2 Roscoe Pound Jurisprudence

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Chapter /0
The Nature of Law
57. The Question a Practical One.

58. Analytical Scheme of the Meanings and Constituents of
Law.
59.
The Analytical Doctrine.
60.
Normative and Realist Analytical Theories.
61.
The Doctrine of the Historical School
62.
The Doctrine of the Nineteenth-Century Philosophical

Jurists.
63.
The Doctrine of the Sociologists.
64.
Public Law, International Law, and the Analogy of

"Law" in the Physical and other Sciences.
2 Pound Jurisprudence-7
[ 97]1
Chapter 10
The Nature of Law
Er
Section 57
HE QUESTION A PRACTICAL ONE. From

the beginning the question, what is law?-the problem of the nature of law-has been
la
battle ground of jurisprudence. More than
one important book on jurisprudence is wholly occupied
with this question. In recent times, there has been a
growing impatience with it. Bluntschli compared it to
Pilate's question, "What is truth?";1 and many who
propound it today, like Pilate, will not stay for an answer. Yet we cannot ignore so fundamental a question.
Too much depends upon it in other connections. Moreover, it is not merely academic. In at least six situations
it has been raised as a practical question in the ordinary
course of litigation in American courts.
1. In one type of case a state constitution or a state statute having been construed by the highest court of the state and
legal transactions having been entered into on the faith of the
interpretation, the state court changes its view in later decisions
with the effect that the transactions will not be upheld in the
state courts. In such cases the federal courts, where otherwise
I. 1 Bluntschli, Gesammelte kleine Schriften (1879) 1. Hart, Definition and
Theory in Jurisprudence (1954) 70 Law Quart.Rev. 37.
[99]
The Nature of Law

there would be "gross injustice" long followed the earlier rath2
er than the later state decisions as to the law of the state.
What the Supreme Court of the United States has since pronounced "unguarded language" in some of these cases, 3 went
further than the actual decisions and suggested that the later
state decisions amounted to a state law impairing the obligation
of contract. They suggested that the judicial construction, so far
as contract rights under it were concerned, was to be considered as much a part of the statute as the text itself, and that a
change in the course of judicial decision affecting such contract
rights was to be treated the same as an amendment of the statute
by an express legislative enactment. 4 The proposition that such
a change in the course of decision in the state courts amounted
to a "law impairing the obligation of contract" within Article I,
10 of the Federal Constitution has been repudiated. 5 But the
Supreme Court of the United States still holds that "in determining whether a state law has impaired a contract it must decide
for itself whether there was a contract, and whether the law as
enforced by the state court impairs it.6 It is enough to suggest
2. Rowan v. Runnels, 5 How. (U.S.) 134, 139, 12 L.Ed. 85 (1847); Gelpcke
v. Dubuque, 1 Wall. (U.S.) 175, 17 L.Ed. 520 (1863); Butz v. Muscatine, 8 Wall.
(U.S.) 575, 19 L.Ed. 490 (1869); Douglass v. Pike County, 101 U.S. 677, 25 L.Ed.
968 (1879); Anderson v. Santa Anna, 116 U.S. 356, 6 S.Ct. 413, 29 L.Ed. 633
(1886); German Savings Bank v. Franklin County, 128 U.S. 526, 9 S.Ct. 159,
32 L.Ed. 519 (1888); Los Angeles v. Los Angeles City Water Works Co., 177 U.
S. 558, 20 S.Ct. 736, 44 L.Ed. 886 (1900).
3. Taft, C. J. in Tidal Oil Co. v. Flanagan, 263 U.S. 444, 454, 44 S.Ct. 197,
199, 68 L.Ed. 382 (1924).
4. Ohio Life Ins. Co. v. Debolt, 16 How. (U.S.) 416, 14 L.Ed. 997 (1853);
Gelpeke v. Dubuque, 1 Wall. (U.S.) 175, 17 L.Ed. 520 (1863); Butz v. Muscatine, 8 Wall. (U.S.) 573, 583, 19 L.Ed. 490 (1869); Douglass v. Pike County, 101
U.S. 677, 686-687, 25 L.Ed. 968 (1879)., See also Haskett v. Maxey, 134 Ind.
182, 190-192, 33 N.E. 358, 360-361, 19 L.R.A. 379 (1892).
5.
Tidal Oil Co. v. Flanagan, 263 U.S. 444, 44 S.Ct. 197, 68 L.Ed. 382 (1924).
The italics are supplied.

6. Ibid. Citing as examples: Jefferson Branch Bank v. Skelly, 1 Black
(U.S.) 436, 443, 17 L.Ed. 173 (1861); Bridge Proprietors v. Hoboken Co., I
[100]
10.
The Nature of Law
the bearing upon this question of the later view of the English
and American analytical jurists that the law is the sum of the
rules administered by the courts and that a law is such a rule.
2. In another type of case federal courts were called on to
administer the law of a state and, finding the common law established therein but the rule in respect to some particular point
undetermined by the state courts, determined what in their judgment was the rule applicable at common law. After conveyances
had been made on the strength of the decision, the question came
up in the state courts, which took a different view. The question being one of a rule of property, under the doctrine which
obtained in the Supreme Court of the United States from 1842
to 1938 state decisions would ordinarily have been controlling.
But by a divided court it was held that they would not be fol7
The
lowed so as to impair the rights theretofore acquired.
dissenting opinion of Holmes, J. brings out clearly that the
question was one of the nature of law and cited Gray's discussion
of that question.'
3. Again, where the federal courts were exercising jurisdiction by virtue of diversity of citizenship, and so were administering the law of a state, if that law was not in the form of
legislation as to the point in question and that point was one of
"1general law," those courts except as to rules of property formerly exercised an independent judgment as to what was the law
and did not hold themselves bound by the decisions of the state
Wall. (U.S.) 116, 145, 17 LEd. 571 (1863); Wright v. Nagle, 101 U.S. 791, 793,
25 L.Ed. 921 (1879); McGahey v. Virginia, 135 U.S. 662, 667, 10 S.Ct. 972, 34
L.Ed. 304 (1890).
7. Kuhn v. Fairmont Coal Co., 215 U.S. 349, 30 S.Ct. 140, 54 LEd. 228 (1910).
8. Ibid. 370-371, citing Gray, Nature and Sources of the Law (1 ed. 1909)
535-550. See Schofield, Swift v. Tyson, Uniformity of Judge-Made Law in
State and Federal Courts (1909) 4 Ill.Law Rev. 533.
[101 ]
The Nature of Law

courtsY But the Supreme Court of the United States has given
up the doctrine, 10 and the opinions in which the doctrine is dis-
cussed make it clear that the basic question was the nature of
law."
Nice questions as to what the federal courts must take
to be authoritative forms of the state law have remained.' 2
4. Another type of case has arisen in connection with the

unhappy doctrine as to restitution where there has been mistake
of law. Where legal transactions have been entered into in reliance upon judicial decisions which are afterward overruled, has
there been a change of law or did the parties to the transaction

act under a mistake of law? 11 It has been held that when a
court reverses its construction of a statute, this is to be treated

