knowledge of the properties of clay may be useful to a model-
ler but 20 years spent in scientific analysis of that material would be a
waste of the talent of the artist. Manning compares a sociological jurist
to a Professor of Mathematics who is concerned about the bridges of
the country and who urges his students to form the advance guard
of creative engineering and who stresses that mathematics cannot be
studied in isolation from town planning.
Another writer observes: "Anatomy is all you need to know. It is true
that you will gain your knowledge from a dissection of the dead and
in your practice you will be concerned with the bodies of those who,
at least until they receiie your merciful attentions, are still in the land
of the living. It is true also that in the case of the patient psychological
forces, business worries and married life may affect his health. But the
study of these things is difficult and if we want an impartial science
we must leave them alone. Austin, our founder, recognised that some
of these things would affect your professional practice, but he wisely
concentrated on anatomy alone. I advise you to do the same and to
save your profession from having a little knowledge of everything
save anatomy."
The relationship between law and social interests can be studied by
jurisprudence for three reasons. The first reason is that it enables us to
understand the evolution of law in a better manner. What is required
is not a dogmatic assumption that economic self-interest or some such
force has determined the volition of law but an analysi of thc interac-
tion between a tradiiiün which has nctif':ed the structure of law and
the immediate pressure of social demands. The second reason is that
560 JURISPRUDENCE AND LEGAL THEORY [CHAP.

although the views of man on ethics and his social needs have changed,
yet the element of human interest provides a greater substratum of
identity than the logical structure of the law. Comparative law shows
that while the legal theories of two systems may be very much differ-
ent, each may be forced for reasons of convenience to modify itself in
application so that ultimately the practical results are not far removed.
The third reason is that a study of the social interest is essential to the
lawyer to enable him to understand the legal system.
SUGGESTED READINGS

Allen, C.K. Law in the Making, 6th edn., Oxford, 1958.

Allen, C.K. Legal Duties, Oxford, 1931.
Bendix, R. Max Weber: An intellectual Portrait.
Buckland, W.W. Some Reflections on Jurisprudence. Cambridge
University Press, 1945
Cairns, H. The Theory of Legal Science, University of North
Carolina Press, 1941
Cardozo, B.N. : The Growth of the Law, Yale University Press, 1924.
Cardozo, B.N. : The Nature oft/ic Judicial Process, Yale University
Press, 1921.
Carlston, K.S. Law and Structure of Social Action, Stevens & Sons,
Ltd., 1956
Castberg, F. Problems of Legal Philosophy, 2nd edn., Oslo
University Press, Allen & llnwin Ltd., 1957
Cohen, F.S. Ethical Systems and Legal Ideals, Falcon Press, 1933.
Cohen, J . , Robson, Paternal Authority: The Community and the Law,
R.A. and Bates, A. Rutgers U.P., 1958.
Cowan, T.A. The American Jurisprudence Reader, Oceana
Publications, 1956.
Dias, R.W.M. Jurisprudence, London, 1976.
Dugu it, L. Law in the Modern Slate, trans. F. and H. J . Laski,
Allen & Unwin Ltd., 1921.
Duguit, L. Modern French Legal Philosophy, trans. F. W. Scott and
J.P. Chamberlain, The Marmillan Co., New York,
1921.
Ehrlich, E. Fundamental Principles of the Sociology of Law, trans.
W.L. Moll, Harvard Uni'. .rsity Press, 1936.
Friedmann, W. Law in a Changing Society, stevens & Sons Ltd., 1959.
Friedmann, W. Legal Theory, 5th ed., Stevens & Sons Ltd., 1967.
Ginsberg, M. Reason and Unreason in Society, Longman, Green and
Co., 1947.

XXVI] SOCIOLOGICAL SCHOOL 561

Gurvitch, C. Sociology of Law, Routledge & Kegan Paul Ltd., 1947.

Hall, J. Comparative Law and Social Theory, Louisiana State
U.P., 1963.
Hall, J. Foundations of Jurisprudence, The Bobbs-Merrill Co.
Inc., 1973.
Hall, J. Living Law of Denwcratic Society, The Bobbs-Merrill
Co. Inc., 1949.
Hall, J. Readings in jurisprudence, The Bobbs-Merrill Co.,
1938.
Hunt : The Sociological Movement in Law, 1978.
Ihering, R. von : Law as a Means to an End.
Ilbert, C. : Great jurists of the World, ed.J. MacDonell and E.
Manson, John Murray, 1913.
Johnson, H.M. Sociology: A Systematic Introduction, Routledge &
Kegan Paul Ltd., 1961.
Jolowicz, H.F. : Lectures on jurisprudence, ed. J.A, Jolowicz, The
Athlone Press, 1963.
Jorgensen, S. Law and Society, Akademisk Boghandel, 1972.
Kocourek, A. An Introduction to the Science of Law, Little, Brown &
Co., 1930.
Lasswell, H.D. Power and Personality, Norton and Co., New York,
1948.
Lloyd, D. Introduction to jurisprudence, 4th edn., Stevens &
Sons Ltd., 1979.
Lloyd, D. The Idea of Law, Penguin Books Ltd., 1964.
Morris, C. The Great Legal Philosophers, University of Pennsyl-
vania Press, 1959.
Paton, G.W. A Text-Book of jurisprudence, 4th edn., G.W. Paton
and D.P. Derham, Clarendon Press, Oxford, 1972.

Patterson, E.W Jurisprudence, The Foundation Press Inc., 1953.
Pound, R. An Introduction to the Philosophy of Law, Yale Univer-
sity Press, 1922.
Pound, R. : Contemporary juristic Theory, War Ritchie Press, 1940.
Pound, R. : Interpretations of Legal History, Cambridge University
Press, 1923.
Pound, R. : jurisprudence, West Publishing Co., 1959.
Pound, R. : My Philosophy of Law, Boston Law Book Co., 1941.
Pound, R. : Social Control Through Lau Yalc University Press,
1942.
562 JURISPRUDENCE AND LEGAL THEORY

Pound, R. The Spirit of the Coniiiion Law, Marshall Jones Co.,

Boston, 1921.
Reuschlein, H.G. : jurisprudence: Its America,, Prophets, The Bobbs-
Merrill Co. Inc., 1951.
Sawer, C. : Law in Society, Oxford, 1965.
Seagle, W. : TlieQuestforLaw, Alfred A. Knopf, 1941.
Selznick : The Sociology of Law.
Simpson (Ed.) : Oxford Essays in Jurisprudence, (Second Series).
Simpson, S.P. and Cases and Readings on La?,, and Society, West
Stone, 1. Publishing Co., 1949.
Sorokin, P. : Contemporary Sociological Theories, Harper and Bros.,
1928.
Stone, J . Human Law and Hiinmn Justice, Stevens & Sons Ltd.,
1965.
Stone, J . Social Di,,,ensions of Law and Justice, Stevens & Sons
Ltd., 1966.
Timasheff, N.S. An Introduction to tile Sociology of Law, Harvard
University Committee on Research in the Social
Sciences, 1939.
Wigdor, D. : Roscoe Pound. Philosopher of Law, Greenwood Press,
Connecticut, 1974.
 Cl-IAI-TER TWENTY SEVEN

AMERICAN REALISM

HE REALIST movement is a part of the sociological approach and

T it is sometimes called the "left wing of the functional school". It dif-
fers from the sociological school as it is little concerned with the ends
of law. It concentrates on a scientific observation of law in its making
and working. The movement is called "realist" as it studies law in its
actual working and rejects the traditional definition of law that it is a
body of rules and principles which are enforced by the courts. The ad-
vocates of the realist movement concentrate on the decisions given by
law courts. They not only study the judgments given by the judges but
also the human factor in the judges and lawyers. They study the forces
which influence judges in reaching their decisions.
The American realist movement is a combination of the analytical
positivist and sociological approaches. It is positivist in the sense that
it regards law as it is and not as it ought to be. The ultimate aim is to
reform the law, but that cannot be done without understanding it. Law
is the product of many factors and therefore the realists are interested
in those sociological factors which influence law. They share with the
sociologists an interest in the effects of social conditions of law as well
as the effect of law on society. They put too much emphasis on judges.
To them law is what judges decide. That is partly due to the fact that
judges have played a very important part in the growth of the Ameri-
can Constitution and law. The approach of the realists is essentially
empirical. Their view is that the decisions of the judges are brought
about by ascertainable facts. Some of them are the personalities of the
individual jud g es, their social environments, the economic conditions
in which they have been brought up, business interests, trends and
movements of thought, emotions, psychology etc. The importance of
the personal element is not new, but the contribution of the realists lies
564 JURISPRUDENCE AND LEGAL THEORY [CHAP.

in the fact that they have put toQ much emphasis on it. Emphasis on
this point has been put by Gray in these words: "Suppose, Chief Jus-
tice Marshall had been as ardent a Democrat (or Republican, as it was
then called) as he was a Federalist. Suppose, instead of hating Thomas
Jefferson and loving the United States Bank, he had hated the United
States Bank and loved Thomas Jefferson, how different would be the
law under which we are living today."
While calling American fealism a revolt against formalism, Lord
Lloyd points out that in the nineteenth century and at the beginning
of the twentieth century, laissez faire was the dominant creed in Amer-
ica. 1iiat creed was associated with a certain attachment to what has
been called "formalism" in philosophy and the social sciences. That
was marked by a reveience for the role of logic and mathematics and
a priori reasoning as applied to philosophy, economics and jurispru-
dence, with but little urge to link ffie-n empirically to the facts of life.
However, empirical science and technology were increasingly domi-
nating American society and with that development arose an intellec-
tual movement in favour of treating philosophy and the 'ocial sciences
as empirical studies not rooted in abstract formalism. That 1)vement
in America was associated with the name of Justice Holmes in ju ris-
prudence)
Dr. Friedmann also points out that no country could offer richer ma-
terial for the study of law as it worked in fact than the United States,
with a Federal and forty-eight State jurisdictions, together producing
innumerable precedents, with the function which the Supreme Court
exercised in the political and social life of the country; with the contrast
between the theoretical and practical aspect of constitutional princi-
ples; with the development of powerful corporations protected by the
same individual rights as the pioneer farmer in the Wild West; with the
manifold political machinations within the judicial system. These and
many other factors contributed to develop a scepticism symptomatic
of the crisis which affected the nineteenth century's outlook on life in
the law no less than in other fields.2
The organisation of the judicial system in the United States also
played its part. The Supreme Court is the final authority not only to in-
terpret law but also to decide its validity. The judges of the lower courts
in the United States are elected and they are influenced by extraneous
considerations while deciding cases. The existence of separate State ju-
risdictions caused a multiplicity of laws and decisions. All these made

Introduction to Jurisprudence, p. 451.

2
Legal Theory, p. 245.
XXVII] AMERICAN REALISM 565

some jurists concentrate more on courts to know the actual working of

law and to study those factors which determine and influence it.
Gray (1839-1915)
Dr. Friedmann considers John Chipman Gray (1839-1915) and Oliver
Wendell Holmes (1841-1935) as the mental fathers of the realist move-
ment'. Gray, although a distinguished exponent of the analytical ten-
dency in jurisprudence, relegated statutory legislation from the centre
of the law to one of several sources and placed the judge in the centre
instead. His own definition as well as his comments admit and empha-
sise the great influence of personality, prejudice and other non-logical
factors upon the making of law. The illustrations given by him show
how political sympathy, economic theory and other personal qualities
of particular judges have settled matters of the gravest importance for
millions of people and hundreds of years. Gray prepared the ground
for a more sceptical approach.
Justice Holmes (1841-1935)
That tendency was made articulate by Justice Holmes who, in an es-
say published in 1897, gave an entirely empirical and sceptical defi-
nition of law in these words: "Take the fundamental question, what
constitutes the law... you will find some text writers telling you that
it is something different from what is decided by the courts of Massa-
chusetts or England, that it is a system of reason, that it is a deduction
from principles of ethics or admitted actions, or what not, which may
or may not coincide with the decision. But if we take the view of our
friend, the bad man, tve shall find that he does not care two straws
for the action or deduction, but that he does want to know what Mas-
sachusetts or English courts are likely to do in fact. I am much of his
mind. The prophecies of what the courts will do in fact and nothing more
pretentious are what I mean by the law".
Prof. Dias points out that Justice Holmes was not giving a final defi-
nition of law. The statement that law is only what courts do is icono-
clastic and suggests that ethics, ideals and even rules should be put on
one side. Holmes himself had no such intention as he himself insisted
in the same paper on the need to restrict the area of uncertainty and
the need for more theory. To quote him: "We have too little theory in
the law, rather than too much." When he wrote, he did not have any
suspicion that he would be hailed as the prophet of a new faith.' Dr.
Friedmann points out that the abovementioned statement was taken
as a ciocnel hv the followers of realism and iiIr----thei
---------------- r,r,,rlonr.,

Ibid. p. 246.
Jurisprudence, pp. 621-22.
566 JURISPRUDENCE AND LEGAL THEORY [CHAP.

followed that and some similar statements of Holmes with almost re-
ligious fervour.-"
Both in his writings and his long tenure as a judge of the Supreme
Court of America, Holmes played a fundamental part in bringing
about a changed attitude to law. He put emphasis on the fact that the
life of law was experience as well as logic. He stressed the empirical
and pragmatic aspect of law. For him, legal history was to be stud-
ied primarily as a first step towards a deliberate reconsideration of the
worth of rules developed historically. According to him, law must be
strictly distinguished from morals. A lawyer is concerned with what
the law is and not with what it ought to be. Holmes was never tired
of asserting how "policy" governed legal development, especially in
the form of the "inarticulate" convictions of those engaged in creating
law. Holmes felt that the development of law could be justified scienti-
fically. In this respect, Holmes relied more on practical than on pure
science, the lawyer trained in economics and statistics though he no-
where clearly indicated how an objectively sound "policy" was to be
attained. Holmes accepted the possibility of scientific valuation in law,
but he did not go so far as Dewey in the view that the choice between
different values can also be verified scientifically. For Holmes, the arbi-
ter of this choice could only be naked force.
Holmes' view of law as "prediction" placed both litigation and the
professional lawyers in the centre of the legal stage. His emphasis on
what courts may do, rather than on abstract logical deduction from
general rules, focussed attention of the empirical factors which con-
stitute a legal system. There was much in the American system which
made this new approach acceptable to American lawyers, Holmes' re-
liance on practical social science seemed to point the way to future
progress. His dissenting judgments in Lochner and Adams cases were
thought to point the way to a more rational and scientific application
of the Constitution to the actual social needs of the highly industrial-
ised modern society.
The view of Lord Lloyd is that despite Holmes' great influence both
as part of the general movement and as the outstanding American ju-
rist of his day, it was not until towards the end of his career that a posi-
tive legal movement under the designation of "legal realism" began to
manifest itself.6
Prof. Dias points out that there was no such thing as a "school" of
American realists. The difficulty in presenting in a coherent manner
their views arises from the fact that there are var y ing versions of real-
Legal Theory. p. 247.
Introduction to jurisprudence, p. 455.
 XXVII] AMERICAN REALISM 567

ism as well as changes of front. Positions previously defended with

zest have been given up. Justice Jerome Frank preferred the phrases
"experimentalists" or "constructive skeptics". He described his own
attitude as one of "constructive skepticism". He repudiated the charge
that the realist school embraced fantastically inconsistent ideas by
pointing out that "actually no such school existed". To quote him, the
common bond is "skepticism as to some of the conventional legal theo-
ries, a skepticism stimulated by a zeal to reform, in the interests of
justice, some courthouse ways."
Jerome Frank (1889-1957) -
Frank preferred to call himself a "constructive legal sceptic" rather
than a realist. He insisted that there were really two groups of real-
ists: "rule-sceptics" and "fact-sceptics". The rule sceptics rejected legal
rules as providing uniformity in law and tried instead to find uniform-
ity in rules evolved out of psychology, anthropology, sociology, eco-
nomics, politics etc. The fact-sceptics of whom Frank is one, depart not
only from the idea of rule certainty but also point to the uncertainty of
establishing facts in the trial courts. According to Frank, a legal deci-
sion is the result of the application of a rule of law to the facts as found
by the judge. If the facts are wrongly found, the decision must be er-
roneous and an appellate court on which jurisprudence has tended to
concentrate, not having seen the witnesses, is loath to interfere with
the findings of fact. Moreover, the difficulty of determining whether
the guess of the judge as to the facts does correspond to the actual
facts is sufficiently difficult where the testimony appears in the form
of a printed record. The difficulty is still greater where the testimony,
which the judge has heard, was oral as well as conflicting. The courts
have often noted that the printed page omits the witness's tone of voice,
the hesitation or readiness with which he gives his answer and similar
phenomena. The result is that there is no yardstick for measuring the
accuracy of the judge's finding of facts in a contested case. The judge
often states the facts so locsely that it is not possible with any degree
of accuracy to determine which part of the statement was the F (fact)
he used in multiplying R x F (rules into facts). The same is often true
of the court's statement of the R (rule). It sometimes makes it difficult
to use opinions as analogies for future cases. Commentators disagree
as to both the R factors and the F factor present in many opinions.
Thus the facts of the cases cannot be ignored as they alone could cause
uncertainty in decisions. If and insofar as, Frank is stressing only the
uncertainties introduced into the judicial process by the difficulty of
finding the true facts, few would disagree with him. It is the lower
courts which deal with an overwhelming percentage of the cases and
568 JURISPRUDENCE AND LEGAL THEORY [CHAP.

to a submissive plaintiff, it may not matter whether be loses because of

misunderstanding of the law or an error regarding facts. If the realist
plea is that the court should improve the technique of fact finding, they
emphasise a point which was not adequately stressed in the past.
In actual practice, all legal arguments have a litigious setting. There
is always the opponent prepared to come forward with an argument
founded upon divergent authorities. This divergence and opposition
of authorities which makes it probable for lawyers to argue and for
judges to rationalise either of the two contradictory decisions is, in the
opinion of Frank, one of the main sources of uncertainty in the settle-
ment of an issue at law and evidence of the futility of viewing judicial
decisions as products of deductive logic. The divergence of authorities
is one of the conditions of the probability of any prediction of future
judicial decisions. On account of the litigious and hence dialectical set-
ting of legal argument, its authoritarian form is thoroughly justified.
The authorities chosen by one side of a legal dispute are its postulates.
They are chosen as a result of a desired conclusion by processes of
logically valid reasoning. The opposite side chooses its postulate in the
same way and for the same end. The choice of postulates as authorita-
tive for an argument is not a matter of logic. It is a matter of sagacity
and knowledge. The only logical question is whether the conclusion
desired to be drawn can be exhibited as tenable in terms of the authori-
ties chosen deliberately for that purpose.
In his book Law and the Mordern Mind (1930), Frank emphasised the
fact that law is not certain. "Certainty of law is a legal myth." It is the
"father-complex" which makes a man think in terms of the certainty
of law. It is not proper for judges and lawyers to stick to the myth of
certainty in the name of precedents and codifications. It is their duty to
do some constructive work in every case and not merely follow prec-
edents. It is very essential that the facts of every case must be examined
in the background of the changed social conditions and only that deci-
sion must be given which is warranted by the changed circumstances.
It is not proper to follow precedents blindly. According to Frank, the
craving for certainty and guidance which men seek in law may stem,
in part at any rate, from the yearning for security and safety which
is an inescapable legacy of childhood. The child puts his trust in the
power and wisdom of his father to provide an atmosphere of security.
In the adult, the counterpart of this feeling is the trust reposed in the
stability and immutability of human institutions. Frank suggested that
the quest for certainty in law is in fact a search for a "father-symbol" to
provide an aura of security. Although he attributed great prominence
to this factor, he offered it only as a "partial explanation" of what he
called the "basic myth" and listed fourteen other explanations as well.
 XXVIII AMERICAN REALISM 569

He called on the lawyers to outgrow their childish longings for a "fa-

ther-controlled world" and follow the example of Justice Holmes, the
"completely adult jurist".
Rules are merely word formulae. If they are to have any meaning at
all, that meaning has to be sought in the facts of real life to which they
correspond. Frank adopted the following quotation from Holmes: "We
ust think things not words, or at least we must constantly translate
our words into the facts for which they stand if we are to keep to the
real and the true."
Frank shows no acquaintance at all with formal logic. He has failed
to realise that the subject-matter of formal logic does not embrace the
psychological phenomena of human thinking. He appears to have
misrepresented formal logic as if it pretended to be a psychological
account of human thinking. Frank's failure to follow the character of
formal logic has serious consequences for his interpretation of the ju-
dicial process.
Logic of probability which Frank mentions very often as antithetical
to the logic of certainty, is only a special branch of formal, deductive
logic. Frank, Cardozo and Wurzel make only empty references to the
logic of probability as the logic of law. They are partially correct but
they show no understanding of the nature of the logic of probability.
Certainty and probability are truth-values of proposition. Probability is
merely the class of all truth-values ranging between but not including
ignorance and certainty. If any proposition is probable, its contradic-
tory proposition must also be probable. If the proposition predicting a
judicial decision is only probable, contradictory propositions making
other predictions must also be probable. The logic of probability is the
formal analysis of the deduction of opposing predictions from oppos-
ing hypotheses in terms of available knowledge.
The fact that propositions predicting judicial decisions are only prob-
able is linked with the fact that the demonstration of the proposition of
law which every judicial decision must express explicitly or implicitly
in terms of authorities or principles is absolutely certain. Unless the
proof can be shown to be logically formally invalid, a judicial argu-
ment that demonstrates a given proposition as a tenable rule of law,
renders that rule of law certain. However, the prediction of decisions
should not be confused with the demonstration of rules. The argument
predicting a judicial decision is deductive in form and involves both
legal and extra-legal factors. It involves a knowledge of law, of princi-
ples of Policy, of social trends, of the personality of the judge etc. The
prediction of the future decision and the formal analysis of legal argu-
ments are closely related.
 JURISPRUDENCE AND LEGAL THEORY [CHAP.
570

