CHAPTER THIRTEEN:

SOCIOLOGICAL JURISPRUDENCE

I. INTRODUCTION

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

The sociology of law studies law as a phenomenon in society as one of the

important and valuable aspects of social life. In particular, this concerns the
interaction of law with the other aspects of society. Hence, it involves two
questions: how does society affect law and how does law affect society.

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

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

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

jurisprudence thus:

“For Pound, jurisprudence is not so much a social science as a

technology, and the analogy of engineering is applied to social
problems. He is concerned primarily with the effects of law upon
society and only to a lesser extent with the question of the social
determination of law. Emphasis is laid upon the need to accumulate
factual information and statistics and to this end Pound put forward a
practical programme, in which the establishment of an adequately
equipped Ministry of Justice looms large. Little attention is paid to
conceptual thinking. The creative role of the judiciary, on the other
hand, is in the forefront, as is the need for a new legal technique
directed to social needs. The call is for a new functional approach to
law.”1

Another way of characterizing sociological jurisprudence is in terms of its explaining

the so-called sociological approach to studying the legal order.
1
M.D.A. Freeman, Lloyd’s Introduction to Jurisprudence, London: Sweet and Maxwell, Seventh Edn., 2001, p. 673.
“. . . Nevertheless one can pinpoint a number of ideas in the thinking of
those who adopt a sociological approach to the legal order. There is a
belief in the non-uniqueness of law; a vision of law as but one method
of social control. There is also a rejection of a ‘jurisprudence of
concepts’; the view of law as a closed logical order. The shortcomings
of formal, logical analysis were noticed as new problems emerge for
which existing law did not provide solutions. Further, sociological
jurists tend to be skeptical of the rules presented in the textbooks and
concerned to see what really happens, ‘the law in action’. Sociological
jurists also tend to espouse relativism. They reject the belief of
naturalism that an ultimate theory of values can be found: they see
reality as socially constructed with no natural guide to the solution of
man conflicts. Sociological jurists believe also in the importance of
harnessing the techniques of the social sciences, as well as the
knowledge culled from sociological research, towards the erection of a
more effective science of law. Lastly, there is an abiding concern with
social justice, though in what this consists, and how it is to be attained,
views differ. Does law, for example, function as an instrument outside
particular interests in some neutral way, as Pound thought, or is it the
result of the operation of interests, as contemporary conflict jurists
argue? Upon the answer to this question much depends, including
whether law can be used for the purposes of social engineering and, if
so, to what effect.”2

A. The Three Stages of the Sociology of Law

As a further introduction, the sociology of law has been characterized by Philip

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

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

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

perspective, bring to a hitherto isolated area an appreciation of basic
and quite general sociological truths, such as the significance of group
membership for individual behaviour. This early phase
characteristically includes much theoretical discussion and analysis of
everyday experience. There may also be some organized research,
2
Id., pp. 659-660.
3
Philip Selznick, “The Sociology of Law,” 1959, in Lawrence M. Friedman and Stewart Macaulay, ed., Law and
the Behavioral Sciences, New York: The Bobbs-Merrill Company, Inc., 1969, pp. 2-3.

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but what there is mostly demonstrative in function, more valuable for
the educational effect than for anything else. In law, such
demonstrative research, has not been particularly important, in part
because of the role played by fact-guided judicial decisions and by the
writings of men with rich experience in legal affairs. Although most of
the theoretical work in this field has been done by European social
scientists, the task of communicating an elementary, not-very-
sophisticated sociological perspective has been accomplished largely
by American legal scholars who were influenced by European thought,
and by some of the more articulate appellate judges.” 4

This is how Freeman expounded on the first stage:

“Pound, together with his continental progenitors, belong to the first

stage, wherein the pioneer, the prophet in the wilderness
communicates a perspective. So, Pound identified the task of the
lawyer as a ‘social engineer’, formulated a programme of action,
attempted to gear individual and social needs to the values of Western
democratic society. The early Realist writings convey similar
orientation. Pound, and Holmes too, was a ‘generaliser’, a purveyor of
‘grand theory’: he provides the theoretical context for an
understanding of law in society. But he did little empirical research,
though such work was undertaken by contemporaries. Their writings
are characterized by a concern for substantive legal problems rather
then the workings of legal institutions, and by a penchant for law
reform, doubtless inherited from Pound and the Realists. Furthermore,
the initiative for this empirical research was taken by lawyers, not
sociologists, and often by practitioners rather than jurists. Perhaps, as
a result, conclusions and implications were framed in grandiose
terms.”5

Then came the second stage.

“The second stage belongs to the sociological craftsman. It is a

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

...

In the second stage of development of legal sociology the main effort

is to apply sociological analysis to particular problems of legal doctrine
and legal institutions.

4
Id., p. 3.
5
Freeman, supra. n. 1, pp. 678-679.

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...

My primary concern is that this middle stage of legal sociology should

fulfill its highest potentialities. It will do so, I suggest, only if it truly
makes sociological theory the source of hypotheses about the law. If it
does, I am confident that the problems dealt with will be significant
from the standpoint of jurisprudence.

This second stage properly emphasizes the contribution of sociology.

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

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

Freeman explained this stage in more detail.

“The second stage was characterized by a concern for method. The

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

Selznick proceeded to explain the third and final stage.

“The third stage, as I envision it, is one of true intellectual autonomy

and maturity. This stage is entered when the sociologist goes beyond
(without repudiating) the role of technician or engineer and addresses
himself to the larger objectives and guiding principles of the particular
6
Selznick, supra. n. 3, pp. 2, 5,
7
Freeman, supra. n. 1, p. 679.

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human enterprise he has elected to study. He reasserts the moral
impulse that marked the first stage of sociological interest and
influence. But the third stage is of a higher, more sophisticated level
than the first because the second stage has provided a sounder basis
for critical analysis.

...

As we approach a more advanced stage of development, all the classic

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

In a consideration of these matters, the central fact is the role of

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

Because reason is legally authoritative, scholarship has a direct

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

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regarding the nature of man and institutions. Therefore, inevitably,
sociology and every other social science have a part in the legal order.

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

A concern for the role of reason must bring with it a certain

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

The ideal of reason presumes that there are principles of criticism of

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

Freeman noted that Selznick’s later work may have approached the third stage:
“Selznick claimed in 1962 that the third stage had not yet been reached. It is the
8
Selznick, supra. n. 3., pp. 3, 11-13; emphasis Selznick’s.

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

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

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

The shortcomings of socio-legal studies were identified by Lawrence

Friedman. He wrote:

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

Socio-legal studies was largely lacking in any theoretical underpinning.

The law—note this often defined narrowly—and the legal system were
treated as discrete entities, as unproblematic, and as occupying a
central hegemonic position. There was rarely any attempt to relate
the legal system to the wider social order or to the State. When
reforms were suggested—and as progressive scholars reform was
often the aim—they were to make the legal system operate more
9
Id., p. 682.

352
efficiently or effectively. And the emphasis was more on the
‘behaviour’ of institutions rather then on trying to understand the legal
doctrine.”10

II. METHODOLOGY

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

Philosopher.

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

“A modern myth about sociological study of law survived until quite

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

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

10
Id., pp. 683-684.

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

B. Value of Sociological Inquiry

Despite these criticisms, it is now widely accepted that sociological inquiry is

valuable and necessary in illuminating the social or historical processes that shape
legal doctrine.

“The most powerful current critique of legal sociology—the one which

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

These questions are sharpened with additional claims. It is sometimes

suggested that sociology is an exceptionally weak and inadequate
explanatory discourse. For example, it is claimed to have ‘an
intriguing inability to constitute its field of study.’ The concept of ‘the
social’ thus remains ‘remarkably unexamined’ in socio-legal studies
and, it is said, no longer provides a focus for them. On the other hand,
law is now seen by those skeptical of sociology’s interpretive
11
Roger Cotterrell, “Why Must Legal Ideas be Interpreted Sociologically,” 1998, in M.D.A. Freeman, Lloyd’s
Introduction to Jurisprudence, London: Sweet and Maxwell, Seventh Edn., 2001, pp. 747-749; emphasis
Cotterrell’s.

354
capacities as having an intellectual power and resilience which
protects it from social science’s earlier ‘imperial confidence’ that it
could know law better than law knew itself.

In a rich discussion of relationships between law and scientific

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

When law borrows from scientific disciplines or practices it appears to

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

From the standpoint of sociology the problem is not merely that its
insights can be made to seem irrelevant to legal understanding. It is
not just the unpleasantness of rejection that dominates this scenario,
but also the frustration of attempting the impossible. The argument
goes as follows. As sociology tries to understand law, law disappears
like a mirage, the closer the approach to it. This is because as
sociology interprets law, law is reduced to sociological terms. It
becomes something different from what it (legally) is; or rather, from
what, in legal thought, law sees itself as being. How can legal ideas be
understood sociologically without, in the process, being turned into
sociological ideas? The ‘legal point of view’, as Robert Samek called it
in a neglected discussion of related themes, disappears; subsumed
into a sociological viewpoint and lost. It cannot be grasped
sociologically because it is not sociological. It is a specifically legal
point of view.

Legal sociology’s potential is also challenged from another standpoint.

For more than a decade, concern among progressive legal scholars has
been less and less with how law is produced by society (the traditional
outlook of legal sociology) and increasingly with the way ‘society’ is

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produced by law. Not only can law stand alone from sociology with its
own basis of understanding, taking or leaving social scientific insights
as it sees fit, but it is said to be able also to create the central objects
of inquiry—the very ontological basis—of sociology itself. According to
some influential scholars, law has no need, and no possibility, of doing
more than creating its own normative understanding of its social
environment. But, in a more radical view, law is also seen as
responsible, partly at least, for creating the social categories which
sociology itself must work with.”12

C. A Holistic Understanding of Law

Hence, a more holistic understanding of law is necessitated for a sociological

understanding of legal ideas. This, in turn, requires the resolution of two issues.

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

Certainly, some scholars in sociology of law continue to ask for

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

What then could be made of the effort to understand legal ideas

(elements of legal doctrine and the reasoning and forms of
interpretations that surround them) sociologically? This paper argues
that the main problems that are said to undermine this effort are in
fact, despite their apparent seriousness, solvable or ultimately false.
They do not stand in its way. But they do very properly demand that
the nature, aims, and methods of sociological inquiry be clarified.
Nevertheless, the claim to be made here is not merely that the effort
12
Id., pp. 749-750; emphasis Cotterrell’s.

356
to understand legal ideas sociologically is appropriate. My claim is that
the only way to grasp these imaginatively as ideas about the
organization of the social world is through some form of sociological
interpretation.

In the remainder of this paper an attempt is made to address the

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

I argue that no such implication is required. Indeed, it would entirely

miss the point. Disciplinary boundaries should be viewed
pragmatically; indeed, with healthy suspicion. They should not be
prisons of understanding. The term ‘sociological’ is necessary to keep
firmly in mind certain definite foci in interpreting law, but these foci
and their authoritative definitions are not the property of any particular
academic discipline. Participants in law—not just lawyers but all those
who seek to use legal ideas for their own purposes, to promote or
control the interests of others, or more generally for public purposes of
direction or control—understand legal ideas in practical terms. The
aim in what follows is to show that the most practical view of legal
ideas is one informed by sociological insight. Legal ideas are properly
understood sociologically.”13

D. The Legal Perspective

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

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

sociological understanding of legal ideas irrelevant are arguments
emphasizing these kinds of indicators. In one way or another, these
indicators make possible what Nelken terms ‘law’s truth’. When
attempts are made to specify the indicators, however, they seem
remarkably limited. They may amount to no more than a consistent
focus in any context on marking a distinction between the ‘legal’ and
the ‘illegal’; right and wrong in terms of specifically legal definitions.
Otherwise, law might be said to be distinctively concerned with
institutional rather than brute facts, and with considerations of
authority, integrity, fairness, justice, acceptability, and practicability. It
13
Id., pp. 751-752; emphasis Cotterrell’s.

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has to use ‘arbitrary cut-off points’ in argument, and often chooses not
to look behind its presumptions. It seeks to provide certainty and to
relate to common sense. It may adopt or reject scientific (including
social scientific) knowledge or reasoning in order to pursue these
objectives. It gathers and presents facts in ways tailored to
adjudicative needs. It operates by means of practical reasoning and
argumentation that may be more or less specific to its governmental,
dispute processing or social control tasks. But any enumeration of
characteristics of law’s truth will miss the point for ‘what truth means
for law is the result of its own processes.’ ‘Ultimately,’ as Arthur Leff
puts it, ‘law is not something we know but something we do.’ It is not
grasped by definition from ‘outside’ but by working and thinking within
it.

Thus law tends to become, in arguments about ‘law’s truth’, an

abstract site of understanding removed from particular kinds of social
relations . . .

From a sociological standpoint, however, it is an empirical question

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

Law’s basic ‘truth’ may be merely the provisional, pragmatic

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

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

specialized discourse. But, as Balkin notes, it is an intellectually
vulnerable, open discourse, liable to invasion by many kinds of ideas,

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

Seen in sociological perspective, this is the nature of law’s truth as a

unified, distinctive discourse; a contingent feature of particular social
environments. Sociological interpretation both reveals law’s character
and is, like many other forms of knowledge, available to enrich law’s
debates, colour its interpretations, and strengthen or subvert the
strategies of control to which legal discourse is directed. Sociological
insight is simultaneously inside and outside legal ideas, constituting
them and interpreting them; sometimes speaking through them and
sometimes speaking about them; sometimes aiding, sometimes
undermining them. Thus a sociological understanding of legal ideas
does not reduce them to something other than law. It expresses their
social meaning as law in its rich complexity.

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

E. The Sociological Perspective

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

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

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

But most of the problems surely disappear once it is recognized that

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

The essence of a sociological interpretation of legal ideas lies in three

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

360
...