9. Swift v. Tyson, 16 Pet. (U.S.) 1, 18, 10 LEd. 865 (1842); Salem Trust Co.
v. Manufacturers' Finance Co., 264 U.S. 182, 191-192, 44 S.Ct. 266, 268, 68 L.
Ed. 628, 31 A.L.R. 867 (1924). See Green, Law as Precedent, Prophecy, and
Principle: State Decisions in Federal Courts (1924) 19 Ill.Law Rev. 217. As to
cases where uniform state laws were involved and a particular state court departed from the general construction, see Burns Mortgage Co. v. Fried, 292
U.S. 487, 493-497, 54 S.Ct. 813, 814-816, 78 L.Ed. 1049 (1934).
10.
Erie I. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).
1I. Brandeis, J. in Erie R. Co. v. Tompkins, 304 U.S. 64, 78-79, 58 S.Ct. 817,
822, 82 L.Ed. 1188 (1938); Butler, J. ibid. 85-86; Holmes, J. in Kuhn v. Fairmont Coal Co., 215 U.S. 349, 370-373, 30 S.Ct. 140, 147-148, 54 L.Ed. 228 (1910),
and in Black & White Taxicab Co. v. Brown & Yellow Taxicab Co., 276 U.S.518,
532-536, 48 S.Ct. 404, 408-410, 72 L.Ed. 681, 57 A.L.R. 426 (1928).
12, It has been held that the federal courts must follow the rulings of the
intermediate appellate courts of the state, although the highest court of the
state is not bound by them nor are coordinate appellate courts of the state
bound to accept them. Also it is hinted that the course of holding in the courts
of general jurisdiction of first instance in the state must be followed by the
federal courts unless they are "convinced by persuasive data that the suprpme
court of the state would decide otherwise." West v. American Telephone &
Telegraph Co., 311 U.S. 223, 237, 61 S.Ct. 179, 183, 85 LEd. 139, 132 A.L.R. 956
(1940). Why not, then, the course of professional opinion in the state as shown
by the local text book long in general use there?
13. Cases of this sort are: Kenyon v. Welty, 20 Calif. 637 (1862); Harris
v. Jex, 55 N.Y. 421 (1874).
[ 102]
10.
The Nature of Law
as if there was an amendment of the statute.14 But this is substantially the view taken in Gelpcke v. Dubuque, 15 which has
been rejected.' 6 So quaere.
5. In still another type of case, a court having held a penal
statute unconstitutional, some person in reliance on the decision,
acts in contravention of the provisions of the statute. Thereafter the court changes its view and holds the statute valid. Was
there a violation of law in what was done before the last decision? One court has said that to give such a decision retroactive effect would amount in substance to the prohibited ex post
1
facto lawmaking.
6. Also the nature of law comes under discussion in connection with questions as to the operation of statutes with respect
to acts done abroad.' 8 In his opinion in the case cited, Holmes,
J. says: "Law is a statement of the circumstances in which the
public force will be brought to bear upon men through the
courts. But the word commonly is confined to such prophecies
or threats when addressed to persons living within the power of
the courts. A threat that depends upon the choice of the party
affected to bring himself within that power hardly would be
called law in the ordinary sense." 19 Thus the threat theory of a
law was decisive. But the defendant in that case was a domestic
corporation, and under the theory of forum of the injured state
14.
Bagby v. Martin, 118 Okl. 244, 247 P. 404 (1926).
15.
1 Wall. (U.S.) 175, 17 L.Ed. 520 (1863).
16.
Tidal Oil Co. v. Flanagan, 263 U.S. 444, 454, 44 S.Ct. 197, 199, 68 L.Ed.
382 (1924).
17.
State v. Longino, 109 Miss. 125, 133-134, 67 So. 902, 903-904 (1915).
See
Freeman, The Protection Afforded Against the Retroactive Operation of a Judicial Decision (1918) 18 Columbia Law Rev. 230.
18.
American Banana Co. v. United Fruit Co., 213 U.S. 347, 29 S.Ct. 511,
53 L.Ed. 826 (1909).

19.
Ibid. 356-357.
[ 103]
10.
The Nature of Law
could have been prosecuted in the United States where its acts
contrary to the Sherman Act were injurious. 20 Under a ruleof-conduct or rule-of-decision theory of a law the result might
have been otherwise.
58. ANALYTICAL SCHEME OF THE MEANINGS AND CONSTITUENTS OF LAW. In chapter
I, for the purposes of a preliminary statement of the subject matter of jurisprudence, I set forth three meanings
of law in the sense in which lawyers use that term. There
I put the three meanings in the chronological order of
their recognition by jurists. Now, however, when more
detailed exposition is in order and it is in order to analyze
law as that term is referred to in these meanings, and to
consider the relation of the proposed analytical scheme
to other theories of law, it is more useful to put in logical
order the three meanings with which, as I see it, we are
concerned in a science of law.
1. First (in logical order) the term "law" is used
to mean the legal order (ordre juridique, Rechtsordnung), that is, the r6gime of adjusting relations and ordering conduct by the systematic and orderly application
20. French Code d'instruction criminelle, art. 7; New York Penal Law,
1930 5, 1933; People v. Zayas, 217 N.Y. 78, 11 N.E. 465 (1916); People v. International Nickel Co., 168 App.Div. 245, 153 N.Y.S. 295 (1915).
21. Pound, More About the Nature of Law (1935) in Legal Essays in Tribute to Orrin Kip McMurray, 513-531; id. What is Law? (1940) 47 W.Va.Law
Quart. 1; id. Social Control Through Law (1942) 35-62; id. Sociology of Law
and Sociological Jurisprudence (1943) 5 Univ. of Toronto Law Journ. 1; Fuller,
Reason and Fiat in Case Law (1943); Patterson Jurisprudence (1951) chaps.
1-7.
[104]
10.
The Nature of Law
of the force of a politically organized society. This r6gime is a highly specialized form of social control in a
developed political society, carried on in accordance with
a body of authoritative precepts, applied by an authoritative technique, on a background of received ideals,
through a judicial and an administrative process.
In the latter part of the nineteenth century and in the present century, the influence of Jhering through his directing attention to the end of law and the rise of social philosophical
and sociological jurisprudence led to a functional attitude toward the problems of jurisprudence. Jurists began to think
of a process or activity directed toward ends or purposes, rather
than a state or condition maintained by commands of a sovereign.22 Much of what is called philosophy of law is a philosophical consideration of the legal order. Jurisprudence has
come to be quite as much a science of the legal order as one of the
authoritative guides to conduct or to decision which for a long
time were held to be its sole province. Here again, however,
there is a wider idea. The legal order, as has been said, is a
specialized phase of social control. It is, from one standpoint,
a regime of ordering conduct through social pressure backed by
the force of a political organization of society. If we go back
a bit in legal history, we come to r6gimes of social pressure without such backing. Hence, to unify the phenomena of developed
societies with those of the more primitive social orders, historical jurists and sociologists use "law" to mean social control
as a whole.
2. Historically, the oldest and longest continued

use of the term "law" in juristic writing is to mean the
22.
Kohler, Einfiihrung in die Rechtswissenschaft (1902) 1; id. I Lehr-
buch des biirgerlichen Rechts (1906) 2-4.
[ 105 ]
The Nature of Law

whole body of legal precepts which obtain in a given politically organized society. But laws in this sense need
to be distinguished from law. Laws in a sense are but
raw materials of law. It is law which gives them life.
Law makes laws effective for their purpose as instruments of justice. It develops them to meet situations
which the lawmaker forgot or did not appreciate. It
limits them to their reason and spirit when the lawmaker
fails to pursue his end with exactness. It supplies gaps
in the legislator's scheme when he fails to pursue his end
with completeness. When we speak of law, therefore,
we speak of something more significant and more enduring than laws. The Greeks, for example, had abundant
laws but not law in the sense in which jurists have consciously or unconsciously used that term since the classical Roman lawyers. Law, as distinguished from laws,
is the system of authoritative materials for grounding
or guiding judicial and administrative action recognized
or established in a politically organized society. 3 It is
-often looked upon today as a body of norms of conduct or
23.
For fuller exposition of details of the outline which follows, see Pound,
.Juristic Science and the Law (1918) 31 Harvard Law Rev. 1047, 1060-1063; id.
Theory of Judicial Decision (1923) 36 Harvard Law Rev. 641, 643-653; id. The
Administrative Application of Legal Standards (1919) 44 Rep.Am.Bar Ass'n