Frank failed to distinguish law in action and discourse and to appre-

ciate the logical pluralism which is at the same time a source both of
certainty and fertility. Law in the first sense is a term which designates
all the actual processes which take place in time, the prosecution of
litigation, the advisory work of the law office, the judicial administra-
tion of disputes and so on. Law in the second sense is an academic
subject-matter, a body of propositions having certain formal relations
capable of analysis. Mortimer J . Adler writes that there is no reason
why there should not be a science of law in both these sense of the
term, but the two sciences are quite different things and all the trouble
comes from confusing them. The science of law as official action is an
empirical observation and includes a study of sociological and psycho-
logical phenomena as well as knowledge of law. The science of law in
discourse is a purely formal science like mathematics. Its subject mat-
ter is completely propositional. Its only instrumentality is formal logic.
It deals with certainties and nothing else.
Carl N. Llewellyn (1893-1962)
Institutions and Law-jobs. —According to Llewellyn, law is an institu-
tion. An institution is an organised activity which is built around doing
a job or a "cluster" of jobs. In the case of a major institution, its "job-
cluster" is fundamental to the continuance of the society or group in
which it operates. The institution of law in our society is an extremely
complex one. It consists not only of a body of rules organised around
concepts and permeated by a large number of principles, but also the
use of precedents and ideology. In addition to these, there are many
practices some of which are flexible and some rigid, which determine
how certain things within the legal system may or may not be done.
All such matters control in various ways the activities of the "men-of-
law". Much of the interest of Llewellyn is centred upon what he calls
the ways in which in various types of: communities the "law-jobs" are
actually carried out.
Llewellyn describes "law-jobs" as the basic functions of law which
are twofold: "to make group survival possible", but additionally to
"quest" for justice, efficiency and a richer life. To this end, he lists "law-
jobs" as the disposition of "trouble cases"; "preventive rechannelling",
the reorientation of conduct and expectations to avoid trouble; the
provision of private law activity by individuals and groups such as
the autonomy inherent in a law of contract; and "the say", the consti-
tutional provision of procedures to resolve conflict. The first three jobs
describe "bare bones" law, but out of them may emerge the additional
"questing" phase of the legal order. For Llewellyn, the problem was to
find the best way to handle "legal tools to law-job ends." This brings
 XXVIII AMERICAN REALISM 571

one to his notion of a "craft" as a minor institution. A craft in this sense

consists of a kind of "know how" among a body of specialists who are
engaged in performing certain of the jobs within the framework of an
institution. It consists of an organised and continuous body of skills
developed by specialists and handed on from generation to genera-
tion by a process of education and practical example. The practice of
the law is the practice of a set of crafts and the most important is the
juristic method.
Common Law Tradition.—In his book, The Common Law Tradition,
Llewellyn develops his idea of a craft in great detail. The book is a
kind of handbook of the craft both of judging and of advocacy within
the framework of the common law tradition, though applied specially
to appellate cases. The aim of the book is to deal with what it describes
as a "crisis of confidence within the Bar", concerning particularly the
question whether there is a reasonable degree of "reckonability" in the
work of the appellate courts in the United States. Llewellyn points out
that the legal profession in the United Slates is exceedingly worried
because it is believed that the courts have moved awjty from a basis
of stable decision-making, in favour of deciding cases on the basis of
their sentiments and then seeking for ex-post-facto justification in their
judgments.
According to Llewellyn, there is a large measure of predictability
in case law which is due to the-general craft of decision-making in
the common law tradition. He examines what he calls a "cluster of
factors" which tend to have a major steadying influence in producing
stability in the work of The courts. These include such matters as "law-
conditioned officials", known doctrinal techniques, the limiting of is-
sues, the adversary arguments of counsel etc. In this book, Llewellyn
emphasizes the importance of what he calls the general "period style"
employed by the courts. Llewellyn makes no attempt to test empirical-
ly the steadying factors. He gives no indication of how an assessment
could be made of the relative weight of each and how each can be used
for productive purposes.
Llewellyn's discussion of "period-style" is of great interest. In the
common law, the practice of the courts has fluctuated between two
types of style called the Grand Style and the Formal Style. The Grand
Style is based essentially on an appeal to reason and does not involve
a slavish following of precedent. Regard is paid to the reputation of
the judge deciding the earlier case and principle is consulted in order
to ensure that precedent is not a mere verbal tool, but a generalisation
which yields patent sense as well as order. Policy comes info; explicit
examination. Under the Formal Style, the underlying notips that the
572 JURISPRUDENCE AND LEGAL THEORY [CHAP.

rules of law decide the cases. Policy is for the legislature and not for
the courts. Hence the approach is authoritarian, formal and logical.
The Grand Style is also characterised by resort to "situation-sense".
The Formal Style is not so concerned with social facts. The Grand Style
is concerned with providing guidance for the future far more than is
the Formal Style.
Llewellyn does not assert that the styles are ever found in their ab-
solute purity at any given moment. There is a tendency for this move-
ment from one period to another between the opposite poles. Llewellyn
regarded the Grand Style as characteristic of the creative period of
American law in the early part of the 19th century. After that, there
was a rapid move towards the Formal Style. The view of Llewellyn
is that in recent times the appellate courts in the United States have
been moving steadily back towards the earlier type of Grand Style. It is
this tendency which has misled the legal profession into thinking that
there is a higher measure of unpredictability in their decisions than
there was in the previous formal period. This was due to a misconcep-
tion regarding the ways in which the court used precedent and the tre-
mendous "leeways" which are afforded by the system of precedent.
Llewellyn confines his evidence almost exclusively to the material
which appears from the actual decisions of appellate courts. He insists
that we must learn to read those cases not for what they decide but
for their "flavour". Do not look to "what was held", but look to "what
was bothering and helping the court". Llewellyn virtually ignores sub-
jective factors. He concentrates entirely on the actual decisions of the
court as opposed t8 extrinsic factors. It is possible to show that there is
an exceptionally high measure of "reckonability" in American appel-
late decisions.
What Llewellyn claims to have attempted and to some extent
achieved is to establish a jurisprudence which may serve the needs of
the ordinary student of law, the ordinary practitioner and the ordinary
judge. In this process, many myths have to be eliminated.
The view of Llewellyn is that the common law system produces a
remarkably high measure of predictability so that a skilled lawyer may
be able to average cçrrect predictions in 8 out of 10 cases.
Principal Features of Realist Approach. —Llewellyn outlines the princi-
pal features of the realist approach as follows:
(i) There has to be a conception of law in flux and of the judicial
creation of law.
(ii) Law is a means to social ends and every part of it has con-
stantly to be examined for its purpose and efforts and judged
in the light of both and their relation to each other.
XXVIII AMERICAN REALISM 573

(iii) Society changes faster than law and so there-is a constant need
to examine how law meets contemporary social problems.
(iv) There has to be a temporary divorce of "is" and "ought" for
purposes of study. This does not mean that the ideas of justice
and teleology are to be expelled altogether, but they are to be
put on one side while investigating what the law is and how
it works. By this divorce, both the processes will be improved.
The realists are vitally interested in the aims and ends of the
law and it was with a desire to improve law that the realist
movement was started. Adequate reform has to be preceded
by an examination of how the law operates in actual practice.
Such an investigation will be defective if the ideas of justice
are also mixed up during the investigation of facts.
(v) The realists distrust the sufficiency of legal rules and concepts
as descriptive of what courts do.
(vi) The realists do not have trust in the traditional theory that the
rules of law are the principal factors in deciding cases. They
have drawn attention to many other influences which play a
decisive role. It is absurd to define law solely in terms of legal
rules.
(vii) The realists believe in studying the law in narrower categories
than has been the practice in the past. They feel that part of
the distortion produced by viewing the law in terms of legal
rules is that rules cover hosts of dissimilar situations where in
practice utterly,different considerations apply.
(viii) The realists insist on the "evaluation of any part of the law in
terms of its effects" and on "the worthwhileness of trying to
find these effects."
(ix) There must be a sustained and programmatic attack on the
problems of the law along the lines indicated above.
Llewellyn admitted that these nine points were not new. The first
three furnish an obvious foundation for any sociological approach
to jurisprudence. The main characteristics of realism lay first in the
peculiar prominence attached to the fourth, fifth, sixth, seventh and
eighth points and secondl in the amalgamation of all nine points into
a working programme and the actual carrying out of research along
those lines.
The view of Lord Lloyd is that what Llewellyn claims to have at-
tempted and to some extent achieved is to establish a jurisprudence
which may serve the needs of the ordinary student of law, the ordi-
nary practitioner and the ordinary judge. In this process, a good many
myths have to be eliminated, and in particular both the myth that cer-
 574 JURISPRUDENCE AND LEGAL THEORY [ChAp.
tainty can he achieved under a legal system or its opposite that predict-
ability is un attainable. The view of Llewellyn is that the common law
system produces a remarkably high measure of predictability so that
a skilled lawyer proceeding on the basis discussed in his latest book
ought to average correct predictions in eight out of ten cases.7
The borderline between realist jurisprudence and sociological juris-
prudence is not very clear. ,F. S. Cohen, a prominent realist, defines the
realm of realist jurisprudence as the "definition of legal concepts, rules
and institutions in terms of judicial decisions other acts of State force"
and the realm of sociolo g ical jurisprudence as "the appraisal of law in
terms of conduct of human beings who are affected by the law". Cohen
is aware of the fact that both the movements are in part complemen-
tary and in part overlapping, while both emerge out of common scep-
tical, scientific, an ti-supernatural functional outlook. In spite of their
commonness, both the movements differ in one respect that the former
concentrates or limits itself to a scientific observation of law in its mak-
ing and working, whereas the latter sets out to define the ends of law.
Computer Prcdicticn.—it has been suggested that insofar as there is
consistency in decision and attitude, the prediction of judicial Opinions
by computers becomes possible. Computer techniques in this connec-
tion have been of fact-studies and a ttitude-studies. With regard to the
foi rner, it is said that the acceptance of fact by n appellate court rests
on identifiable conditions surrounding the way in which it was pre-
sented to the trial court. if t'e asccptcd facts are combined in certain
vays, tiic decisions will go one wa 3 Personal attitudes are also said to
be capable of being scaled by means of scalogram analysis. The basis
of this is that a person who acts positively to a weak stimulus will react
similarly to any stronger stimulus, wkile a person who reacts nega-
tively to a strong stimulus will react similarly to any weaker stimulus.
If a line of cases can be made to scale in this way, that would show
that a set of values is shared by the members of that court. The future
behaviour of that court then becomes predictable.
The view of Prof. Dias is that such attempts at prediction are des-
tined to fail. The personal element cannot be eliminated from judicial
decisions. Everything depends on how facts are viewed and stated.
The same set of facts may be stated in different combinations and at
different levels of generality. No mechanical aid can predict which
combination or level is to be chosen. Different rationes can be extracted
from a decision depending on whether the later court wishes to see
resemblances or differences. If it is known which way a judge is go-
ing to regard a rule, a compute is not needed and if it is not known, a
Introduction to Jurisprudence p. 465.
 XXVIII AMERICAN REALISM 575

computer is useless. Moreover, the predictability of judicial decisions

depends upon consistency in the attitude of the judges to values. The
attitudes of the people change with age and experience. Computer pre-
diction can only work on the basis of reported decisions and a majority
of them, particularly those of lower courts, are never reported. The
result is that the bulk of a judge's early decisions are not available and
the basis for predicting his reactions is inadequate. Prediction requires
constant working material. It cannot operate when new matter is intro-
duced, whether in the form of legislation or creative decisions. Com-
puters are of no help in such cases. Where the computer analysis has
indicated that a judge's decision will be such and such in a particular
case or a type of cases, that very fact could induce the judge either to
decide accordingly or to decide the opposite deliberately so as not to
be dictated by a machine. Both the reactions are not desirable. The data
programmed into a computer will reflect personal quirks of the pro-
grammer which will be substituted for the quirks of the judge. That is
wholly undesirable. Under the present system, the judge works in the
open while the programmer works behind the scene.
Assessment of the Realist Movement in 1961
In 1961, Prof. Yntema, himself a leading realist, attempted to assess the
present and future of the realist movement. After stressing both the
importance and influence of legal realism upon American law, lawyers
and law schools, he conceded that a major defect of the realist move-
ment had been the neglect of the more humanistic side of law, par-
ticularly revealed both in its neglect of the comparative and historical
aspects of law and the tendency to place overemphasis upon current
"legal practice". The result was a certain loss of perspective and in par-
ticular a failure to distinguish between what is trivial or ephemeral on
the one hand and what is of wider import on the other. His suggestion
for the future is not to abandon the critical achievements of realism
but to develop them on more constructive lines. That would involve a
more humanistic conception of legal science, with due attention being
paid both to the systematic analysis of legal theory and historical and
comparative research. Whatever may be the future of legal realism as
a movement, it cannot be denied that its impact has been such that
things can never seem t9 he quite the same again. Moreover, the realist
movement has indirectly engendered two movements viz., Jurimet-
rics and Behaviouralism. These movements have such an impact in
the United States that they cannot be ignored. In one sense, thcy take
over where realism left off. While the realists had some inspired ideas,
developed a number of theoretical models and urged us to exploit the
social and technological sciences, the two new movements are firmly
 576 JURISPRUDENCE AND LEGAL THEORY [CHAP.

established within the mainstream of the social sciences and use tech-
niques associated with them freely and to valuable effect.
The realist movement in the United States has suffered from its own
exaggerations. It can be accused of causing a great deal of controversy
and confusion in a number of directions. Kantorowicz, a spokesman of
the American realists, has levelled several charges against them. His
contention is that the realists confuse natural and cultural sciences.
Natural science deals only with real events governed by law of nature.
Cultural sciences deal with human actions and are governed by laws
of men and those actions can either be lawful or unlawful. As a mat-
ter of fact, they are more often unlawful. It is precisely the existence
of unlawful acts that makes legal science necessary. It alone prepares
us to evaluate unlawful acts and that presupposes the knowledge of
how they ought to have been, These unlawful acts are as real as the
lawful acts. For this very reason, natural science which knows nothing
of unlawful and Therefore of unreal acts nor of unreal and unlawful
acts, can teach us nothing decisive. Ours is a science that must learn
to differentiate between lawful and unlawful acts, which must be able
to judge the unlawful ones and therefore must previously know the
unreal acts which ought to have been real. The natural science which
a realist should study is that part of astronomy which might teach us
how stars ought to move and they move and chQose to violate the laws
of celestial mechanics. Unfortunately such a branch of astronomy has
not been developed. If a person actually develops it, he would prob-
ably took to legal science for guidance, not vice versa.
The realists have been accused of confusing explanation and justi-
fication. If legal science were an empirical science, the chief method
would be explanation through cause and effect. If it were a rational
and normative science, its chief category would be justification through
reason and consequence. Genetic explanation an1 normative justifica-
tion should be kept apart. This is one of the most significant lessons
of modern epistemology. It may be sense or nonsense to explain with
Jerome Frank that the "childish" desire to attribute inviolable certainty
to law is caused by a "father-complex". The truth or untruth of that al-
leged attribution is perfectly independent of its psychoanalytic or any
other genetic explanation. Of course, the genetic method may be used
as a tool in the service of the normative method and the vice versa.
The realists create a confusion between law and ethics. That is the
reproach which the realists make to the classical, normative concep-
tion. Their misgivings are due to their own mistakes, their confusion of
legal with moral norms. The former requires some external behaviour
XXVII] AMERICAN REALISM 577

arid can be complied with whatever may be the motives. The latter
always takes notice, for example, of a selfish or altruistic aim.
The realists fail to distinguish between realities and their mean nc.
The lawyer is concerned with the meaning of observable realities, but
meanings are not observable and still less tangible. It is the history of
law that finds its interest in observable and unobservable facts. Much
of the work of the realists is nothing but contemporary American legal
history.
The realist confusion is between the concept and one of the elements
which compose that concept. If the law is what courts of law do, one
would prefer to say that religion is what the universities teach, medi-
cine is what the doctor prescribes, art is what the artist produces and
shoes are what the shoemaker makes. All this is putting the cart before
the horse. Law is not what the courts administer but courts are the
institutions which administer the law.
The realists confuse cases and case law. The realist movement could
make progress only in a case law country because there the law ap-
pears to be a heap of decisions and therefore a body of facts. However,
the cases themselves are not binding. They are not the case law. Only
the rationes decidendi are binding. These cannot be arrived at by an in-
ductive method. They should be construed by purposive interpretation
and in turn be generalised and fixed into the whole body of law that is
more or less a system. The system into which these are administered is
the case law and therefore something quite different from a mere fact
that could he an object of empirical research. The entire temple of case
law is erected upon a rifle and not upon a fact. Those who deny that
rules are binding, can hardly admit the binding force of precedents
which they profess to worship.
The critics of American realism, point out that the followers of the
realist school put too much emphasis on the uncertainty of law. Law
is not always uncertaifiand there is so much in the whole of the legal
system which makes law certain. A lot of transactions are carried out
everyday with the celtainty of law. Otherwise, the work of society will
come to a standstill. The advocates of the realist approach have ex-
aggerated the human factor in judicial decisions. The background of
every judge who gives the decision has some effect on it but that is not
much. He has to base his decision oil law as a whole. The scope for
personal discretion is not much.
The approach of American jurists is conditioned by the circumstanc-
es prevailing in that country and what they have said is not capable of
universal application The realists have undermined the importance of
the legal principles and rules. They regard law as a jumble of uncon-
573 JURISPRUDENCE AND LEGAL THEORY [ChAt'.

nected decisions. In their eyes, "law never is, but is always about to
be." Their view is that law cannot be predicted. Law is merely a series
of application and execution. That is not correct. The very use of the
term application shows the prior existence of the principles and rules.
Moreover, they concentrate only on litigation although there is that
part of law which never comes before the courts.

Estimate
Lord Lloyd writes that the realists have done good work in emphasis-
ing both the essentially flexible attitude of the judiciary towards de-
veloping precedent, even within the four corners of a eigid doctrine of
precedent and the operation of concealed factors in judicial law-mak-
ing. The realists have played their part in bringing about a changed
outlook and attitude towards the legal system and the function of the
law and the legal profession in society which has made itself felt in
all but the most traditionalist of the law schools of the common Jaw
world.'

SUGGESTED READINGS

Abraham, H.). The Judicial Process, 3rd edo., New York and the
Oxford University Press, 1976.
Arnold, T. W. : Symbols of Govern:iieiit; Yale University Press, 1935.
Beutal, F. K. : Some Potentialities of EXpL'riluciital Jurisprudence as a
New Branch of Social Science, University of Nebraska
Press, 1957.
Bodenheimer, E. : Jurisprudence, Harvard University Press, 1962.
Cardozo, B. N. The Growth of the Law. Yale University Press, 1924.
Cecil, H. (Leon, H. : The English Judge, Haniyn Lectures, Stevens and
C.) Sons Ltd., 1970.
Dias, R. W. M. : Jurisprudence, London, 1976.
Frank,). N. If Men were Angels: Sonic Aspects of Government in a
Democracy, Harper & Bros., New York, 1942.
Frank, J . N. Courts on Trial, Mijil, and Reality in American Justice,
Princeton University Press, 1949.
4
Frank, J . N. Law and the Modern Mind, English edn., Stevens &
Sons Ltd., 1949.
Friedmann, W. Legal Theory, Stevens & Sons Ltd., 1960.
Garlan, E. N. : Legal Realism and Justice, Columbia University
Press, 1941.

Introduction to Ju risprudei:ce, p. 459.



XX VII] AMERICAN REALISM 579

Gray, J. C. The Nature and Sources of the Law, 2nd edn., R. Gray,
The Macmillan Co., New York, 1921.
Hart, H. L. A. The Concept of Law, Oxford, Clarendon Press, 1961,
reprinted 1975.
Jolowicz, H. F. Lectures on Jurisprudence, ed. J. A. Jolowicz, The
Athlone Press, 1963.
Jones, J. W. Historical lntrodttctio,i to the Theory of Law, Oxford,
1940.
Kelsen, H. General Theory of Law and State, trans. A. Wedberg,
Harvard University Press, 1949.
Llewellyn, K. N. Jurisprudence: Realism in Theory and Practice, Univer-
sity of Chicago Press, 1962.
Llewellyn, K. N. The Bramble Bus!:, Columbia University School of
Law, 1930.
Llewellyn, K. N. The Common Law Tradition, Deciding Appeals, Little,
Brown & Co., 1960.
Lloyd, D. Introduction to Jurisprudence, 4th Edn., Stevens &
Sons Ltd., 1979.
Lloyd, D. The idea of Law, Penguin Books Ltd., 1964.
Marke J .J. (Ed.) The Holmes Reader, Oceana Publications, 1955.
Paton, C. W. A Text Book of Jurisprudence, 4th Edn., G. W. Paton
and D. P. Derham, Clarendon Press, Oxford, 1977.
Patterson, E. W. Jurisprudence, The Foundation Press Inc., 1953.
Paul, J. The Legal Realism of Jerome N. Frank, Matinus
Nijhoff, The Hague, 1959.
Pound, R. The Ideal Element in Law, University of Calcutta,
1958.
Rad in, M. Law as Logic and Experience, Yale University Press,
1940.
Robi:idon, E. S. Law and Lawyers, The Macmillan Co., New York,
1935.
Rumble, W. E. American Legal Realism, Skepticism. Reform and the
Judicial Process, Cornell University Press, 1968.
Schubert, G. and : Comparative Judicial Behaviour, Oxford University
Danielski, D. (Eds.) Press, 1970.
Shetreet, S. : Judges on Trial, Ed. C. J. Borne, North Holland
Publishing Co., 1976.
Stone, J . : Legal System and Lnwijers' Rcaso;iirigs, Stevens &
Sons Ltd., 1964.
Tapper, C. F. H. Computers and the Law, Weidenfeld and Nicolson,
1973.
580 JURISPRUDENCE AND LEGAL THEORY

Twinning, W. Karl Llewellyn and the Realist Movement, Weidenfeld

and Nicoson, 1973.
Ulman, J. N. A judge Takes the Stand, Alfred A. Knopf, 1933.
Weyrauch, W. 0. : The Personality of Lawyers. Yale University Press,
1964.
 CHAPTER TWENTY EIGHT

THE SCANDINAVIAN REALISTS

HE VIEW of Prof. Dias is that there is hardly a "school" of Scandi-

T navian realism. The individuals who are thought to belong to this
group, show important differences among themselves. However, they
agree in the main in denying the possibility of a science of justice or
values. To them, these are purely subjective reactions, or else reflective
of class or political ideology. It is not possible to construct a science on
such a basis)
While the American realists were practising lawyers or law teachers
who sought to approximate legal theory to legal practice, the Scan-
dinavian jurists approached their tasks on a more abstract plane and
with the training of philosophers. The Scandinavian realism has been
described as "metaphysics-sceptical". It is essentially a philosophical
critique of the metaphysical foundations of law. It is couched with a
distinct continental flavour in its critical and often abstract discussion
of the first principles. The Scandinavian realists have played a vital but
important part in the total rejection of natural law philosophy and of
any absolute ideas of justice as controlling and directing any positive
system of law. The Scandinavian realists are relativists. They deny that
rules of legal conduct can be compellingly deduced from immutable
and inalienable principles of justice. The realist movement in Scandi-
navia looks to Hagerstrom as its spiritual father, but its important ex-
ponents are Olivecrone, Ross and Lundstedt.
In the words of Passmore, J: "No one (of Lundstedt, Olivecrone and
Ross) is wholly self-contained. To understand them or effectively criti-
cise them, one must constantly return to l-Iagerstrom. -They presume
the substantial truth of his subtle and detailed analysis."