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

Equally, sociological inquiry needs to be open and receptive to a

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

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

The term sociology of law’ remains useful as a label for identifying a

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

Sociological interpretation of legal ideas is not a particular, specialized

way of approaching law, merely co-existing with other kinds of
understanding. Sociology of law in this particular context is a
transdisciplinary enterprise and aspiration to broaden understanding of
law as a social phenomenon. It certainly insists on its criteria of the
social, the systematic, and the empirical, reflecting—as will be further
illustrated subsequently—the conviction that these criteria are
inscribed in some sense and in some degree in participant
understandings of the nature of law itself as a social phenomenon. It
seeks to go beyond many such understandings. But sociology of law is
otherwise inclusive rather than exclusive. Sociological insight is found
in many disciplinary fields of knowledge and practice.

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

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

It should be clear that the discussion above of sociological

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

It might be asked what happens to justice and legal values in

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

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

a sense of social cohesion or integration. The radical broadening of

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perspective which sociological interpretation seeks makes it possible to
enrich understandings of the social condition of justice. The consistent
focus of sociological inquiry on the social, the systematic, and the
empirical provides the essential dimensions of this enriched
understanding. Sociological inquiry cannot abolish disagreement as to
what justice demands in any particular situation. But it can reveal the
meaning of justice claims in a broader perspective by systematically
analysing the empirical conditions that provide postulates underlying
these claims.

If sociological interpretation of legal ideas is to be characterized in

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

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

It does not necessarily replace those perspectives or contradict them

by the use of a specific methodology foreign to the diverse methods
already used by legal participants. If it did so generally this would be
to replace law with sociology; to fall into the trap which, as noted
earlier, has been said by some commentators to ensnare all
sociological attempts to grasp truth. Thus, the methodology of
sociological understanding of legal ideas is the deliberate extension in
carefully specified directions of the diverse ways in which participants
themselves think about the social world in legal terms. It seeks
radically to extend the already partially systematic and empirical
characteristics of this legal thinking, and thereby sets out to transform
legal ideas by reinterpreting them.

An illustration may help to clarify this argument. The English law of

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

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

Legal thinking in this area is empirical up to a point, looking at what

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

A sociological approach to doctrine in this area attempts to extend

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

Similarly, empirical inquiry is broadened beyond the observation of

previous decisions to include much wider observation of the particular
social contexts and implications of these decisions. It considers their
relation with other legal developments in areas that may be legally
distinct from but socially interconnected with the area of private

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purpose trusts, viewed as an area of legally structured social
relationships. Thus, sociological inquiry seeks a broader, systematic
view of the law by reinterpreting the relationship of ideas which the
lawyer identifies. It puts them into an intellectual context that allows
the identification of other relationships and other connections. And
these in turn help to explain the law as it stands and point to ways of
rethinking and developing it.

When sociological inquiry is used in the ways outlined above it ceases

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

It proceeds from participant understandings, but because it seeks to

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

Viewed in this way the enterprise of sociological interpretation of legal

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

F. Three Last Words

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

“Socio-legal Studies

The first last word involves drawing out the tripartite social science
related interaction woven through the course of this work. This
involved exploring the complementary aspects of participant reports,
behaviourism and interpretivism. In everyday terms, these coincide
16
Id., pp. 755-758, emphasis Cotterrell’s.

365
with listening to what people say, carefully observing what they do,
and trying to figure out how it all comes together. These are the
elements of ordinary social interaction. The development of socio-
legal studies has been stunted by the disregard for the participant
view, its initial positivism-induced obsessive focus on behaviour to the
exclusion of meaning, and more recently by the opposite error of
rejecting positivism for interpretivism.

Although each of the three makes an integral contribution to the

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

My second reason is the substantive one that interpretivism (and the

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

While an understanding of social life requires input from all three

sources, they are not on an entirely equal footing. Behaviourism has a
slight priority, for the sound reason captured by the adage that actions

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

On the level of application, I have tried to demonstrate that these

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

In addition to establishing comprehensively the theoretical base, I have

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

Finally, I should admit that the approach I have set out is so mundane
that to give it a name—‘realistic approach’—is pretentious. My
description of this ‘approach’—keep an eye on what people are doing

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and listen to what they are saying, strive to be impartial and observe
closely, test when possible, be open to information from all sources—
consists of common sense rules of thumb we should follow whenever
we embark upon an attempt to understand any aspect of social life.
Were it not for the overheated atmosphere (with contributors from all
sides), much of what I say would be truistic. Rather than claim to have
set out an approach, perhaps, I should say that this book has been a
sustained argument for doing socio-legal studies more realistically.

Legal Theory

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

The assumption that law represents consensual social order (that it

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

Although what I describe applies in various ways and degrees to law

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

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

Legal theory generated legitimation—‘law provides one right answer’—

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

Legal theory must be prompted to bring the conversation closer to

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

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

369
These critical schools, however, are in a different position from the
Realists. First, because the Realists already prompted the overdue
paradigm shift in US law away from mechanistic analysis and
conceptual formalism, toward more open consideration of social
purposes and justice in the individual case, no further major change is
possible unless we give up rules altogether for a completely
substantive justice regime, which would be deeply problematic given
the pluralistic circumstances of modern society. Secondly, much of the
critical theory of the past ten years is too theoretical to make a
difference. Hermeneutics, Wittgenstein’s language analysis, anti-
foundational philosophy, and post-modernism, I have argued, either
address the conditions of our existence, which cannot be changed and
therefore discussing them changes nothing, or address issues within
philosophical debates (like the nature of truth) which have absolutely
no impact on everyday activities. Ironically, the point of all of these
theories is that what counts as ongoing social practices, and that to
make a difference one must give up the view that theory can govern
from above and engage in the practices on their own terms . . .,
leading to change from within. For all the espousal of pragmatism, the
recent flight to theory is precisely what the pragmatists argued
against.

Nonetheless, it is presently impossible to assess the full impact of CLS

and its critical compatriots and progeny, including critically oriented
socio-legal studies. In the short term it appears impotent in relation to
the practice of law. What we don’t know yet is the long term impact
on generations of law students influenced by this literature (assuming
it is read). The resilience of practice, grounded in outgoing activities
and needs, suggests that it will have little effect. But the more subtle
influence will operate in the realm of attitudes. If the next generation
of judges are raised on the belief that law is a fraud, and whoever
becomes a judge aggressively and without restraining manipulates the
law in every case to achieve the outcome they desire, law will be a
fraud.

Concern about this possible outcome is what led me to respond to the

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

370
inequities, but so would any legal system except one run by
benevolent dictators.

Law is law, not politics. State law is a collection of institutions attached

to the state, having to do with the subject of law, involving the
community of those trained in law. Law is a resource which can be
used or called upon to advance political purposes. CLS got the idea
wrong. Instead of ‘law is politics’, the rallying cry should have been
‘law for politics’. To draw upon law for politics is to take action in the
world, utilizing what law has to offer, as every dedicated legal aid
attorney or public interest lawyer does, often at significant personal
sacrifice.

Politics

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

The second consequence is that after the orgy of criticism, there was
no basis upon which to build. It is easy to show that there are serious
problems with law. The hard part is suggesting what to do about it.
Their almost total silence on this, with the exception of Roberto
Unger’s utopian proposals, has led more than anything else to the
demise of the movement. Critique without construction is indulgence
in negativism. Suggestions by critical scholars that more conversation
is needed, or more theory, or attention to context, would be laughable
were they not so disappointing.

371
Ironically, matters have come full circle. In recent exchanges, the
leftist self-declared ‘postmodernists’ who were spawned by CLS, at
least indirectly by taking CLS views to their logical extension, are now
being criticized by CLSers as lacking in any positive normative vision . .
. . Mark Tushnet, who in his CLS salad days declared . . . that, ‘critique
is all there is,’ now complains that postmodernists have taken the
critique so far that the very possibility of normative argument has been
destroyed. A related development can be found in other schools with
connections to CLS, including certain versions of critical feminism and
critical race theory. Drawing upon the theory as well as the tactics of
CLS, group-based advocates are setting themselves up with a kind of
epistemological privilege, claiming to represent a particular point of
view which must be judged by its own internal standards (which,
according to some theorists, are superior to the middle-aged white
male standards). Although we have learned a great deal from these
schools of thought about the silent biases contained within law, the
long term destructive potential entailed by such exclusive and
excluding group-bound-standards is reason for concern. What used to
be plain old disagreement is now construed as incommensurable
discourse and a battle against hegemonic ideology. Promoting a cause
of social justice shared by many of the mainstream, left-leaning
academics in law faculties, CLS took its trashing of law to such an
extreme that it left nowhere to go except ever narrower spin-offs.

Socio-legal studies have also been harmed by these developments.

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

It is time to switch tactics. It is time for socio-legal studies to get back

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

To critics who assert that I have revived the fact/value distinction

buried by postmodernism, my response is that I have built a non-
foundational version of that distinction out of philosophical pragmatism

372
(which presaged modernism). I would not assert, as Llewellyn did, that
the ‘ought’ should be put on hold while figuring out the ‘is’. Rather, I
am proposing a division of labour: legal theory continues with the
ought, as it has always done; realistic socio-legal studies takes care of
the is. For those who claim this is an abdication of moral responsibility,
I respond, with Dewey, that science has an inherently critical capacity
in relation to values because it provides the check and testing ground
for ideas and beliefs. In this work I have applied science to test the
beliefs of legal and socio-legal theorists across the political spectrum.

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

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

III. EHRLICH’S THEORY OF LAW

“Ehrlich’s (1862-1922) thesis was that laws found in formal legal

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

A. Law Consists in the Inner Order of Associations.

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

“It is the function of juristic science, in the first place, to record the
trends of justice that are found in society, and to ascertain what they
17
Brian Z. Tamanaha, Realistic Social Theory, Oxford: Oxford University Press, 1997, pp. 246-255.
18
R.W.M. Dias, “Sociological Approaches,” Jurisprudence, 4th Edn., London, Butterworths: 1976, pp. 588-589.

373
are, whence they come, and whither they lead; but it cannot possibly
determine which of these is the only just one. In the forum of science,
they are all equally valid. What men consider just depends upon the
ideas they have concerning the ends of human endeavour in this world
of ours, but it is not the function of science to dictate the final end of
human endeavour on earth. That is the function of the founder of a
religion, of the preacher, of the prophet, of the preacher of ethics, of
the practical jurist, of the judge, of the politician. Science can be
concerned only with those things that are susceptible of scientific
demonstration. That a certain thing is just is no more scientifically
demonstrable that is the beauty of a Gothic cathedral or of a
Beethoven symphony to a person who is insensible to it. All of these
are questions of emotional life. Science can ascertain the effects of a
legal proposition, but it cannot make these effects appear either
desirable or loathsome to man. Justice is a social force, and it is
always a question whether it is potent enough to influence the
disinterested persons whose function it is to create juristic and statute
law.

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

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

“The sociology of law must begin with the ascertainment of the living
law. Its attention will be directed primarily to the concrete, not the
abstract. It is only the concrete that can be observed. What the
anatomist places under the microscope is not human tissue in the
abstract but a specific tissue of specific human being; the physiologist
likewise does not study the functions of the liver of mammals in the
abstract, but those of a specific liver of a specific mammal. Only when
he has completed the observation of the concrete does he ask whether
it is universally valid, and this fact, too, he endeavours to establish by
means of a series of concrete observations, for which he has to find
19
Eugen Ehrlich, “Principles of the Sociology of Law,” Lloyd’s Introduction to Jurisprudence, M.D.A. Freeman,
London: Sweet and Maxwell, Seventh Edn., 2001, p. 719.

374
specific methods. The same may be said of an investigator of law. He
must first concern himself with concrete usages, relations of
domination, legal relations, contracts, articles of association,
dispositions by last will and testament. It is not true, therefore, that
the investigation of the living law is concerned only with ‘customary
law’ or with ‘business usage.’ If one does any thinking at all when one
uses these words—which is not always the case—one will realize that
they do not refer to the concrete, but to that which has been
universalized. But only the concrete usages, the relations of
domination, the legal relations, the contracts, the articles of
association, the dispositions by last will and testament, yield the rules
according to which men regulate their conduct. And it is only on the
basis of these rules that the norms for decision that the courts apply
and the statutory provisions that alone have hitherto occupied the
attention of jurists arise. The great majority of judicial decisions are
based on concrete usages, relations of possession, contracts, articles
of association, and dispositions by last will and testament, that the
courts have found to exist. If we would comprehend the
universalizations, the reductions to unity, and the other methods of
finding forms that the judge and the lawgiver employ, we must first of
all know the basis upon which they were carried out. To this extent
Savigny was right when the said that the law—and by law he means
above all the legal proposition—can be understood only from its
historical connection; but the historical connection does not lie in the
hoary past, but in the present, out of which the legal proposition
grows.

But the scientific significance of the living law is not confined to its
influence upon the norms for decision which the courts apply or upon
the content of statutes. The knowledge of the living law has an
independent value, and this consists in the fact that it constitutes the
foundation of the legal order of human society. In order to acquire a
knowledge of this order we must know the usages, relations of
domination, legal relations, contracts, articles of association,
declarations by last will and testament, quite independently of the
question whether they have already found expression in a judicial
decision or in a statute or whether they will ever find it. The provisions
contained in the German Commercial Code regulating stock
exchanges, banks, publishing houses, and other supplementary
provisions were full of gaps when they were enacted and, for the most
part, have become antiquated. Modern commerce has meanwhile
created an enormous number of new forms, which ought to be the
subject matter of scientific study as well as those that have been
enumerated in the statute. Very much that is of genuine value can be
found on this point in the literature on the science of commerce that is
blossoming forth so abundantly. A part of the order in the sphere of
mining and navigation has been made accessible to legal science
through mining law, maritime law, and the law of inland navigation,
but for the most part this has long since become antiquated. The
factory, the bank, the railroad, the great landed estate, the labour

375
union, the association of employers, and a thousand other forms of life
—each of these likewise has an order, and this order has a legal side as
well as that of the mercantile establishment, which is being regulated
in detail only by the Commercial Code. In addition there are countless
forms in which the activity of these associations manifests itself
outwardly, above all the contracts. In studying the manufacturing
establishment, the legal investigator must pursue the countless
intricate paths that lead from the acceptance of the order to the
delivery of the finished products to the customer.” 20

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

1. The proof of the definition

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

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

There exist various organized associations in society; there are two comprehensive
classifications of these associations; there are three kinds of society in Europe
according to historical or chronological age, there are other non-European societies,
and various roles and duties of the members of these associations within society. In
any case, whatever the association or society, the law of society consists of the
inner order of these associations.