443, 454-458; id. The Supreme Court and Minimum Wage Legislation (1925)
compiled by the National Consumer's League, Introduction;
id.
The Ideal
Element in American Judicial Decision (1933) 45 Harvard Law Rev. 136; id.
A Comparison of Ideals of Law (1933) 47 Harvard Law Rev. 1; id. Hierarchy
of Sources and Forms in Different Systems of Law (1933) 2" Acta Academiae
Universalis Jurisprudentiae Comparativae, published also in 7 Tulane Law
Rev. 475; id. What is Law? (1940) 47 W.Va.Law Quart. 1, 3-9.
[106 ]
10.
The Nature of Law
as a body of norms of decision, according to the standpoint of the particular jurist. But there is more to it
than norms, as the normative analytical theory commonly
puts the matter.
There is here no simple conception. Law in the sense
we are considering is made up of precepts, technique, and
ideals: A body of authoritative precepts, developed and
applied by an authoritative technique in the light or on
the background of authoritative traditional ideals. There
is in any developed legal system a traditional technique
of developing and applying legal precepts by which those
precepts are eked out, extended, restricted, and adapted
to the exigencies of administration of justice. This technique of developing and applying the precepts, the art of
the lawyer's craft, is quite as authoritative as and no
less important than the precepts themselves. Indeed, it
is this technique element which chiefly serves to distinguish from each other the two great systems of law in
the modern world.
In the common law, the system of law of the English-speaking world, a statute furnishes a rule for the cases within its
purview, but not a basis for analogical reasoning. For that we
look to experience of the administration of justice in the reported
decisions of the courts. In the civil law, the system of the other
half of the world which builds upon the Roman law, the technique
in this respect is wholly different. The civilian reasons by
analogy from legislative precepts and regards a fixed course of
judicial decision on some point as establishing that precise point,
[107]
The Nature of Law

but not as providing 4a principle-an authoritative starting point
2
for legal reasoning.
For example. In Roman law in order that one acquire title
to an item of property by adverse possession, it was necessary
that the thing be something in which property could be acquired, that it be held under some title, that it have been taken
in good faith, that it have been possessed exclusively and adversely, and that the possession have been continuous for the
time fixed by law.2 5 The Roman law required some just title,
even if bad or defective.26 The French civil code provided instead that in all cases of moveables possession should stand for
title.2 7 A common-law lawyer would say, this proposition is
laid down in the part of the code having to do with acquisition
of title to property by adverse possession. Hence its application must be limited to the situation for which it was there enacted. It cannot be made to apply by analogy to other fields of
the law.u But the civilian brought up to think of legislation as
24. Capitant, Introduction A l'6tude du droit civil (4 ed. 1923) 109-114;
Schuster, German Civil Law (1907) 17; 1 Windscheid, Pandekten (9 ed. 1906)
J 35; Stammler, Theorie der Rechtswissenschaft (2 ed. 1923) 633-641. As to

the common law, see Landis, Statutes and the Sources of Law, in Harvard Legal Essays (1934) 214-234.
25.
Voet, Commentarius ad Pandectas, Commentary on Dig. 41, 3 (transi.
by Krause 1922, 167).
possession thus:
"An old hexameter formulates the requisites of adverse
res habilis, titulus, ides, possessio, tempus."
1 Dernburg,
-Pandekten (8 ed. 1911) 182 n.
26.
Gaius, 2, 43, 51; Inst. 2, 6, pr.
27.
French Civil Code, art. 2279.
28.
Millard v. Green, 94 Conn. 597, 609, 110 A. 177, 181, 9 A.L.R. 1610 (1920);
Goodhue v. State St. Trust Co., 267 Mass. 28, 165 N.E. 701 (1929); Guppy v.
Moltrup, 281 Pa. 343, 126 A. 766 (1924); Smith v. Lingelbach, 177 Wis. 170,
187 N.W. 1007 (1922). "I cannot agree that a statutory exception, limited narrowly in its operation, offers much ground for analogy or example in considering a matter which raises a general principle of law." Langton, J. in The
Vernon City [1942] P. 9, 14.
[ 108]
10.
The Nature of Law
an ascertainment and declaration of a principle referable to natural law, does not hesitate to employ a legislative proposition as
a starting point for reasoning anywhere in the law.2 9
How our law reasons by analogy is illustrated by the letter
of credit cases which developed after our entry into the World
War in 1917. In the course of manufacture and export under
corporations set up by our government and carried on by letters
of credit, a question arose whether a letter of credit could be
pledged. On this question recourse was had to an obsolete English practice of equitable mortgage of land by deposit of title
deeds. In the absence of a system of recording conveyances, an
owner kept his title deeds and when he sold land turned the title
deeds over as showing what he had to convey. He could not expect to sell the land without producing them. But if he had
pledged them he could not get them back to produce to a purchaser until he paid the debt. Thus the pledgee of the title deeds
had control of the disposition of the land and equity, looking at
the substance rather than the form, treated the transaction as
equivalent to a mortgage.3 0 This analogy was applied to the
pledging of letters of credit. The pledgor of the latter could
not get his money from the purchaser of the manufactured articles without attaching the letter to the bill of lading. He could
not get the letter until he paid the debt for which it was pledged.
Hence the pledgee of the letter had a lien on the fund. 31 The
civilian would not think of reasoning from a course of judicial
decision in that way.
For another example, in the common-law system substituted
relief is the rule; specific relief is given exceptionally when
29.
1 Planiol, Trait'
6l6mentaire de droit civil (12 ed. 1932) nos. 2459 et
seq.
30. Russel v. Russel, 1 Brown Ch. 269 (1783); 3 Pomeroy, Equity Jurisprudence (3 ed. 1905) 1264 (see especially the reasoning in note 1).
31.
See Hershey, Letters of Credit (1918) 32 Harvard Law Rev. 1, 29-30.
[109 ]
The Nature of Law

substituted relief, a money equivalent or money damages, is not
adequate to secure the right. Take, for instance, a contract to
transfer a specified block of shares of stock in a particular corporation. With us the ordinary remedy is damages-an amount
of money which will buy the agreed number of shares of that
stock on the market, or, if they were to be sold, the money value
of the bargain. But in a special case, where it is of real importance actually to have that number of shares of that particular
stock, and they are closely held and could not be bought on the
market, we should give specific relief and require transfer as
agreed.32 In the civil or modern Roman law it is the reverse.
The civilian gives specific relief as a rule; but where it is inequitable or impossible to give specific relief he gives substituted
relief instead.33 The technique in each system is no less authoritative than the precepts which it develops and applies.
Again, although the courts in continental Europe have
come to treat the course of judicial decision as a form of the
law, and single decisions of the highest court of review are now
cited by commentators as indicating such a course, there is still
a difference between our technique of precedents and that which
34
has been developing in the civil-law world.
Upon review of the examples of the technique element given, it will be seen that the characteristic feature
in each is that they are not legal precepts. They are
32. Cud v. Rutter, 1 P.Wms. 570 (1719); Hyer v. Richmond Traction Co.,
168 U.S. 471, 483, 18 S.Ct. 114, 119, 42 L.Ed. 547 (1897); New England Trust
Co. v. Abbott, 162 Mass. 148, 154, 38 N.E. 432, 434, 27 L.R.A. 271 (1894); Cushman v. Thayer Mfg. Jewelry Co., 76 N.Y. 365, 369-370 (1879). See Toles v. Duplex Power Co., 202 Mich. 224, 168 N.W. 495 (1918) and my comments on that
case in 33 Harvard Law Rev. 431.
33. See Amos and Walton, Introduction to French Law (1935) 184-189.
34.
See post 16 104.
[110]
10.
The Nature of Law
modes of looking at and handling and shaping legal precepts. They are mental habits governing judicial and
juristic craftsmanship. One who sought to reduce the
whole content of law to rules might say it is a rule of law
that courts shall follow their past decisions and the analogy of their past decisions or of the past decisions of
other common-law courts where their own are lacking.
But such a rule is not a rule in the same sense as the rule
that a will must have a certain number of witnesses, or
that a promissory note must have words of negotiability
in order to be negotiable, or that a malicious prosecution,
in order to be actionable, must have been without probable cause. Nor is it a principle in the same sense as the
principle of tort liability as a corollary of fault or the
principle that no one is to be enriched unjustly at another's expense. The latter are authoritative premises for
judicial reasoning. We use them as the civilian uses a
text of a code or a text of the Digest. The circumstance
that the common law of continental Europe is in form
legislation of an emperor while our common law is in
form a body of reported decisions, obscures the identity
of our analogical reasoning from common-law principles
with the civilian's interpretation of the Roman-law texts
or of the provisions of a century-old code. The doctrine
of precedents, on the other hand, is not something to be
developed by analogy. It is not an authoritative premise
from which to deduce grounds of decision. It is by no
means anything so simple as a rule or a principle. It is
[111 ]
The Nature of Law
not a legal precept at all. It is a traditional art of judicial decision; a traditional technique of deciding with
reference to judicial decision in the past; a traditional