Jurisprudence, p. 642.
 582 JURISPRUDENCE AND LEGAL THEORY [CIIAp

Hagerstroni (1868-1939)
Axel Hagerstrom was not a lawyer but a philosopher whose attention
was directed to law and ethics as particularly fertile sources of meta-
physics. His aim was to destroy transcendental metaphysics and he
started with law. He declared: "All metaphysical concepts are sham
concepts." They are "mere word-play". Legal philosophy for Hager-
strom is a socioLogy of law without emjiridal investigation but built
upon conceptual, historical and psychological analysis. Much of his
writing is a critique of the errors of juristic thought.
Empirical basis of rights. - As regards the inethod of Hagerstrom, he
first reviews the attempts that have been made to discover the empiri-
cal basis of a right and dismisses each one of them. According to him:
"The factual basis which we are seeking cannot be found either in pro-
tection guaranteed or commands issued by an external authority." His
conclusion is that there are no such facts The idea has nothing to do
with reality. Its content is some kind of supernatural power with re-
gard to things and presents. Hagerstrom sought a psychological expla
nation for a right. To quote him: "One fights better if one believes that
one has right on one's side." It is clear from the writings of Hagerstrom
that though rights may not exist, they are useful tools of thought.
Historical basis of right. —Hagerstrom also investigated the historical
basis of the idea of a right. For that purpose, he made extensive study
of Greek and Roman law and history. His studies were conceived to
demonstrate that the framework of the juc civile was a system of rules
for the acquisition and exercise of supernatural powers. He believed
that modern law is also a ritualistic exercise. One thinks of the legal
oath, the black cap, the wedding ring or the coronation ceremony. Ritu-
al is to law as a bottle is to liquor. You caiinot drink the bottle, but equally
you cannot cope with liquor without the bottle. There is a danger in
assimilating legal with ritual symbols, for ritual can only be under-
stood if the beliefs underlying it are investigated, but legal symbols
perform a function and are not just concerned with beliefs.
Objective values. —Hagerstrom denied the existence of objective val-
ues. It appeared to him that there were no such things as goodness and
badness in the world. The words represent emotional attitudes of ap-
proval and disapproval towards certain facts and situations. The word
"duty" expresses an idea, the association of a feeling of compulsion
with regard to a desired course of conduct. There is no possibility of
any science of the "ought". All questions of justice, aims, purposes of
law are matters of personal evaluation. They are not susceptible to any
scientific process of examination.
 XXVIII] THE SCANDINAVIAN REALISTS 583

Hagerstrom examined the concepts of classical Roman law and

came to the conclusion-that those were rooted in magical beliefs. They
were developments of the primitive belief in the power of words to af-
fect happenings in the world of facts. The concept of obligation was a
magical bond giving power to the creditor over the debtor. Power over
property, dominium or ownership wag also a magic power. The mode
of conveyance was a ceremony based on magic. Law starts in religion
and the monopoly enjoyed by the priestly class in early law is evidence
of the idea that law is based on magic.
It is possible that Hagerstrom was making too much of a point
which has some substance. It is probably true that adherence to form.
and ritual is rooted in word-magic, but how far Roman law should be
interpreted along such lines is a matter on which opinion should be
reserved. Word-fetishism is a habit that is easily formed. The ground
for belief in the word magic is prepared very early and during the most
receptive period of consciousness. Insofar as law gives a person power
to control property and the actions of other persons, it is not surprising
that it should have become associated with word-magic from the earli-
est times. To put the machinery of law into operation, the proper incan-
tations have to be suffered. New uses are found for the original forms
and they keep formality and ritual alive long after the inner belief in
word-magic drops out. According to Hagerstrom, the interpretation of
a classical law on the basis purely of word-magic is questionable.
Olivecrona (1897—)
Law.—Prof. Olhcrona did not define law. To quote him: "I do not re-
gard it as necessary to formulate a definition of law." Again, "a de-
scription and an analysis of the facts is all that will be attempted". If
one seeks to investigate the nature of law, it begs the question to begin
by assuming what it is. He insists that facts must be examined first.
The method of identifying these "will be simply to takeup such facts
as are covered by the expression rules of law."
Binding force of Law, —There is a lot of concern about the validity of
law. Olivecrona approaches it from the angle of bindingness. Law has
"binding force" insofar as it is valid. An invalid law is not binding.
There is no such thing as "the binding force behind law". Many at-
tempts have been made to find out where the binding force resides.
Natural law lawyers have asserted that it lies in natural law. If asked
why natural law is binding, the answer is a confession of faith. Natural
law is said to be binding per Se. Morality cannot be substituted in place
of natural law, as law is treated as binding whether or not it is consist-
ent with morality.
 JURISPRUDENCE AND LEGAL THEORY [CHAP.
584

Another view is that the binding force of law is "the will of the
State". This is imaginary as the will of the State as distinct from the
wills of individuals is a myth. The question is whether any individual
or group of individuals is discoverable in whose will the binding force
of law resides. The answer must be in the negative. It is also fictitious
to imagine that the binding force rests in the wills of legislators or citi-
zens collectively. Such persons have other matters to think of than will-
ing laws or their binding foree.
The binding force of law is also not derived from unpleasant conse-
quences which follow if law is broken. The reason is that unpleasant
consequences follow in a host of situations which have nothing to do
with law. Likewise, there are occasions when law is treated as binding
although unpleasant consequences do not follow. A person may com-
mit a breach of the law and still go undetected.
Prof. Olivecrona rejects the idea of "the" binding force of law as il-
lusory and meaningless. It is not an observable fact in the milieu of
society. "The" binding force of law is a mirage of language. It "exists"
only as an idea in individual minds. Most people have a feeling of
being bound by law which is different from saying that there is some
impalpable binding force existing somewhere outside the mind. What
requires to be explained is the feeling of being bound.
According to Olivecrona, the feeling of being bound stems from the
psychological associations connected with this mode of expression by
certain agencies. The feeling of being bound by "law" is psychologi-
cally associated with certain agencies when they follow certain pro-
cedures, together with the publication of law-texts through certain
media. Law is a set of "independent imperatives" prescribed by these
agencies. Law prescribes models of conduct and consists of "ought"
propositions.
Rights. —Olivecrona does not dismiss the idea of rights altogether.
However, he calls it a "hollow" word. A court could pronounce on a
factual situation without calling "right" in aid, The proof of a right is
accomplished by proving certain facts or events. Those facts are called
"title".
According to Olivecrona, the idea of a "right" connotes a multitude
of other ideas relating to behaviour patterns, not only for the "posses-
sor of the right" but also of other persons. It implies directives as to
how the right-bearer and others can and should act. The conclusion of
Olivecrona is that "law is nothing but a set of social facts" based on the
application of organised force.
The view of Prof. Dias is that some people are left with a feeling
of dissatisfaction after reading the exposition of Olivecrona. Its very
 XXVIII] I

THE SCANDINAVIAN REALISTS 585

simplicity raises a doubt. However, the view of Dias is that the com-
monsense which Olivecrona brings to bear in his discussions is the
best feature of his work. The clear pages of Olivecrona's presentation
are preferable to the turgid complexities of many another.
Prof. Dias also points out that if a person searches the book of Olive-
crona for guidance in the solution of legal problems, he will fail. There
is no hint of values or other such considerations from which law draws
its vitality. Prof. Dias further says that a person should not be criticised
for not having said something which he never set out to say and which
he would not have denied. The object of Olivecrona was limited to a
formal analysis of law as it is. The picture of law which emerges is that
it Consists largely of propositions phrased in an imperative form and
emanating from Certain agencies. Although Olivecrona has stated at
many places that law is nothing but a set of social facts, he does not ex-
plain in his book what he means by "fact". Law also provides a model
of behaviour which presumably is a social fact.
The view of Prof. Dias is that the chief merit of the work of Olivec-
rona is that he destroyed many traditional myths concerning law, e.g.,
binding force and command. He has given a moderate, sane and com-
monsense approach to some highly abstract problems of legal philoso-
phy. His approach should not be regarded as self-sufficient, but it is an
invaluable corrective to some others .2
Lord Lloyd observes that Olivecrona was mainly concerned to show
that there is nothing mystical about the working of a legal system and
there is no need to rely on fictitious entities or concepts such as the
State or the binding validity of law.3
Olivecrona's works can never be said to have lost all their teeth. He
deserves the credit for his utter disregard of the superstition that law•
emanates from a god. For him, every rule of law is a creation of men.
The rules have always been established through legislation, or in some
other way, by ordinary people of flesh and blood. Another great merit
of his work lies in his reversal of the general notion of moral standards
as embodied in law by the idea that it is moral ideas that are themselves
largely determined by law. There are some moral feelings which are
natural phenomena such as love and compassion, but these are inade-
quately strong to produce the restraints necessary for civilised life. To
quote Olivecrona: "Law certainly cannot be a projection of some in-
nate moral convictions in the child or adolescent, since it existed long
before he was born. When he grows up and becomes acquainted with
the conditions of life, he is subjected to its influence. The first indelible
Jurisprudence, p. 648.
Introduction to Jurisprudence, p. 578.
586 JURISPRUDENCE AND LEGAL THEORY [CHAP.

impressions in early youth concerning the relations to other people are

directly or indirectly derived from the law. But the effect is not only to
create a fear of the sanctions and cause the individual to adjust himself
so as to be able to live without fear. The rules also have a positive moral
effect in that they cause a deposit of moral ideas in the mind"."
Ross (1899—)
Alf Ross is a Danish jurist. He admits the normative character of law.
He distinguishes between laws which are normative and statements
about laws in books which are descriptive. He confines his attention to
particular legal orders. He maintains that laws need not 1e interpreted
in the light of social facts but he is concerned with the problem of va-
lidity. He tends to highlight the position of courts.
Valid Law. - Ross does not seek to reduce all law to sociological phe-
nomena. His conclusion is that "valid law" means the abstract set of
normative ideas which serve as a scheme of interpretation for the phe-
nomena of law in action. From here Ross moved to a position which as
formulated in his book, On Law and Justice, was narrow and less tenable
and hence criticised. Ross formerl held that the validity of law could
properly be considered only from one point of view viz., as a scheme
of interpretation enabling us to comprehend and within such limits
as are practicable, to predict the activities of judges. Accordingly, he
asserted that a legal norm such as a statutory rule was primarily a di-
rective not to the population at large, but to the judge. In his later book
Directives and Norms, he shifted his ground somewhat and countered
some of the criticism against his original view. He now differentiates a
logical and psychological point of view. Legal rules are rules about the
exercise of force and as such are directed to officials. Their observance
is based on "the experience of validity." A statutory prohibition against
murder is implied in the rule directing the courts and other administra-
tive agencies to deal with any case of murder brought before them in
the requisite manner. Logically, the rule of substantive law or primary
law has no independent existence. But, "from a psychological point
of view...there do exist two sets of norms." For "rules addressed to
citizens are felt psychologically to be independent entities which are
grounds for the reactions of the authorities." These primary rules must
be seen as "actually existing norms, insofar as they are followed with
regularity and experienced, as being binding." What Ross now sug-
gests is that there is "no need" to describe two sets of directives, one to
the population at large and the other to the courts, for the former can
be understood from the latter. "To know these (secondary) rules is to
know everything about the existence and content of law."
Law As Fact, pp. 151-156.
 XXVIIIJ THE SCANDINAVIAN REALISTS 587

Ross now recognises the social dimensions of law. What he now

says in Directives and Norms is that as a matter of juristic precision, it is
possible to reduce all laws to directions to officials. But he is admitting
that this is not how society functions. A reference to the psychological
existence of two sets of directives is a recognition that the behaviour
and feelings of all members of society are the "social facts" required
to determine the existence of rules of law. Ross now accepts what he
earlier scorned in Olivecrona as "psychological realism". When Ross
refers to "all members of society", it must be noted that he qualifies
this by limiting his norm to those to whom it applies. "Thus the direc-
tive that shops are to be closed at a certain hour relates only to those
members of society who are shopkeepers.
Neither in his book On Law and Justice nor in his book Directives and
Norms, Ross has limited himself to a purely behaviouristic interpre-
tation of judicial or social activity. With reference to the judge, Ross
has insisted that "a behaviouralist interpretation achieves nothing",
but one must take into consideration his "ideological" or "spiritual"
life. Only on the hypotheses of the allegiance which the judge feels
towards the Constitution, its institutions and the traditionally recog-
nised sources of law, is it possible to interpret the changing judicial re-
actions as a coherent whole as regularities constituted by an ideology.
The future behaviour of the courts cannot be predicted on the basis of
past decisions alone. Judicial regularity is not external, habitual and
static, but rather internal, ideological and dynamic.
Norm. —According to Ross: "A norm is a directive which stands in a rela-
tion of correspondence to soeialfacts." To say that a norm exists means that
a certain social fact exists. This in turn means that the directive is fol-
lowed in the majority of cases by people who feel bound to do so. The
principal feature of legal norms is that they are directives addressed to
courts. A norm may derive from a past decision, but all norms, includ-
ing those of legislation, should be viewed as directives to courts. The
judgment or order of the court then forms the basis for action by the
State which is a "monopoly of the exercise of force." It follows from
this that norms directed at individuals with regard to behaviour are
only "derived and figurative."
Norms of law may be divided into "norms of conduct" which deal
with behaviour and "norms of competence or procedure" which di-
rect that norms brought into existence according to a declared mode
of procedure shall be regarded as norms of conduct. These norms of
competence are indirectly expressed norms of conduct.
Norms are operative "because they are felt by (the judge) to be so-
cially binding ird therefore obeyed". A norm is "valid" if a prediction
 JURISPRUDENCE AND LEGAL THEORY [CHAP.
588

can be made that a court will apply it. Validity is not "all or nothing"
concept as it is with other writers. The degree of predictability that a
norm will be applied determines the degree of its validity. "The degree
of probability depends on the material of experience on which the pre-
diction is built (sources of law)." Where the probability is high because
the basis is a statute or an established precedents the degree of validity
of a rule is high. Where the probability is low because there is no deci-
sive authority, the degree bf validity is low.
The "Verifiability" Principle.—Ross was particularly influenced by
logical positivism. In his book On Law and Justice, he wrote that "there
is only one world and one cognition. All science is ultimately con-
cerned with the same body of facts and all scientific statements about
reality—that is, those which are not purely logical, mathematical—are
subject to experimental test." He regarded the doctrinal study of law
as "an empirical social science". Olivecrona and Lundstedt were not so
influenced. Nevertheless, Ross is open to the criticisms that have been
levelled at early logical positivism. The view that meaning is given by
factual verifiability and therefore any proposition which is not verifia-
ble is meaningless or nonsense has difficulties. The word "nonsense" is
itself a highly metaphysical concept. It was realised that this would not
do. It is a pity that the Scandinavian writers neglected the later works
of Wittgenstein, in which he exposes the errors which he earlier shared
with others, in attributing a single function to language, to which all
propositions must conform in order to make sense at all.
"Reductionism" and Legal Concepts—Ross is involved in a fallacy
once associated with logical positivism that of assuming that concepts
can always be reduced by analysis to a series of factual propositions
to which they are equivalent and for which they can be substituted.
Hence it was thought at one time that all the so-called fictional entities
of philosophy could be spirited away by this process. Unfortunate-
ly, it later became apparent that this form of reductionism would not
even work in regard to such simple everyday concepts as "England"
or "France" in such a sentence as "England declared war in 1939". It
will be found that no amount of conversion into factual statements
will altogether eliminate the hard core of such concepts as rights and
property as such reduction ignores the normative factor.
The criticism criginally levelled at Ross that he ignored the regula-
tive function of norms by saying that they are only addressed to courts
was partly met by him in his later book. However, his continued in-
sistence that only the former (courts) matter and not the individuals
still underplays the regulative function. To admit, as he now does, that
norms directed at individuals also exist, thereby implying that they too
XXVII!] THE SCANDINAVIAN REALISTS 589

are social facts, dilutes the foundations of his structure. The thesis that
there can be degrees of validity follows from an identification of valid-
ity with eventuality, what actually happens. That is not legitimate. The
closely related point is his adoption of an exclusively descriptive point
of view, but the resulting picture is unsuited to a point of view of a
legislator or judge. A judge can hardly be predicting his own feeling or
behaviour. It is unrealistic to suggest that validity has no significance
for him.
A.V. Liindstedt
Lundstedt rejects everything normative, including the entire concept
of justice which he identifies with the metaphysical. His argument is
that any attempt to develop law on the basis of the commonsense of
justice assumes that natural justice represents a kind of "material law"
underlying the actual legal system. This he dismisses as non-existent
metaphysical. For him, everything that is not a physical fact is a pure
fantasy. All concepts such as rights and duties are dismissed as unre-
alistic. That applies to legal rules also. They are mere labels, unreal su-
perstructure on the legal machinery. Lundstedt writes: "The principal
argument in my criticism of legal ideology is that the entire substra-
tum for legal ideology, the so-called material law and its basis natural
justice, lacks the character or reality; that accordingly, even legal rights,
legal obligations, legalrelationships and the like lack such a character;
that the commonsense of justice (the feeling or sentiments of justice)
far from being able to support the material law, on the contrary re-
ceives its entire bearing through the maintenance of law i.e., legal ma-
chinery which takes the'commonsense of justice (the feeling of justice)
into its service and directs it in grooves and furrows advantageous to
society and its economy, and that consequently legal ideology does not
perceive and cannot perceive those realities appertaining to the legal
machinery such as they are, but places them right on their head."
In his denunciation of the concepts of rights and duties and rejection
of transcendental ideas of justice, Lundstedt is one with the other Scan-
dinavian realist jurists. His rejection of "the method of justice" is the
characterisation and condemnation of all traditional jurisprudence.
According to Lundstedt, one of the greatest mischiefs of traditional
jurisprudence is to have regarded the sense of justice or right as en-
couraging and guiding the law, but in fact feelings of justice arc guided
and directed by laws as enforced or maintained. Law is nothing but
the very life of mankind in organised groups and the conditions which
make possiIe peaceful coexistence of masses of individuals and social
groups and the cooperation for other ends than mere existence and

Le, ,'a! Thinking Revised. p. 53.

 590 JURISI'RUDENCE AND LEGAL THEORY [CIIAI'.

propagation. At any particular time and in any particular society, it

is determined by "social welfare." The "method of social welfare" is
a guiding motive for legal activity. It means in the first place the en-
couragement in the best possible way of that according to what every-
body standing above a certain minimum degree of culture, is able to
understand. That consists of such basic requirements of human beings
as "suitable and well-tasting food, appropriate and becoming clothes
according to one's own or general taste, dwellings furnished in the best
and most comfortable way, security of life, limb and property, the great-
est possible freedom of action and movement along with limitation of
the amount of work a person may be required to do within a specified
period of time, possibilities of education etc. That includes all conceiv-
able material comfort as well as protection of spiritual interests."
According to Lundstedt, all other jurists have followed the road of
legal ideology or the method of justice. That means that they have re-
lied in one way or another on material objective law, underlying the
actual legal system and depending on the commonsense of justice to
develop the law and to fill the gaps in the legal system. This is con-
demned by him both as metaphysicai nonsense and as an attempt to
invoke natural law or justice to supply an objective valuation in what
can only be purely subjective, since for them value judgments depend
purely on individual feelings and emotions and are incapable of scien-
tific objectivity. Lundstedt directs an impassioned onslaught on many
of those modern thinkers whose thought might be believed to resem-
ble his own, as for instance, the utilitarians, the sociological jurists and
the American realists. According to Lundstedt, jurisprudence must be
a natural science, based on observation of facts and actual connections
and not on personal evaluation, or metaphysical entities. Science has
not so far progressed sufficiently in this field to enable us to establish
or demarcate those connections with precision. Hence the need for
what Lundstedt calls "constructive" jurisprudence which has to work
practically on the hypotheses of certain social evaluations such as that
legal activities are indispensable for the existence of society and their
aim must be to produce the most frictionless functioning of the legal
machinery. Lundstedt maintains that his approach differs from that of
Bentham and Pound as he proceeds not on an ideological basis but on
arguments based solely on social realities, that is, on people as they
are actually constituted. The "social welfare method" propounded by
Lundstedt is quite distinct from such common ideas as the needs of
society or social policy, as it means nothing but what is actually con-
sidered useful to men in society, with the way of life and aspirations
that they have at a particular time. That implies the encouragement in
the best possible way of what people in general actually strive to attain
 XXVIII] THE SCANDINAVIAN REALISTS 591

and not what they ought to strive for. As knowledge increases, legal
activities may eventually be able to be based on a legal science which
has a more or less complete knowledge of the facts and which can es-
tablish social evaluations on that foundation.
Lundstedt's devotion to actual aspirations presumably adds up to
the dominant views of the bulk of society and seems to leave but little,
if any, scope for the reforming impulses of a minority in advance of
the sluggish opinions of the mass or scope for the possibility of moral
pluralism.
According to Lundstedt, criminal law exists not so much to deter
criminals but to foster the moral instincts against crime and it does this
by the regular enforcement of sanctions. He dismisses as a "ridiculous
idea" all the pious phrases about improving the criminal morally or
socially, for the actual effect, "the naked reality" of the penalties im-
posed, is to "break down the criminal",
Although Lundstedt castigates Pound's jural postulates as nothing
more than phrases heaped upon phrases without the possibility of
finding any line of thought, it is difficult to see why his own hypoth-
éses as to the basis of the legal system are not equally a priori, drawn
as they are not from sociological research, but from personal reflection
and individual evaluations. If it is true that Pound discusses law "in
complete abstraction from our experience of it, the same criticism ap-
plies to the formulation of the social welfare method by Lundstedt. In
natural and in other science, hypotheses are only valuable insofar as
they can be and are tested against verifiable observations."
Criticism. - It is worth'y of notice that the critical aspects of the Scan-
dinavian realists are more significant than their positive achievement.
Their main contribution has been to pursue the detection of open or
hidden legal ideologies beyond the general criticism and condemna-
tion of natural law rules into the positivist concepts of command, so y
-erinty,ghsadu.TeScnivarlstpend
idea that the legal order should always be subjected to certain scales
of values which in turn should be assessed not in absolute terms but
with regard to the social needs changing with times, nations and cir-
cumstances. Whether law is considered as a "fact" or as a machinery in
action, or in any other form and manner, it is directed to certain ends.
Scandinavian and American Realism. —The Scandinavian realists share
with sociological jurists a weakness for a priori assertions, while at the
same time insisting on the need for basing the law on the needs of
social lite. iney linKed mis attitude with varyiTrgdgrecs of hoWiy
to all conceptual thinking which they stigmatize as metaphysical or
ideological. The American realists are not much interested in general
 JURISPRUDENCE AND LEGAL THEORY tCiiAt'.
592

theorising about law. Although they may share with the Scandinavi-
an realists the feeling that rules do not decide cases, they do not alto-
gether reject the normative aspect of legal rules. What they are mainly
interested in is the practical working of the judicial process, whereas
the Scandinavians are more concerned with the theoretical operation
of the legal system as a whole. Although the Scandinavians are the
most extreme of empiricists it is the Americans who primarily stress
the need for factual studies'in working out proper solutions for legal
problems. The Scandinavians appear to rely mainly on an argument
of a priori kind to justify legal solutions or developmerts. The view of
Lord Lloyd is that for all its positivism, the Scandinavian movement
remains essentially in the European philosophical tradition, whereas
the American movement bears many of the characteristic of English
empiricism.'
Criticism of the Realists in General
The realist approach can be criticised on many grounds. The realists
have undermined the importance of legal principles and rules. They
regard law as a jumble of unconnected decisions. For them, law never
is, but is always about to be. They have been impressed by the vari-
ability of decisions and have come to the conclusion that law is not
predictable at all but it is only a series of applications and executions
Their main concentration is on litigation but there is a great part of law
which does not come before the courts. The realists launched a vigor-
ous attack against juristic complacency and the myth of "certainty".
However, in actual practice we find a large measure of certainty and
very many transactions are regulated on that basis. The realists have
exaggerated the human factor in judicial decisions. It is true that the
human factor plays a part in arriving at decisions, but that does not
mean that judicial decisions are the result only of the personality of
the judge. The approach of the American realists is based on their own
local judicial setting and does not give a universal method. It can be
applied only in a society where the social forces had their play in law-
making. In societies where the will of the legislator dominates every
sphere of law, as in totalitarian States, the realist approach, cannot be
adopted. The analysis of the Scandinavian jurists does not suffer from
these weaknesses. According to Qlivecrona, the nature of law has uni-
versal validity.
The realists have undermined the importance of the legal principles
and rules. They regard law as a jumble of unconnected decisions. In
thr iaw never is, out isiiways about ro be. i heir viewi iiti[
law cannot be predicted. It is merely a series of applications and execu-

J I trcI H ! U )Jl 10 JlI?l./fllI de) !((.P.311:1.