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

20
Id., pp. 719-720.
21
Eugen Ehrlich, “Law and the Inner Order of Associations,” The Nature of Law, edited by M.P. Golding (New
York: Random House, 1997), reprinted from Ehrlich, Fundamental Principles of the Sociology of Law (Cambridge,
Mass.: Harvard University Press, 1936), p. 200.
22
Id., p. 201.

376
“. . . The state, the nation, the community of states which are bound
together by ties of international law, i.e. the political, economic,
intellectual, and social association of the civilized nations of the earth
extending far beyond the bounds of the individual state and nation, the
religious communions and the individual churches, the various sects
and religious groups, the corporations, the classes, the professions, the
political parties within the state, the families in the narrowest and in
the widest sense, the social groups and cliques—this universe of
interlacing rings and intersecting circles—constitute a society to the
extent that acting and reacting upon another is at all perceptible
among them.”23

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

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

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

377
to those times, maintained its balance not by means of rules of law,
but by means of the inner order of its associations.” 26

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

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

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

“. . . Their law is chiefly the order of the clans, families, houses. It

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

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

“As soon as ownership of land becomes established, law arises

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

It is likewise true that the law of contracts is based on this inner order; more
exactly, it is based only on the contents of these contracts which have been
attested to, and there are no universal legal propositions which govern the
agreement. Therefore:
26
Id., pp. 203-204.
27
Id., p. 202.
28
Id., p. 203.
29
Id.

378
“In the primitive stage, the whole legal order consists in the inner order
of associations, of which, indeed, the state is one. Each association
creates this order for itself, even though it is true that an association
often copies an order existing in other associations, or in case of a
splitting up of an association, takes over an order and continues it.
Because of these facts, to which must be added the similarities caused
by the similarity of the relations, common features will not be lacking.
To an observer from the outside these common features might appear
to constitute a common law of the nation. But this is only a
generalization made by the observer himself on the basis of what he
has seen and heard. Tacitus makes a number of statements about the
legal relations of the ancient Germans, but a cursory glance at his
account suffices to show that it contains no legal propositions, but only
statements about what Germans customarily did and left undone.
Society, if one may use the term with reference to those times,
maintained its balance not by means of rules of la, but by means of the
inner order of its associations.” 30

c. European Law during Feudal Times

Ehrlich expanded his thesis by means of an explanation of European law during

feudal times. Once again, the law is not merely one kind of orderly association but
is the product of agreement.

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

Contemporary resolutions made by associations of feudal times “did not contain

legal propositions in the modern sense of the term. They are merely expressions of
the common will, and their legal significance is based upon the fact that they are
30
Id., pp. 203-204.
31
Id., pp. 204-205.

379
being accepted by the feudal lord, and thereby become collective agreements with
the feudal lord.”32

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

“But these legal propositions constitute an infinitesimal part of the

legal order. In the feudal state as well as elsewhere, the great bulk of
the legal order is not based upon the legal proposition, but upon the
inner order of the social associations, of the older ones (the clan, the
family, the house community), as well as of those of more recent origin
—the feudal association, the manor, the mark community, the urban
community, the guilds and trade unions, the corporations and
foundations. If one would obtain a knowledge of the law of mediaeval
society, one must not confine oneself to a study of the legal
propositions, but must study it in the deeds of grant, the charters, the
land registers, the records of the guilds, the city books, the regulations
of the guilds. Even at this period, the center of gravity of the law lies
in the inner order of the human associations.” 34

d. The Law of European Civilization at Present

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

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

“. . . On the other hand, the legal rules barely touch the surface of the
modern order of the family. The law of corporations and of foundations
is based in the main upon the articles of association. In spite of the
detailed provisions of the law of contracts, the content of the contract
is of greater importance in the law of inheritance than the rules of law
concerning it. Every judge, every administrative official, knows that,
comparatively speaking, he rarely renders a decision based solely on
legal propositions. By far the greatest number of decisions are based
upon documents, testimony of witnesses or experts, contracts, articles
32
Id., p. 205.
33
Id.
34
Id., pp. 205-206.

380
of association, last wills and testaments, and other declarations. In
other words, in the language of jurists, in a much greater number of
instances judgment is being rendered on questions of fact than upon
questions of law. And the fact is a matter of the inner order of the
human associations, as to which the judge obtains testimony from the
testimony of witnesses and experts, from contracts, agreements
among heirs, declarations by last will and testament. Even today, just
as in primitive times, the fate of man is determined to a much greater
extent by the inner order of the associations than by legal
propositions.”35

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

“. . . The state existed before the constitution, the family is older than
the order of the family, possession antedates ownership; there were
contracts before there were was a law of contracts; and even the
testament, where it is of native origin, is much older than the law of
last wills and testaments. If the jurists think that before a binding
contract was entered into, before a valid testament was made, there
must have been in existence a legal proposition according to which
agreements or testaments are binding, they are placing the abstract
before the concrete. Perhaps it seems more readily understandable to
a jurist that a legal proposition concerning the law of contracts or the
law of wills might be binding than that of a contract or will might be
binding without a legal proposition. But the mental processes of
nations and of men, excepting the jurists among them, do not function
in this fashion. It can be shown that the idea that prevailed among
men in the past was that their right had arisen from a contract or from
a grant; the idea that it had arisen from a legal proposition was
altogether foreign to them. And at the present time, unless legal
theory exerts its influence, men generally assume that their rights
arise not from legal propositions but from relations of man to man,
from marriage, contract, last will and testament. That anyone might
owe his rights to a legal proposition, is a notion that even today is
current only among jurists. Social phenomena, however, can be
explained not by construing them juristically but by inferring from facts
the modes of thought that underlie them.”36

e. The law of the non-European Nations

The same thing happens in law if the societies of the primitive races and the
undeveloped countries of the East, and in the Eastern and Southern parts of Europe
are considered. The “traditional order of the small association, of the household, of
the family, of the clan, is followed.”37
35
Id., pp. 206-207.
36
Id., pp. 207-208.
37
Id., p. 208.

381
The comprehensive, historical and sociological analysis reaches only one
conclusion:

“The inner order of associations of human beings is not only the

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

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

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

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

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

“A social association is a plurality of human beings who, in their

relations with one another, recognize certain rules of conduct as
binding, and, generally at least, actually regulate their conduct
according to them. These rules are of various kinds, and have various
names: rules of law, of morals, of religion, of ethical custom, of honor,
of decorum, of tact, of etiquette, of fashion. To these may be added
some of lesser importance, e.g. rules of games, the rule that one must
wait one’s turn, for instance at the ticket window or in the waiting
room of a busy physician. These rules are social facts, the resultants
of the forces that are operative in society, and can no more be
considered separate and apart from society, in which they are
operative, than the motion of the waves can be computed without
considering the element in which they move. As to form and content,
38
Id.
39
Id., p. 209.
40
Id.

382
they are norms, abstract commands and prohibitions, concerning the
social life within the association and directed to members of the
association. In addition to rules of conduct of this kind, there are rules
that are not norms because they do not refer to the social life of
human beings: e.g. the rules of language, of taste, or of hygiene.

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

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

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

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

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

“. . . By creating constitutional and administrative law, the state has

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

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

“As soon as state law has actually become part and parcel of everyday
life, and has exerted a moulding influence upon it, jurists will no longer
confine their attention to the words of the statute but will be
concerned with the forms of life that have come into being under its
influence. The universalizations which they arrive at in doing this, the
norms which they find, will, of course, be juristic law. This happened in
41
Id., pp. 209-210.
42
Id., p. 210.

383
Rome in the case of the Lex Falcidia and of the senatusconsultum
Velleianum, and has happened again and again since that time.
English commerce is regulated by the Statute of Frauds to such an
extent that the English were unwilling to change it although it is quite
antiquated, but took it over in apart almost verbatim into the Sales of
Goods Act of that year 1893. Inasmuch as the German testament is
derived from the Roman testament, the Lex Falcidia was received into
German law together with the latter, and has become a part of the
living German law no less than the testament. It is well known and
generally understood that the canon law prohibition against usury is in
exactly the same case. It has all the hall-marks of state-made law.
The church, which promulgated it, was an association partaking of the
nature of the state, and was, in this case, as the state is in other cases,
an agency of society for the purpose of creating law. Through its own
courts and through its influence upon the courts of the state, the
church was enabled to give effect to its law as readily as the state.” 43

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

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

“But the basic legal institutions, the various legal associations,

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

Hence, a more complete analysis of law is required, an analysis that is focused on

society and not at the law of the state. This cannot significantly prove or establish

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

384
that the actual state of the law does not conform to the legal norms that have been
promulgated or enacted by the state.

“In order to understand the actual state of the law we must institute an
investigation as to the contribution that is being made by society itself
as well as by state law, and also to the actual influence of the state
upon social law. We must know what kinds of marriages and families
exist in a country, what kinds of contracts are being entered into, what
their content is as a general rule, what kinds of declarations by last will
and testament are being drawn up, how all of these things ought to be
adjudged according to the law that is in force in the courts and other
tribunals, how they are actually being adjudged, and to what extent
these judgments, and other decisions are actually effective. An
investigation of this sort will reveal that although the legislation of two
different countries may be identical, e.g. of France and Roumania, the
law of one country may differ from that of the other; that in spite of the
fact that the courts and other tribunals of Bohemia, Dalmatia, and
Galicia apply the same code, the law of these countries is by no means
the same; and that because of the differences in the actual state of the
law, there is no uniform law even in the various parts of Germany in
spite of the Civil Code, quite apart from the particular divergences of
legislation.”46

B. Comments and Criticisms on the Theory of Ehrlich

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

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

It cannot be denied that the law actually complied with, followed, and made in
society comprises a valuable field of knowledge, it is only that it is more
appropriately an aspect of the sociology of law and not of legal theory. Apart from
these, I myself maintain that this sociological studies provide meaningful
understanding and comprehension towards a complete knowledge of positive law;
and, because of this, ought to constitute a valuable aspect of legal theory. That
being said, these two senses of law must be explained, that one may not be
46
Id., pp. 212-213.

385
confused with the other, and that the legal theorist has as his concerns the positive
law and not the law that is actually followed or complied with.

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

1. The Definition of Positive Law according to Ehrlich

Nonetheless, Ehrlich’s theory of law may be amended to create a legal theory that
may be said to explain or illuminate positive law. Under this interpretation, the law
that is made and applied by society is not considered the real or actual law but only
the source or origin of positive law. The true or actual positive law may be
explained as a legal rule in the meaning of Ehrlich or as a law that consists in the
inner order of associations. So long as the putative law does not manifest the rules
that are obeyed, complied with, and made in society, it may not become real or
actual law.

Thus, this may constitute a definition of positive law according to Ehrlich: “A

putative law is valid when it is a legal rule that is found in the inner order of human
associations.”

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

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

Nonetheless, the law like the traffic laws in the Philippines may be valid but not
effective. Practically no one, just as in the example, stops at a red light. However,
the non-compliance with this rule does not signify that the validity of that law has
been reduced rather than when it is followed. If not, consult the unlucky motorist

386
who has been caught beating a red light. He may argue with the policeman as
much as he likes but this does not mean that his arrest should be considered as
lacking in validity. On the other hand, a rule may be effective but not valid.

In totality, Ehrlich’s legal theory is placed in a dubious situation. It may be possible

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

IV. POUND’S SOCIAL ENGINEERING

A. The Programme of the Sociological School

According to Dean Roscoe Pound, the programme of the Sociological School

consisted of eight points:

“(1) Study of the actual social effects of legal institutions, legal

precepts and legal doctrines.
(2) Sociological study in preparation for law-making.
(3) Study of the means of making legal precepts effective in action.
(4) Study of juridical method.
(5) A sociological legal history; study of the social background and
social effects of legal institutions, legal precepts, and legal
doctrine, and of how these effects have been brought about.
(6) Recognition of the importance of individualized application of
legal precepts—of reasonable and just solutions to individual
cases.
(7) In English speaking countries, a Ministry of Justice.
(8) That the end of juristic study, toward which the foregoing are but
some of the means, is to make effort more effective in achieving
the purposes of the law.”47

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

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

“At the end of the last and the beginning of the present century, a new
way of thinking grew up. Jurists began to think in terms of human
wants or desires or expectations rather than of human wills. They
began to think that what they had to do was not simply to equalize or
harmonize wills, but, if not to equalize, at least to harmonize the
47
Roscoe Pound, “Outlines of Jurisprudence,” 5th edn., 1943, in M.D.A. Freeman, Lloyd’s Introduction to
Jurisprudence, London: Sweet and Maxwell, Seventh Edn., 2001, p. 723.

387
satisfaction of wants. They began to weigh or balance and reconcile
claims or wants or desires or expectations, as formerly they had
balanced or reconciled wills. They began to think of the end of law, not
as a maximum of self-assertion, but as a maximum satisfaction of
wants. Hence for a time they thought of the problems of ethics, of
jurisprudence, and of politics as chiefly one of valuing; as a problem of
finding criteria of the relative value of interests. In jurisprudence and
politics they saw that we must add practical problems of the possibility
of making interest effective through governmental action, judicial or
administrative. But the first question was one of the wants to be
recognized—of the interests to be recognized and secured. Having
inventoried the wants or claims or interests which are asserting and for
which are asserting and for which legal security is sought, we were to
value them, select those to be recognized, determined the limits within
which they were to be given effect in view of other recognized
interests, and ascertain how far we might give them effect by law in
view of the inherent limitations upon effective legal action. This mode
of thinking may be seen, concealed under different terminologies, in
more than one type of jurist.