technique of developing the grounds of decision of particular cases on the basis of reported judicial experience,
just as the civilian has a traditional art of construing
legal texts and a traditional technique of developing the
grounds of judicial decision therefrom.
How much our doctrine of precedents differs from a mere
rule to follow an established course of decision on a given point
of law may be seen by comparing our mode of applying precedents
with the French jurisprudence. With us a precedent will govern a case "on all fours." But it may do much more. We distinguish it and limit it, or we extend its application and develop
its principle. The French, on the other hand, think only of a
definite proposition as established by judicial decision. Neither
a decision nor a course of decision can lay down a general rule.
The principles to be developed are found elsewhere. In other
words, the art of working with the materials of the legal system is no less different than the content of the materials themselves.3
Nor is there merely a legal precept that the remedy must be
by action at law, and hence the relief must take the form of
substituted redress, wherever that remedy will fully secure the
interest legally recognized and delimited. A traditional art of
remedial justice and a traditional technique of applying it, with
a consequent judicial and professional attitude toward remedies,
are the significant phenomena. This attitude determines our
35. See also Gray's comparison of the juristic technique of the civilian
with that of the common-law lawyer. Nature and Sources of the Law (2 ed.
1921) 275-281.
[112]
10.
The Nature of Law
whole mode of approach to any new situation and determines

our application of legal rules, our development of legal principles,
and our deductions from legal conceptions quite as much as the
content of the precepts for the time being. If this is doubted,
note the attitude of our more conservative courts toward the
declaratory judgment, which they have felt was somehow out of
line with common-law ideas.3 Note the halting development of
preventive relief in case of injuries to personality, 37 and the
tendency of common-law courts to say there is an adequate
remedy at law in such cases, in spite of the manifest impossibility of valuing feelings in money or restoring peace of mind by
buying it in the market with damages. 38 Note the almost pedantic squeamishness of courts about certainty in all details as a
requisite of specific enforcement of a contract. 39 Note the attempts to put reason behind a traditional prejudice in case of
specific enforcement of contracts for construction or for continuous performance. 40 The point in each case is that we have
developed an art of justice through the assessment of money
36. Cryan's Estate, 301 Pa. 386, 152 A. 675, 71 A.L.R. 1417 (1930); Nesbitt
v. Mfrs.' Casualty Ins. Co., 310 Pa. 374, 165 A. 403 (1933); Union Trust Co. of
Rochester v. Main & South Sts. Holding Corp., 245 App.Div. 369, 370, 282
N.Y.S. 428, 430 (1935); Loesch v. Manhattan Life Ins. Co., 128 Misc. 232, 218
N.Y.S. 412 (1926)-holding that there could be no declaratory judgment if
another adequate remedy was available; American Nat. Bank & Trust Co. of
Danville v. Kushner, 162 Va. 378, 174 S.E. 777 (1934); Brindley v. Meara, 209
Ind. 144, 198 N.E. 301, 101 A.L.R. 682 (1935); Aetna Life Ins. Co. of Hartford,
Conn. v. Haworth, 11 F.Supp. 1016 (D.C.Mo.1935); Columbian Nat. Life Ins.
Co. v. Foulke, 13 F.Supp. 350 (D.C.Mo.1936).
37.
See Pound, Equitable Relief Against Defamation and Injuries to Per-
sonality (1916) 29 Harvard Law Rev. 640.
38.
See Abbot, Justice and the Modern Law (1913) 32.
39. See Pound, The Progress of the Law-Equity (1920) 33 Harvard Law
Rev. 420, 434.
40. 4 Pomeroy, Equity Jurisprudence (3 ed. 1905) 1402. As to contracts for
continuous performance, see Pound, The Progress of the Law-Equity (1920)
33 Harvard Law Rev. 420, 435-436.
[ 113]1
The Nature of Law

damages by a jury. We have a traditional technique of redressing injuries in this way. We hesitate to employ advance
ascertainment of rights or coercion of specific action or prevention until we are convinced that our common-law remedial technique will not suffice. Even in England, where the courts have
moved faster than have ours in this respect, the courts have
hesitated about using injunctions in any way out of the usual
course of practice. 4 ' This attitude colors our whole administration of justice and made it possible for Lord Coke and Mr. Justice Holmes, and the old Supreme Court of New York to tell
us that a promisee has no legal claim to performance but only
one to damages for nonperformance. 2 The civilian, trained to
a wholly different technique of an action for fulfilment of the engagement and execution in natura,conceives of the obligation in
43
a wholly different way.
How thoroughly such things determine the effective content and application of legal precepts may be seen in American
judicial handling of Lord Campbell's Act. See, for example,
the cases which deny to a non-resident plaintiff a right under
the statute. The courts which so held admitted that the statute
gave the action "in broad and comprehensive terms." They
admitted that the language would include even alien non-resident
widows, children, and parents. But, they said, in order to have
such an operation, the statute must be express. They said that
to permit non-residents to claim advantage of the act would
be to give it extraterritorial effect. It would allow the statute of
41.
Kennard v. Cory Bros. & Co., [1922] 2 Ch. 1.
42. Coke, C. J. in Bromage v. Genning, 1 Roll.R. 368 (1617); Holmes, The

Common Law (1881) 300-303; Holmes, J. in Globe Refining Co. v. Landa Cotton Oil Co., 190 U.S. 540, 543, 23 S.Ct. 754, 755, 47 LEd. 1171 (1903); Lattimore v. Harsen, 14 Johns. 330, 331 (1817).
43.
2 Planiol, TraitoG 6l6mentaire de droit civil (8 ed. 1920-1921) no. 166.
[ 114]1
10.
The Nature of Law
one state to create a right in a person in another state.44 No one

would think of saying that the Sales Act or the Negotiable Instruments Law, which we feel in their main lines are declaratory, are given extraterritorial effect when non-residents or aliens
are allowed to assert rights under their provisions. But Lord
Campbell's Act gives a right that did not exist at common law,
and hence must be treated as something anomalous and exceptional. If one assaults another and merely injures him, the assailant must justify or repair the injury. If, however, he succeeds in killing his victim and the latter's dependents sue under
the statute, it is not to be assumed that the aggression was what
it appeared to be. The dependents of the assailed must prove
that it was wrongful." Such things flow so naturally from our
traditional common-law habits of thought that they do not appeal
to the lawyer as anomalous. But let him try to convince students
that they are reasonable and part of an enlightened system of
administering justice, and he will perceive how truly Coke could
speak of the "artificial reason and judgment of the law" as contrasted with "every man's natural reason," 46 and how decisively
that "artificial reason and judgment" is a part of the law itself.
"To know rules of law," says the Digest, "is not merely to understand the words, but as well their force and operation." 41
This force and operation are determined largely by the traditional technique of decision and juristic thinking-the traditional
canons of art which determine how legal materials shall be looked
at and how they shall be developed and applied. An account of
44. Deni v. Pennsylvania R. Co., 181 Pa. 525, 528-529, 37 A. 558, 559-560
(1897); McMillan v. Spider Lake Co., 115 Wis. 332, 337, 338-339, 91 N.W. 979,
980-981, 60 L.R.A. 589 (1902); Roberts v. Great Northern R. Co., 161 F. 239,
240 (C.C.9th, 1904). See also Chambers v. Baltimore & 0. R. Co., 207 U.S. 142,
149-151, 28 S.Ct. 34, 35-36, 52 L.Ed. 143 (1907).
45.
Nichols v. Winfrey, 79 Mo. 544 (1883).
46.
Prohibitions del Roy, 12 Co. 64, 65 (1608).
47.
Dig. i, 3, 17 (Celsus).
[115]
The Nature of Law

law that overlooks this element, by confounding it with the aggregate of received legal precepts for the time being, gives an
untrue picture of the actual phenomena.
There is also an ideal element in law (using "law"

in the sense of the present discussion)-a body of received, authoritative ideals. This element comes down
to a picture of the social order of the time and place, a
legal tradition as to what that social order is and so as to
the end or purpose of social control, which is the background of interpretation and application of legal precepts, especially in the application of legal standards, and
is crucial in new cases in which it becomes necessary to
choose from among equally authoritative starting points
for legal reasoning.
Many examples of this element in the law and of its importance may be vouched, extending from the Middle Ages to
twentieth-century America. An idea of universality pervaded
every medieval institution and activity. There was the universal
church and the universities postulated a universal empire. There
was a universal language for all official action. There was universal scholarship, promoted by universities to which students
resorted from all lands. There were universal ethical precepts
and customs of chivalry, and we read in Froissart's Chronicles
how knights came from many lands to take part in tournaments,
and how men passed freely from country to country, thought of
as Christians rather than as subjects of some particular political
authority. The knight, the scholar, and the merchant were, to
put the matter in the secular, political speech of today, citizens
of Christendom. Admiralty and the law merchant still have on
them the mark of the medieval ideal of a universal law. So has
[116]
10.
The Nature of Law
the eminently modern subject of conflict of laws. So has the