XXVII [I THE SCANDINAVIAN REALISTS 593

tions. However, this is not correct. The very use of the term "applica-
tion" shows the prior existence of principles and rules.
Contribution of the Realists
The realist movement has made a valuable contribution to jurispru-
dence. Its approach to law is in a positive spirit. It is not concerned
with any theory of justice or natural law. It demands a comprehensive
approach and examination of all the factors which lead to decisions.
The realists have goaded on the lawyers and judges to realise the im-
portance of their work and not to do their work blindly. Jerome Frank
writes: "It has contributed in parts to the liberation of judges... from
enslavement by unduly rigid legal concepts, caused those judges to
ground their reasoning on broader and more human rule premises".
The view of Julius Stone is that the realist movement is a gloss on the
sociological approach. What is required is that it should he a balanced
one and then alone it will be a help to solve legal problems. According
to Allen: "The realist school appears as another auntar on the socio-
logical jurisprudence." Friedmann writes that the realist approach is
"an attempt to rationalise and modernise the law—both administra-
tion of law and the material for legislative change—by utilising scien-
tific methods and the results reached in those fields of social life with
which this social law is inevitably linked."

SUGGESTED READINGS

Castber, F. : Probk',us of Loyal Philosophy, 2nd cdii., Oslo University

Press: Allen & Unwin Ltd., 1957.
David and Briefly : Major Loyal Systems of the World, 1968.

Dias, R.W.M. : ji,risprudeiice, London, 1976.

Finch, J . D. : Introduction to Legal 71 won/, 211d cdn., Sweet & Max well
Ltd., 1974.
1-la go rst ro m, A. : loq u tries ii, to the Nature of Law and Morals, ed. K.
Olivecronui, trans. C.D. Broad, Alinqvist & Wiksell,
Stockholm, 1953.

Hagerstrorn, A. : Philosophy mid Rcliyion. 1964.

Lloyd, D. : Introduction to Jurisprudence, 1979.

Lundstedt, A. V. : Loyal Tizinkiny Revised, Alrnqvist & Wiksell, Stock holrn,

1956.

Olivecrona, K. : Interpretations of Modern LLYa I Philosophies, ed. I'. Sayre,

Oxford University Press, New York, 1947.

Oecr,,no, . t.e. [wt, o,:r ' ,id ,tar,.i, Cnpenitogn,

Fluniphrey Milford, London, 1939; reprinted Wildy &
Sons, 1962; 2nd ed., Stevens & Sons ltd., 1971
594 JURISPRUDENCE AND LEGAL THEORY

Olivecrona, K. Scandinavian Studies in Lazt

Ross, A. Directives and Norms, Routledge & Kegan Paul Ltd.,
1968.
Ross A On Lao, and justice, Stevens & Sons Ltd 198
Ross, A. : Towards a Realistic Jurisprudence, trans. Al. Fausbol!,
Einar Munksgaard, Copenhagen, 1946.
Stone, J . : Legal System and Lnwers' Reasonings, Stevens & Sons
Ltd., 1964.
 CHAPTER TWENTY NINE

NATURAL LAW

N THE WORDS of Lord Lloyd of Hampstead, natural law thinking

I has occupied a pervasive role in the realms of ethics, politics and law
from the earliest times. At some periods, its appeal may have been reli-
gious or supernatural, but in modern times it has formed an important
weapon in political and legal ideology. It has afforded a valuable aid
to the powers that be, desirous of justifying the existing law and the
social and economic system it embodies. Natural law has often been
pictured as an ideal system laid up in heaven of which positive law
can be but an imperfect simulacrum. Natural law has been envisaged
as a mere law of self-preservation, or as an operative law of nature
constraining man to a certain pattern of behaviour.'
Prof. R. W. M. Dias,writes that natural law theory has a history
reaching back centuries B. C. and the vigour with which it flourishes is
a tribute to its vitality. There is no one theory of natural law and there
are many versions of it. However, there is no other firmament of legal
or political theory which is so bejewelled with stars as that of natural
law which scintillates with contributions from all ages. The term natu-
ral law has been understood to mean a variety of things to different
people at different times viz., ideals which guide legal development
and administration, a basic moral quality in law which prevents a to-
tal separation of the "is" from the "ought", the method of discover-
ing perfect law, the content of perfect law deducible by reason and
the conditions sine qitibus non for the existence of law. On account of
these differences, it is not always possible to classify a given writer as
naturalist or positivist. There are wide differences among those who
me normally classed as naturalists or positivists Natural law think-

!iit,odtictiii of Itt, iprdeict', pp. 79-81.

596 JURISPRUDENCE AND LEGAL THEORY [I1AP.

ing in one form or another is pervasive and is encountered in various

contexts. Natural law theory has tried to meet e paramount needs of
successive ages throughout history.
It figures prominently in offering help with two vital contemporary
problems viz., the validity of the unjust law and the abuse of liberty.
The constant readiness of natural lawyers to meet challenge is a tribute
to the springs of their inspiration.'
Dr. W. Friedmann rightI points out that the history of natural law
is a tale of the search of mankind for absolute justice and its failure.
Agai md again, the idea of natural law has appeared in some form
or other, as ac. Pxpression of the search for an ideal higher than posi-
tive law after havin 6 heen rejected and derided in the interval. The
problem is as acute and as uco1ved as ever. With changing social and
political conditions, the notions on tural law have changed. The only
thing that has remained constant is th npeal to something higher
than positive law. The object of that appeal ha: been the justification
of the existing authority or a revolt against it. Natural !aw has fulfilled
many functions. It was the principal instrument in the tra:formatibn
of the old civil law of the Romans. It was used as a weapon by both
sides in the fight between the Medieval Church and the German Em-
perors. In the name of natural law, the validity of international law
was asserted. An appeal was made to natural law to defend individual
freedom against absolutism. The judges of the United States appealed
to the principles of natural justice while resisting the attempt of State
legislation to modify and restrict the unfettered economic freedom of
the individual. Natural law has helped various peoples and genera-
tions to formulate their ideals and aspirations. At different times, natu-
ral law has been used to support almost any ideology. However, the
most important and lasting theories of natural law have been inspired
by the ideal of a universal order governing all men and the inalienable
rights of the individual. Through the theories of Locke and Paine, nat-
ural law has provided the foundation for the individualist philosophy
of the American and other modern constitutions.-'
Greece
Greek thinkers laid the basis of natural law and developed its essen-
tial features. Heraclitus laid the basis of natural law. He found it in
the rhythm of events. This he termed destiny, order and reason of the
world. Nature is not just substance, but a relation, an order of things.
The thought of an order of nature in conformity with law dawned as
clear knowledge upon Grecian minds. This provided the basis for the
Jurzpiide,icc. pp. 653-54.
Leça/ 'Ihcorij, pp. 43-45.
XXIXI NATURAL LAW 597

Greek school of enlightenment (Sophists) which developed in the 5th

century B. C. The contact between nature and institution is the most
characteristic work of Greek enlightenment in the formation of con-
ceptions. It dominated the whole philosophy of the period. If there
is anything universally valid, it is that which is valid by nature for all
men vithout distinction of people and time. What nature determines
is justly authorised. Nature came to be opposed to the tyranny of man.
Nature is something external, outside man. It is the order of things
which embodies reason.
Socrates. —Socrates reflected upon that element which was the deci-
sive factor in the culture of his time. He defined virtue, the fundamen-
tal ethical conception, as insight, in turn, as knowledge of the good,
the concept of good with no universal content. One of the dictates of
natural law is that authority and positive law should be obeyed. How-
ever, he did not argue blind adherence to positive law. That should be
subjected to the critical evaluation in the light of man's insight.
Plato.—Plato laid the foundations for much of subsequent specula-
tion of natural law themes. According to him, Gods gave to all men in
equal measure a sense of justice and of ethical reverence so that in the
struggle of life they may be able to form permanent unions for mutual
preservation. He found the nature of practical life in primary ethical
feelings which impel men to union in society and in the State. In the
ideal State of Plato, each individual is given that role for which he is
best fitted by reason of his capacities. His Republic is a constructive at-
tempt to discover the basis of justice. The administration of justice is
given to the philosopher kings whose education and wisdom is such
that there is no necessity to link them up with a higher law.
Aristotle. —In his Logic, Aristotle sees the world as a totality compris-
ing the whole of nature. Man is a part of nature in a twofold sense. On
the one hand, he is a part of matter, part of the creatures of God. As
such, he partakes of experience. Man is also endowed with active rea-
son which distinguishes him from all other parts of nature. He is capa-
ble of forming his will in accordance with the insight of his reason. It is
the recognition of human reason as a part of nature which provides the
basis for the Stoic conception of the law of nature. The Stoics develop
this principle into an ethical one. Reason governs the universe in all its
parts. Man, as a part of universal nature, is governed by reason. Rea-
son orders his faculties in such a way that he can fulfil his true nature.
When man lives according to reason, he lives "naturally". Thus, the
law ofiature becomes identified with a moral duty.
 598 JURISPRUDENCE AND LEGAL THEORY [CUAP.

Stoics.—To the Stoics, the postulates of reason are Of universal force.

They are binding on all men everywhere. Men are endowed with rea-
son, irrespective of nationality and race.
Rome. —The theory of Stoics exercised great influence upon the Ro-
man jurists and some of them paid high tribute to "natural law". In
the Roman system, the theory of natural law did not remain confined
to theoretical discussions only. The Romans used natural law to trans-
form their narrow and rigid system into a cosmopolitan one. Natural
law exercised a very constructive influence on Roman law. The Romans
had three divisions of lav viz., pi s iViIC, jus gentiu: and ju; nut urn/c.
]its civile or civil law of the Romans was for Roman citizens only. On the
principles of natural la; the Roman magistrates applied those rules
which were common with foreign laws to foreign citizens. The body of
law which grew U I) in ti)is wa y was cafled fits genlium and it became a
part of Roman law. It represented the good sense and universal legal
principles and conformed to natural law. Later on juts gentiurn and juts
civile became one when Roman citizenshi p was extended to all except
a few classes of people. The Roman h'wyers did not bother about the
conflict between natural law and positive law. However, there were
some jurists who considered natural law as superior to positive law
but the majority of the Roman jurists did tot enter into this problem.
Lord Lloyd writes that conquest and commerce necessitated the de-
velopment of law which could be applied to foreigners. Jus gentiurn,
the jus civile stripped of formalities and with cosmopoiitan trimmings,
was the result.'
Gaius wrote that all people who are governed by laws and customs
applied partly their own law, partly law which is common to all man-
kind. The law which each people has mce for himself is peculiar to
that people and is called juts civile, the special law of the State, but that
which natural reason has appointed for all men is in force equally
among all peoples and is called his gel!tiu;n, being the law applied by
all races.
Cicero. —Cicero wrote that law is the highest reason, implanted in
nature, which commands what ought to be done and forbids the op-
posite. This reason when firmly fixed and fully developed in the hu-
man mind is law. Since law is a natura l force, it is mind and reason
of the intelligent man, the standard by which justice and injustice are
measured. While divine reason is inherent in the universe, it is more or
less identified with the physical ordering of the universe. Man stands
highest in creation by virtue of his faculty of reasoning and his welfare

Introduc tion to Jurisprudence, n. 83.

XXIX1 NATURAL LAW 599

is the supreme purpose of creation. As welfare is the chief objective of

creation, man should spare no efforts to help others.
Cicero not only held fast to the thought of a moral world order which
determines with universal validity the relation of rational beings to
each other, but also thought of the subjective aspect of the question
iii consonance with his theory that this command of reason is innate
in all human beings equally and has grown with their instinct of self-
preservation. Out of this natural law, the universally valid law which is
above all human caprice and change of historical life, develop both the
commands of morality in general and of human society in particular.
The Middle Ages
Aquinas. —Throughout the Middle Ages, the theology of the Catholic
Church set the tone and pattern of all speculative thought. Two vital
principles animated medieval thought and those were unity and sit-
preinaci,i of law. Unity was derived from God and involved one faith,
one Church and one Empire. The supremacy of law was not merely
manmade but was conceived as a part of the unity of the universe.
Catholic philosophers and theologians of the Middle Ages gave a new
theory of natural law. They gave it a theological basis. Their views
were logical and systematic. The views of St. Thomas Aquinas (1224/5-
1274) may he taken as representative of the new theory. His theory has
to be set in the context of his time. There was a need for stability in a
world emerging from the Dark Ages. The struggle between the Church
and the State was beginning and there was the need for the Church
to establish its supremacy by rational argument rather than by force.
It was necessar y for Christendom to unite in the face of the heathen
menace and a need was felt for unifying Christian philosophy. Aqui-
nas tried to meet all the three needs. In the doctrine of Aquinas, there
is a connection between means and ends. There is a relation in the na-
ture of things between a given operation and its result. Natural pheno-
mena have certain inevitable consequences. Fire burns but it does not
freeze- A tendency to develop in certain ways is naturally inherent in
things. An acorn can only evolve into an oak and it will never evolve
into a larch or pine. The appreciation of the relation between means
and ends and the process of growth towards fulfilment is open only
to intelligence and faculty of reason. An acorn does not think but man
thinks. Man appreciates the relation between means and their ends. He
also chooses for himself the ends which he wants and devises means
of achieving them. A man in authorit y ma y decide that the health of
society is an end wth achieving and ftien devise means to achieve the
same and prescribe regulations for that purpose. Thus, laws consist of
means of achieving ends. The relation between an end and the method
600 JURISPRUDENCE AND LEGAL THEORY [CHAR

by which its fulfilment is sought is initially conceived in the mind of

the legislator. Those who are required to conform to his directions can
also appreciate the connection by the exercise of their own reasoning
faculties. According to Aquinas, law is "nothing else than an ordinance
of reason for the common good, made by him who has the care of the
community, and promulgated." Man can control his own destiny to a
large extent but he is subject to certain basic impulses which are the
impulse towards self-preservation, the impulses to reproduce the spe-
cies and rear children and Vie impulse to improve and to take such de-
cisions as are necessary for the attainment of higher and better things.
The basic impulses point in a definite direction which is not only sur-
vival and continuity but also perfection. They are a part of human na-
ture and show that man is also limited by nature. The establishment
of certain ends and the means of achievement originated in the reason
of some superhuman legislator. That is the eternal law which is "noth-
ing else than the plan of the divine wisdom considered as directing all
the acts and motions" for the attainment of the ends. Man is free and
rational and capable of acting contrary to eternal law. That law has to
be promulgated to him through reason. That is natural law. There is no
need of promulgating natural law to other created things as they lack
the intelligence of man. To quote Aquinas: "The natural law is nothing
else but a participation of the eternal law in a rational creature." It is
the dictates revealed by reason reflecting on natural tendencies and
needs. "The primary precept of the law is that good should be done
and pursued and evil avoided: and on this are founded all the other
precepts of the law of nature." By reflecting on his own impulses and
nature, man can decide what is good.
The nature of man is such that he is necessarily impelled to seek
good in survival, continuity and perfection. He must do things to
achieve them and not to frustrate them. To go against the ends is mor-
ally wrong. It is not wrong because God has forbidden the contraven-
tion of natural law. God has forbidden it because it is wrong which
means contrary to reason by which God himself is bound.
According to Aquinas, mankind "ought not only to be multiplied
corporeally, but also to make spiritual progress. And so sufficient pro-
vision is made if some only attend to generation while others give
themselves to the contemplation of divine things for the enrichment
and salvation of the whole human race."
Aquinas divided laws into four categories viz., law of God, natural
law which is revealed through the reason of man, divine law or the law
of scriptures and human laws. Natural law is a part of divine law. It is
that part which reveals itself in natural reason. It is applied by human
XXIXI NATURAL LAW 601

beings to govern their affairs and relations. The human law or positive
law must conform to the law of the scriptures. Positive law is valued
only to the extent to which it is compatible with natural law or in con-
formity with eternal law. The Church is the authoritative interpreter of
the divine law. It is the authority to give verdict upon the goodness of
positive law also.
The scheme of Aquinas dividing laws into four categories of eternal
law, natural law, divine law and human law is regarded as the first of
its kind in the history.of jurisprudence. It combined ancient philoso-
phy, the law of the Romans, the teachings of the Christian Fathers and
contemporary pragmatism with consummate power and skill. Law
was no longer the product of original sin. It became a part of the divine
scheme. What is most striking is its uncompromising appeal to reason.
Man was created so that he might strive towards perfection. Reason
dictates that he has to be free. God cannot alter this state of affairs. To
do so would contradict His own nature as God himself is bound by
reason. The law of God was declared to be nothing else than the reason
of divine wisdom. Christianity was said to he the supreme reason. Nat-
ural law furnishes principles rather than rules for detailed application.
An interesting feature is the empirical approach to eternal and natural
law. Inferences are drawn from human nature. Reason becomes the
foundation for all human institutions. Social life is founded on human
nature. Families and the State are necessary for the realisation of man's
full potential and are thus natural institutions. An extension of this is
the ideal of a single organisation of all mankind in a world State.
Aquinas tried to strengthen the authority of the Church by assert-
ing that human dignitaries were responsible to the Church in matters
relating to eternal law. The Church is the authoritative interpreter of
divine law in the scriptures. The State existed before the Church and
is itself a natural institution. It serves the common good and by means
of its laws should bring about the conditions conducive to the proper
development of man.
The test by which laws are to be judged is the following dictate:
"Every human being has just so much of the nature of law as it is de-
rived from the law of nature. If it departs from natural law on any point,
it is no longer a law but a perversion of law." So far as human laws are
founded on reason, there is a duty to obey them. If a law is unreason-
able and unjust, no such duty arises. However, there may be subtle
dictates of morality which enjoin obedience even to an unreasonable
positive law. Unjust laws "do not bind conscience unless obse'nce of
them is required in order to avoid scandal or disturbance."
 602 JURISPRUDENCE AND LEGAL THEORY [CHAP.

An unjust ruler may be overthrown unless revolution would cre-

ate as bad or worse state of affairs than before. Sedition is a social evil
and Aquinas warned against rebellion in circumstances which do not
justify it.
The identification of natural law with reason was destined to bring
about a separation of natural law from theology later on. After the
Reformation, the Protestants, denjed the authority of the Church to in-
terpret the law of God as man was said to have direct access to God
through his own reason. Aquinas maintained that the use of things
must be not by man for his own benefit but for the common good. He
justified the difference between the rich and the poor and individual
property.
Aquinas blended in a system of great logical power the austere ec-
clesiasticism of the Fathers of the Church and the political philosophy
of Aristotle. In the struggle of political forces, his system vindicated
the right of th- Church to control the ecclesiastical appointments made
by the Emperor.
For Aquinas himself, the law of nature was not merely a matter of
expediency but it often deteriorated to that function in the controver-
sies which accompanied the bitter struggle between the Pope and the
Emperor for supremacy. The law of nature also served as a powerful
weapon in the later struggle between the Catholics and the Protestants
when either side appealed to it for the true interpretation of the Scrip-
ture or the right of the State to spiritual jurisdiction.
Grotius. — Hugo Grotius (1583-1645) gave classical expression to the
new foundations of natural law as well as the principles of modern
international law. According to him, the property peculiar to man is
his desire for society, for a life spent in peace in common with fellow-
men and in correspondence with the character of his intellect. The na-
ture of human intellect desires a peaceful society and from that are
derived the principles of natural law which are independent of divine
command. To quote him: "Natural law is so immutable that it cannot be
changed by God himself" These principles of reason can he deduced in
wo different ways. One way is by examining anything in relation to
the rational and social nature of man. The second way is by examining
the acceptance of those principles among the nations.
On his principles of natural law, Grotius built his system of interna-
tional law. The most fundamental of his principles is pacta sunt servan-
do, the respect for promises given and treaties signed. The other rules
of natural law are respect for other people's property and the restitu-
tion of gain made from it, the reparation of damage caused by one's
fault and the recognition of certain things as meriting punishment.
 XXIXJ NATURAL LAW 603

Natural law also supplied the basis of more concrete political contro-
versy. While Grotius
stipulated the freedom of the seas as a principle of
natural law, Selden maintained that natural law permitted private and
public dominion over the seas. In the writings of Grotius, the idea of
natural law assumed a constructive and practical function comparable
to that which it did in the time of the Roman Empire. In both cases,
principles partly deduced, partly observed as being of general accept-
ance, gave the basis. In course of time, natural law was reduced from a
position of Superiority over State practice to an empty formula.
According to Grotius, natural law is based on the nature of man and
his inward need of living in society. Grotius called human nature as
the g r andmother, natural law the parent and positive law the child.
Human nature impels us to desire a society, From this nature of human
intellect which desires a peaceful society, are deduced the principles of
natural law, which are quite independent of divine command. Natural
law is immutable and cannot be changed by God himself.
Pufendorf_Like Grotius, Pufendorf based natural law on the two
sides of human nature which bid him to protect his personal property
but not to disturb the peace of society. From this, Pufendorf derived
the following maxim: "Let no one bear himself towards a second per-
son so that the latter can properly complain that his equality of right
has been violated in his case."
Wolff saw in the duty of self-perfection the principal command of
natural law. The conditions of such perfection are provided by a be-
nevolent sovereign whc t promotes peace and security. Natural law is
a living force. Pufendorf, Wolff and Selden asserted the supremacy of
the law of nature.
According to Vattel: "The law of nations is originally no other than
the law of nature applied to nations." Thus, natural law is necessary
law and all nations are bound to observe it. It cannot be changed or
abrogated. In spite of these assertions, natural law was relegated to
a very low position by Vattel as compared with international law. He
merely paid lip service to natural law and put emphasis on interna-
tional law. According to him, all real international law was derived
from the will of the nations.