Three elements contributed to shift the basis of theories as to the end

of law from wills to wants, from a reconciling or harmonizing of wills to
a reconciling or harmonizing of wants. The most important part was
played by psychology which undermined the foundation of the m eta-
physical will philosophy of law. Through the movement for unification
of the social sciences, economics also played an important part,
especially indirectly through the attempts at economic interpretation
of legal history, reinforcing psychology by showing the extent to which
law had been shaped by the pressure of economic wants. Also the
differentiation of society, involved in industrial organization, was no
mean factor when classes came to exist in which claims to a minimum
human existence, under the standards of the given civilization,
became more pressing than claims to self-assertion. Attention was
turned from the nature of law to its purpose, and a functional attitude,
a tendency to measure legal rules and doctrines and institutions by the
extent to which they further or achieved the ends for which law exists,
began to replace the older method of judging law by criteria drawn
from itself. In this respect the thought of the present is more like that
of the seventeenth and eighteenth centuries than that of the
nineteenth century. French writers have described this phenomenon
as a ‘revival of juridical idealism.’ But in truth the social utilitarianism
of today and the natural-law philosophy of the seventeenth and
eighteenth centuries have only this in common: Each has its attention
fixed upon phenomena of growth: each seeks to direct and further
conscious improvement of the law.”48

Pound likened the tasks of the lawyer to engineering. The aim of social engineering
is to build as efficient a structure of society as possible, which requires the
48
Roscoe Pound, “Philosophy of Law,” rev. ed., in M.D.A. Freeman, Lloyd’s Introduction to Jurisprudence,
London: Sweet and Maxwell, Seventh Edn., 2001, p. 721.

388
satisfaction of the maximum of wants with the minimum of friction and waste. 49 In
other words, law, to him, is an ordering of conduct so as to make the goods of
existence and the means of satisfying claims go round as far as possible with the
least friction and waste. Pound regards these claims as interests which exist
independently of the law and which are ‘pressing for recognition and security’. To a
theory of interests thus I now turn.

C. A Theory of Interests

Pound developed a theory of interests.

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

For the present purpose an interest may be defined as a demand or a

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

Pound continued first by specifying the necessary ingredients for determining the
scope and subject matter of a legal system, which consists of interests, by
49
Roscoe Pound, Social Control Through Law, p. 65.
50
Roscoe Pound, Jurisprudence, vol. III, St. Paul, Minn.: West Publishing Co., 1959, pp.16-17.

389
classifying those interests into three, individual, public, and social, and finally by
making a reasoned inventory of these interests.

“We begin, then, with the proposition that the law does not create
these interests. It finds them pressing for recognition and security.
First, a legal system classifies them and recognizes a larger or smaller
number. Second it fixes the limits within which it endeavors to secure
the interests so selected. These limits may be fixed in view of other
interests which are also recognized, either directly or indirectly by the
limitations imposed on directly recognized interests. Or the limits may
be fixed in view of the possibilities of effectively securing them through
the judicial or administrative processes. Third, a legal system works
out means by which the interests may be secured when recognized
and delimited. It prescribes canons of values for determining what
interests to recognize, for fixing the limits of securing recognized
interests, and for judging the weight to be accorded in any given case
to the practical limitations on effective legal action.

Hence in determining the scope and subject matter of a legal system

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

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

390
It is convenient to treat them as the claims of a politically organized
society thought of as a legal entity. Social interests are claims or
demands or desires, even some of the foregoing in other aspects,
thought of in terms of social life and generalized as claims of the social
group. They are the claims which are involved in the maintenance, the
activity and the functioning of society; the wider demands or desires
asserted in title of social life and looked at from the standpoint of
social life in civilized society.

Every claim does not necessarily go once and for all in one of
these categories exclusively. The same claim may be asserted
in different titles and may have to be looked at from different
standpoints. It may be asserted in title of more than one aspect
of life. Thus my claim to my watch may be asserted as an
individual interest of substance when I sue some one who walks
off with it without my consent, either to recover possession of it
or to obtain its money value as damages for depriving me of it.
But my claim may be looked at also as subsumed under a social
interest in the security of acquisitions and may be asserted as
such when I, by making due complaint, procure the public
prosecutor to prosecute for larceny some one who has stolen it
from me.

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

1. The Kinds of Interests

a. Individual Interests

The classification of individual interests may be done as follows:

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

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

i. Interests of personality

The interests of personality may in turn be classified thusly:

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

391
“What then are the claims or demands which the individual makes or
may make which jurist and lawmaker must consider and provide for?
One might seek to ascertain them logically by inquiring what claims,
demands, desires are logically presupposed by or involved in the
individual existence in civilized society. He might seek to formulate
the jural postulates of the civilization of the time and place as a
measure of interests to be recognized and secured. Or he might seek
to ascertain them psychologically by considering the so-called instincts
or fundamental behavior tendencies of men and the claims, demands,
desires which they involve. Or he might attempt no more than to
catalogue and classify the claims, demands, desires which they
involve. Or he might attempt no more than to catalogue and classify
the claims, demands, desires, which he finds men actually asserting;
the claims that have pressed or are pressing for recognition. What I
seek to do is to generalize the claims or demands which the law, past
or present, has had to take account of or has been seeking to secure
and those which may be seen pressing for recognition or for more
complete recognition in the immediate present. It is convenient to
take them up under five heads: (1) The physical person, (2) freedom of
the will, (3) honor and reputation, (4) privacy and sensibilities, and (5)
belief and opinion.

(1) The physical person. Inviolability of the physical person is

universally put first among the demands made by the individual. This
interest, called by Paulsen the interest in body and life, includes the so-
called rights of physical integrity and of personal liberty (or as Spencer
calls free motion and locomotion) better called the right of free choice
of location. The latter has to do both with integrity of the physical
person and with freedom of the individual will. Passing for the moment
consideration of the limits within which this interest must be kept when
recognized by the law, three questions arise: (1) What is the extent of
the interest as an individual interest; that is, what, as indicated by
experience, do individuals demand in this connection which, therefore,
is to have a place in the scheme of recognized interests? (2) How far
has the interest been recognized by developed systems in the past and
how has legal recognition of this interest developed? (3) How far is
this interest secured by law today?

As to extent, the first and most obvious claim is to immunity of the

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

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

...

While an interest infringed by injury to the body is recognized at an

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

...

Where the injury is to mental comfort only, the practical difficulties are
much greater. Hence the law can recognize an ‘interest in the peace
and comfort of one’s thoughts and emotions’ only to a limited extent.
An objective standard is required here by the social interest in free

393
individual action and the social interest in the general security as one
against imposture and use of the legal system to extort with which the
social interest in the individual life (under which the individual interest
is to be subsumed for purposes of comparison) must be weighed.
Accordingly, the tendency of the law is to secure an interest in mental
comfort only to the extent of ordinary sensibilities of ordinary men, and
then only when the mental suffering is caused by and involved in the
infringement of some other interest. Here, again, the law does not
secure the whole demand which the individual may make, but it does
secure the interest in case of ordinary sensibilities against a wanton
attack or where there is objective injury. Thus, no doubt, it secures the
interest in the general run of cases for the average man. No more may
well be attempted as the possibilities of proof are at present and in
view of the applicability to such injuries of the means of redress known
to our law.

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

...

(3) Honor, reputation. What might be called inviolability of the spiritual

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

In determining the nature and extent of the individual interest in honor

it is important to distinguish this interest from the individual interest in
reputation as a part of one’s substance or, in other words, as an asset.
Lord Holt, in an action for malicious prosecution, said that one might
maintain such an action for any of three sorts of damage: (1) ‘damage

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to the fame [i.e. reputation], if the matter whereby he is accused be
scandalous;’ (2) injury to his person by imprisonment; and (3) injury to
his property by putting him to cost and expense unlawfully. The
second is obviously an infringement of an interest of personality. The
first may involve personality or substance or both. . . .

...

(4) Privacy. Another phase of the individual interest of personality is

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

Another interest, closely connected, is one in religious sensibilities, not

to have them needlessly affronted or wounded. The social interest in
the general morals is also involved here and it is usually secured by
prosecution to vindicate the social interest. In a striking case where
the claim was that the plaintiffs, who were Mohammedans were
wrongfully deprived of ‘the religious or sentimental gratification’ of
carrying tabuts (representations of the shrine of Husain) along a road,
a civil action was denied.

A man’s feelings are as much a part of his personality as his limbs.

The actions that protect the latter from injury may well be made to
protect the former by the ordinary process of legal growth. The

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problems are rather to devise suitable redress and to limit the right in
view of other interests involved.

Extent of protection of the interest in body and life and related

interests. The interest in body and life is not only the first to receive
the protection of the law, but it is, on the whole, the interest with
respect to which individual demands are the most insistent and the
social interest under which they may be subsumed is the most
obvious. Yet the law, as has been seen, does not cover the whole field
of this interest. It does not secure all the demands with respect to
physical and mental integrity which the individual may make. The
reasons are of two kinds. On the one hand they are historical, growing
out of the mode in which the law on this subject has developed, and in
particular out of the procedure and the remedies worked out to give it
effect. For example, the hesitation of the common-law courts as to
immunity of the mind and the nervous system from injury was largely
due to the exigencies of our mode of trial by jury and our remedy for
damages. Some development of such a remedy as that afforded by
the action for honorable amends in the civil law and resort to specific
relief where possible, as is done in Continental Europe, would enable
the legal system to extend the scope of its protection of this interest.
But the most effective remedy in this connection is prevention. The
backwardness of preventive justice in American law has been a grave
defect. In connection with interests of personality, where redress by
way of damages is often obviously inadequate, the long continued
hesitation of our law to apply preventive remedies was unfortunate
and without just excuse. In the present generation much has been
gained in this respect. The old doctrine that equity would act only to
protect interests of substance has been given up. The reason for that
doctrine was to be found largely in the unsatisfactory mode of trial in
equity which lasted in the federal courts till 1913 and was general until
the last third of the nineteenth century.

...

(5) Belief and Opinion. As an individual interest, the claim of the

individual to believe what his own reason and conscience dictate and
approve, and to express freely the opinions involved in such belief is
closely connected with the interest in body and life. With good reason
Spencer deduces it as a sort of free mental motion and locomotion.
But it must be looked at in connection with a social interest in free
belief and free expression of opinion as guaranteeing political
efficiency and promoting general progress, economic, political, and
cultural. Except as interference with free belief and free expression of
opinion takes the form of interference with the physical person, the
subject is better treated from the standpoint of social interest. In our
bills of rights, however, individual free speech is always guaranteed as
an individual natural right. In other words, we have been accustomed
to treat it from the standpoint of the individual interest. Undoubtedly
there is such an interest and there is the same social need of securing

396
it as of securing other interests of personality. The individual will fight
for his beliefs no less than for his life and limb and for his honor.
Hence the social interest in the general security is involved in
interference with the former as well as in interference with the two
latter. Moreover, free exercise of one’s mental and spiritual faculties is
a large part of life. As civilization proceeds it may become the largest
part. No one who is restrained in this respect may be said to live a full
moral and social life. Thus the social interest in the moral and social
life of the individual is also involved.”53

ii. Domestic Relations

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

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

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

In the present connection we have to do only with the individual

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

Accordingly, two elements must be taken into account in securing

interests in domestic relations. On the one hand, there is the
individual spiritual existence. From the beginning the social interest in
the general security has required that the law secure adequately this
53
Id., pp. 30-64.

397
feature of these relations, since injuries to them touch men on their
most sensitive side, and no injuries are more certain to provoke self-
redress and even private war. With the development of civilization,
the social interest in individual life, the claim of the individual to a
social existence as a human being, reinforces this requirement. On the
other hand, there is the individual economic existence in which the
purely economic side of such relations may be of great importance.
Here, sometimes, along with the social interest in the individual life,
the social interest in the relations as social institutions may require
careful securing of the purely economic advantages. An example may
be seen in legal provisions for support of dependent wives and
children. At other times the social interest in the individual life may
demand that the individual economic advantages of one of the parties
to the relation be less regarded. For example, in a weighing of marital
interests with the individual interests of the wife, it may be expedient
to leave the purely economic claim of the husband unsecured as
against the wife or secured but partially.

2. Development of Securing Individual Interests in Domestic Relations.

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

3. Interests of Parent and Child. There are four types of individual

interests in the domestic relations which the law is called upon to
secure. These are: (1) Interests of parents, demands which the
individual may make growing out of the parental relation; (2) interests
of children, demands which the individual may make growing out of
the parental relation; (3) interests of husbands, demands which the
individual husband may make growing out of the marital relation; and
(4) interests of wives, demands which the individual wife may make
growing out of the marriage relation. Wigmore, in the best analytical
discussion of the subject which has appeared, states the interests of
parents as against the world at large thus:

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

Restating these to conform to the order in which other interests have

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

...

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

...

As against the world at large a child has an interest in the relation

because of the support he may expect by virtue thereof while an infant

399
or, after majority, because circumstances precluding self-support
render it improper or impossible for him to be left to himself. Also he
has an interest in the society and affection of his parent, at least while
he remains in the household. But the law has done little to secure
those interests. At common law there were no legal rights securing
them. In case the parent is killed through the wrongful act of another,
the legislation which goes by the name of Lord Campbell’s Act usually
takes account directly of the interest of the independent children. Also
in many jurisdictions the ‘civil damage acts,’ which create liability for
sale of intoxicating liquor to a parent whereby through intoxication the
parent is killed or disabled or rendered incompetent to provide, secure
immediately the interest of the child in the relation which involves
support and protection.

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

...