47
civil law in half of the world. %
A striking example of an idealized political picture of the
existing social order made the basis of judicial action is to be
seen in the medieval English decisions, which assume as a matter of course and beyond controversy the absolute separation of
temporal and spiritual power and hence hold that acts of Parliament or provisions in such acts attempting to deal with subjects
which in the then understanding of men came within the purview
of the spiritual power were "impertinent to be observed." 48
How an ideal may be found and developed judicially and
become authoritative was well brought out in the formative era
of American law in working out a theory of applicability of English legal institutions and doctrines and precepts to the social and
political conditions of the new world, and in finding criteria of
interpretating and applying the provisions of written constitutions as the fundamental law of the land. There were no rules
defining how the applicability of English legal precepts to
American conditions was to be determined. That English legal
precepts were in force with us so far as they were applicable,
and only so far as applicable, was not a principle with any such
historically given definiteness of content as the principle that
harm intentionally caused is actionable unless justified, through
which courts and jurists have been writing a new chapter in our
law of torts in the last generation. Nor was there any traditional
technique of receiving the law of one country as the law of another which the courts could lay hold of and make use of in the
making of American law. In fact, they determined what was
47a.
See Pound, The Church in Legal History (1939) Jubilee Law Lectures,
School of Law, Catholic University of America, 16-17.

48. Rous v. The Abbot (1450) Statham, Abridgment, Annuity, 11, Fitzherbert, Abridgement, Annuity, 41; Prior of Castleacre's Case (1506) Y.B. 21 Hen.
7, 1.
[117]
The Nature of Law

applicable and what was not applicable to America by reference
to an idealized picture of pioneer, rural agricultural America of
the fore part of the nineteenth century, and this picture became
part of the law. It is significant to compare the way in which
the operation of the first Married Women's Acts was held down,
as in derogation of the common law, with the willingness of
courts to go beyond the letter of the statutes in giving effect to
laws abrogating or altering rules of the feudal property law.49
The received ideal of an American society pictured a simple
ownership of land, freely transferable as the chief asset of a
pioneer community, devolving at death in the same way in which
personal property was distributed, and set free from the rules
appropriate to a society ruled by great land owners. It pictured
women as in the home, not about in the world entering into all
manner of legal transactions. The one set of statutes conformed
to the picture and was given the fullest effect. The other did not
and was held down in operation. Both were in derogation of the
common law. Married Women's Acts were no more radical in
their departure from the common law than the statutes which
made over descent of land. The difference in judicial treatment
is not to be explained analytically by the common-law canons of
interpretation.
Again, when our courts were called upon to perform the
novel task of interpreting written constitutions and judging of
legislative acts with reference to constitutional texts-something
which they could not but feel was distinct in kind from the interpretation and application of statutes-they had no traditional
technique at hand. It became necessary to give a content to
49.
See e. g. the way in which the court went beyond the statute in reform-
ing the law as to estates tail in Gillilan v. Gillilan, 278 Mo. 99, 111-113, 212
S.W. 348, 349-351 (1919) as compared with the attitude of the same court to-
ward a Married Women's Act in Leete v. State Bank, 115 Mo. 184, 21 S.W.
788 (1893).
[118]
10.
The Nature of Law
abstract constitutional formulas exactly as the civilian had to

give a content for modern purposes to abstract oracular texts
of the Roman books. Our traditional art of deciding had not been
devised for such problems.
Except for Coke's exposition of
Magna Carta and of the legislation of Edward I, there had been

little to do in the way of building a system of legal precepts upon
a foundation of authoritative texts. Moreover, Coke's Second

Institute was in great part a political tract in the contest of the
common-law lawyers with the Stuarts. The influence of Coke's
exposition of Magna Carta upon judicial application of our bills
of rights is obvious. The most significant provisions of our bills
of rights were taken from the Second Institute and represent an
attempt to give to the natural rights of men a concrete content
of the immemorial common-law rights of Englishmen as set
forth by Coke and Blackstone. Yet this historico-philosophical
content, derived from seventeenth-century England and eighteenth-century France, could not be used, as it came to us, for a
measure of American legislative powers. Hence, the courts fell
back upon an idea of the "nature of free government" or the
"nature of American government" 50 or the "nature of American
50. Chase, J.in Calder v. Bull, 3 Dall. (U.S.) 386, 388-389, 1 L.Ed. 648 (1798);
Terrett v. Taylor, 9 Cranch (U.S.) 43, 3 L.Ed. 650 (1815); Wilkinson v. Leland,
2 Pet. (U.S.) 627, 658, 7 L.Ed. 542 (1829); St. Louis v. Wiggins Ferry Co., 11
Wall. (U.S.) 423, 429, 20 L.Ed. 192 (1870); Field, J. in Slaughter House Cases,
16 Wall. (U.S.) 36, 95, 21 L.Ed. 394 (1872); Miller, J. in Loan Ass'n v. Topeka,
20 Wall. (U.S.) 655, 663-664, 22 L.Ed. 455 (1874); Monongahela Navigation Co.
v. United States, 148 U.S. 312, 324, 13 S.Ct. 622, 625, 37 L.Ed. 463 (1892);
Chicago, B. & Q. R. R. v. Chicago, 166 U.S. 226, 235-241, 17 S.Ct. 581, 584-586,
41 LEd. 979 (1896); Holden v. Hardy, 169 U.S. 366, 389, 18 S.Ct. 383, 387, 42
L.Ed. 780 (1897); Madisonville Traction Co. v. St. Bernard Mining Co., 196
U.S. 239, 251-252, 25 S.Ct. 251, 255-256, 49 L.Ed. 462 (1905); In re Dorsey, 7
Port. (Ala.) 293, 377-378 (1838); Jeffers v. Fair, 33 Ga. 347, 367 (1862); Regents of the University of Maryland v. Williams, 9 Gill & J. (Md.) 365, 408409 (1838); State ex rel. White v. Barker, 116 Iowa 96, 105, 89 N.W. 204, 207,
57 L.R.A. 244 (1902); State ex rel. St. Joseph & D. C. R. Co. v. Nemaha County Com'rs, 7 Kan. 542, 555-556 (1871); Holden v. James, 11 Mass. 396, 405
(1814); Commonwealth v. Perry, 155 Mass. 117, 121, 28 N.E. 1126, 14 L.R.A.
[ 119 ]
The Nature of Law

institutions." 51 Nature here meant ideal. It all came to an
idealized picture of the legal and political institutions of pioneer
America.
In the same way, when in the last quarter of the nineteenth
century our courts were called upon with increasing frequency to
pass on the reasonableness of social legislation in the transition
from pioneer, rural, agricultural America to the urban, industrial America of today, they turned to an idealized picture of the
economic order of our formative era. They postulated an ideal
society in which there was the minimum of government required
for the general security.5 In such a society there was a maximum