Natural Law and Social Contract

The ideas of natural law were used for a very different purpose in the
English Revolution of 1688, the American Declaration of Independence
and the Freiicii Revolution of 1789. The Renaissance and the Reforpi
tion paved the way for the spiritual emancipation of the individual.
The expansion of commerce gave economic prosperity to the new mid-
 JURISPRUDENCE AND LEGAL THEORY [COAL'.
604

die class which became the moving spirit in the struggle for individual
emancipation. Political absolutism looked for a justification of its claim
to unlimited authority over the people. The legal construction used by
both sides in the political struggle was that of social contract.
The use of social contract as a definite concept in political and legal
controversy can he traced to Marsilius of Padua (1270-1343). The con-
cept of social contract is that in the beginning men lived in a state of na-
ture. They had neither any government nor any law. That state of na-
ture was described by some as that of hardship and oppression while
by some others as that of bliss and joy. Men entered into an agreement
for the protection of their lives and property and thus society came
into existence. They undertook to respect each other and live in peace.
They entered into a second agreement by which the people who had
united together earlier, undertook to obey an authority and surrender
the whole or a part of their freedom and rights and the authority guar-
anteed every one of them the protection of life, property and to a cer-
tain extent, liberty. It was in this way that the governments sovereign
or the ruler came into being. There are many implications of the theory
of social contract. People are the source of political power. The concept
Of society of these exponents of social contract theory is individualistic.
The important exponents of the theory of social contract were Grotius,
Hobbes Locke and Rousseau.
Grotius. —Hugo Grotius used the social contract for two purposes,
internally for the justification of the absolute duty of obedience of the
people to the government and internationally to create a basis for le-
gally binding and stable relations among the States. He put forward
social contract as an actual fact in human history. According to him,
each people had chosen the form of government they considered most
suitable for themselves by means of a social contract. Once the people
transferred their right of government to the ruler, they forfeited the
right to control or punish the ruler howsoever bad his government
may he. Grotius denied that all government is for the sake of the gov-
erned. He vacillated on the question how far a ruler is bound by the
promises made by him to his subjects. He was bound to admit that the
ruler was bound by natural law which was valid even without promise
and the keeping of promises is a permanent principle of natural law.
Grotius was not able to explain this anomaly. His main concern was
the stability and orderliness of international society. His theory of so-
cial contract served that purpose by stressing the equivalence of differ-
ent forms of government established by different peoples, by freeing
the ruler from any internal restriction or fetters and by stressing the
absolute force of a promise once made.
 XXIXJ NATURAL LAW 605
Hobbes. —Thomos Hobbes (1588-1679) was the author of two books,
De Cive (1642) and The Leviathan (1651). He lived during the days of the
Civil War in England and hence was convinced of the great importance
of State authority which he wanted to be vested in an absolute ruler.
Hobbes acknowledged the authority of natural law but he understood
it in a sense different from those writers for whom natural law was
superior to positive law. He shifted the emphasis from natural law as
an objective order to natural right as a subjective claim based on the
nature of man and prepared the way for individualism in the name of
"inalienable rights". He still acknowledged objective rules of natural
law of an immutable character but he divested them of any practical
significance by depriving them of sanctions. He understood by natural
law not certain ethical principles but laws of human conduct based
on observation and appreciation of human nature. For him, the chief
principle of natural law was the right of self-preservation. This was
connected with his view of state of nature in which "men live without
a common power to keep them all in awe, they are in that condition
which is called war and such a war as is of every man against every
man." In the state of nature, there was perpetual and devastating war-
fare which threatened everyone, but natural reason dictated to man
the rule of self-preservation for which he tried to escape from the state
of permanent insecurity. That he did by transferring all his natural
rights to the ruler whom he promised to obey unconditionally. The
individual transferred the whole of his natural rights to the ruler who
became an absolute ruler. The subjects could not demand the fulfil-
ment of any obligation 6y the ruler. The only condition was that the
absolute ruler must keep order. Hobbes was against civil disobedience
but where resistance was successful, the sovereign ceased to govern
and the subjects were thrown back to their original position and then
they could transfer their obedience to a new ruler. To quote Hobbes:
"The obligation of subjects to the sovereign is understood to last as
long and no longer than the power lasts by which he is able to protect
them."
Hobbes enumerates 19 principles of natural law but they are shorn of
all power. All law is dependent upon sanction. To quote him: "Govern-
ments without the sword are but words, and of no strength to secure a
man at all." All real law is civil law. It is commanded and enforced by
the sovereign. There is no distinction between State and society. There
is no law between sovereign and subjects. All social and legal author-
ity is concentrated in the sovereign. The Church is subordinated to the
State. It is just like another corporation. The sovereign of Hobbes is not
instituted ifnd legitimised by any superior sanction like that of natural
606 . JURISPRUDENCE AND LEGAL THEORY [CiIAI'.

law or divine right. He is merely a utilitarian creation. Natural law was

not a superior law.
According to Hobbes: "A law of nature (Icx naturalis) is a precept or
general rule found out by reason, by which man is forbidden to do that
which is destructive of life, or takes away the means of preserving the
same and to omit that by which he thinks it may be best preserved".
The fundamental law of nature is that every man ought to endeavour
to obtain peace as far as he has hope of obtaining it. When he cannot
obtain it, he can seek and use all helps and advantages of war. The
second law of nature was that if others were willing to-follow the same
rule, man should be content with so much liberty against other men
as he would allow to others against himself. The third law of nature
was that men performed their covenants made. IITI that, law of nature
was the fountain and origin of justice. According to Hobbes, injustice
is nothing else than the non-performance of covenants. The nature of
justice consists in the keeping of valid covenants which start with the
constitution of a civil power sufficient to compel men to keep them.
According to Hobbes, the life of man in the state of nature was "soli-
tary, poor, nasty, brutish and short". His theory was based upon the
idea of force and compulsion. To quote him: "It is men and arms that
make the force and power of the law." Natural law is little more than a
fiction, ingeniously twisted to support a political dictatorship. Hobbes
expressed the main precept of natural law in the form of man's right
to self-preservation. He denied to the Church the authority to interpret
the law of God. He gave all power to a utilitarian secular sovereign.
Hobbes was individualist, utilitarian and absolutist and all of these
aspects had great influence upon the legal and political thought of the
next few centuries. From his political and legal theory emerged the
modern man who is self-centred, individualistic, materialistic and ir-
religious in the pursuit of organised power. His individualism linked
him with Locke, his utilitarianism with Bentham and Mill and his ab-
solutism with all the theories which stand for the enhancement of the
powers of the State.
Locke— John Locke (1632-1704) was the theoretician of the rising
middle class which was individualistic and acquisitive and avoided
conflict between ethics and profits. H i s ideas appealed to his genera-
tion and the following century. He restored the medieval concept of
natural law insofar as he made it superior to positive law. He placed
the individual in the centre and invested him with inalienable natural
rights among which the right to private property was the most promi-
nent. He used the social contract to justify government by majority
which held the power in trust, with the duty . to preserve individual
XXIX] NATURAL LAW 607

rights whose protection was entrusted to them by individuals. Locke

was the oppGnent of Hobbes. In place of the theory of absolutism of
Hobbes, he gave the theory of the inalienable rights of individuals. If
Hobbes stood for authority, Locke stood for liberty.
Locke wrote after the Glorious Revolution of 1688 and justified the
same. He adopted the individualistic premises of Hobbes but stated
those values in terms of inalienable natural rights. The individual had
a natural inborn right to "life, liberty and estate". He gave his chief
attention to the right of private property. His state of nature is Para-
dise Lost. It was a state "of peace, goodwill, mutual assistance and
preservation". In that state of nature, men had all the rights which na-
ture could give them. What they lacked was organisation. The right of
property existed prior to and independent of any social contract whose
function was to preserve and protect not only the right to property
but also other natural rights. The social contract of Locke performs
two functions. By one contract, men agreed to unite into one politi-
cal society and thereby create the commonwealth. A majority agree-
ment is identical with an act of the whole society. The majority vote
can take away property rights and other inalienable rights. After that,
the majority vested its power in a government whose function is the
protection of the individual. So long as the government is faithful to its
pledge, it Cannot be deprived of its power.
Locke appears to have gone back to a state of nature which was a
state of peace, goodwill, mutual assistance and preservation. In that
state of nature, all were equal and independent. No one was supposed
"to harm another in his-life, health, liberty or possessions; for men be-
ing all the workmanship of one omnipotent and infinitely wise maker,
all the servants of one sovereign master, sent into the world by His
order and about his business." In that state of nature, nobody could
transfer to another more power than he himself had. Nobody had an
absolute and arbitrary power over himself or over any other person, to
destroy his own life or take away the life or property of another. A man
cannot subject himself to the arbitrary power of another. He has no ar-
bitrary power over the life, liberty or possessions of another. The lim-
ited power is given to the commonwealth for the good of society. The
State can never have a right to destroy, enslave or impoverish the sub-
jects. The law of nature stands as an eternal rule to all men, legislators
and others. The rules which they enact for others must be conformable
to the law of nature. The fundamental law of nature is the preservation
of mankind and no human sanction can be good or valid against it.
The legal theory of Locke gave theoretical form to the reaction
against absolutism and to the preparation of parliamentary democ-
608 JURISPRUDENCE AND LEGAL THEORY [CHAR

racy. He put emphasis upon the inalienable rights of the emancipated

individual. He had great influence on the American Revolution and
the French Revolution. The combination of noble ideals and acquisi-
tiveness, natural law philosophy and protection of vested interests in
American history owes much to Locke.
Rousseau—Rousseau (1712-88) gave his theory of social contract
in his two books, namely, The Social Contract and Ernile. According to
him, the state of nature was an era of idyllic felicity. Reason did not
guide the actions of individuals who were moved by their emotions.
To quote Rousseau: "Man by nature never thinks and he who thinks is
a corrupt creature." Every individual had unlimited liberty. There was
no private property, no competition and no jealousy. Every individual
lived the free life of a savage. He knew neither right nor wrong and
was away from all notions of virtue and vice. There was innocence
everywhere. However, this state of affairs did not last long. The in-
crease in population and the dawn of reason were mainly responsible
for the change. Simplicity and happiness disappeared. People started
thinking in terms of mine and thine. The arts of agriculture and metal-
lurgy were discovered and in the application of them man needed the
help of others. Cooperation revealed and emphasized the diversity of
man's talents and the inevitable result followed. The stronger man did
the greater amount of work and the craftier got more of the product.
Thus appeared the differences between the rich and the poor which
was the prolific source of all other sources of inequality. Life became
intolerable. There were wars and murders everywhere. The problem
was "to find a form of association which protects with the whole com-
mon force the person and property of each associate, and in virtue of
which everyone, while uniting himself to all, remains as before." The
problem was solved through a social contract.
By a social contract, everyone surrendered to the community all
his rights and the result was that the community became sovereign.
Even after the contract, the individual remained as free as he was be-
fore. To quote Rousseau: "Since each gives himself up to all, he gives
himself up to no one; and as there is acquired over every associate
the same right that is given up himself, there is gained the equivalent
of what is lost, with greater power to preserve what is left." Law is
the expression of the general will. Sovereignty can never be alienated
or represented or divided. The sovereign can be represented only by
himself. The government is not the same thing as the sovereign. The
government is not a party to the contract. The government was created
in this manner. First of all a law was passed by the sovereign to the
effect that there shall be a government and after that, the governors
were appointed. Rousseau identifies sovereignty with the general will
XXIX] NATURAL LAW 609

or the common interests of the community. His sovereignty is infalli-

ble, indivisible, unrepresentable and illimitable. It is unrepresentative
because it lies in the general will which cannot be represented The
sovereignty of the State is absolute like that of Hobbes. The only diffei-
ence is that while Hobbes assigns sovereignty to the head of the State
or a monarch, Rousseau gives it to the whole community. In the case
of Rousseau, the sovereign people cannot divest themselves of their
sovereignty even if they wish, but Hubbes makes the people alienate
for ever their sovereignty. Rousseau unites the absolute sovereignty
of Hobbes and the popular consent of Locke into the philosophic doc-
trine of popularity. To Hobbes the sovereign and the government are
identical but Rousseau makes a distinction between the two. He rules
out a representative form of government. Even after.giving absolute
powers to the sovereign, Rousseau lays down that the sovereign must
rule properly. It must not do anything which is not in the interest of the
whole people. It must ensure equality of all before law and maintain
a rule of justice. It "cannot impose upon its subjects the fetters that
are useless to the community". Rousseau's view of sovereignty was a
compromise between the constitutionalism of Locke and absolutism
of 1-labbes. According to Rousseau, sovereignty lies in the general will
which cannot impose any limitations on itself. It can have no interest
apart from those of the people and therefore there is no need for any
limitations on it.
According to Rousseau, just as nature gives each man an absolute
power over all his parts, likewise the social contract gives an absolute
power to the body politic over all its parts. It is this power which is
called sovereignty when it is directed by the general will. This abso-
lutism is based not on fear or compulsion but on consent. The various
powers such as legislative, executive etc. are only emanations of sov-
ereignty which is one and unified and which collectively belongs to
the people. Sovereignty is the source of all laws. Separation of powers
is not the division of sovereignty but the exercise of it for the sake of
convenience.
Rousseau maintains that the individual is free in the State because
he does not surrender his rights to an outside authority but to the cor-
porate body of which he himself is a member. Restrictions on the lib-
erty of individuals are self-imposed. The rights of liberty, equality and
property are rights of the citizen and not the natural and inherent rights
of the individual. Liberty is civil liberty and not natural liberty. Men
are equal by law and not by nature. In actual practice, man alienates
only such of "his powers, goods and liberty as it is for the community
to control but it must also be guaranteed that the sovereign is the sole
judge of what is important. " An individual is free while following his
610 JURISPRUDENCE AND LEGAL THEORY [CHAP.

real will. He is also free while following the general will and obeying
the laws which proceed from it because his real will is an organic part
of the general will and is in agreement with it. The liberty of Rousseau
is not licence. It is not the unrestricted conduct of an isolated and in-
dependent individual. It is the rational freedom of an individual who
lives a common life with others and whose welfare is integrally related
to the welfare of others.
According to Rousseau, law is the expression of the general will. "A
law is a resolution of the whole people for the whole people, touching
a matter that concerns all." The law must relate to general interest.
Law represents the general will with general interest in view and nev-
er persons or actions. The enactments of the government are merely a
corollary of the general will. Nobody in the State is above law as eve-
rybody is a member of the sovereign body which is the source of law.
Laws representing the general will cannot be unjust because nobody
is unjust to himself. One is free when he is obeying laws because laws
merely reflect his own will. Law re-establishes equality which belongs
to man in the state of nature. A State is legitimate only when it is ruled
by law. Laws are the sole motive power of the community "which acts
and feels only through them". "The law considers the subjects collec-
tively and their actions in the abstract; it never has for its object an
individual roan or particular action."
Rousseau put great emphasis on the General Will. According to
him, in any society, we start with what he calls the will of all, i.e., the
particular wills of the members of society. Everybody is allowed to
will his own will and thus the majority will is found. When the major-
ity will is found, those who did not vote with the majority must say
to themselves that they did not will the general will and hence must
Will what the majority will is. It is in this way that the majority will
becomes the general will by the minority willing as the majority had
Willed. The general will is the expression of the highest in every man.
It is the spirit of citizenship taking concrete form and shape. General
Will is the manifestation of sovereignty. When sovereignty acts for the
common interest, it is the exercise of the general will. So long as laws
are in the common interest, they are the expression of the general will
Which is the key to self-expression.
General will cannot he self-contradictory. It is a reasonable will. It
makes for unity in variety. The general will is permanent. It is not to
he found "in the tempests of popular feeling, in the vagaries of states-
men. It is to be sought in the character of the people." The general will
is always the right will. It always tends to the welfare of the whole. It is
infallible. It can never he wrong. There can be no justification for diso-
XX1XI NATURAL LAW 611

beying it. Whenever an individual differs from the general will, he is in

the wrong because his will is merely a selfish will and not the general
will. There is no coercion even when a man is made to do something
which is against his will. Since his real will is to be found in the general
will which is manifested in the authority of the State, he is free even
when he is being coerced by the general will. The understanding is
that whoever refuses to obey the general will, shall be compelled to
do so by the whole body. The general will is inalienable and indivis-
ible. It cannot be represented in any legislature. "As soon as the nation
appoints representatives, it is no longer free, it no longer exists." The
view of Rousseau was that Englishmen were free only during the elec-
tion days and after that they were "enslaved and count for nothing".
The general will canno.t be delegated. The moment it is delegated, it
loses its character. The moment there is a master, there is no longer
sovereign. Rousseau stood for popular sovereignty.
The view of Rousseau was that the State should be a small one so
that all the people may be able to assemble at one place and make laws.
"The larger the State, the less the liberty."
Critics point out that Rousseau's doctrine of the general will is too
abstract and narrow to be found in the practical world. The general
will is neither general nor will. It can be determined only by a majority
vote and not otherwise. The doctrine of general will may lead to State
absolutism. In the name of the general will, the worse kind of tyranny
may be practised. The doctrine of general will is based on the idea of
common interests which are difficult to define. Even the worst of ty-
rants can justify their aQtions on the ground of common good.
Dr. Friedmann points out that the most immediate and far-reaching
influence of Rousseau's doctrine was on the makers of the French Rev-
olution who took up his theory of popular sovereignty to justify revo-
lution without end or measure. His doctrines of liberty and equality,
added to those of law, exercised a strong influence upon the formative
era of American independence and the rights of man. Rousseau glori-
fied the collective will as the embodiment of what is good and reason-
able and this line of thought was developed by Fichte and Hegel to a
dangerous climax.'
The social contract theories of the law of nature were both the causes
and symptoms of profound changes in the European scene. They in-
volved a separation of law from moral duty by their new emphasis on
rights rather than on duties. They liberated the individual from the ties
of feudalism and the Church. They prepared the ground for modern
theories of government. They inspired the revolutions in the United

Lcc'aI TJusri, p. 77.

612 JURISPRUDENCE AND LEGAL THEORY [CHAP.

States and France. They also eventually inspired totalitarian theories

of government through Rousseau's doctrine of the general will. They
Spurred on the development of modern international law.
The doctrines of natural law and social contract were prominent in
the legal philosophies of Kant (1724-1804) and Fichte (1762-1814). Both
operated with certain fundamental rights of the individual which law
must satisfy. Both used the construction of social contract as a hypoth-
esis of reason and not a historica l fact.
Kant. Kant taught that insofar as man is a part of the world of real-
ity, :e is subject to its laws and to that extent is not free. However, his
reason and inner consciousness make him a free moral agent. The ulti-
mate aim of the indi"idual should be a life of free will. It is when free
will is exercised according reason and uncontaminated by emotion
that free-willing individuals can i'.'e together. People are morally free
when they are able to obey or disobey a moral law.
An important feature of Kant's doctrine is his "oclamation of the au-
tonomy of reason and will. Human reason is law-creing and consti-
tutes moral law. Freedom in law means freedom from arbtuarv subjec-
tion to another. Law is the complex totality of conditions under "hich
maximum freedom is possible for all. The sole function of the state is to
ensure the observance of law. The individual should not allow himself
to he made a means to an end as he is an end in himself. If need be, he
should retire from society if his free will would involve him in wrong-
doing. Kant saw the necessity of rules for social existence, guided by
a just general policy. Society unregulated by right results in violence.
Man has an obligation to enter into society and avoid doing wrong to
others. Such a society has to he regulated by compulsory laws. If those
laws are derived by pure reason from the whole idea of social union
under law, man will be able to live in peace. What is needed is a rule of
law and not or men. Kant's ideal of laws does not bear any relation to
any actual system of law. It is purely an ideal to serve as a standard of
comparison and not as a criterion of the validity of law.
Kant made a distinction between natural rights and acquired rights.
He recognised only one natural right: the freedom of man insofar as it
can coexist with everyone else's freedom under a general law. Equality
is implied in the principle of freedom. From this fellow a number of
rights pertaining to the individual, in particular the right to property
as an expression of personality.
Kant considered political power as conditioned by the need of ren-
dering each man's right effective, while limiting it at the same time
through the legal right of others. Only the collective universal will
armed With absolute power can give Security to all. lhis transfer of
AXIA] LAW
LNf%i L)It%L. I- 613

power is based on social contract which is not a historical fact but an

idea of reason. The social contract is so sacred that there is an absolute
duty to obey the existing legislative power. Rebellion is never justi-
fied. A republican and representative State is the ideal State. Only the
united will of all can institute legislation. Law is just only when it is at
least possible that the whole population should agree to it. Kant was
in favour of the separation of powers and was opposed to privileges of
birth, an established church and autonomy of corporations. He was in
favour of free speech. The function of the State was essentially that of
protector and guardian of that law.
Fichte. - Fichte's Social Contract was divided into a property contract
and a protection contract. Through property one became a citizen and
hence everyone must have property so that he may not be excluded
from the legal community. The right to punish was a part of the social
contract and was based on retaliation. Fichte saw property as an ema-
nation of personality.