4. Marital Interests. As against the world at large, the claims which the
husband may assert with respect to the marital relation are four. (1)
He has an interest in the society of his wife which may be infringed by
abducting her, by enticing her away, or by so injuring her as to deprive
the husband of her companionship. While this interest is not entirely
separable from that in the economic advantage in the relation, it is, on
the whole, more nearly an interest of personality. (2) He has an
interest in the affection of the wife which may be infringed by
persuasion or pressure addressed to her mind and will. This interest
also is intimately connected with his spiritual existence and mental
comfort as to be in effect an interest of personality. (3) He has an
interest in the chastity of the wife, which is so related to his feelings of
self-respect and to his honor as to be in effect an interest of
personality. (4) He has an interest in the services of the wife in the
household. Perhaps it would be better to call this an interest in the
relation as economically advantageous. Obviously it is in effect an

400
interest of substance. All four of these interests are secured at
common law by legal rights redressed by an action on the case. The
first and fourth are not very clearly differentiated. In either event the
deprivation of the wife’s services is often spoken of as the significant
thing. Yet in an old case the judges spoke of the action as brought ‘for
the loss and damage of the husband for want of her company and aid.’
And although under modern statutes the wife’s time and earnings may
be her own and there may be no valuable right to her services, the
husband may maintain an action for an injury to the wife which
deprives him of her companionship. In effect, therefore, the action
may be for loss of consortium without any loss of service. It is clear
also that there is at common law a cause action where the wife’s
affections are alienated without more, and in this action for alienation
of affections and even more in the action for criminal conversation with
the plaintiff’s wife, which secures the husband’s interest in the chastity
of the wife, the essential point is the injury to honor and ‘domestic
comfort’ of the husband. So far, then, as interest that have to do with
personality may be protected through actions for money damages, the
common law covers the whole field of the husband’s interests in this
relation. The defect of specific and preventive remedies already noted
in the case of interests of personality, obtains here also. But there is
more excuse in the present connection in that anything in the nature
of specific relief would be futile in the general run of cases and usually
preventive relief would be impossible. It is seldom that danger of
injury to this relation is apprehended before the injury is complete and
the acts which threaten injury are likely to be too subtle and intangible
to permit of judicial interference in advance.

...

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

401
Today the husband’s interest in the wife’s society has no security
beyond morals and the opinion of the community.

...

A second interest of the husband as against the wife is a claim to the

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

A third interest may be suggested, not unlike the claim of ascendants

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

...

A wife may assert against the world at large four claims growing out of
the marital relation. (1) She has an interest in the society of her
husband, quite apart from an economic advantage, as something so
related to her spiritual existence as to be in effect an interest of
personality. (2) She has an interest in the affection of the husband, in
all respects analogous to the interest of the husband in the affection of
the wife, which is clearly an interest in personality. (3) She has an
interest in the chastity and constancy of the husband, involving her
self-respect and honor, and hence obviously an interest of personality.
(4) She has an interest in the relation as an economically
advantageous relation, providing her with support and shelter, which is
manifestly an interest in substance. These interests, however, are not
all of them recognized to their full extent and are not fully secured
even in legal theory. As in the case of interests of the husband, the
first and fourth are often closely connected in practice and have not
been well differentiated. The clearest recognition is to be seen in
cases where the husband is enticed or induced to abandon the wife or

402
divert his earnings which should be devoted to her support. Where
these interests are infringed by physical injury to the husband or by
abduction of the husband, a difficulty arises in that the husband has an
action in which he may recover for diminution of his earning power,
loss of earnings, and impairment of his ability to support those
dependent upon him. The same question arises in case of like
interests of children. The reason for not securing the interest of wife or
child in these cases seems to be that our modes of trial are such and
our mode of assessment of damages by the verdict of a jury is
necessarily so crude that if husband and wife were each allowed to
sue, instead of each recovering an exact reparation, each would be
pretty sure to recover what would repair the injury to both. Moreover,
the injury to wife or child is very hard to measure in money. Hence on
a practical weighing of interests the wife is usually denied an action.

...

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

...

As against the husband, the claims of the wife growing out of the
marital relation are two: (1) A claim to the society and affection of the
husband, and (2) a claim to support. As to the first, it need not be said
that no legal sanctions can control human affections. The interest in
society of the husband was formerly secured by a suit of the restitution
of conjugal rights. But this has everywhere become obsolete or has
lost its efficacy for reasons considered in connection with the
corresponding interest of the husband. On the other hand, the interest
in support is fully recognized and thoroughly secured by proceedings in
equity for maintenance, by the legal doctrine that the husband’s credit
is pledged for necessaries to the wife, so that if he fails in his duty any
one may provide them and hold the husband therefore, by orders of
support under modern statutes, especially in domestic relations courts
in the United States and in summary proceedings before magistrates
of England, and by criminal prosecutions for non-support which,
however, primarily secure a social interest. Moreover, as the Married
Woman’s Acts, giving the wife full control of her separate property do

403
not affect the common-law duty of the husband to support his wife, a
wife who has supported herself out of her earnings can sue her
husband for restitution.

Reviewing the whole subject of individual interest in domestic

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

iii. Substance

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

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

claims with respect to one’s personality, physical and spiritual, and
(second) individual claims with respect to the family relation, we come
(third) to individual claims asserted in title of economic life—interests
of substance. The economic life of the individual in society, as we
know it, involves four kinds of claims. Under one head come claims to
the control of corporeal things, the natural media on which human
existence depends—claims to property in the narrower sense. A
second head includes claims to freedom of industry and contract;
liberty to engage in enterprises, take up callings, and undertake
employment, and to make and enforce bargains. A second head
includes claims to freedom of industry and contract; liberty to engage
in enterprises, taking up callings, and undertake employment, and to
make and enforce bargains. The liberty is claimed as an individual
asset, apart from the free exercise of one’s natural faculties as a phase
of personality, since in a highly organized economic society the
54
Id., pp. 68-101.

404
general existence may depend to a large extent upon individual labor
in specialized occupations and so the power to labor freely at one’s
chosen occupation may be his chief asset. Yet this power is very
closely related to personality, as shown, this power is very closely
related to personality, as shown, for example, by the difficulties
encountered by equity in enforcement of contracts of personal service.
The power of working for reward may involve infringement of liberty if
treated as property. Thus this interest raises different questions from
those raised by the claim to control corporeal things. For example,
even if all corporeal things were excluded from individual control and
held to be exclusively, as it were, social assets, there would remain a
question whether all individual control over individual productive
activity should be excluded and all individual potential labor should be
treated as no more than a social asset. Third, there are claims to
promised advantages; to promised performances of pecuniary value,
since in a complex economic order, with minute division of labor and
enterprises extending over long periods, credit more and more
replaces corporeal things as the medium of exchange and agency of
commercial activity, and becomes an increasingly important form of
wealth. Promised advantages are commonly called incorporeal
property. Fourth, there are claims to be secured against interference
by outsiders with economically advantageous relations with others,
whether contractual, social, business, official, or domestic. Not only do
relations which have an economic value involve claims against the
other party to the relation, which one may demand that the law
secure, but they also involve claims against the world at large that
these advantageous relations, which form an important part of the
substance of the individual, shall not be interfered with. Legal
recognition of these four types of individual claims, securing of
individual interests of substance, is at the foundation of our economic
organization of society.

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

405
property and contract are the two subjects about which philosophy of
law has had the most to say.

2. PROPERTY. We begin with the claims of the individual to control

what he discovers and reduces to his power, what he creates by his
own labor, physical or mental, and what he acquires under the
prevailing social, economic, or legal system by exchange, purchase,
gift, or succession. The first or second have always been spoken of as
giving a ‘natural’ title to property. Thus the Romans spoke of them as
modes of ‘natural acquisition’ by occupation, or by specification, that
is, making a species—creation. Indeed, taking possession of what one
discovers is so in accord with a fundamental human behavior tendency
that discovery and occupation have stood in the books ever since
substantially as the Romans stated them. A striking example of the
extent to which this doctrine responds to deep-seated human
tendencies is afforded by the customs as to discovery of minerals upon
the public domain upon which American mining law is founded and by
the custom of the whale fishery as to fast-fish and loose-fish which
were given effect by the courts. But there is a difficulty in the case of
creation or specification in that, except where the creature is mental
only, materials must be used, and the materials or tools employed may
be another’s or the time may have been let to another. Hence Grotius
reduced creation by labor to occupation, since if one made from what
he had discovered the materials were his by occupation, and, if not,
the title of the other to the materials was decisive. In modern times
the claim of one who creates by labor has been urged once more by a
long line of writers beginning with Locke and culminating in the
socialist writers of the nineteenth century. The Romans spoke of what
one acquired under the prevailing social, economic, or legal system as
held by ‘civil’ acquisition, and the precept suum cuique tribuere
secured the thing so acquired as one’s own.

...

Theories by which men have sought to give a rational account of

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

...

To summarize, we now have in legal systems:

406
(1) Custody (natural possession)—a conception of pure fact, not in any
degree dependent upon law. The law secures the physical person of
the one who has custody, not the relation to the thing.

(2) Possession (juristic possession)—a conception of fact and law,

existing as a pure relation of fact independent of legal origin but
protected and maintained by law.

(3) Ownership—a purely legal conception, having its origin in and

depending on the law. Who is in possession is chiefly a question of
fact. Who is owner (certain facts being ascertained) is purely a
question of law.

(4) Iura in re aliena, limited real rights—rights of definite persons, of a

limited and defined nature with respect to property which usually is
owned by others but in which, according to recent codes and to some
extent in our law, they may have for the time being other proprietary
rights also.

In general, historical development of the law of property follows the

line thus indicated by analysis. In the most primitive social control,
nothing more than natural possession is recognized, and interference
with natural possession is not distinguished from interference with the
person or injury to the honor of the person whose physical contact with
the physical object is meddled with. In the earlier legal social control
the all important thing in the development of proprietary rights is
seisin or possession, that is, actual enjoyment of an object claiming to
control it as one’s own. This is analytically a juristic possession, a
conception of both fact and of law, but primarily a bare relation of fact,
independent of legal origin. Such things in the common law as our
treating one in adverse possession as an owner in fee against all the
world but the true owner, and tortious conveyance by the person
seised are common in an early stage of legal development. They show
that the law secured primarily the relation to an object of one who had
possession and protection of possession by interdicts is later than
dominium. But there is evidence of an older idea analogous to seisin
out of which dominium is developed. The ideal of dominium or
ownership as we now understand it was first worked out thoroughly in
Roman law and modern legal systems got their own conception of it,
as distinguished from seisin, from the Roman books.

...

Succession and testamentary disposition. Closely connected with the

so-called natural right of property are the so-called natural rights of
succession to property and of testamentary disposition. One American
state court asserted that the ‘right to take property by inheritance or
by will is a natural right protected by the Constitution which cannot be
wholly taken away or substantially impaired by the legislature. More
usually the natural right is put as a right to dispose of one’s property

407
by will. That idea has been much urged by nineteenth-century writers
on the philosophy of law. Most of them have recognized a right of free
gift and bequest and have deduced it from the very idea of property.
Let us look first at the supposed natural right of succession or natural
right of inheritance.

...

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

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

We must concede that there are such individual interests in following

any rightful (i.e. not socially objectionable) calling in which the
individual may secure a competence and in freedom to make such
bargains as he may. They are his claim to free exercise of his faculties
looked at from an economic standpoint. But there are very important
social interests to be taken into account with each of these. The first,
the right to pursue a lawful calling, was often asserted in an extreme
form, and it was carried so far in some jurisdictions as to suggest
throwing down all bars to the learned professions and inviting every
one to experiment and try his hand freely to see what he could
accomplish at the expense of the public. In the New York cases of the
last century, freedom to pursue a calling was secured even to the
extent of serviously interfering with sanitary laws in cities. In the same
way, liberty of contract as a natural right was carried to an extreme by
American courts in the last quarter of the nineteenth century.
However, between 1906 and 1916 an entire change of opinion took
place with respect to the importance of these rights. It was seen that
the social interest in the general security was to be maintained by
supervision of the professions and of callings which have special social
importance and that other aspects of the social interest in the
individual life are to be secured by limitations upon the contracts which
the individual may make.

...

408
4. PROMISED ADVANTAGES. In a developed economic order the claim
to promised advantages is one of the most important of the individual
interests that press for recognition. If it is a task of the legal order to
secure reasonable individual expectations so far as they may be
harmonized with the least friction and waste, in an economic order
those arising from promises have a chief place. Credit is a principal
form of wealth. It is a presupposition of the whole economic order that
promises will be kept. Indeed the matter goes deeper. The social
order rests upon stability and predictability of conduct, of which
keeping promises is a large item. From the Greek philosophers of
social control who recognized this stability and predictability if conduct
as fundamental the morally binding force of a promise has been a
starting point in systems of ideal or natural law. As Strykius put it, in
arguing as to the basis of politically organized society, “Agreements
are to be kept . . . this maxim has proceeded from the mouth of God,
and for that reason God is bound by a pact, and the devil and the
prince, and there is no greater justice than to observe pacts.’ But the
law has been slow in coming toward this demand of the economic
order, and Anglo-American law has not yet fully secured individual
interests in promised advantages to the extent of the jural postulate of
the economic order. The reason is historical. Moreover, philosophical
discussion has been largely influenced by the condition of the law as
determined by history and hence has been directed more to
justification of fallings short of what the jural postulate calls for or what
a weighing of the interest with reference to conflicting or overlapping
interests demands.

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

...

To repeat, then, it is submitted that from the standpoint of the

interests to be taken into account we have on the one hand (1) the
individual interest of the promise to be secured in the expectation
created which has become part of his substance, and (2) the social

409
interest in the stability of promises as a social and economic institution
—the social interest in the security of transactions which is a phase of
the social interest in the general security. On the other hand, there
are individual interests of personality of the promisor, e.g. in case of
specific enforcement of contracts for personal service of a confining
nature or under the supervision of the promise as to details, or where
enforcement involves interference with privacy or personal liberty,
which are ultimately referable to the social interest in the individual
life. Also the social interest in the individual life must be taken into
account in cases of economic inequality, as in recent labor legislation,
the social interest in the general morals in certain agreements against
public policy, and the social interest in the general security where
danger of fraud or imposition by false evidence has to be guarded
against. But restriction of enforcement of promises has grown much
more out of the history of the subject than out of a weighing of those
interests.

The history of the law of contract shows a gradual progress toward

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

...

5. ADVANTAGEOUS RELATIONS WITH OTHERS. Not only do various

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

410
action for depriving one wrongfully of the profits or emoluments of
public office. But strong interests, both social and public, must be
taken into account. The later cases have settled that this power of
removal after investigation may be given to executive officials or
boards. The idea of property in a public office must be at least much
modified.

...