325 (1891); White v. White, 5 Barb. (N.Y.) 474, 484-485 (1849); Benson v.
Mayor, 10 Barb. (N.Y.) 223, 245 (1850); Nunnemacher v. State, 129 Wis. 190,
197-202, 108 N.W. 627, 628-630, 9 L.R.A.,N.S., 121 (1906).
In Jeffers v. Fair,
this ideal was made to read an extreme doctrine of states' rights into the
Confederate constitution, without regard to any specific language of that instrument.
51. Holden v. James, 11 Mass. 396, 405 (1814); Sohier v. Massachusetts
Gen. Hospital, 3 Cush. (Mass.) 483, 493 (1849); Gillilan v. Gillilan, 278 Mo. 99,
111-113, 212 S.W. 348, 349-351 (1919); State v. Moores, 55 Neb. 480, 490, 76
N.W. 175, 177, 41 L.R.A. 624 (1898). In Gillilan v. Gillilan primogeniture in
estates tail is held "contrary to the theory on which this and other commonwealths were built." The statute read: "And the remainder shall pass in fee
simple absolute to the person to whom the estate-tail would, on the death of
the first grantee, devisee or donee in tail, first pass according to the course of
the common law." 278 Mo. at 112, 212 S.W. at 350. Such a provision had
been held elsewhere to adopt primogeniture, giving the first taker an estate
for life and the common-law heir in tail a fee simple. Wight v. Thayer, 1
Gray (Mass.) 284, 286 (1854). Cf. also Ives v. South Buffalo By., 201 N.Y. 271,
287, 94 N.E. 431, 437, 34 L.R.A.,N.S., 162 (1911).
52. "It was once a political maxim that the government governs best which
governs the least. It is possible that we have now outgrown it, but it was an
idea that was always present to the minds of the men who framed the Constitution, and it is proper for courts to bear it in mind when expounding that
instrument." O'Brien, J. in People ex rel. Rodgers v. Coler, 166 N.Y. 1, 14, 59
N.E. 716, 720, 52 L.R.A. 814 (1901). See also Opinion of the Justices, 58 Me.
590, 597-598 (1871): Peckham, J. in Lochner v. New York, 198 U.S. 45, 57, 25
S.Ct. 539, 543, 49 L.Ed. 937 (1905); State v. Haun, 61 Kan. 146, 161, 59 P. 340,
[120 ]
10.
The Nature of Law
of individual free self-assertion. Hence, they took this to be

"liberty" as secured in the Fifth and Fourteenth Amendments.
It followed that all limitation upon abstract free self-assertion,
all derogation from a maximum of free self-assertion, was presumably arbitrary. With such an ideal of the social order and
the end of law before it as the basis of its conclusion, more than
one court pronounced legislation forbidding the payment of wages
in orders on a company store to be subversive of the liberty of
the workman, reducing him to the position of the infant, the
lunatic and the felon, and arbitrarily setting up a status of
53
laborer in a world which had moved to a r6gime of contract.
Courts and jurists in any developed system of law have
always proceeded on the basis of something more than the formal
body of authoritative legal precepts for the time being. Even
the analytical jurist, whose boast is that he goes wholly and exclusively upon the actual rules which in fact obtain in the courts
in modern states, in practice imports into his science an ideal
pattern of what those rules should be which in large part determines his results. He sets up an ideal plan which will explain as much as possible of the actual phenomena of the administration of justice and seeks to make the unexplained remainder conform thereto. Baron Parke gave us a classical
statement of the analytical ideal in Mirehouse v. Rennell. 54 Lord
Justice Fry shows us the historical ideal in action in Cochrane v.
Moore.
We may see the eighteenth-century philosophical ideal
345, 47 L.R.A. 369 (1899); Landon, J. in People v. Coler, supra, 23. Dodge, J.
in State v. Kreutzberg, 114 Wis. 530, 536-537, 90 N.W. 1098, 1100-1101, 58 L.R.
A. 748 (1902).
53. E. g. State v. Loomis, 115 Mo. 307, 315, 22 S.W. 350, 351, 21 L.R.A. 789
(1893); State v. Fire Creek Coal & Coke Co., 33 W.Va. 188, 10 S.E. 288, 6 L.R.
A. 359 (1889); State v. Haun, 61 Kan. 146, 162, 59 P. 340, 346, 47 L.R.A. 369
(1899).
54.
1 Cl. & Fin. 527 (1833).
55.
25 Q. B. D. 57 (1890).
[ 121]
The Nature of Law

used as the directive of judicial reasoning in the opinion of Chief
Justice Marshall in Ogden v. Saunders.5 6 The metaphysical
ideal may be seen in action in a long line of cases in the nineteenth century and fore part of the present century which conceive that idealized principles of the common law are guaranteed
by the bills of rights and so are beyond the reach of legislative
57
innovation.
It is especially noteworthy how such ideals of the social
and political order and reference of legal questions thereto dictated the divergent conclusions of the judges in the Dred Scott
case.5 We deceive ourselves grossly when we devise theories of
law which exclude such things from "the law." When such ideal
pictures have acquired a certain fixity in the judicial and professional tradition they are part of "the law" quite as much as
are legal precepts. They give precepts their living content and
in difficult cases are the ultimate basis of choosing, shaping, and
applying legal materials in the decision of controversies. When
we seek to exclude them from our formal conception of law we
not only attempt to exclude phenomena of the highest significance
56. 12 Wheat. (U.S.) 213, 6 LEd. 606 (1827). He reminds us that the founders of our legal polity "were intimately acquainted with the writings of those
wise and learned men whose treatises on the law of nature and nations have
guided public opinion in the subjects of obligation and of contracts." Hence
he argues that the idea of natural law and of the legally binding force of the
moral obligation of contract, maintained in those treatises, must be the basis
of applying the contract clause of the federal Constitution. Ibid. 353-354.
57. Miller, J. in Pumpelly v. Green Bay Co., 13 Wall. (U.S.) 166, 177, 20 L.
Ed. 557 (1871); McKenna, J. dissentiente in Arizona Employers' Liability
Cases, 250 U.S. 400, 436-437, 39 S.Ct. '553, 561, 63 LEd. 1058, 6 A.L.R. 1537
(1919); Baldwin, J. in Hoxie v. New York, N. H. & H. R. R., 82 Conn. 352, 359360, 73 A. 754, 757-758, 17 Ann.Cas. 324 (1909); Taylor v. Porter & Ford, 4
Hill (N.Y.) 140, 144-147 (1843); Ives v. South Buffalo Ry., 201 N.Y. 271, 287289, 293-296, 298, 94 N.E. 431, 437, 439-440, 441, 34 L.R.A.,N.S., 162 (1911);
Durkin v. Kingston Coal Co., 171 Pa. 193, 202-203, 33 A. 237, 238-239, 29 L.R.A.
808 (1895); State v. Simons, 29 S.C.Law, 761, 767 (1844).
58.
19 How. 393 (1857).
[ 122]
10.
The Nature of Law
for understanding of the actual functioning of judicial justice,

but, as things are, we do the courts much wrong by laying them
open to a charge of deciding lawlessly when they do what they
must do, and what courts always have been compelled to do when
they administer justice according to law.
3. As historical jurists and writers on sociology of

law use the term "law" for social control as a whole, so
a group of realists have tended to use the term for all
official control in a politically organized society. One
consequence of the functional attitude toward the problems of jurisprudence is increased attention to the phenomena of the actual administration of justice as contrasted with exclusive attention to the authoritative materials for the guidance of judicial action. Hence many
who have written about "law" recently have meant what
Mr. Justice Cardozo has taught us to call the judicial
process. 9 This way of thinking is stimulated in the English-speaking world today by the rise of administrative
adjustment of relations and ordering of conduct, in which
the process is more significant than authoritative precepts for its guidance.
Not infrequently also "law" is used to include all three of
the foregoing meanings. This is notable in discussions of the
relation of "law and morals." Much of that discussion has been
vitiated by the multiplicity of meanings of the terms used. Commonly jurists have considered under that head the relation of
morals or of morality or of both to the body of received or au59.
The Nature of the Judicial Process (1921).
[ 123 ]
The Nature of Law