Decline of Natural Law Theories

The social contract theory did not survive the 18th century. One reason
was that an individualistic conception of society put forward by the
rationalism of the 18th century gave way to a collective conception
stimulated by the rising tide of nationalism. Another reason was that
the stupendous growth of natural science gave strength and emphasis
to empirical methods against deductive Methods. Still another reason
was that the new and increasingly complex European society demand-
ed a comparative and sociological approach to the problems of society
and not an abstract one. It is maintained that Montesquieu (1689-1755)
and Flume (1711-1776) destroyed the foundations of natural law. Al-
though Montesquieu superficially adhered to the doctrine of the law
of nature, he maintained that law must he influenced by environment
and conditions such as climate, soil, religion, custom, commerce etc. It
was with this idea that Montesquieu embarked upon his comparative
study of law and governments. His approach undermined the doctrine
of natural law.
David Flume (1711-1776) destroyed the theoretical basis of natural
law. The theory of natural law was based upon a conception of reason
as a faculty inherent in all men which produced certain immutable
norms of conduct. Flume showed that reason as understood in the sys-
terns of natural law was based on confusion.
According to Home, values are not inherent in nature, nor is justice.
Reason can only work out the means that will lead to specified results.
HLIrnC was in favour of the firm and inflexible application of rules al-
though those should be widely designed and changed with the cir-
 614 JURISPRUDENCE AND LEGAL THEORY ECIIAP.

cumstances. On these lines, Hume attacked the prevailing conceptions

of natural law. He challenged the conception of a perfect, complete and
discoverable system. If there had been such a thing, there would not
have been many divergent interpretations and the necessity of positive
law.
At the dawn of the 19th century, there was a reaction against exces-
sive individualism fostered b' later natural law theories which result-
ed in the French Revolution. There grew up a collectivist outlook on
life and natural law theories declined.
Objections to natural law theories also came from other quarters.
The teachings of historians and sociologists put stress on environment.
Historical investigations exploded many assumptions. Researches into
the early history of society exposed the mythical nature of the social
contract. The unit in early society was not the individual but the family
or clan. The social contract theory had ascribed the validity of law to a
contract but normally it was found to he the opposite. Some rule had
to be presupposed which prescribed that agreements are to be kept.
Even as a hypothesis to account for the present state of affairs, the so-
cial contract theory fell short. It only heaped fiction upon fiction. The
alternative explanations of the origin of society not only fitted with the
facts of today but were truer in themselves.
The a priori methods of natural law philosophers were not accept-
able to those who were brought up in the pragmatic spirit of science.
The postulates of natural law were subjected to critical examination
and their bases were found to be false or the results of false inferences.
It was found that there was no foundation for the sweeping assertion
that man must always seek society or that man is always selfish. It is
wild inference that because certain institutions are alike in different
countries, they must reflect some universal law. It was contended that
the whole idea of natural law was no more than a psychological reflex.
The very diversity observable in the systems of positive law raises in
the mind an antithesis of a fixed and changeless law. It became evident
that the complex problems of the 19th century required a realistic and
ractical approach and not that of natural law which was based on
abstract pre-conceptions. In the new climate of opinion, the prevailing
natural law theories could not survive and their place was taken by
analytical and historical positivism.
Bentliarn. —Bentham (1748-1832) regarded natural law as nothing
but a phrase. He mercilessly criticised the idea of natural rights and
described them as "simple nonsense; natural and irnprescriptible
rights, rhetorical nonsense, nonsense upon stilts." About the princi-
ple of equality, he wrote: "Absolute equality is abSolUtely impossible.
XXIX NATURAL LAW 615

Absolute liberty is directly repugnant in the existence of every kind

of government... . All men are-born free? All men remain free? and
not a single man... - All men, to the contrary, are horn in subjection."
Bentham criticised Blackstone for basing political obligation upon an
original social contract. His view was that there was no such thing as a
social contract in the past and even if there was such a contract in the
past, that could not bind the present generation.
Austin. —Jol-u-i Austin (1790-1859) rejected natural law on the ground
that it was ambiguous and misleading. According to him, the science
Of jurisprudence is concerned with positive law by which he meant a
science of laws. Austin was opposed to the concept of natural rights
of individuals against the State. His view was that all rights were cre-
ated and regulated by the State. The State did not originate in a social
contract. The people did not obey the State oil of any formal
consent but on account of the force of their habit of obedience. The
State continues to exist on account of its utility to the people.
Although the 19th century was hostile to natural law theories, the
natural law tradition was continued on the continent, but with decreas-
ing force and without essential new contributions by Ahrens, Krause
and others. Lorimer restated the orthodox natural law theory as deter-
mining the ultimate objects of positive law and elaborated a catalogue
of rights revealed by nature.

Natural Law Ideas in English Law

It is true that utilitarianism and positivism had strong influence upon
England in the 19th century and natural law thinking declined, but the
ideas of natural law had their influence on English Law. Chief Justice
Coke vigorously asserted the supremacy of common law over Acts of
Parliament. To quote him: "It appears in our books that in many cases
the common law will control Acts of Parliament and sometimes judge
them to be utterly void, for when an Act of Parliament is against com-
mon right or reason or repugnant or impossible to be performed, the
common law will control it and adjudge such to be void."
The view of Prof. Holdworth is that from the 16th century onwards
the supremacy of law and supremacy of Parliament had merged and
were not challenged again. However, lip service continued to be paid
to the idea of natural law. In his Co?umentariL's, Blackstone wrote: 'This
law of nature being coeval with mankind and dictated by God himself
is, of course, superior in obligation to any other. It is binding over all
the globe, in all countries, and at all times; no human laws are of any
validity if contrary to this; ... Upon these two foundations, the law of
nature and the law of revelation, depend all human laws."
616 JURISPRUDENCE AND LEGAL THEORY [CHAP.

In some branches of modern English Law, principles of natural jus-

tice are openly invoked to test the validity of legal acts but that does
not apply to test the validity of any Act of Parliament as Parliament is
supreme in England. The most important examples are the supervi-
sion of administrative acts and decisions by law courts, recognition of
foreign judgements and custom. A custom is not admitted by courts if
it is not reasonable. By means of an order of prohibition or certiorari,
the High Court in England can control administrative acts and quasi-
judicial decisions of administrative bodies which are contrary to the
rules of natural justice. A foreign law applicable or a foreign transac-
tion recognised in a case before an English court is not enforced if cer-
tain principles of natural justice such as fair trial, freedom of person,
freedom of action are disregarded by such application or recognition.
In this sense, natural law ideas have exercised great formative influ-
ence upon English Law in various phases of its development. The view
of Maitland is that natural law ideas were of considerable importance
in England. Natural law ideas have exercised the most profound and
enduring influence upon English Law as guiding principles in law
making. The attempt of Lord Mansfield to introduce the doctrine of un-
just enrichment in English Law was an application of the principles of
natural justice. "Reasonableness" in tort and elsewhere is the outcome
of natural law ideas. The concept of quasi-contract in English Law is
based on natural law principles. The principles of "justice, equity and
good conscience" are based on natural law ideas. While welcoming the
American Bar Association to London in 1957, Lord Kilmuit; L. C. re-
ferred to "the doctrine which we share with a wider community even
than that of the Common Law but which has for various reasons be-
come a little dusty and old-fashioned in recent years and which I my-
self would like to see refurbished and restored to the position which
it once used to occupy. I refer to the doctrine of the law of nature, one of
the noblest conceptions in the history of jurisprudence." Lord Morris also
asserts a bigger role for natural law in modern English Law.

Natural Law in American Jurisprudence

The principles of natural law and natural rights have exercised great
influence on the Constitution of the United States and also on the State
Constitutions. Since the case of Marbury v. Madison in 1803, the Su-
preme Court of the United States has asserted its right to test the valid-
ity of any legislative or administrative act in the light of the Constitu-
tion. The Declaration of Independence refers to man's inalienable right
of life, liberty and pursuit of happiness. These are also reflected in the
constitutions of many American States. The principle of the limitation
of legislative power by certain basic principles of justice is an applica-
XXIXI NATURAL LAW 617

tion of natural law. The Supreme Court has asserted the sanctity of
vested rights against social legislation and extended the "indestruct-
ible right of the individual" to the corporation. According to Justice
Story, a grant of title to land by the legislature is irrevocable upon the
principles of natural law. Cooley refers to the principles of "inalien-
able rights", "due process" and "eminent domain" in American law.
The power to impose taxes is restricted to "public purposes" and those
are what the juages understand them to be. Eminent domain can be
exercised only for public purposes and with adequate compensation.
The "due process of law" was extended to protect unrestricted liberty
of contract.
Rommen refers to the natural law thinking in the United States as a
guarantee against ethical relativism and legal positivism.'
Undoubtedly, natural law thinking inspired the fathers of the Amer-
ican Constitution and has dominated the American Supreme Court
more than any other law court in the world. The American Consti-
tution gives as near an approach to the unconditional embodiment
of "natural" rights as can he imagined. Where the battle is fought in
terms of fundamental rights embodied in the written Constitution, the
natural law appeal will be direct and powerful.

Revival of Natural Law Theories

Towards the end of the 19th century, there was a revival of natural law
theories. That was due to many reasons. There was a reaction against
the 19th century legal theories which had exaggerated the importance
of positive law. It was fealised that abstract thinking or a priori assump-
tions were not completely futile. The pure positivist approach failed
to solve the problems created by the new social conditions. The mate-
rial progress and its effect on society made the thinkers look for some
values and standards. Western society was shattered by the first World
War and there was a search for an ideal of justice. Science began to
become doubtful about itself and the certainty of scientific facts. The
youth rebelled against the self-satisfaction of the bourgeoisie, money
worship and modern life. Social reformers and socialists attacked in-
equalities in society. Lawyers began to feel that law was not simply a
matter of applying statutes or precedent to any given case or situation
by means of pure logic. The unsolved problems demanded a guide
higher than positive law. As the faith of certainty wavered, idealistic
philosophy revived. There was a search for the ideals of justice. The
result was the revival of natural justice. The emergence of ideologies

Natu al law, p. 41
618 JURISPRUDENCE AND LEGAL THEORY [ChAP.

such as Fascism and Marxism caused the development of counter ide-

ologies which contributed to the revival of natural law theories.
The new theories of natural law took into account the various ap-
proaches to law such as analytical, historical and sociological ap-
proaches. They also sought guidance from contemporary theories in
other branches of knowledge. The revived natural law is relative and
not abstract and unchangeable. The new approach of natural law is
concerned with practical problems and not abstract ideas. It tries to
harmonise natural law with the variability of human ideals. It takes
into account new legal theories which put emphasis on society. To dis-
tinguish this approach to natural law from the old theories of natural
law, the former has been called "natural law with a variable content."
One form which the revival of natural law has taken is the adapta-
tion of the doctrines of St. Thomas Aquinas. Neo-Thomists, the follow-
ers of Aquinas, are prepared to accept the descriptions of reality pro-
vided by scientists but they maintain that it is for philosophy to give
full explanation of reality through reason and reflection. They adopt
the humanism of Aquinas to steer a course between an exclusively in-
dividualist view of man and a totalitarian view of society in which the
individual counts for nothing. Natural law is both anterior and supe-
rior to positive law.
Dabin.—One of the principal representatives of this school is Jean
Dabin. According to him, the law of nature was "deduced from the
nature of man as it reveals itself in the basic inclinations of that nature
under the control of reason". As human nature is identical in people
everywhere, the precepts of natural law are universal in spite of his-
torical, geographical, cultural and other such variations. One of the
precepts of natural law is concerned with the good of society which
is the purpose of State and law. The State provides order and laws are
means to that end. The State is superior to all other groups. State law
"is the sole true law". Laws may he expressed variously in the form
of statutes, precedents or customs but they are general regulations of
conduct, not of conscience. Ordinarily they are obeyed and when they
are not obeyed, compulsion under the authority of the State has to be
employed. Laws are directed to conduct and not conscience. There is
a moral duty to obey those positive laws which conform to the natural
law principles of promoting the commoi weal. If a law fails to conform
to that principle, it is not morally binding because "everybody admits
that civil laws contrary to natural law are bad laws and even that they
do not answer to the concept of a law". If they are not laws, there is no
question of moral binding. In order to fulfil the common good, laws
have to be adapted to the needs and ethos of the particular community.
 XXIX] NATURAL LAW 619

The actual making and applying of positive law with a view to giv-
ing effect to the dictates of natural law is an art which only jurists are
competent to exercise. The rules of law do not simply put natural law
into effect and in most cases a great many practical factors have to be
taken into account. This shows an attempt to harmonise the restoration
of natural law with the variability of human society and to follow the
new emphasis on society.
Stamniler.—Stainmler (1856-1938) was an exponent of "natural law
with a variable content". He first distinguished between technical le-
gal science which concerns a given legal system and theoretical legal
science which concerns rules giving effect to fundamental principles.
The former deals with the content of law and the latter relates them
to ultimate principles. In this way, Stammler distinguished between
the concept of law and the idea of law or justice. He approached the
concept of law in this manner. Order is appreciable through perception
or will. Community or society is "the formal unity of all conceivable
individual purposes and by this means the individual may realise his
ultimate best interest. Law is necessary a priori because it is inevitably
implied in the idea of cooperation". It just aims at harmonising in-
dividual purposes with that of society. Stammler sought to provide
a formal, universally valid definition of law without reference to its
content. He defined law as "a species of will, others-regarding, self-
authoritative and inviolable". Law is a species of will because it is con-
cerned with orderings of conduct. It is others-regarding because it con-
cerns a man's relations with other men. It is self-authoritative because
it claims general obedience. It is invidlable on account of its claim to
permanence. The idea of law is the application of the concept of law
in the realisation of justice. Every rule is a means to an end. One must
seek a universal method of making just laws. A just law is the highest
expression of man's social activity. Its aim is the preservation of the
freedom of the individual with the equal freedom of other individuals.
In the realisation of justice, the specific content of a rule of positive law
will vary from place to place and from age to age. It is for this reason
that his theory has been given the name of "natural law with a variable
content".
According to Stammler, in order to achieve justice, a legislature has
to bear in mind two principles of respect and two principles of participa-
tion. The two principles of respect are that the content of a person's vo-
lition must not depend upon the arbitrary will of anot her. Every legal
demand can only be maintained in such a way that the person obligat-
ed may remain a fellow creature. The two principles of participation
are that a person lawfully obligated must not be arbitrarily excluded
from the community. Every lawful power of decision may exclude the
620 JURISPRUDENCE AND LEGAL THEORY [CHAP.

person affected by it from the community only to the extent that the
person may remain a fellow creature. With the aid of these four prin-
ciples, Stamrnler tried to solve the actual problems confronting law
courts. He did not deny validity to the laws which fail to conform to
the requirements of justice. His scheme is a framework for determin-
ing the relative justness of a rule or a law and for providing a means
for bringing it nearer to justice.
The importance of Stammler's theory can be judged from the flood
of controversy provoked by it. Before 1914, Stammier expressed the
urge for scientific clarity and unity on one hand and a new idealism
on the other. He put law scientifically on its own feet and revived legal
idealism against the sterility of positivism. Both of these aspects have
infi, fenced modern legal ti: eory. Until the rise of Fascism and National
Socialism, the need for a true science of law was universally recog-
nised. That does not mean that Stammler's particular concept of law
as pure form applied to changing economic matters, was scientifically
unchallengeable. Neo-Kantianism has produced a very different philo-
sophical appreciation of law as a cultural phenomenon.
Max Weber has given a detailed criticism of Stammler's concept of
legal science. According to him, the alleged formal categories are in
fact categories of progressive generalisation, the more general ones
being relatively more formal than less general ones. Even if a purely
formal concept of law can be imagined, it is incomprehensible how
Stammier can maintain throughout his work the illusion that a purely
formal idea of law is capable of material guidance to the lawyer. Philo-
sophically, his fallacy is that he adopts the different parts of Kant's phi-
losophy but destroys the basis of Kant's system.
Dr. Friedmann writes that Stammier was torn between his desire as
a philosopher to establish a universal science of law and his desire as
a teacher of civil law to help in the solution of actual cases. The result
is an "Idea of Justice" which is a hybrid between a formal proposition
and a definite social ideal, kept abstract and rather vague by the de-
sire to remain formal. Stammler produces solutions dependent on very
specific social and ethical valuations which it was his chief endeavour
to keep out of an idea meant to be universal.'
John Rawls. —The view of Prof. John Rawls (192) of the Harvard
University is that society is a more or less self-sufficient association
of persons who in their mutual relations recognise as binding certain
rules of conduct specifying a system of cooperation. Principles of so-
cial justice are necessary for making a rational choice between various
available alternative systems.

Legal Theory. p. 137.

 XXIX] NATURAL LAW 621
Prof. Rawls arrives at his theory in this manner. Fairness results
from reasoned prudence. Principles of justice, dictated by prudence,
are those which hypothetical rational persons would choose in a hy-
pothetical "original position" of equality. The insistence on prudence
excludes gamblers from participating in the "original position", but
will bring in, on the whole, these who are conservatively inclined. Peo-
ple in the "original position" are assumed to know certain things, e.g.,
general psychology and the social sciences. This is designed to exclude
personal self-interest when choosing the "basic principles of justice" so
as to ensure their generality and validity. What is needed is a form of
justice which will benefit everyone, i.e., the disinterested individual's
conception of the common good.
The Basic Principles of Justice are generalised means of securing
generalised wants, "primary social goods" which include basic liber-
ties, opportunity, power and a minimum of wealth.
The First Principle of Justice is: "Each person is to have an equal
right to the most extensive total system of equal basic liberties compat-
ible with a similar system of liberty for all." The basic liberties include
equal liberty of thought and conscience, equal participation in political
decision-making and the rule of law which safeguards the person and
his self-respect.
The Second Principle is: "Social and economic inequalities are to be
arranged so that they are both: (a) to the greatest benefit of the least
advantaged, consistent with the just savings principle and (b) attached
to offices and positions open to all under conditions of fair equality of
opportunity." The "just savings principle" is designed to secure jus-
tice between generations and is described as follows: "Each genera-
tion must not only preserve the gains of culture and civilisation, and
maintain intact those just institutions that have been established, but
it must also put aside in each period of time a suitable amount of real
capital accumulation."
With the aid of these principles, Prof. Rawls tries to establish a just
basic structure. There has to be a constitutional convention to settle a
constitution and procedures that are most likely to lead to a just and
effective order. After that comes legislation and its application to par-
ticular cases. Prof. Rawls claims that in this way the basic principles.
will yield a just arrangement of social and economic institutions.
The view of Prof. Rawls has been criticised on many grounds. One
major attack launched by more than one critic is to question whether
his conclusions follçw from his "original position." It is maintained
that the whole concept of "original position" and "veil of ignorance"
622 JURISPRUDENCE AND LEGAL THEORY [CHAP.

and what it covers and what it does not cover only provide a sem-
blance of justification for reaching certain desired conclusions.
Prof. Rawls gives certain "Principles of Priority". The First Prior-
ity Rule is the priority of liberty. "Liberty can be restricted only for
the sake of liberty". A less extensive liberty must strengthen the total
system of liberty shared by all. A less than equal liberty must be ac-
ceptable to those with the lesser liberty. The Second Priority Rule is
the lexical priority of justie over efficiency and welfare. An inequality
of opportunity must enhance the opportunity of those with the lesser
opportunity. An excessive rate of savings must on ba'ance mitigate the
burden of those bearing this hardship. These principles ensure that as
between liberty and need, liberty prevails. As between need and utility,
need prevails. As between liberty and utility, liberty prevails. Liberty is
to be given priority only after certain basic wants are satisfied.
As regards individuals, the view of Prof. Rawls is that reason yields
principles of natural duties and fairness. The former include the duty
to uphold just institutions, to help in establishing just arrangements, to
render mutual aid and respect and not to injure or harm the innocent.
The fairness principle gives rise to obligations, including promises.
One should play one's part as specified by the rules of the institution as
long as one accepts its benefits and provided the institution itself is just
or at least nearly just. Civil disobedience is justified when "substan-
tial injustice" occurs, all other methods of obtaining redress fail and
disobedience inflicts no injury on the innocent. In these circumstances,
disobedience is an appeal to the society's sense of justice which is evi-
denced by the reluctance of the community to deal with it.
Prof. Dias points out that Prof. Rawls has not succeeded in show-
ing how his principles, desirable as they may be, derive from reason.
The thrust of his theory is for stability. He puts emphasis on obedience
grounded in fairplay. Law is only one institution of social justice.'
Morris.—According to Prof. Clarence Morris (1893): "Justice is real-
ised only through good law." Laws without just quality are doomed
in the long run. Prof. Morris uses law in a broad sense. To quote.him:
"1 use the word law to mean more than statutes and ordinances; it
includes both adjudicated decisions of cases and social recognition of
those legal obligations that exist without governmental promptings."
(Customs and Practices).
Justice is one of the three principal justifications of law and the other
two are rationality and "acculturation". The theory of Morris is con-
cerned with the method of realising justice and is not a theory of just
content. Law makers should serve the public by advancing its genuine
juiisprudcizce, p. 674.
XXIX] NATURAL LAW 623

aspirations which are "deep-seated, reasonable and non-exploitative."

Law-making contrary to them is doomed to failure. Without public
support, legislators cannot succeed.
Rationality, the second justification of law, is concerned with the rea-
soning processes of law, both judicial and legislative. Reason is a major
ingredient of justice, but it is of a special kind. By becoming a judge, a
judge incurs a duty to implement public aspirations within the judicial
process. Although legislation must reflect them, that does not mean
that an unjust law is not a law. A court is bound to apply it.
The third justification of law is "acculturation" which is in conform-
ity with culture. The purport of a statute is more easily gathered when
one is in tune with the cultural environment of the legislator. Under
the heading of acculturation is included a plea for an awareness in
law-making of man's responsibility towards his environment.
The general thesis of Morris is that law has to be justified morally,
socially and technically. Morris does not specifically say that just qual-
ity is a necessary condition of the continuity of law but that seems to
be implicit. The view of Prof. Dias is that perhaps Prof. Morris is not
to be classed as either naturalist or positivist as his thesis would not be
rejected by either side.'
Del Vecchio. - Del Vecchio was a jurist of much greater elegance and
universality than Stammler and his writings display a profusion of
philosophical, historical and juristic learning. The larger part of his
theory is grounded on Fichte and not on Kant. He conceives of natural
law as nothing but merely a principle of legal evolution which guides
mankind and law towards greater autonomy of man. It exists as a sys-
tem of the highest truths, not sensible but rational. While psychological
analysis reveals the foundation of an absolute law of justice or natural
law in the human spirit, critical gnosiology endorses its validity.
Del Vecchio does not draw a line of demarcation between just and
unjust and good and bad law. Law is neutral. Man has a double qual-
ity. He is, then and there, physical and metaphysical. Being a part of
nature, he cannot distinguish between good and bad. Being an intel-
ligent being, he possesses the possibility for free decision in himself.
Man has in himself the "eternal seed of justice". This seed of justice is
an idea and sentiment as well. As an idea, it emanates from the neces-
sity of the individual to conceive himself as an ego. Individuality can
only be conceived as a reciprocal notion in relation to another being.
The essence of justice is in its inter-subjectivity. It is the simultaneous
consideration of several subjects on an equal plane. Personality and
law can only be conceived through the inter-relation of individuals.
Jurisprudence, p. 676.
624 JURISPRUDENCE AND LEGAL THEORY [CHAP.