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

the so-called natural right of association, the interest of the individual
in associating himself with others in such undertakings, enterprises,
and organizations for collective action as he sees fit. Partly this is an
interest of personality, a phase of his interest in personal liberty.
Largely today it is an interest of substance in that such associations
have an economic advantage and the power to enter into them and to
be secured in membership in them is economically valuable. But there
are strong public and social interests to be weighed in connection with
this individual interest. First, there is often danger to the state, to the
personality of the political organization of society, in such associations.
For this reason the law has always been jealous of them. Second, the
power of collective action is so great that such associations, even when
not politically active (as they tend to be or to become) may have an
anti-social operation in whole or in part. Probably nothing is more
difficult in modern legislation than to strike a proper balance in this
connection. In order to set up and maintain a legal order politically
organized society had a long struggle with kin-organizations and
religious organizations. Hence the law began in an attitude of hostility
to all associations. The Roman law forbade any but certain trade
guilds, religious cults, charitable societies, and partnerships. In the
common law there was long a settled attitude of suspicion reflected in
the doctrine that every corporation had a visitor and in the doctrine as
to conspiracy. Industrial development has led to stringent legislative
forbidding or regulation as to some types of organization (e.g. trusts
and cartels) and to increasing and today substantially complete
liberality as to others (e.g. trade unions) with no settled or wholly
consistent theory of policy as to associations generally.

...

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

claim, much asserted of late, that it is the moral or political duty of the
state to guarantee or provide employment. What is to be considered
under individual interests is the demand that permanence and security
in the relation of employer and employee be guaranteed to the
employee as against ‘unfair labor practices.’ In effect, there has long
been a continually more insistent claim of a vested right of an
employee in his job. Employment in industry has ceased to be a
matter of an ordinary contract between employer and employee. The
National Labor Relations Act guarantees to employees ‘the right to

411
self-organization, to form, to join, or assist labor organizations, to
bargain collectively, through representatives of their own choosing,
and to engage in concerted activities for the purpose of collecting
bargaining or other mutual aid and protection.’ It defines as ‘unfair
labor practices’ (1) interference, restraint or coercion of employees in
the exercise of guaranteed rights, (2) dominating or interfering with
the formation or administration of any labor organization, (3)
discrimination as to hire or tenure of employment or any term or
condition of employment to encourage or discourage membership in
any labor organization, (4) discharge of or discrimination against an
employee for filing charges or giving testimony under the act, and (5)
refusal to bargain collectively with representatives of the employees.
Accordingly there is not, as at common law, an action for damages for
breach of contract in case of discharge without legitimate cause, nor is
there an employment at will, from which there could be a discharge at
pleasure of the employer. The employee can have the benefit of a
fully protected collective agreement and on the expiration of that
agreement can require a new bargain, likewise fully protected, and is
secured as to tenure and against discrimination in that the employer
may be ordered to reinstate him with back pay. There has been like
legislation in a number of states. As to employees in industry, so far as
within the purview of federal legislation, security of tenure in
employment is now well provided for. Security and opportunity in
obtaining employment where the relation has not therefore existed is
provided for only to the extent of making refusal to hire in order to
discourage membership in a labor organization an unfair labor
practice. The further question of discrimination and unfair practices
whereby an individual is prevented from obtaining employment has
been considered in another connection. These are relatively newly
urged interests. Recognition of them is very recent and it is likely to
be a long time before experience will have shown how to adjust them
to other conflicting and overlapping interests and develop a just body
of law consistently fitting into the legal system as a whole.” 55

b. Public Interests.

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

Ҥ92. PUBLIC INTERESTS. A second great class of interests which a

legal system has to secure as it may is public interests, i.e. the claims
asserted in title of a politically organized society; as one might say for
convenience, the claims of the state, the political organization of
society—as Bluntshli puts it, the politisch organisierte Volksperson.
Ultimately these come down to a social interest in the security of social
institutions, of which political institutions in the world of today have
taken the first place. But the very existence of a political organized
society involves certain claims or demands which may conveniently be
thought of as those of the political organization as such; certain
demands involved in its existence and efficient functioning and de
55
Id., pp. 101-235.

412
facto asserted by those who wield political power under the
organization. The law has long taken account of them as such.

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

1. Interests of the state as a juristic person.

(a) Personality—the integrity, freedom of action, honor or dignity of the

state personally, as we may regard it for juristic purposes.

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

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

ii. Efficient functioning of the machinery of government, recognized

and secured in the common law as to misdemeanors.

iii. The dignity of the political organization of society, recognized and

secured by certain privileges which are considered below.

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

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

2. Interests of the state as guardian of social interests. What these

social interests are will be considered in another connection.

1. Interests of the state as a juristic person. No small part of

international law is taken up with the interests of states which
international law should secure against infringement of other states.
Thus it has usually been said that the absolute or natural rights of
states, meaning the interests which it is held should be secured are:
(1) The right of self-preservation and independence. This is analogous
to the so-called natural rights of physical integrity and personal liberty
ascribed to the individual. It is analogous to an individual interest in
personality. (2) The right of exclusive legislation and jurisdiction within
its territory. This, too, is an interest of personality. It is an interest
akin to the interest of the individual in being allowed to manage his
own affairs freely. Juristically, it is secured as a liberty. Just as in
private law we have to consider along with the liberty of using (ius
utendi) of an owner of property the like interests of other individuals,
subsume then under social interests, and endeavor to value and
compare them, so in international law we have to balance against this
claim of a state to exclusive legislation and jurisdiction within its own
territory the interests of other nations and endeavor to weigh and
value them as those of the community of nations. This may at times
justify interference with the internal concerns of a state which, for
example, fails to secure adequately the lives or the property of

413
foreigners. (3) Rights of equality and dignity and rights of legation, of
sending and receiving diplomatic representatives. The latter is chiefly
an interest in honor, and both are interests of personality. Although
usually treated separately they may well be put in one category. This
was formerly of much greater importance in international law than it is
now, as shown by the stress upon it and space devoted to it in older
books. It should be compared with the stress upon honor in the
beginnings of private law. An ancient law for a long time looked at
interests of personality and interests of substance as matters of honor,
so does international law even largely today. It feebly developed
political organization of society the task of the legal order to keep the
peace. Insult is the conspicuous cause of private desire for vengeance
and private war. Not only must the law deal vigorously with insult but
it must be very tender of the dignity of the individual wrongdoer in its
method of bringing him before its tribunals and inducing him to abide
trial and judgment. Legal procedure was held back for a long time by
difficulties growing out of this, and the interest of dignity and honor of
the state makes like difficulties for international law. (4) There are said
to be rights of property. But this is not an interest of substance.
Certain territory and the persons and material objects within it are
subjected to the territorial supremacy of the imperium of the state. To
think of this as property comes from the seventeenth century, the
formative era of international law, when states could be thought of in
terms of absolute personal sovereigns. But we are only concerned
here with the interests of states recognized in international law in that
they show how the analogy of individual interests has been applied to
public interests.

...

2. Interests of the state as guardian of social interests strictly are not

public interests. The significant interests are the social interests
looked directly as such. What these social interests are will be
considered fully in another place. Here we have only to see how effect
is given them through what may be called the guardianship of the
state.

At common law, social interests were largely secured by the doctrine

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

...

c. Social interests

Finally, the third kind of interests is social interests.

56
Id., pp. 235-264.

414
“§ 93. SOCIAL INTERESTS.—1. THEORY AND CLASSIFICATION. Some
years ago one of the justices of the highest Court, dissenting from the
judgment of that Court in the Arizona Emplyers’ Liability Cases, told us
that there was a ‘menace in the . . . judgment to all rights, subjecting
them unreservedly to conceptions of public policy.’ Undoubtedly, if
certain legal rights were definitely established by the Constitution
there would be a menace to the general security if the Court which
must ultimately interpret and apply the provisions of that instrument
were to suffer a state legislature to infringe those legal rights on mere
considerations of political expediency. But it was only the ambiguity of
the term ‘right,’ a word of many meanings, and want of clear
understanding of what our law has been seeking to achieve through
the obscure conception of ‘public policy’ that made it possible to think
of the decision in question in such a way. The ‘rights’ of which Mr.
Justice McKenna spoke were not legal rights in the same sense as my
legal right to the integrity of my physical person or my legal right of
ownership in my watch. They were individual expectations, individual
claims, individual interests, which it was felt ought to be secured
through legal rights or through some other legal machinery. In other
words, there was a policy of securing them. The Fourth Amendment
did not set up these or any other individual interests as absolute legal
rights. It imposed a standard upon the legislator. It said to him that if
he trenched upon these individual interests as absolute legal rights. It
imposed a standard upon the legislator. It said to him that if he
trenched upon these individual interests he must not do so arbitrarily.
His action must have some basis in reason. It is submitted that that
basis must be the one upon which the common law has always sought
to proceed, the one implied of the very term ‘due process of law,’
namely, a weighing or balancing of the various interests which overlap
or come in conflict and a rational reconciling or adjustment. Thus the
public policy of which Mr. Justice McKenna spoke is seen to be
something at least on no lower plane than the so-called rights. As the
latter term refers to individual interests which we feel ought to be
secured by law, the former refers to social interests which we feel the
law ought to or which in fact the law does secure in delimiting
individual interests and establishing legal rights. There is a policy in
the one case as much as in the other. The body of the common law is
made up of adjustments or compromises of conflicting individual
interests in which we turn to some social interest, frequently under the
name of public policy, to determine the limits of a reasonable
adjustment.

In the common law we have been wont to speak of social interests

under the name of ‘public policy.’ Thus when a great judge was called
on to weigh certain claims with reference to the social interest in the
security of political institutions, he said that a ‘great and
overshadowing public policy’ forbade applying the law to the case one
of the most fundamental principles of the law. Again, when it seemed
to a majority of the Supreme Court of the United States that the

415
validity of an acquisition from the Federal Government ought to be put
at rest as against a claim of fraud, although limitation did not run
against the Government, the Court spoke of the ‘policy’ behind the
statute of limitations and invoked the doctrine of election of remedies
as expressing the same policy. So, too, when a great teacher of law
wished to say that another fundamental legal doctrine was sometimes
limited in its application because of the social interest in the general
security, he stated that ‘except in certain cases based on public policy’
the law of today makes liability dependent upon fault. But this
limitation of the application of principles, of setting off of exceptions,
on grounds of public policy, was felt to be something abnormal. The
classical expression of this feeling is the opinions of the judges in
Everton v. Lord Brownlow. Although the case was decided ultimately
on the ground of public policy, the remarks of the judges have colored
all subsequent judicial thinking on the subject. From the seventeenth
century to the end of the nineteenth, juristic theory sought to state all
interests in terms of individual natural rights.

Questions of public policy came up in three forms: (1) in connection

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

...

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

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

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This paramount of social interest takes many forms. In its simplest
form it is an interest in the general safety, long recognized in the legal
order in the maxim that the safety of the people is the highest law. It
was recognized in American constitutional law in the nineteenth
century by putting the general safety along with the general health
and general morals in the ‘police power’ as a ground of reasonable
restraint to which natural rights must give way. In another form, quite
as obvious today but not so apparent in the past, before the nature
and causes of disease were understood, it is an interest in the general
health. In another form, recognized from the very beginnings of law, it
is an interest in peace and public order. In an economically developed
society it takes on two other closely related forms, namely, a social
interest in the security of acquisitions and a social interest in the
security of transactions. The two last came to be well understood in
the nineteenth century, in which they were more or less identified with
individual interests of substance and individual interests in freedom of
contract. Yet a characteristic difference between the law of the
eighteenth century and the law of the nineteenth century brings about
their true nature. Eighteenth-century courts, taking a purely
individualist view, regarded the statute of limitations as something to
be held down as much as possible and to be evaded in every way.
Lord Mansfield in particular, under the influence of natural-law ideas
and thinking of the statute only as an individual plea which enabled
the individual interest of a plaintiff to be deprived of legal security,
sought out numerous astute contrivances to get around its most
obvious provisions. If one said, ‘I am ready to account, but nothing is
due you,’ if he made provision in his will for the payment of his ‘just
debts,’ if his executors advertised, notifying those who had ‘just debts’
owing them to present their claims, in these and like cases it was held
there was an acknowledgment sufficing to take a barred debt out of
the statute. Modern courts came to see that there was something
more here than the individual interests of plaintiff and defendant.
They came to see that the basis of the statute was a social interest in
the security of acquisitions, which demands that titles shall not be
insecure by being open to attack indefinitely, and a social interest in
the security of transactions which demands that the transactions of the
past shall not be subject to inquiry indefinitely, so as to unsettle credit
and disturb business and trade. If we compare the French rule, en tout
cas de meuble possession vaut titre with the Roman doctrine that no
one can transfer a greater title than he has, if we note the growth of
the idea of negotiability in the law everywhere, and in our law both by
legislation and by judicial decision, we may see something of how far
recognition of the social interest in the security of transactions went in
the maturity of law.

Other examples of recognition of the security of transactions may be

seen in the presumption as to transactions of a corporation through its
acting officers, the stress which the courts put upon stare decisis in
cases involving commercial law, and the doctrine allowing only the
sovereign to challenge ultra vires conveyances of corporations. As to

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recognition of the social interest in the security of acquisitions, note
the insistence upon stare decisis where rules of property are involved.
In such cases it is better that the law be settled than it be settled right.

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

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

The first is an interest in the security of domestic institutions, long

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

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

In another part of the law, the social interest in the security of

domestic institutions still weigh heavily, in comparison, however, with
general security. A wife is not to be held as accessory after the fact for
harboring a felon husband or helping him to escape. The common law
does not require a wife to choose between fidelity to the relation of

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husband and wife and duty to the state. Also legislation as to mothers’
pensions proceeds at least in large part upon this interest.

A second form is an interest in the security of religious institutions. In

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

In a third form the interest is one in the security of political institutions.

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

Perhaps a fourth form of the interest in the security of social

institutions should be added, namely, an interest in the security of
economic institutions. Formerly, these were chiefly commercial.
Today industrial institutions also must be taken into account. Judicial
recognitions of a social interest in the security of commercial
institutions are numerous. In a leading case in which it was
determined that a bank note payable to bearer passed current the
same as coin, Lord Mansfield grounded the judgment ‘upon the general
course of business, and . . . the consequences to trade and commerce:
which would be much incommoded by a contrary determination.’ More
than one decision in the last generation on labor law seems to go upon

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an interest in maintaining the industrial regime in the face of persistent
pressure from the claims of organized workingmen. Some of the
policies to be considered presently under the social interest in general
progress might be referred to this head.’