thoritative materials for guidance of judicial or administrative
action, or to the legal order, or to the judicial and administrative
processes, or to any two or all three of them. Similarly when we
speak of the science of law we may mean an organized body of
knowledge concerning the authoritative materials of judicial and
administrative determinations, as did the analytical jurists in
the last century. In recent times, however, we are more likely
to mean a body of knowledge or investigation in which the legal
order, the authoritative materials for guidance of judges and
officials, and the judicial and administrative processes are all
taken into account as somehow making up one subject. Indeed,
as has been said in another connection, 60 and will be explained
more fully later, the three meanings employed by jurists may be
unified by the idea of social control. We may think of a r6gime
which is a highly specialized form of social control, carried on in
accordance with a body of authoritative precepts applied by an
authoritative technique on a background of received ideals in a
judicial and an administrative process.
Nor are we through when we have carried the discussion thus far. The body of precepts itself is also complex. It is made up of rules, principles, precepts defining conceptions, and precepts establishing standards.
Rule or rule of law is often used for every type of legal
precept. But in the sense in which the term is used here
it means a legal precept attaching a definite detailed legal
consequence to a definite detailed state of fact. It is the
earliest type of legal precept, and the only one known to
the first stage of legal development. The codes of the
beginnings of law get no further. They are made up of
precepts of this type.
60.
Ante chap. I.
[124 ]
10.
The Nature of Law
Examples in modern law are rules as to execution and attestation of wills; rules as to execution of conveyances; rules
as to what makes a negotiable instrument and how such instruments are to be negotiated and the effect of negotiation; the
rules as to estates in land; and the sections of a penal code. Examples in the first stage of legal development are: the provision
in the Laws of Hammurabi: "If a free man strike a free man, he
shall pay ten shekels of silver;" Il in the Roman XII Tables:
"If the father sell the son three times, let the son be free from
the father;" 62 in the Laws of Ethelbert, the long and detailed
tariff of compositions; 63 in the Salic Law: "If any one shall
have called another 'fox' he shall be condemned to three shillings." 64 This is the type of legal precept which those have in
mind who urge the threat theory of a law.
A principle is an authoritative starting point for legal reasoning from which we seek rules or grounds of decision by deduction. Principles are the work of lawyers.
They organize experience of interpreting and applying
rules or experience of advice to litigants or tribunals or
experience of judicial decision by differentiating cases
and putting generalized propositions behind the differences. They compare a long developed experience of decision in some field, referring some cases to one general
starting point for reasoning and others to some other
61.
204, Harper, The Code of Hammurabi, 75.
62.
Tab. IV, 2, 1 Bruns, Fontes Turis Romani Antiqui (6 ed. 1893) 21-22
(7 ed. 1909).
63. Laws of Ethelbert, 33-61 (1 Thorpe, Ancient Laws and Institutes of
England (1840) 13-19).
64. Salle Law, tit. xxx, 4 (Henderson, Select Historical Documents of the
Middle Ages (1892) 181).
[125]
The Nature of Law
such starting point, or they find a more inclusive starting

point for a whole field. They come into the law with the
advent of legal writing and juristic speculation, so that
the presence of this element as a controlling factor is the
mark of a developed legal system. Principles as such
appear first at the end of the stage of strict law. But an
earlier form in the shape of legal proverbs or maxims
goes back to the beginnings of law.
Examples of principles are: That where one does something
which on its face is an injury to another he must respond for the
resulting damage unless he can justify his action; that one who
culpably causes loss to another will be held liable for the injury;
that one person is not to be unjustly enriched at the expense of
another. In none of these is there any definite detailed state of
facts presupposed, and no definite detailed legal consequence is
attached. Yet jurists and tribunals continually turn to such
principles as starting points for reasoning. Restitution (quasi
contracts), constructive trusts, election, subrogation, contribution, title by judgment, and the doctrine of equity as to merger,
to give but a few examples, have been worked out by reasoning
from the principle as to unjust enrichment. Again, note how
starting from a principle as to the duty of a common carrier, the
precepts worked out for the carter were extended in one line to
the stage coach, to the railroad, to the trolley car, to the auto
truck, and to the airplane, as one type of carrier succeeded another. Note how in another line they were extended to telegraph, telephone, radio, gas, electric light, and power. Then note
how lawyers later worked out a broader principle as to duties involved in a public service, which has enabled our law to deal with
one after another of these rapidly developing agencies of public
service by affording a starting point for reasoning.
[ 126 ]
10.
The Nature of Law
A legal conception is a legally defined category into

which cases may be fitted so that, when certain situations
of fact come within the category, a series of rules and
principles and standards become applicable. Conceptions are the work of the systematizing and organizing
activity of the maturity of law, and chiefly the work of
teachers.
Examples are: Bailment, trust, sale, partnership, public
utility. In these cases there is no definite detailed legal consequence attached to a definite detailed state of facts. Nor is there
a starting point for reasoning. There are instead defined categories into which cases may be put, with the result that certain
rules and principles and standards applicable to the category are
to be used to guide determination of a controversy. Principles
and conceptions make it possible to get along with many fewer
rules and to deal with assurance with new cases for which no
rules are at hand.
A standard is a measure of conduct prescribed by

law from which one departs at his peril of answering for
resulting damage or of legal invalidity of what he does.6"
Standards come in first in the stage of equity and natural
law.
Examples are: The standard of due care not to subject others to unreasonable risk of injury; the standard of reasonable
service, reasonable facilities, reasonable rates imposed upon pub65.
As to standards, see Mutual Film Corp. v. Industrial Commission, 236
U.S. 230, 245-246, 35 S.Ct. 387, 392, 59 L.Ed. 552 (1915); Drake, The Rule, the
Principle, the Standard in Fluctuating Exchange (1927) 25 Mich.Law Rev. 860;
Richards, Insurance (3 ed. 1911) X (4 ed. 1932); Merrill, Covenants in Oil and
Gas Leases (1926) 72 ff. (2 ed. 1940).
[ 127]
The Nature of Law

lie utilities; the standard of fair conduct of a fiduciary; the
standard of reasonableness in the law as to restraint of trade;
due process of law under the Fourteenth Amendment (i.e. whether a measure is reasonable or, on the other hand, arbitrary and
unreasonable) ; the standard of use by a usufructuary in Roman
law.66 Note the element of fairness or reasonableness in standards. This is a source of difficulty. As has been said, there is no
precept defining what is reasonable and it would not be reasonable to attempt to formulate one. In the end, reasonableness has
to be referred to conformity to the authoritative ideal.
Conduct requires standards. It is enough to instance one attempt to reduce conduct to rule, namely, the old "stop, look, and
listen" rule. 7 Compare applying this rule to a horse and buggy
crossing a single track railroad where trains ran thirty miles an
hour with a heavy motor truck crossing a four-line track on
which streamlined trains as like as not go one hundred miles an
hour. By the time the driver has stopped, got off the truck,
looked up and down the tracks, got back on his truck and started
up again, the streamlined train may have come four miles.68
Thus the difficulties in discussion of the nature of

law arise primarily from the different meanings of the
word so that analytical and historical and philosophical
jurists in the last century were not talking about the
same thing although talking about the same word. For
example, analysis of some one constituent of the body
66.
Dig. 7, 9, 1, pr.; French Civil Code, art. 601.
67. Benner v. Philadelphia & R. R. Co., 262 Pa. 307, 105 A. 283, 2 A.L.R.
759 (1918).
68. Pokora v. Wabash R. Co., 292 U.S. 98, 54 S.Ct. 580, 78 L.Ed. 1149, 91
A.L.R. 1049 (1934). See the discussion at pages 102-106 of 292 U.S., at pages
582-583 of 54 S.Ct. of Baltimore & 0. R. Co. v. Goodman, 275 U.S. 66, 48 S.Ct.
24, 72 L.Ed. 167, 56 A.L.R. 645 (1927).
[ 128]
10.
The Nature of Law
of authoritative materials of a legal system was made

to stand for the whole and then was assumed to suffice
for the two other meanings of "law" as well. Some analytical jurists saw only the legislative element in the
body of authoritative precepts, others thought in terms
of the traditional or rational element. Historical jurists
saw a continuity of social control and so did not recognize
the differentiation which has come with the development
of politically organized society and resulted in setting off
the highly specialized social control through law in the
lawyer's sense of that term. Philosophical jurists saw
chiefly, if not solely, the ideal element as the significant
feature of law in the lawyer's sense. Moreover, the nineteenth-century schools took no account of the discretionary element in the judicial process, nor of the administrative process as an agency of upholding the legal order.
The realists in the present century have taken these up
and sought to make them the basis of theories of law in
all of its meanings.
But the different meanings of the term "law" are
not the only source of difficulty in discussions of the "nature of law." If we restrict the term to the body of authoritative materials for guidance of judicial and administrative determination, it is possible to look at those
materials from more than one standpoint, and the answer
to the question, what is law? will depend much upon the
standpoint from which it is asked.
[ 129 ]
The Nature of Law