For del Vecchio, justice has not only a formal but also a substantial
meaning and an implicit faculty of valuation. Human consciousness
postulates not only reciprocity in a formal sense but instinctively it
also emits a definite valuation, a conception of justice which discrimi-
nates between various forms of juridicity.
For del Vecchio, justice has an ideal content which, stripped of all
technicality, is the absolute value of personality or the equal freedom
of all men. This ideal content is postulated by the inner conscience of
man. It explains the ever-recurring quest for natural law. To del Vec-
chio, the evolution of mankind towards an increasing recognition of
human autonomy appears to be the basis of natural law. Partial expres-
sion of this is given by the development from status to contract and
from aggregation to association.
The view of del Vecchio is that positive law is a datum of experience
and as such can be understood and explained as a phenomenon. It can
be given a place coherently in the system of natural production.
There seems to be a definite break in the work of del Vecchio. The
models for his earlier legal philosophy were Kant and the early Fichte,
but in his later work it was definitely Hegel. This is clear from his theo-
ries on the relation between individual and State, between reality and
idea and the unfolding of an implied purpose of history.
Del Vecchio considered natural law as the principle of legal evo-
lution which guides mankind and law towards greater autonomy of
man.
Geny. —Francois Geny asserts the idea of natural law against the
positivist theory of law. Natural law comprises a number of principles
of reason, interpreted in accordance with the ideals of Western liberal-
ism.
Le Fur.—Le Fur considers the conception of natural law as neces-
sary. It rests on human nature which, being that of a reasonable being,
demonstrates to man that he is the creation of a superior will and intel-
ligence.
Hall. —The view of Prof. Jerome Hall (1901) is that moral, social and
formal considerations should be unified in a definition of positive law.
According to him, time has come to reunite disciplines. Jurisprudence
should be "adequate" in the sense that it will combine positivist, nat-
uralist and sociological study. The result will be what he calls "inte-
grative jurisprudence". The focal point of this is the action of officials
and he calls the concept "law-as-action". Law-as-action from the point
of view of officials relates to rules, values and social behaviour in the
following way. Rules come in to explain official actions in prescrib-
ing, judging and ordering and applying sanctions. Values come into
 XXIXJ NATURAL LAW 625

the idea of validity. The way in which validity is understood depends

upon whether law is viewed as law-as-rules or law-as-action. Social
behaviour comes in through the idea of effectiveness of law which cov-
ers a large range of phenomena including sanctions, conscious obe-
dience and compliance. Laws are effective when actual behaviour in
accordance with them maximises the values of their goals.
When looked at from the point of view of law-as-action, moral value
must be included in any definition of positive law. According to Prof.
Hall, customary law represents experience in settling problems in just
and rational ways.
According to Hall, law possesses six features and those are ethi-
cal validity reflected in certain attitudes, functions, regular character,
range and character of public interest expressed in the laws of a State,
effectiveness and supremacy.
According to Hall: "The objective validity of moral judgments is
known intuitively or, as regards problematic situations, it is established
by analysis, discussion and reflection, coherence with wider experi-
ence, the consensus of informed unbiased persons and the universality
of solutions among diverse cultures". Hall does not believe that the
correct answer to the most difficult ethical problems can be found by
conscience, intuition or the law of God. Reason must aid in the choice
between conflicting principles. Democracy is part of modern natural
law because the values incorporated in democratic law "represent the
most stable policy decisions which it is wise and feasible to implement
by compulsion."
John Wild. —The theory of John Wild (1902) proceeds on the idea that
"there are norms grounded on the inescapable pattern of existence it-
self." His method of arriving at these is not that of logical deduction,
but a different process, namely, "justification". He asks: "How is moral
justification to be explained? We cannot explain it without recogiiz-
---ing that certain moral premises must somehow be based upon facts."
The core of his thesis is that "value" and "existence" are closely inter-
twined. Existence has a tendency towards fulfilment or completion. If
completion of existence is good, existence itself must be valuable. The
same act is good so far as it is realised, but it is evil so far as it is frus-
trated. Goodness is some kind or mode of existence and evil is some
mode of non-existence or privation.
According to Wild, the world is an order of divergent tendencies
which, on the whole, support one another. Each individual entity is
n,nrlc'r' r1hi, a,, p ccc,nI,n! cf-ri irfi Tm ""-, ....
­ kirkf ci-, nmnc ;,cnn-,rnr.n ,.fin o t h er
members of the species. This structure determines certain basic ten-
dencies that are common to the species. If these tendencies are to be
626 JURISPRUDENCE AND LEGAL THEORY [CHAP.

realised without distortion or frustration, they must follow a general

dynamic pattern. This pattern is what is meant by natural law. It is
grounded on real structure and is enforced by inexorable natural sanc-
tions. Good and evil are existential categories. It is good for an entity to
exist in a condition of active realisation. When all these principles are
applied to human nature, three ethical theses may be derived viz., the
universality of moral or natural law, the existence of norms founded
on nature and the good forrnan as the realisation of human nature.
Natural law may be defined as "a universal pattern of action applied
to all men everywhere, required by human nature itselffor its comple-
tion.
Fuller.—Prof. Lon L. Fuller (1902) is regarded as the leading con-
temporary natural law lawyer. He does not contend that the rules of a
legal system must conform to any substantive requirements of moral-
ity or any other external standard. He maintains the need for rules of
law to comply with "internal morality." Initially, he draws a distinction
between morality of duty and morality of aspiration. The former corre-
sponds to an external morality of law. It consists in those fundamental
rules without which society cannot exist. He sees law as a "purpo-
sive activity." The morality of aspiration exhorts mankind to strive for
ideals and fulfil their potentialities in a Platonic way. He gives eight
typical ideals or formal virtues to which a legal system should strive
viz., generality, promulgation, absence of retroactive legislation and
certainly no abuse of retrospective legislation, no contradictory rules,
congruence between rules as announced and their actual administra-
tion, clarity, avoidance of frequent changes and the absence of laws
requiring the impossible. These principles of legality are not basic con-
ditions which every system necessarily fulfils, but constant pole stars
guiding his progress. The greater its success, the more fully legal such
a system is.
Fuller is critical of the assertion of Dworkin that while baldness
is a matter of degree, a line can be drawn between law and non-law.
To quote Fuller: "Law does not just fade away, but goes out with a
bang."
Fuller does not develop the relationship between the form in which
legal rules are expressed and their content. The Nazi legal system was
faithful, with one possible exception, to the canons of Fuller and yet it
was able to promulgate the Nuremberg racial laws which were utterly
offensive to all human values. Fuller must surely believe that form has
a direct bearing on content as otherwise his principles would be noth-
ing more than the tools of an efficient craftsman.
XXIXJ NATURAL LAW 627
The view of the critics of Fuller is that Fuller betrays confusion be-
tween efficacy and morality. Hart objects "to the designation of these
principles of good legal craftsmanship as morality, in spite of the quali-
fication 'inner', as perpetrating a confusion between two notions that it
is vital to hold apart the notions of purposive activity and morality".
Hart points out that the eight desidarata of Fuller are "unfortunately
compatible with ,very great iniquity", e.g., Herod's order for the mas-
sacre of the innocents satisfied all the conditions. The reply of Fuller
is to doubt whether an evil ruler could pursue iniquitous ends and
also continue to respect "inner morality". He calls for "examples about
which some meaningful discussion might turn" and which would
show that "history does in fact afford significant examples of regimes
that have combined a faithful adherence to the internal morality of law
with a brutal indifference to justice and human welfare." The conten-
tion of Fuller is that iniquitous regimes have not continued to exist, nor
could they continue to combine evil policies with fidelity to "internal
morality".
Castberg, a Norwegian jurist, refers to natural law in the sense of
rules of ideal laws which are adapted to the oft changing conditions
of life.
D'Entreves states that natural law contains the elementary principles
which man must respect as long as they are what they are and propose
to set up a viable society. He puts certain queries and asks: Are we to
conclude that natural law is central and privileged sphere of morality
distinguished by its sacred and inviolable character? Does it mean that
outside the sphere of the minimum content, laws of any iniquity may
stand? And even within it, what is the status of laws which flagrantly
violate the minimum protection for which Hart's natural law stands?
Are such laws and, if so, what, if any, is the right of resistance? To what
extent can 'evil law' permeate a system before that setup becomes no
more than a suicide club?
The most significant revival of natural law thinking in our time is
to be found in contemporary German legal philosophy. This revival
springs directly from the reaction against the excessive and, in the later
phases of the Nazi regime, Nihilistic manifestations of legal positiv-
ism. German legal philosophers and law courts have sought to rethink
and reformulate the relation of "higher law" principle and positive
law. Deeply moved by the excesses of absolute State sovereignty per-
petrated by the Nazi regime, Gustav Radbruch states that since law
in its very nature, desbned to serve ustce, certain types OR
law cannot be defined as law and this applies to the whole portions of
National Socialist Law. Radbruch was conscious of the extreme diffi-
628 JURISPRUDENCE AND LEGAL THEORY [CHAP.

culty of separating "non-law" from merely "bad" or "unjust" law and

the need to reserve the decision on those matters to institutions like the
supreme constitutional court.
H. Krabbe, a Dutch jurist, strongly adheres to the "social conscience"
or the "recognition" of law by those whom it applies. He admits no
other authority as a true source of law. According to him, law is to the
individual or groups of individuals in the same way as the theory of
auto-limitation is to the Stath. This collective conscience becomes the
corporate aspect of natural law. As for the individual judge or legisla-
tor who has to explore and expound the collective conscience, much
3tress is laid on his instinct or intuition, that is, his own moral sense
and his ewn intelligence.
The view of Prof C. K. Allen in Law in the Making is that reduced to
its simplest language, the revived natural law appears to "mean little
more than that the magistrate must judge as justly as he can, and the
legislator must make laws as wisely as he can, in accordance with the
prevailing ideas of justice and utility with which, it is to be hoped, (and,
after all, it cannot be more than a hope), law-makers and law-dispens-
ers of a particular community are imbued by training and experience."
Again, "the new natural law does not seem to contain any very novel
truth, or to be very fictitiousiy named; and it probably would not h.uie
been so much canvassed on the continent had it not been associated
with a movement for a moral, liberal and elastic judicial technique, Ia
libre recherche scientflque, than has been orthodox in most European
countries and also with controversies concerning the nature and limits
of the powers of the State. Apart from these special problems, its chief
value has been to counteract the tendency to exaggerate the purely
historical and fortuitous circumstances of legal growth, at the expense
of the moral principles from which law may sometimes be judicially
separated, but can never be divorced a vinculo punt riInonii '.
Hart. —Prof. H. L. A. Hart (1907) is in many ways the leader of con-
temporary positivism. In his book entitled The Concept of Law, Hart has
attempted to restate the position of natural law from a semi-sociologi-
cal point of view. He points out that there are certain substantive rules
which are essential if human beings are to live continuously together in
close proximity. To quote him: "These simple facts constitute a core of
indisputable truth in the doctrines of natural law." Hart puts emphasis
on an assumption of survival as a principal human goal. According to
him, we are concerned with social arrangements for continued exist-
ence and not with those of a suicide club. There are certain rules which
any social organisation must contain and it is these facts of human
 XXIX] NATURAL LAW 629

nature which afford a reason for postulating a "minimum content" of

natural law.
Hart does not state the actual minimum universal rules but certain
facts of "human condition" which must lead to the existence of some
such rules but not necessarily rules with any specific content. Accord-
ing to Hart, those facts of human condition consist of human vulner-
ability, approximate equality, limited altruism, limited resources and
limited understanding and strength of will. In the light of these inevi-
table features of human condition, there follows a "natural necessity"
for certain minimum forms of protection for persons, property and
promises. "It is in this form that we should reply to the positivist thesis
'law may have any content'."
Hart does not suggest that, even if this analysis of human society is
accepted, this must inevitably lead to a system of even minimal justice
within a given community. He accepts the fact that human societies at
different periods of history have displayed a melancholy record of op-
pression and discrimination in the name of security and legal order as
in the case of systems based on slavery, or systems based on positive
religious or racial discrimination.
Hart's view of minimum content for natural law has been criticised.
It is contended that this approach should not be confused with an at-
tempt to establish some kind of "higher law" in the sense of overriding
or eternally just moral or legal principles, but is merely an attempt to
establish a kind of sociological foundation for a minimum content for
natural law. The justification for the use of the term natural law is that
regard is paid to what is suggested to be the fundamental nature of
man as indicated in the five facts of human condition by Hart. How-
ever, these "facts" are extremely vague and uncertain in most respects.
They do not depend upon sociological investigation, but are really an
intuitive appraisal of the character of the human condition. Lord Lloyd
points out that it is difficult to see how any real minimum content
whatever can be based upon such principlesThe factor of human vul-
nerability restricts the use of violence but the need for human survival
has not prevented the acceptance in many societies of the exposure of
infants or the killing of slaves or children by those exerting power over
them. A society may actually base its survival upon the need for hu-
man slaughter. The ancient civilisation of Mexico possessed a religious
and a State system which required the perpetual propitiation of the
gods by continuous human sacrifice on a massive scale. In relation to
such a society, it seems difficult to talk in terms of individual human
vulnerability as it might be conceived in a developed modern State
630 JURISPRUDENCE AND LEGAL THEORY [ChAP.

which acknowledges as a fundamental principle the value of individ-

ual life and security.
Although Hart refers to the implications of approximate equality
between human beings, he himself recognises that no universal sys-
tem of natural law or justice can be based upon the principle of im-
partiality, or that of treating like cases alike. The rule of equality can-
not be derived from any formal principle of. impartiality. The idea of
equality or non-discrimination is essentially a value judgment which
cannot be derived from any assertions or speculations regarding the
nature of man. No insistence on the idea of impartiality or the rules of
natural justice, or the "inner morality" of the law in the sense used by
Prof. Fuller, can afford a basis of arriving at such a principle as that of
non-discrimination. This is fully recognised by Hart himself when he
writes that the idea of impartiality is "unfortunately compatible with
very great iniquity."
D'Entreves points out another gap in his treatment of natural law
by Hart. While Hart accepts the positivist view that the validity of a
legal norm "does not depend in any way on its equity or iniquity", he
maintains that natural law contains "the elementary principles which
man must respect as long as men are what they are and propose to set
up a viable society." D'Entreves asks: "Are we to conclude that natural
law is a central and privileged sphere of morality distinguished by its
sacred and inviolable character?" Does this mean that outside the area
of the minimum content laws of any iniquity may stand? and even
within it, what is the status of laws which flagrantly violate the mini-
mum protection for which Hart's natural law stands? Are such laws
law, and, if so, what, if any, is the right of resistance? To what extent
can "evil laws" permeate a system before that set-up becomes no more
than a suicide club?
Prof. Dias observes that it may seem ironic that this account of natu-
ral law should end with a leading positivist expounding on the "core
of indisputable truth in the doctrines of natural law", but this may
at least indicate that the gulf between the two groups is not as wide
as it used to be. Positions are less clearcut now. It further underlines
the point that classification into "naturalist" and "positivist" applies
to views and not individuals. Certain doctrines may be labelled "natu-
ralist" and others "positivist", but people may subscribe more or less
strongly to one type or the other depending on the issue."'
It is clear from what has been stated above that the concept of natu-
ral law has changed from time to time. It has been used to support
almost any ideology—theocracy, absolutism and individualism. It has
U
Jurisprudence. p. 684.
 XXIX] NATURAL LAW 631
inspired revolutions and bloodshed. It has provided a firm ground for
theorizing and expressing the ideas and thoughts of a particular age.
It has influenced positive law and modified it. The theories of natural
law have helped the development of law. A large number of princi-
ples of natural law havebeen embodied in the legal systems of various
countries. Examples can be given from the legal systems of England,
the United States and India. So far as England and the United States
are concerned, a'reference to them has already been friade. As regards
India, a number of legal principles and concepts have been borrowed
from England and many of them are based on the principles of natural
law. The examples of some of them are "justice, equity and the good
conscience", quasi-contract reasonableness in tort. The Constitution of
India also embodies a number of principles of natural law. It guaran-
tees certain fundamental rights to the people of India and gives the
Supreme Court of India and the High Courts the power to exercise
control over administrative and quasi-judicial tribunals and one of the
grounds on which the orders are set aside, is the violation of the prin-
ciples of natural justice. The principles of natural justice are incorpora-
ted in Article 311 of the Constitution which provides that no civil serv-
ant can be dismissed, removed or reduced in rank without giving him
reasonable opportunity of showing cause against the action proposed
to be taken against him.
In recent years, the ideas of natural justice have become more and
more important and have been relied upon by the Supreme Court of
India and High Courts in their decisions. In A. K. Kraipak v. Union of
India, the Supreme Coirt observed that the aim of the rules of natural
justice is to secure justice or to put it negatively, to prevent miscarriage
of justice. These rules can operate only in areas not covered by any law
validly made. They do ndt supplant the law of the land but supple-
ment it. The concept of natural justice has undergone a great deal of
change in recent years. In the past it was thought that it included just
two rules, namely, (i) no one shall be a judge in his own cause (nemo de-
bet esse judex propria causa) and (ii) no decision shall be given against a
party without affording him a reasonable hearing (audi alteram partem).
Very soon thereafter, a third rule was added which provides that qua-
si-judicial inquiries must be held in good faith, without bias and not
arbitrarily or unreasonably. In the course of years, many more subsidi-
ary rules have been added to the rules of natural justice. Till recently, it
was the opinion of the courts that unless the authority concerned was
required by the law under which it functioned to act judicially, there
was no room for the application of the rules of natural justice. The va-
lidity of that limitation is now questioned. If the purpose of the rules of
natural justice is to prevent miscarriage of justice, one fails to see why
632 JURISPRUDENCE AND LEGAL THEORY [CHAP.

those rules should be made inapplicable to administrative inquiries.

It is not easy to draw the line that demarcates administrative inquir-
ies from quasi-judicial inquiries. Inquiries which were considered ad-
ministrative at one time are now being considered as quasi-judicial in
character. Arriving at a just decision is the aim of both quasi-judicial
inquiries as well as administrative inquiries. An unjust decision in an
administrative inquiry may have more far-reaching effect than a de-
cision in a quasi-judicial inquiry. The rules of natural justice are not
embodied rules. What particular rule of natural justice should apply
to a given case must depend to a great extent on the facts and cir-
cumstances of that case, the framework of the law under which the
inquiry is held and the constitution of the tribunal or body of persons
appointed for that purpose. Whenever a complaint is made before a
court that some principle of natural justice had been contravened, the
court has to decide whether the observance of that rule was necessary
for a just decision of the facts of that case. In the case pending before
the Supreme Court, the selections were set aside on the ground that
they violated the principles of natural justice as one of the members of
the Selection Board was himself interested in that selection."
In Maneka Gandhi v. Union of India, the Supreme Court observed that
natural justice is a great humanising principle intended to invest law
with fairness and to secure justice. Over the years, it has grown into
a widely pervasive rule affecting large areas of administrative action.
The soul of natural justice is "fairplay in action" and it has received
widest recognition throughout the democratic world. The Supreme
Court held that even the procedure laid aown by law must be right,
just and fair. It is liable to be set aside on the ground that it is not rea-
sonable.12
SUGGESTED READINGS

Allen, C. K. : Lau; in the Making. 7th edn., Oxford, 1964.

Bentham,J. : The Theory of Legislation, trans. R. Hildreth, eds. K.
Ogden, Routledge & Kegan Paul Ltd., 1950.
Brunner, E. Justice and the Social Order, trans. M. Hottinger,
Lutterworth Press, 1945.
Buckland, W. W. Some Reflections on Jurisprudence, Cambridge University
Press, 1945.
Cohen, M. R. Reason and Nature, Kegan Paul, Trench and Trubner &.
Co. Ltd., 1931.
Cowen, D. V. : The Foundations of Freedom, Cape Town, QLJP, 1961.

AIR 1970 SC 150.

2
AIR 1978 SC 597.
XXIX] NATURAL LAW 633

d'Entreves, A. P. Natural Law, Hutchinson's University Library, 1951.

del Vecchio, G. : Philosophy of Law, trans. T. 0. Martin, Catholic
University of America Press, 1953.
Dewey, J. Philosophy and Civilisation, G. P. Putnam's.Sons, 1931.
Dias, R. W. M. : Jurisprudence, Butterworths, London, 1976.
Ellul, J. The Theological Foundation of Law, trans. M. Wiescr,
S. C. M. Press Ltd., 1946, 1st British edn., 1961.
Fitzgerald, P. J. Salmond on Jurisprudence, Sweet and Maxwell, London,
1966.
Friedmann, W. : Legal Theory, Stevens and Sons Ltd., London, 1960.
Fuller, L. L. : Law in Quest of Itself The Foundation Press Inc., 1940.
Fuller, L. L. The Morality of Law, revised edn., Yale University Press,
1969.
Goodhart, A. L. English Law and the Moral Law, Stevens & Sons Ltd.,
1955.
Haines, C. G. : The Revival of Natural Law Concepts, Harvard Univer-
sity, 1930.

HaII,J Foundations of Jurisprudence. The Bobbs-Merrill Co. Inc.,
1973.

Hall,J Studies in Jurisprudence and Criminal Theory, Oceana
Publications Inc., 1958.
Hart, H. L. A. The Concept of Law, Oxford, Clarendon Press, 1961,
reprinted, 1975.
Holland, T. E. : The Elements of Jurisprudence, 13th edn., Oxford, 1924.
Jolowich, H. G. : Lectures on Jurisprudence. ed. J . A. Jolowicz, The
Athlone Press, 1963.
Jorgensen, S. : Law and Society, Akademisk Boghandel, 1972.
Kelsen, H. : What is Justice? University of California Press, 1957.
Laslett, P. (Edn.) Philosophy, Politics and Society.
Llewellyn, K. N. : Jurisprudence: Rca!i.c,,, in Tlieort, and Practice. The Uni-
versity of Chicago Press, 1962.
Lloyd, D. The Idea of Law, Penguin Books Ltd., A 688, 1964.
Lord Lloyd : Introduction to Jurisprudence, Stevens & Sons, London,
1979.
Maine, H.J. S. : Ancient Law, edn. F. Pollock, John Murray, 1906.
Maritain, J . : The Rights of Man and Natural Law, Geoffrey Bles, The
Centenary Press, 1944.
Morris, C. The Justification of Law.
Paton, C. W. A Text Book of Jurisprudence, 4th edn., C. W. Paton and
D. P. Derham, Clarendon Press, Oxford, 1972.
634 JURISPRUDENCE AND LEGAL THEORY

Patterson, E. W. Jurisprudence, The Foundation Press Inc., 1953.