§ 96. SOCIAL INTERESTS—4. THE GENERAL MORALS. Third, we may

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

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

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

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administrative appointment of receivers of agricultural land cultivated
or managed by the owner ‘in such a manner as to prejudice materially
the production of food thereon . . . .’ Restrictions with respect to
housing proceed on another aspect of this same social interest.

A closely related social interest is one in protection and training of

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

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

social interest in general progress, that is, the claim or want or
demand involved in social life in civilized society, that the development
of human powers and of human control over nature for the satisfaction
of human wants go forward; the demand that social engineering be
increasingly and continuously improved; as it were, the self-assertion
of the social group toward higher and more complete development of
human powers. This interest appears in three main forms, an interest
in economic progress, an interest in political progress, and an interest
in cultural progress. The social interest in economic progress has long
been recognized in law and has been secured in many ways. In the
common law it is expressed in four policies: the policy as to freedom of
property from restrictions upon sale or use, the policy as to free trade
and consequent policy against monopoly, the policy as to free industry,
which has had to give much ground in recent legislation and judicial
decision, and the policy as to encouragement of invention, which is
behind patent legislation and there comes in conflict with the policy as
to free trade. All of these policies have important consequences in

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everyday law. It may be thought that some of them should be
classified rather as forms of a social interest in the security of
economic institutions. As I read the cases, however, these demands
have pressed upon courts and jurists from the standpoint of their
relation to economic progress. If that relation fails, they are not likely
to maintain themselves. Likewise, the law has long recognized a social
interest in political progress. In American bills of rights, and in written
constitutions generally, a policy of free criticism of public men, public
acts, and public officers, and a policy of free formation, free holding,
and free expression of political opinion are guaranteed as identified
with individual rights. Moreover, at common law, the privilege of fair
comment upon public men and public affairs recognizes and secures
the same interest. But the third form, the social interest in cultural
progress, has not been recognized in the law so clearly. It may be said
to involve four policies: a policy of free science, a policy of free letters,
a policy of encouragement of arts and letters, and a policy of
promotion of education and learning. The last two have been
recognized to some extent in copyright laws and in American
constitutional provisions for the promotion of higher learning. The first
two have made their way more slowly because of conflict or supposed
conflict with the security of religious and political institutions.

Closely connected with the interest in cultural progress is a social

interest in aesthetic surroundings, which recently has been pressing
for legal recognition. Fifty years ago,
Sir Frederick Pollock could say with assurance that our law ignored
aesthetic relations, and comparing the English with the French in this
respect, could quote Hood’s lines:

Nature which gave them the gout

Only gave use the gout.

In the United States, courts and legislatures were long engaged in a

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

§99. SOCIAL INTERESTS.—7. THE INDIVIDUAL LIFE. Last, and in some

ways most important of all, as we now are coming to think, there is the
social interest in the individual life. One might call it the social interest
in the individual moral and social life, or in the individual human life. It
is the claim or want or demand involved in social life in civilized society
that each individual be able to live a human life therein according to
the standards of the society. It is the claim or want or demand that, if
all individual wants may not be satisfied, they be satisfied at least so
far as is reasonably possible and to the extent of a human minimum.
Three forms of this social interest have been recognized in common
law or in legislation: individual assertion, individual opportunity, and

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individual conditions of life. The first, the interest in free self-assertion,
includes physical, mental, and economic activity. In Spencer’s scheme
of natural rights, they appear as a ‘right of free motion and
locomotion,’ a ‘right of free exchange and free contract,’ deduced as a
sort of free economic motion and locomotion; a ‘right of free industry,’
deduced expressly as a modern outgrowth of free motion and
locomotion; as right of free economic activity; a ‘right of free religious
belief and opinion’ and a right of free political belief and opinion; the
two last being deduced also as modern developments of the same
natural right of free motion and locomotion. These are deduced from a
‘law of equal freedom’ which is taken to have been discovered by
observation of social phenomena and verified by further observation.
Without the aid of his ‘law of equal freedom’ he might have found
them by observation of the policies set forth in the law books. The old
common-law policy in favor of freedom, the doctrine that one may
justify action injurious to others by his natural liberty of action, except
where his action takes the form of aggression and so threatens the
general security, and in part the policy of free industry, are examples
of recognition of social interest in individual physical self-assertion.
The policy in favor of free speech and free belief and opinion, although
related also to the social interest in political progress, must be referred
in part to a social interest in individual self-assertion. Policies favoring
free trade and free industry are in part referable to a social interest in
free economic self-assertion.

But the most important phase of the social interest in individual self-
assertion, from the standpoint of modern law; is what might be called
the social interest in freedom of the individual will—the claim or
interest, or policy recognizing it, that the individual will shall not be
subjected arbitrarily to the will of others. This interest is recognized in
an old common-law policy which is declared in the Fifth and Fourteenth
Amendments. If one will is subjected to the will of another through the
force of politically organized society, it is not to be done arbitrarily, but
is to be done upon some rational basis, which the person coerced, if
reasonable, could appreciate. It is to be done upon a reasoned
weighing of the interests involved and a reasoned attempt to reconcile
them or adjust them. This policy obviously expresses political and
juristic experience of what modern psychology has discovered as to
the ill effects of repression. For example, it is more and more
recognized today in our penal legislation and in our treatment of
offenders. It has come to be recognized particularly of late as a result
of pressure upon courts and lawmakers for security in the relation of
employer and employee. It is coming to be recognized also in juristic
thought in another connection as sociological theories of property
replace metaphysical theories. There are many signs of a growing
feeling that complete exclusion of all but him whom the law
pronounces owner from objects which are the natural media of human
existence or means of human activity, must be measured and justified
by a reasoned weighing of the interests on both sides and a reasoned
attempt to harmonize them or to save as much as we may with the

423
sacrifice of as little on the part of the excluded, no less than on the
part of the owner, as we may.

I have called upon a second form the social interest in individual

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

In a third form, an interest in individual conditions of life, the social

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

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

Again, when the law confers or exercises a power of control, we feel

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

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

2. The Securing of Interests

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

a. The Valuing of Interests

Ҥ100. VALUING OF INTERESTS. Having determined what the interests

are which the law may be called upon to secure, as they cannot all be
secured, much less fully secured since many of them overlap and
many are more or less in conflict, questions arise which are
fundamental for the legislative lawmaker and frequently confront the
courts in choice of starting points for reasoning, in interpretation, and
in application of standards, namely, how are these interests to be

57
Id., pp. 268-324.

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weighed. How are they to be valued? What principle is to determine
their relative weight? Which shall give way in case of conflict?

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

or demands, he must be careful to compare them on the same plane.
If we put one as an individual interest and the other as a social interest
we may decide the question in advance in our very way of putting it.
For example, in the ‘truck act’ cases the claim of the employer to make
contracts freely may be thought of as an individual interest of
substance. In that event we must weigh it with the claim of the
employee not to be coerced by economic pressure into contracts to
take his pay in orders on a company store, thought of as an individual
interest of personality. If we think of either in terms of a policy we
must think of the other in the same terms. If we think of the
employee’s claims in terms of a policy of assuring a minimum or a
standard of human life, we must think of the employer’s claim in terms
of a policy of free making and of upholding and enforcing of contracts.
If the one is thought of as a right and the other as a policy, or if the
one is thought of as an individual interest and the other as a social
interest, our way of stating the question may leave nothing to decide.

In general, but not always, it is expedient to put claims or demands in

their most generalized form, i.e. as social interests in order to compare
them. But where the problems are relatively simple, it is sometimes
possible to take account of all the factors sufficiently by comparing
individual interests put directly as such. It must be borne in mind that
often we have here different ways of looking at the same claims or the
same type of claims as they are asserted in different titles. Thus
individual interests of personality may be asserted in title of or
subsumed under the social interest in the individual life, or sometimes
from different standpoints or in different aspects, under both of them.
Again, individual interests in the domestic relations may be subsumed
under the social interest in the security of social institutions of which
domestic institutions are the oldest and by no means the least
important. Again, the public interest in the integrity of the state
personality may be thought of as the social interest in the security of
social institutions of which political institutions are one form. When we
have recognized and legally delimited and secured an interest, it is
important to identify the generalized individual interest behind and
giving significance and definition to the legal right. When we are
considering what claims or demands to recognize and within what
limits, and when we are seeking to adjust conflicting and overlapping
claims and demands in some new aspect or new situation, it is
important to subsume the individual interests under social interests
and to weigh them as such.

Philosophical jurists have devoted much attention to deducing of some

method of getting at the intrinsic importance of various interests so
that an absolute formula may be reached in accordance with which it
may be assured that the intrinsically weightier interests shall prevail.

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

b. The Means of Securing Interests

Ҥ101. MEANS OF SECURING INTERESTS. A legal system attains its

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

...

58
Id., pp. 327-334

427
So much for the means of securing individual interests. Public
interests are secured, first, by legal rights, powers and privileges
attributed to the state or to public corporations as juristic persons. The
state (in Roman law the fisc, i.e. fiscus Caesaris, the purse of Caesar,
the treasury) is regarded as having legal rights analogous to those of
individuals, legal powers, analogous to those of individuals, and
privileges, such as that of non-suability. The personal sovereign at the
time modern public law grew up made it natural to identify the state
with him and this mode of securing public interests proved convenient
and effective. Second, they are secured by powers conferred on
individuals where coincidence of public interest and private advantage
is relied on to move the individual to exercise the power and thus
vindicate the public interest. Examples are: Taxpayers’ suits to enjoin
unlawful imposition of burdens upon a county or municipality or illegal
disposition of its moneys, and the power of the individual citizen, as
relator, to institute proceedings of mandamus or quo warranto, where
he has an individual interest. Third, they may be secured by privileges
conferred on individuals, for example, comment upon and criticism of
the conduct of public officers privileged in order to secure the public
interest in proper administration of public affairs. Fourth, they are
secured by imposing absolute duties enforced by proceedings at the
instance of public officers or by administrative agencies.

Social interests are secured, first, by imposing absolute duties, that is,
duties with no correlative legal right, vindicated by penalty or by
criminal prosecution. The criminal law is the chief agency of legal
systems for securing social interests as such, i.e. as dissociated from
any immediate individual interest which might be subsumed under
them. Second, they are secured by legal rights and powers conferred
on public corporations or on the state as guardian of social interests.
Third, they are sometimes secured by conferring rights and powers on
private persons. Examples are: Private suits to abate public nuisances
where the private individual is specially affected; statutory private
suits to abate public nuisances; and private actions on the case against
public officers and public agencies. Here the idea is that coincidence
of social interest and private advantage will lead individuals to move
and thus to vindicate the social interest. Fourth, as we have seen for
example with respect to privileged communication in case of
defamation, the law sometimes secures social interests by privileging
or exempting certain situations from the operation of ordinary legal
precepts. Fifth, more and more today social interests are secured
through administrative agencies.

...

Having conferred or recognized rights, powers, liberties, and privileges,

a legal system has next to provide a means of making them effective
for their purpose. The means which are employed to that end are: (1)
punishment, i.e. penalty to prevent by deterrence and perhaps also to
satisfy what we call the retributory instinct—for the desire that

428
someone be hurt when a wrong has been done is a deep-seated
human demand which the law has not been able to ignore—(2)
redress, which may be (a) specific, or (b) substitutional, and (3)
prevention.”59

c. The Limits of Effective Legal Action

Ҥ102. THE LIMITS OF EFFECTIVE LEGAL ACTION. Three important

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

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

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

One set of limitations grows out of the difficulties involved in

ascertainment of the facts to which legal precepts are to be applied.
This is one of the oldest and most stubborn problems of the
administration of justice. At first, the law sought to settle the facts by
some mechanical device, by some conclusive test which involved no
element of personal judgment on the part of the magistrate and could
59
Id., pp. 334-353.

429
not be challenged for partiality. At times and in places the oath has
been relied on as a guarantee of the truth. In our law the chancellor
considered that he could ‘search the conscience’ of a party and answer
in chancery had to be under oath. In the civil law an oath in terms of
the issue was a mode of proof and is still in use to some extent. But
the ideas which made an oath effective to assure the truth have at
least lost much of their strength; and perjury, false testimony, and
fabricated documents put serious obstacles in the way of
thoroughgoing attainment of the end of law. Bentham said paintings
or engravings of the death of Ananias and Sapphira ‘capitally punished
on the spot by divine justice for mendacious testimony of the self-
investitive or self-exonerative kind’ ought to be hung in every
courtroom. To guard against this unreliability of oral evidence the law
often requires transactions to be evidenced by writing. Also it requires
witnesses to certain instruments other than the parties and requires
some transactions to be entered into before a magistrate or official.
But these necessary precautions, while they prevent frauds, may often
preclude the establishment of meritorious claims. Again, the law has
had to proceed cautiously in securing against nervous and mental
injuries and injuries to sensibilities because of difficulty or even
impossibility of clear proof in the absence of objectively manifest
illness. Nor is the difficulty merely one of false swearing. Mistaken
observation, mistaken identification, misunderstanding or
misinterpretation of what has been seen and heard afford many
opportunities for honest testifying at variance with the facts. Criminal
procedure provides many checks for the protection of accused persons
in view of the danger, involved in the testimony upon which tribunals
must perforce rely. But in spite of them conviction of the innocent is
by no means unknown.

A second set of limitations grows out of the intangibleness of duties

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

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

A third set of limitations grows out of the subtlety of modes of seriously

infringing important interests which the law would be glad to secure

430
effectively if it might. Thus grave infringements of individual interests
in the domestic relations by tale-bearing or intrigue are often too
intangible to be reached by legal machinery. Our law has struggled
hard with this difficulty. But the result of the action on the case for
criminal conversation and alienation of affections, which long ago
excited the ridicule of Thackeray, does not inspire confidence nor does
the American precedent for enjoining a defendant from flirting with a
plaintiff’s wife assure a better remedy. So also with the ‘right of
privacy.’ The difficulties involved in tracing injuries to their source and
in fitting cause to effect compel some sacrifice of the interests of the
retiring and the sensitive.