Pound, R. Interpretations of Legal History, Cambride University
Press, 1923.
Pound, R. The Ideal Element in Law, University of Calcutta, 1958.
Pound, R. Jurisprudence, West Publishing Co., 1959.
Rawls, J. Theory of Justice.
Reuschlein, H. G. Jurisprud'ence - Its Anicrica,, Prophets, The Bobbs-Merrill
Co. Inc., 1951
Ritchie, D. G. Natural Rights, Allen & Unwin Ltd., 1894.
Rom men, H. A. The Natural Law, trans. T. R. Hanley, B. Herder Book
Co., 1947.
Ross, A. On Law and Justice, Stevens & Sons Ltd., 1958.
Salmond, J . W. Jurisprudence.
Samek, R. S. The Legal Point of View, Philosophical Library, New
York, 1974.
Seagle, W. The Quest for Law. Alfred A. Knopf, 1941.
Shklar, J. N. Legalism, Harvard University Press, 1964.
Silving, H. Sources of Law, New York, 1968.
Stammier, R. Theory of Justice.
Stone, J. Human Law and Hiiivas: Justice, Stevens & Sons Ltd.,
1965.
Strauss, L. Natural Right and History. University of Chicago Press,
1953.
Wild, J . D. Plato's Modern Enemies and The Theory of Natural Justice.
Windolph, F. C. Leviathan and Natural Law, Princeton University Press,
1951.
Wright, B. F. American Interpretations of Natural Law, Harvard Uni-
versity Press, 1931.
Wu, J . C. H. Fountain of Justice. A Study ii: Natural Law, Sheed &
Ward, 1955.
 SUBJECT INDEX

A HROCAEEI) oici SIONS, 195 CI lOSE IN ACIION, 414

Ausoi.' u,sii.ii y, 371-372 CHOSE IN POSSESSION, 414

AoMINIS1-RA1IoN OF JUSTICE, 115-149 CIRCUMSTAN11A1. EVIDENCE, 426
ADMINISTRATIVE LAW, 73-74 Civil. AND CRIMINAL JUSTICE, 120-122
ADVANTAGES AND DISADVANTAGES OF LEGAL CIVIL JUSTICE, 145-147
JUSTICE, 118 CIvil. LAW, 65
ADVERSE POSSESSION, 322 CIVIL I.IAHII.rly, 365
AGRI:IMEN'I; 247 measure 01. 394
as source of law, 247 CIVIl. RIGIrrs, 272
importance of 360
CODIFICATION. 168-174
kinds Of, 360-361
demerits, 171-174
validity of. 361-362
kinds of, 169
AMERICAN REALISM, 563-580 merits of, 170
and Gray and Justice Holmes, 565
COMMON LAW, 66-67
and Jerome Frank, 567-570
and Llewellyn, 570-574 COMPOSITE STATES, 100-101
assessment (11, 570-578 COMI'U- I -IR I'REI)ICIION IN lAW, 574
ANALYTICAL LEGAL POSITIVISM, 437-470 COM IF ANt) SOCIOLOGICAL SCIIOOI., 525
ANALYTICAL SCHOOL, 439-469 CONCESSIOk ThEORY OF CORPORATION, 344
ANIMUS POSSIDENDI, 313-314 CONCLUSIVE PROOF, 427-428
ANIECEI)ENI ANI) REMEI)IAI. g IGIrrs, 28o CONDITION PRECEDENT AND CONDITION
AQUINAS, 599-602 SUBSEQUENT, 302-303
CONS- I RUCI-IVE POSSESSION, 322
ARISTOTLE, 597
AUSTIN, 2-10, 446-456 CosFIN(;FN-I- INIERESI 300-301
and Bentham, 456 CONI I r'J(;EN- r OWN IRSI II I', 299
AUSTIN'S ThEORY OF LAW, 27-29 CONTRIIIUTORY NEGLIGENCE, 393
criticism of. 29-35 CONVENTIONAl. CUSTOM OR USAGE, 234-235
Aus-UN's II IEORY OF SOVEREI(;NlY, 105-112 CONVEN -IIONAI. LAW, 6(1
AUI -ONOMIC LAW, 76-77 CO-OWNIRSIIIP, 31)4
BIN- I -hAM, 441-446 CORI'ORAI. PUN WI IM ENI 143
and Austin, 456 CORPORATE I'ERSONALITY,TIIKOKIES OF, 341-
and Natural Law, 614 346
DRACKCT TIIEORV OF CORPORATION, 344 CORPORATION,
BURKE, 485 and firm, 340
CAI'III. I'UNISIIMENl; 132-143 and natural persons, 341
fiction theory of, 341-342
CIIARACI ER OF IIIE OFFENDER, 394
636 JURISPRUDENCE AND LEGAL THEORY

nationality of, 347-349 Doci RINE (IF PROSI'ECFIVE OvIRRuIjNG. 215

state as a, 349-350 OCCUlT AND SOCIOLOGICAL SCHOOL, 526-532
CORPORATION AGGREGATE, 338 DCCCI I ON SOVEREIGNTY, 105
CORPORATION SOLE, 339 DUPLICATE POSSESSION, 322
CORPOREAL AND INCORPOREAL DURKIIEIM, 525
OWNEKSIHP, 294 EIIRI.ICII, 539
CORI'ORIAI. AND INCORPOREAl. EQUIIAIILE INTERPRETATION OF
POSSESSION, 321 LEGISLATION, 178
CORI'US OF POSSESSION, 309 EQUI IMILE RIGHTS, 278
CRIME AND TORT, DISTINCTION OPFWEEN, 395- EQU IV, 68-69
396
EQ1JI IV (II A SIAFUl I, 181
CRIMINAL LAW, 82
EVIAIT ANI) SIAIUS. 270-71
CRIMINAL LIABILITY, EXEMPTION FROM, 396-
FICIFI F
397 and natural law, 613
CULPARLE NEGLIGENCE, 387 and Philosophical School of Law, 514
CUSTOM, 225-242 FICTION 1IIEORY OF CORPORATION, 341-342
binding force of, 228-229
FOREIGN LAW, 76
conventional. 234-235
FRANK. JERoME, 567-57))
definition. 225
general. 237-238 FUllER IL., 626-627
kinds of, 233-238 GENERA). CUSTOM, 237-238
legal. 233 GRAY,
kcal, 233 HAGERSi-ROM
must be continuously observed, 239 and objective values, 582-583
must be reasonable, 239 empirical basis of rights. 582
origin of. 226-228 historical basis of right. 582
prescription and, 240-241 HART ANO NATURAL LAW. 628-630
present position of. 241
HAs-I. H.L.A.; 458-468
requisites of a valid. 238-240
theories regarding transformation of, HAURIOU, 533-534
into law, 229-233 HEGEL AND PFIILO5OrIIICAL SCHOOL OF
to be immemorial, 238-240 LAW, 514-517
Cusi-0MAKY LAW, 60 HISTORICAl. INTERPRETATION OF
DAMNUM SINE INJURIA, 374 LEGISLATION, 179
DEAD PERSONS, LEGAL STATUS OF, 333-335 HISTORICAL JURISPRUDENCE AND LEGAL
TIIEORY DISTINCTION BETWEEN, 506
DIcIsIoN
on authority, 218 HISIORICAI. ScII00I. OF LAW. 483-508
on principle. 218 and Analytical School, comparison
reached per i I1CLI na (11. 213 (11, 51)6
SLIt' SilCIlti(), 214 and S.1VigIV. 486-49
estimate (it, 505
DFcI., II,'. 0KV I'RECLI)EN IS, 210
nature of, 483-484
DELIX;AI II) I.IGISI.AIION, 161-163
HoRsEs AND NATURAL LAW, 605-606
methods of control of, 162-163
H011AND, 5-7
DFI.lcrAI. 001 I(;A lION, 418
Ilot IS, JISI (CE, 565-566
DI.I'ok I,VII()X AS I'UISI 151 I.N I, 143
lIUME;, DAvIO, 613-614
DERIVATIVE POSSESSION, 322
1.1-CA. SI A (US OF, 336
DETERREN F TIIEORY (IF I'UNIS)IMCNI 122-124
and preventive theories, relation (DIRING. 534-539
between, 124 IM Ml I)IAIl ANI) MI IIIAl F '05SF SSION, 320-
and reformative theories, relation 321
between, 127-129 IMPERATIVE LAW, 55-56
DicIn ON SOVEREIGNTY, 104 IMPRISONMENT AS PUNIShMENT, 144145
DISREc.AKo Or PRECEDENT, 218-219 lNcosi'oRsIIoN. USI;S A NI) IC RI'OSE ()F, 351)-
351

SUBJECT INDEX
637
IN JURIASINI DAMNUM, 374
origin and growth of administration
INNOM (NATE OBLIGATIONS, 420 Of, 117-118
INTENTION, 384 public, 119
difference between motive and. 385 KANT AND NATURAL LAW, 612
INTEREST THEORY OF RIGHTS, 255 KANT AND PHILOSOPHICAL SCHOOL OF
INTERNATIONAl I.AW, 61-65 LAW, 512-513
INThRI'RL1VrIo1V OF IEGI5I.XIIoJ KEETON ON J UR ISPRUDENCE, 8
golden rule of, 175-176 KU LSI N
grammatical rule of, 174-175 and Basic Norm.
historical, 179 and Bentham, 482
logical rule of, 177-178 and Pure Theory of Law, 471-472
restrictive and extensive, 179 contribution of, 480-481
rule of Casus Omissus, 18i on Sovereignty, 104
rules of, 174-181 LAW
sociological, 180
administered by prize courts, 78-79
strict and equitable rule of, 178 administrative
The Mischief Rule of, 176-177
Austin's theory of. 27-29
INTERPRETATION OF STATUTES, RULES civil, 6
0F 182-189
common, 66-67
JUDGE Constitutional, 69-73
and jury. 221 conventional, 6o
as law-makers, 201-203 customary, 6o
do they make laws?, 199-205 definition of, 23-27
JUDICIAL LEGISLATION disadvantages of, 47-48
defects in, 205-206 discordance between law and fact, 51
methods of, 205 general, 74-7
JURISPRUDENCE imperative, 55-56
and Economics, 17 international, 61-65
and Ethics, 16-17 mixed questions of, and fact. 51
and History 17 natural or moral, 56-59
and Politics, 18 nature of, 23-54
and Psychology, 15-16 physical or scientific, 56
and Sociology, 14-15 practical or technical, 61
approach to study of, 10 prize, 78-79
Austin, 2-5 purpose and function of, 43-46
Holland on, 5-7 questions of, 48-49
Keeton on. 8 Salmond's definition ( If, 36-39
Pound on, 8-9 special, 74-7
relation of, with other social territorial nature (11, 41-43
sciences, 13 transformation of questions of fact
Salmond, 7-8 into, 51
scope of, 9-10 uses or advantages of, 46-47
significance and utility of, 11-13 LAW MERCHANT, 235
synthetic, 18-2o LEGAL
what is, 1-8 burdens, kinds of, 267-268
)us Ai) 282 CLISIOm, 233,23(-237
Jus NECISSI'I-AI-is, 382-383 duty. 250-252
JUSTICE enforcement of morals,
according to law, 119 equitable rights and, 278
fiction, 52-53 -
administration of, 115-149
LEGAL PERSONS, 33(1-337
advantages and disadvantages of
legal, 118 kinds of, 338-341
civil and criminal, 120-122 LIc,A(. PSI SIJMI'IIONS, 51-52
i mportanceof, 115 LEcA I. RICI US
necessity of administration of, 116 and duties, 249-283
638 JURISPRUDENCE AND LEGAL THEORY

definition of. 252-255 influence of, 504-505

enforcement of, 259 writings of, 497
essentials Of, 257-258 MALICE, 385
extinction of, 259 MARTIAL LAW, 77-78
in a wider sense, 266-267
MARXIST VIEW OF SOVEREIGNTY, 105
kinds of, 272-281
parties to, 258 MAX WEBER, 534
theories about, 255-256 MEASuRE (II CIVIl. UAIIILIIY, 394
LEGAL SANCTIONS, 39-41 MEASURE OF PENAL LIAIIILITY, 393-394
LEGAL STATUS, MENS SEA, 375-379
of idol, 336 when not essential, 377-379
of lower animals, 332-333 MERCANTILE CUSTOMS. 79
of mosque, 336 "MISCHIEF RULE" IN INIERIIXEIAII(IN 01
of-unborn person, 335 I.ECISIAII(IN, 176-177
LEGAL THEORY, 431-435 MIXED QUEStIONS (IF LAW AND FACI 51
LEGAl. WRONG, 249-250 MoS'IIsQu IFU, 484
LEGI5I.Al'IoN. 159-190 MORALS
advantages of. over Precedent. 165- as part of law, 93
i66 influence of, on law, 94
advantages of Precedent over, 167-168 legal enforcement of, 93-94
and Custom, 164-165 MORALS AND LAW, 85-95
and Precedents, 164 relationship between. 90-92
as source of law, 159 MowI GAGIi AN U LIEN, 405
delegated. 161-163
MosQul, lEGAl. STATUS OF, 336
meaning of, 1'59
methods of control of delegated, 162- Mo-LIVE OF OFFENCE, 393
163 MUNICIPAL LAW AND INTERNATIONAL
subordinate, i6o-i6i LAW, 81-82
supreme and subordinate, 160-163 MUNICIPAL RIGHTS, 281
LIABILITY, 365-398 NATURAL LAW. 595-634
absolute Or strict, 371-372 and Aquinas. 599-602
civil, 365 and Kant and Fichte, 612-613
definition and nature of, 365 and Middle Ages. 599
exemptions from criminal, 396-397 and Rousseau, 608-612
general conditions of, 372 and Social Contract Writers, 603-612
kinds of. 365 and Socrates, Plato and Aristotle. 597
measure of civil, 394 and Supreme Court of India, 631-632
penal. 367-368 decline of theories regarding, 613-614
remedial, 366 ideas in English Law, 615-616
vicarious, 368-371 in American Jurisprudence. 616-617
LIEN in general, 595-596
and mortgage. 405 or moral law, 56-59
kinds of, 406 revival of theories regarding, 617-630
LLEWEI.LYN, 570-574 NA-ruRAl. PERSON, 336
LOCAl. CUSTOM, 236-237 NI;;IIINcI, 385-386
LOCAL LAW, 75-76 and inadvertence, 386-387
and intention, 387
LOCKE AND NM (iRA!. LAW, 606-607
contributory, 393
LOGICAL INTERPRETATION OF objective theory of. 3
LEGISLATION, 177-178
subjective theory of, 390
LOWER ANIMALS, LEGAL STATUS OF, 332-333 theories of. 389-393
LuNosil rI; A.V., 589-591 NEO-I-IF.GELIANS, 517
IVIAGNIruI,E OF 'I oIFI-:Nce, 393-394 OIIITER DICTUM. 217-218
MAINE, SIR FlINRv, 496-505
contribItion (If, 503-504

SUBJECT INDEX 639

OBLIGATION
,vrioN PuiiI.osOi'iuicA]. SChOOL oi LAW, 509-522
arising from contracts or contractual and Kant, Fichte and Hegel, 511-513
obligation, 417 and Kohier. Stamniler and Del
arising from quasi contracts. 419-420 Veechio, 518-522
arising from torts or delictal PhYSICAl. OR SCIENTIFIC LAW, 56
obligation, 418 PLURALISTS ON SOVEREIGNTY, 105
definition of, 413-414
Posi'ruvc AND NEGATIVE RIGHTS, 273
innominate, 420
law of, 413-414 PosrilvisM IN LAW, 437-438
solidary, 414-415 PossIssIoN,
sources of, 417-420 adverse, 322
OuvecRoNA, 583-585 and ownership, distinction
and binding force of law, 583-584 between, 326-328
and rights, 584 concurrent, 321
estimate of, 584-585 constructive, 322
corporeal and incorporeal, 321
OWNERSHIP, 285-305
corpus of, 309
absolute and limited, 305
derivative, 322
and Co-ownership, 304
development of concept of, 308
Austin's view of, 286
duplicate, 322-323
corporeal and incorporeal, 294
elements of, 309
criticism of the idea of ownership, 290
immediate and mediate, 320-321
definition of, 286
importance of, 3(16-307
development of the idea of. 285'
in fact, 308-309
different kinds of. 294
in law, 308-309
essentials of, 290-292
methods of transfer of, 318-319
Hibbcrt's view of, 288
modes of acquiring, 362
Holland's view of. 287
representative, 321
legal and equitable. 298-299
savigny's theory of, 314-318
Markby's view of. 288
why it is protected?. 323-324
modes of acquiring, 293-294,362-364
POUND ROSCOE, 545-556
of a right, 293
Paton's view of, 288 and theory of social engineering, 547-
Pollock's view of, 288 554
contributions, 556
right of, 293
Salmond's view of, 289 on Jurisprudence, 8-9
on social justice, 555-556
sole, 303-304
subject-matter of, 292 PRECEDENT, 191-223
trust and beneficial, 294-295 absolute and Conditional, 207-210
vested and contingent, 299-300 and legal development, 219-220
PENAL AND KEMEI))AL PROCEEDINGS, 146 as source of law. 191-192
authoritative and persuasive, 206-207
PENAl. I.1AUILI'1'Y, 367-368
authority of, 193-194
measure of, 393394
circumstances which increase binding
PERIEc'r AN)) iMi'LRi CC)' RIGhTS, 272 authoritybf, 199
PERSON, 331-355 circumstances which weaken or
definition of, 331-332 destroy the binding force of, 195-
kinds of, 336 198
legal, 337 declaratory and original, 210
lower animals whether, 332-333 disregard of, 218-219
natural, 336 kinds of, 206-210
whether dead person a person, 333- nature of, 193
335 sub silentio, 197
PERSONAL PREPARATION FOR CRIME, 381-382
ri,,hf,, 274
............ , PRESCRII,N AND CeSIUM, 240Z41
on real evidence, 425
Pho*UM 'lION OF INNOCENCE, 380-381
PRisuMi'Elvi "ROOF, 427
 640 JURISPRUDENCE AND LEGAL THEORY

PREVLN1 IVE ii FURY AND l)IiII1RKI,NI 1 RI1AI.)5-I'IC lID DRY OF PERSON, 342-344
RELATION IIIiIWI1I:N, 124
REALISTS
PRIMARY AND SECONDARY RIGHTS, 145-146 contribution of, 593
PRIMARY FUNCTIONS OF TIlE STATE, 99-100 in general, 592
PRIMARY OR SECONDARY EVIDENCE, 425 REFORMATIVE THEORY OF PUN ISIIMENT, 124-
PRINCII'AI. AND ACCESSORY RiGIrIS, 278 127
PRIVAtE LAW, 82 RELIGION AS SOURCES OF LAW, 247
PRIZE LAW, 78 RI.MI;DIAI. I.IAIIIIIIY, 366
PROBATIVE VALUE OF EVIDENCE, 427-48 REI'RESENIAIIvI I'OSSESSI(IN, 321
PROCEDURAL LAW, 421 RES NUILIUS, 319
PROFESSIONAL. OPINIONS AS SOURCE OF RErRIUUTIVE TIICORY OF PUNISHMENT, 129-
LAW, 243-246 131
PROPER - IT RIGIITS
and law, relation between, 412 against state, 269-270
corporeal, 400-401 and duties of the state, 268-269
historical theory of, 410 antecedent and remedial, 280
incorporeal, 401 at rest and rights in motion, 282
kinds 01, 4(5) inheritable and uninheritable 277
law 01, 399-412 ill personam, 275-276
meaning of, 399-400 in re alieuia, 277
metaphysical theory (11, 410 in rem, 275
natural law theory of, 410 in re prOpria, 277
positive theory of, 411 kinds of legal., 272-281
psychological theory of, 411 legal and equitable. 278-279
real and personal, 401 municipal and international, 281
sociological theory of, 412 of beneficiary, 271
theories of, 409 ordinary and fundamental, 282
PROI'RIIOARY AND I'ERS(INAI. RI(;II is, 276 perfect and imperfect, 272
PUBLIC AND PRIVATE RIGhTS, 280 positive and negative, 273
PUBLIC $USTICF, 119 primary and secondary. 280
PUBLIC LAW, 82 principal and accessory, 278
proprietary and personal, 276
N (SI IM ENI
public and private. 280
deterrent theory, 122-123
real and personal, 274
implications of,
serviellt and dominant, 281
imprisonment 144
vested and contingent, 281
kinds of, 143
ROSS A IF, 586-588
preventive theory of, 123-124
Rou5sfu, 608-612,
retributive theory of, 129-131
solitary c o nfinement, 144-145 Ruii: oi CASUS OMISSUS, 181
theories (If, 122-132 Rut,-, iNTERPRETATION OF
theory of compensation, 131-132 LEGISLATION 174-181
PU RE 1 IIEORY OF JAW, 471-482 RUlES OF IN1EK)'RETA)IuN OF STATUTES, 182-
criticism of, 477-481) 189
implications of, SAl MON I), 7
PURPOSE 1IIEORY OF CORPORAl BIN, 345 on jurisprudence, 7-8
QUESTIONS OF FACT, 49-50 on sovereignty, 103
and discretion, 50 S',v 1GN 1, 486-495
and law mixed, 51 Colitribiltion of, 494-
transformed into law, 51 criticism, 488-494
QUcsnoNs OF lAw, 48-49 theory of possession, 314-318
RA iio DICI 0).N 0), 215-216 SCANDINAVIAN AND AMERICAN REALISM 591
Rsw,.s, 620-622 SCANDINAVIAN REALISM, 581-594
REAL AND PERSONAL 'SO 'El) rY, 401
 SUBJECT INDEX 641

SCANDINAVIAN RIAI.IsIs, Foreign law, 76

and Hagerstrom, 582-583 Local law. 75-76
and Lundstedt, 589-591 Martial law, 77-78
and Olivecrona, 583-586 Mercantile C1(stomS, 79
SECONDARY FUNCTIONS OF COURTS 01 Prize law, 78-79
LAW, 146-147 STAMMLER, 519-520
SECURITIES, 405 STAKE Dccces, 210-213
SEIIVIENT AND DOMINANT RIGHTS, 281 STATE
SI RYITUDE 5, 403-404 and law, 101-11>2
kinds of, 403-404' composite, 100
personal. 404 definition of, 97-98
Positive, 404 essential elements of, 98-99
public. functions of, 99
SOCIOlOGICAl. IN) HIllEl A lIoN OF primary functions of, ioo
IIGISI.AIION, 180 secondary functions, 100
SOCIOLOGICAL SCHOOL Unitary, 100
and Ehrlich, S(AIUIL IGNORANCE OF, 196
and Ihering, Sro, 558
and Max Weber, 534 STRICT AND EQUITABLE INTERPRETATION OF
and Roscoe Pound, 545-556 LEGISLATION, 178
evaluation of, 558-559 SUIISTANflYL LAW, 421-423
SOCIOLOGICAL SCHOOL OF LAW, 523-562
SUPREME AND SUIIOHOINAIL
Auguste Comte, 525 I.IN;ISI.ATI0x, 16o-i63
DugLllt, 526
Durkheim, 525 SYNlIIFOC JURISI'RLJI)INCF 18-20
Gierke, 532 TECI(NICAI. LAW, 61
Hauriou, TERKIIoRIA) NATURE (IF lAW, 41-43
Herbert Spencer, 526 TIIPOR)ES OW I'UN(SI(%IENT. 122-132
Sociological School of Law, and deterrent, 122-123
Montesquicu, 524 reformative, 124-127
SOLIDARY OBLIGATIONS, 414-417 IFIEOHY or C0MI'ENsA - rION, 131-132
SOI.IrARy CONFINEMENt. 144-145 TIll F,
SOURCES OF LAW, 151-157 classification (If, 358-359
and sources of rights. 157 definition and nature of, 357-361
Austin's view of, 152 TRSNSFI:RKF>, MALICE, 379
in England, 156-157 TI1US(, 406
legal and historical, 153-155 agency and, 297
material, 153-155 bailment and, 295
meaning of, 151-153 beneficial ownership and, 294-295
Salmond 00, 153 contract and, 296
Sociological view of, 153 eseCLItorsIlip and, 295-296
SOVERIUGNIy, 103-112 mortgage and, 297-298
Austin's theory of. 105-112 LEGAl. I'RINC(I'LES, 157
Dicey (1(1, (04 UNSORN PERSON, LEGAl. STATUS OF, 335
Duguit on, 1(15
UNI1ARY SlATE, 100-101
Jethrow Brown on, 104
Varol., 603
Kelsen on. 104
Marxist view of, 105 VICCIIIo, DI)., 623-624
['Illralists view of, 105 VLSi El) AN)) CDNIINGEN(OWNIR5I((I . 299-
Salmond (in, 103-104 301)
SPECIAL LAWS, 75-79 VICARIOUS LIABILITY, 368-371
Autonomic law, 76-77 Woo JOHN, 625
Conventional law, 76 II. il l-:olsv (IF RIGI 1(5, 255