A fourth set of limitations grows out of the inapplicability of the legal

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

Finally, a fifth set of limitations grows out of the necessity of appealing

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

2. Social-psychological limitations upon the efficacy of legal precepts.

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

431
...

In other words, to assure enforcement law must largely rely on some

immediate and obvious advantage which it may use either to bring
about obedience to its precept or to furnish a motive to others to
vindicate or enforce it. The legal science of the past knew of no such
problem. To the analytical jurist the whole matter was one of
executive inefficiency. To the lawyer it was enough that a precept had
obtained the guinea stamp of establishment by the sovereign. The
jurist had no concern with questions of enforcement. That was for the
executive. If the executive did not make the precept effective in
action, then the executive was at fault. To the historical jurist the
whole matter was one of whether the precept did or did not correctly
express human experience. If it was a formulation of what had been
discovered by experience, enforcement would take care of itself. It
would be rooted in habits and customs of mankind and would be
secure on that basis. If not, it was a futile attempt to do what could
not be done and all attempt at enforcement would in the end prove
vain. To the philosophical jurist the whole matter was one of the
intrinsic justice of the precept—of its appeal to the conscience of the
individual. If as an abstract proposition it was inherently just, its
appeal to the reason and conscience of the individual would assure
obedience from all but an almost negligible minority who would persist
in going counter to their consciences and might have to be coerced. If
not, the attempt to enforce an unjust rule contrary to the conscience of
the individual ought to fail and we ought not to feel badly if it did fail.
Another theory looked at the question in terms of politics. If laws were
imposed on the people they would disobey them. If the people
themselves made the laws, they would obey the laws they made or
assented to.

Such simple theories of making legal precepts effective fall to the

ground under the conditions of the urban society of today. We learn
quickly that efficient or inefficient executives alike encounter certain
obstacles that seem beyond the reach of efficiency. We soon find that
in such matters as traffic regulation the general security requires us to
make habits instead of waiting for them to develop by experience at
the cost of life and limb. We come to see that the exigencies of
general security and of the individual life require us to prescribe many
things the reasons for which are not upon the surface and the justice of
which, clear as it may be to the expert, will not appear at once to every
reasonable and conscientious individual. Also the point is not one of
whether the people at large have assented to or made the precept in
question. It is rather, what interest will move the individuals, through
whose initiative the precept must be made effective, to bestir
themselves to see that it is vindicated. Jhering urged the duty of the
good citizen to go to trouble and expense to vindicate his legal rights,
even on small occasions, as his contribution to maintaining the legal
order. But in the busy world of today men are less and less inclined to

432
pursue their legal rights even in matters of no little moment at the
expense of time, money, and energy, they can more profitably employ
in their everyday work.

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

There is here a serious limitation upon the possibility of social progress

through law. To a large extent law (in the second sense) must express
progress rather than immediately bring about progress. The law seeks
to secure individual interests because and to the extent that by being
subsumed under social interests they may be made to give effect to
the latter. But it depends for its efficacy chiefly upon the extent to
which it can identify social interests with individual advantage or
interest and can rely upon individual initiative for enforcement of its
precepts. Unless individuals can thus be enlisted in the service of the
legal order the law in the books becomes academic. We get something
quite different in action. Herein is the kernel of truth in Savigny’s
distrust of conscious lawmaking and in the lawyer’s distrust of
legislation. Abstract formulation of rules is likely to result in empty
formulas because there is only a speculative interest in them as
propositions, not the living interest on the part of individuals whose
demands and desires are affected directly and immediately by
observance or non-observance of the precept. This initiative of the
individual bringing controversies into courts and resulting in case law
has been a prime agency in developing the law. We must not allow
our faith in the efficacy of effort to blind us to the limitations upon the
efficacy of conscious effort in making and shaping the law.” 60

V. THE POLICY SCIENCE APPROACH

The Policy Science Approach continued the grand theorizing of Pound.

“But ‘grand theory’ did not die with Pound. In Lasswell and
MacDougal, we find the same broad generalizations and ‘grand
prospectus’. Their theory is one of decision-making. There are, they
postulate, a number of ‘desired events’, catalogued under such vague
headings as power, enlightenment, wealth, respect for human dignity,
health and well-being, skill, affection, and rectitude. For each of these
categories they ask whether the legal process, in the context of the
social system, is achieving a maximum sharing of the particular value.
So, on health and well-being, it is asked whether ‘the legal system
succeed[s] in stimulating and sustaining progress toward safety, health
and comfort in every community.’ Such a value-laden priority as
60
Id., pp. 353-373.

433
‘progress’ can be explained by the articulated democratic and
utilitarian aim of the philosophy.”61

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

“A first indispensable step toward the effective reform of legal

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

This end is not proposed as something utterly new or exotic. Indeed

most of the recent developments in legal education—from ‘sociological
jurisprudence’ to neo-Thomism—have tended, with varying degrees of
explicitness, to move in this direction. None who deal with law,
however defined, can escape policy when policy is defined as the
making of important decisions which affect the distribution of values.
Even those who still insist that policy is no proper concern of a law
school tacitly advocate a policy, existing social institutions in a sort of
timeless status quo; what they ask is that their policy be smuggled in,
without insight or responsibility. But neither a vague and amorphous
emphasis on social ‘forces,’ ‘mores,’ and ‘purposes,’ nor a
functionalism that dissolves legal absolutism for the benefit of random
and poorly defined ends, nor a mystical invocation of the
transcendental virtues of an unspecified ‘good life,’ can effect the
fundamental changes in the traditional law school that are now
required to fit lawyers for their contemporary responsibilities. Their
direction is toward policy but their directives are at too high a level of
abs traction to give helpful guidance. What is needed now is to
implement ancient insights by reorienting every phase of law school
curricula and skill training toward the achievement of a clearly defined
democratic values in all the areas of social life where lawyers have or
can assert responsibility.

It should need no re-emphasis here that these democratic values have

been on the wane in recent years. The dominant trends of world
politics have been away from symbols and practices of a free society
and toward the slogans, doctrines and structures of despotism. The
outburst of racialism in Germany is but one of several profound
recessions from the ideal of deference for the dignity and worth of the
individual. Wherever democratic attitudes have declined, institutions
connected with democracy have weakened or vanished. In post-
61
Freeman, supra. n. 1, p. 679.

434
Weimar Germany, as in post-parliamentary Italy and certain other
countries, elections have ceased to be free and have become
ceremonial plebiscites—rituals of tribal union. Balanced public
discussion has given way to discussion directed by a monopoly of
government and party. The multiple party system has yielded to
something called a ‘party,’ though in fact an ‘order,’ a privileged
monopolist of policy-making. In place of dynamic executive and
judicial balance, there has arisen extreme executive concentration.
Where institutions named parliaments yet survive, they are mummified
into assemblies for the performance of rites of ceremonial ratification
of executive decisions. Where there was a balance between
centralized and local authority and control, there has arisen extreme
centralization. The balance between governmental and private
organization is unhinged as the tide moves toward the
governmentalization of all organized life. With the sweep of
regimentation, the balance is lost between private zones of living and
the zones appropriate to official direction. The entire structure of open
and competitive markets has been actively threatened by an economic
structure of closed and monopolistic markets. Processes of production
and distribution that were once carried on by bargaining and pricing
depend on negotiation and rationing.

These sweeping transformations in the institutional structure of world

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

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

435
The question may be asked whether the lawyer can be held
responsible in any significant degree for the plight in which we find
ourselves. For a moralist, the question is whether the lawyer can be
‘blamed;’ for a scientist, whether he is an important casual variable;
for a reformer, whether he can be acted upon to produce change. The
answer to all of these questions is: most assuredly, yes. It should need
no emphasis that the lawyer is today, even when not himself a ‘maker’
of policy, the one indispensable adviser of every responsible policy-
maker of our society—whether we speak of the head of a government
department or agency, of the executive of a corporation or labor union,
of the secretary of a trade or other private association, or even of the
humble independent enterpriser or professional man. As such an
adviser the lawyer, when informing his policy-maker of what he can or
cannot legally do, is, as policy-makers often complain, in an
unassailably strategic power to influence, if not create, policy. It is a
familiar story, too, of how frequently lawyers who begin as advisers on
policy are transformed into makers of policy: ‘the law’ is one of the few
remaining avenues to ‘success’ open to impecunious talent.
Successful practitioners of law often receive sufficiently large incomes,
from advice and investment, to become powers in their own right and
hence gravitate into positions of influence in industry. How frequently
lawyers turn up in government—whether as legislators, executives, or
administrators, or as judges (where they have a virtual monopoly)—is
again a matter of common knowledge. Nor can the policy-making
power of lawyers as executors, trust administrators, administrators in
insolvency, and so on, be ignored. Certainly it would be difficult to
exaggerate either the direct or indirect influence that members of the
legal profession exert on the public life of this nation. For better or
worse our decision-makers and our lawyers are bound together in a
relation of dependence or of identity.”62

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

policy training.

“What, then, are the essentials of adequate training for policy?

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

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

436
Goal-thinking requires the clarification of values. In a democratic
society it should not, of course, be an aim of legal education to impose
a single standard of morals upon every student. But a legitimate aim
of education is to seek to promote the major values of a democratic
society and to reduce the number of moral mavericks who do not
share democratic preferences. The student may be allowed to reject
the morals of democracy and embrace those of despotism; but his
education should be such that, if he does so, he does it by deliberate
choice, with awareness of the consequences for himself and others,
and not by sluggish self-deception.

How can incipient lawyers be trained in the clarification of values?

Whatever the difficulties of communication, any statement of values
must begin with words of high level abstraction, of ambiguous
reference. No brief definition can convey to anyone else much of what
the definer means. Too many persons jump to conclusions about the
meaning of terms, regardless of the rules of interpretation intended by
the speaker. At the risk of misconstruction, we offer our brief
statement of democratic morals. The supreme value of democracy is
the dignity and worth of the individual; hence a democratic society is a
commonwealth of mutual deference—a commonwealth where there is
full opportunity to mature talent into socially creative skill, free from
discrimination on grounds of religion, culture or class. It is a society in
which such specific values as power, respect, and knowledge are
widely shared and are not concentrated in the hands of a single group,
class, or institution—the state—among the many institutions of society.
The formula is not new. On the contrary, it states the implicit or
explicit assumptions of most of the traditional moralists of democracy.
But such a statement of democratic values—and this is the point of our
present emphasis—cannot be understood, or implemented, unless it is
amplified by rules of interpretation of varying degrees of generality,
that show how observers of specific situations can validly use the
terms in describing concrete reality and promoting the occurrence of
relatively specific events in harmony with the definition. This task of
spelling out values in terms of consistent propositions of varying
degrees of generality or of relating general propositions to operational
principles, is a long and arduous process. But it is indispensable to
clarity and, hence, to the education of policy-makers.

Clarification of values, by relating general propositions to operational

principles in representative and specific contexts, must for effective
training be distinguished from the traditional, logical, derivation of
values by philosophers. Such derivation—that is, exercises by which
specialists on ethical philosophy and metaphysics take sentences that
define moral standards and deduce them from more inclusive
propositions or vice versa—is a notorious blind alley. Divorced from
operational rules, it quickly becomes a futile quest for a meaningless
why, perpetually culminating in ‘some inevitably circular and infinitely
regressive logical justification’ for ambiguous preferences. From any
relative specific statements of social goal (necessarily described in a

437
statement of low-level abstraction) can be elaborated an infinite series
of normative propositions of ever increasing generality; conversely,
normative statements of high-level abstraction can be manipulated to
support any specific social goal. Prospective lawyers should be
exposed, by way of warning and sophistication, to the work of
representative specialists in derivation; relatively little time should be
required, however, to teach them how to handle, and how to achieve
emotional freedom from, the ancient exercises.

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

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

Implementation of values requires, next, scientific-thinking. While

trend information is indispensable, it is not sufficient to enable us to
mould the future. Trends have a way of changing direction; and often
we can contribute to these changes by the skillful management of
factors that condition them. A trend is not a cause of social change; it
is a register of the relative strength of the variables that produce it.
We do not learn about causal factors by passively observing trend; we
must compare many examples of trend before we can build up a body
of scientific knowledge. The laws and propositions of science state
invariant interrelations. We do not have scientific knowledge when we
know, for example, that there was a trend toward world war in 1939; it
is only when we can, by comparing war periods, relate war to
conditioning factors that we have science. When we look toward the
future our aim is not to draw a fatalistic series of trend curves in the
direction they have been moving in the past. To extrapolate in this
way is necessary, but it is a prelude to the use of creative imagination
and of available scientific knowledge in deciding how to influence the

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future. The very act of taking thought and of acting on the basis of
thought are among the factors that determine the future trend of
events. In a democratic society a policy-maker must determine which
adjustments of human relationships are in fact compatible with the
realization of democratic ideals. Which procedures actually aid or
hamper the realization of human dignity? How can the institutions of
legislation, adjudication, administration, production, and distribution be
adjusted to democratic survival? What are the slogans and doctrines—
in which contexts of experience—that create acceptance of democratic
ideals and inspire effort to put them into practice? In short, the policy-
maker needs to guide his judgment by what is scientifically known and
knowable about the causal variable that condition the democratic
variables.

Effective training in scientific thinking requires that students become

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

Acquaintance with various methods of observation not only furnishes a

sound basis for policy planning; it contributes directly to skill in the
practical management of human affairs. Another glance at the job
analysis of the modern lawyer set forth above indicates something of
the range of management problems with which he must grapple.

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Success calls for skill in direct personal contact with client, partner,
clerk, opposing counsel, investigator, witness, jurymen, judge (to name
some conspicuous examples); likewise, there is need of skill in public
relations (in the handling of grand jury investigations, conducting trials,
conducting legislative hearings).

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

VI. CONCLUSION
63
Id., pp. 212-216.

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

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

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