There are at least six standpoints from which law in the
sense of the body of authoritative precepts may be looked at.
First is the standpoint of the lawmaker. He thinks of something that ought to be done or ought not to be done and so of a
command to do it or not to do it. Today the realist puts the result from this standpoint in terms of a theory of a law as a
threat. It is a threat that, given certain conduct or a certain
state of facts, those who wield the force of politically organized
society will apply that force in a certain way. This defines law
in terms of rules, by no means the most significant part of one
element in law used in one of its three senses.
Second is the standpoint of the individual subject to the legal precept, who would walk in the straight path of social conduct and wishes it charted for him. If, instead he is the bad man
of whom Mr. Justice Holmes speaks,6 9 who has no care for the
straight path but wishes to know what path he may take with
impunity, he will no doubt think of a legal precept as a threat.
But the ordinary man who does not "wash the idea in cynical
acid" 70 has more commonly thought of it as a rule of conduct, a
guide telling him what he ought to do at the crisis of action. This
is the oldest idea of a law. It goes back to the codified ethical
custom of the earlier stages of legal development.
Another standpoint is that of a judge who has a case before
him for decision or a ruling to make in the course of a trial; or
that of an administrative official called upon to make some determination. Here the significant thing seems to be a body of authoritative grounds or models or patterns of decision or of administrative determination.
Fourth, there is the standpoint of the counselor at law or legal adviser who would advise a client as to what he may do or
69.
Holmes, Collected Legal Papers (1921) 170, 173.
70.
Id. 174.
[130]
10.
The Nature of Law
may not do safely, or how he may act with assurance that courts
and administrative officials will back him and further his quest
of desired results. From this standpoint law may seem to be a
body of threats of official action upon given states of fact, or it
may seem to be a body of bases of prediction of official action.
Even looked at in this way, however, it must be insisted that a
law or a legal precept is not a prediction, as some realists deem
it."' It is the adviser not the law that does the predicting. As
Mr. Justice Cardozo pointed out a law or a legal precept is a basis
2
of prediction!
Fifth, there is the standpoint of the jurist or teacher who is
called on to put in the order of reason the materials recognized
or established as the basis of decision or at hand for the counselor, or provided for the guidance of the citizen or individual.
He may find it hard to say that one of the foregoing aspects, as
things are today, is more significant than another, or to find the
more inclusive order which will enable him to fit a theory to all
of these points of view. From his own special point of view he
is likely to regard a law or a legal precept as a basis of development of doctrine.
Finally, there is the standpoint of the entrepreneur or man
of business, which was taken at one time by writers on the nature
of law but is less heard of today. From this standpoint legal precepts have been thought of as charts and legal conceptions as devices for the carrying out of business plans or carrying on of
73
business enterprises.
It is submitted that the different ideas of a law, reached
from these several standpoints, can be unified in terms of the
71.
Id. 167-173.
72.
The Growth of the Law (1924) 52.
73.
E. g. Bohlen, Old Phrases and New Facts (1935) 83 U. of Pa.Law Rev.
305, 307, 311. I have considered this idea in The Call for a Realist Jurisprudence (1931) 44 Harvard Law Rev. 697, 708-709.
[131 ]
The Nature of Law

idea from the standpoint of the judge. Judges and benches of
judges are expected to and for most practical purposes will follow and decide in accordance with the established precept or established starting point for legal reasoning developed by an authoritative technique. Hence, the precept or developed starting
point may serve as a command or threat, or as a rule of conduct,
or as a basis of prediction, and the legal conception may serve as
a business device.
59. THE ANALYTICAL DOCTRINE.74 Analytical jurists use the term "law" in the second of the
three senses above set forth; they consider only the precept element of law used in that sense; they take the rule
of law in the narrower meaning as the type of legal precept; and they think of rules either as rules of conduct
or as rules of decision, or, in the most recent analytical
discussions, as threats.
All subsequent analytical theories of law in English
build on Austin. Moreover, recent French " and German 6 analyses, if not actually developed from Austin,
74.
1 Austin, Jurisprudence, Analysis of Lectures 1-6 (5 ed. 1885, 81-85)
lect. 1; Hobbes, Leviathan (1651) pt. II, chap. 26, par. 6; Bentham, A Comment on the Commentaries (1928) I-VI, VIII; Holland, Jurisprudence (13
ed. 1924) chaps. 2, 3; Markby, Elements of Law (6 ed. 1905) 1-26; Pollock,
First Book of Jurisprudence (1896) chap. 1; Salmond, Jurisprudence (1902)
5, 16, 17; Brown, The Austinian Theory of Law (1906) 552-639; Clark,
Roman Private Law:
I Jurisprudence (1914) 2; Jhering, Law as a Means
to an End (transl. by Husik, 1913) 233-246.

75.
LUvy-Ullmann, La difinition du droit (1917); 1 Roguin, La science ju-
ridique pure (1923) 3-55.

76. Soml6, Juristische Grundlehre (1917) 11; Kelsen, Reine Rechtslehre
(1934); id. The Pure Theory of Law (1934) 50 Law Quart.Rev. 474; id. The
[ 132 ]
10.
The Nature of Law
reach similar results by a like procedure, and on the same

presuppositions. Hence we may begin with Austin's analysis.
Austin makes three preliminary assumptions. The
first is that law is an aggregate of laws. Accordingly his
analysis of "law" starts with analysis of "a law." Bentham had insisted on approaching the subject in this way.
He said: "Law or the law . . . is an abstract or
can mean nothing more
.
collective term which .
nor less than the sum total of a number of individual laws
taken together." " That is, "law" is a collective expression for the aggregate of "laws." Therefore we must
first see what is meant by "laws" or by "a law." I have
pointed out above why I do not consider this a valid assumption. It excludes or ignores the technique element
and the ideal element in law in the second sense.
Salmond also challenges Austin's first assumption. He says
that "law" has an abstract sense (the law) and a concrete sense
(a law). The law, he says, is not made up of laws but of rules of
law or legal principles. He adds: "A law means a statute, enactment, ordinance, decree or any other exercise of legislative authority. It is one of the sources of law in the abstract sense. A
law produces statute law, just as custom produces customary
law, or as precedent produces case law." 78 Gray agrees to the
extent of holding that a statute is only a source of the law; that
Pure Theory of Law and Analytical Jurisprudence (1941) 55 Harvard Law
Rev. 44.
77.
1 Works (Bowring ed. 1859) 141.
78.
Jurisprudence (1902) 5.
[ 133 ]
The Nature of Law

it is only a basis on which courts make the rules and principles
which are the law? 9
With respect to Salmond's point, so far as it is more than a
statement of what he takes to be usage of English speech, he
seems to have drawn the idea from his reading of Continental
writers. For example, in France the articles of the code and the
legislative enactments supplementary thereto are lois. The whole
body of doctrine, principles, tradition of judicial decision, and
technique, by which justice is administered and whereby gaps in
the lois are supplied for the case in hand, is called droit. Until
recently only a settled course of judicial decision was regarded as
a form of law. Later the doctrine that single decisions of the
highest court do not constitute binding precedents and do not immediately furnish a rule to stand with loi for the future, but at
most show a tendency toward such a rule to become established
by a fixed course of decision, had in practice been coming close to
one of the force of the single decision.8 0 Indeed the draft of the
new French Civil Code (1955) omits Article 5 of the Code of
1804 ("Judges are not allowed to decide cases submitted to them
1
by way of general or rule-making decisions.").so
a But the usage
as to loi and droit goes back to the doctrine of the civil law. The
Germans use Gesetz and Recht in the same way. 8' Is the Continental usage applicable with us where the single decision of the
ultimate court of review makes a binding precept? We refer
courts for the basis of decision to, first, rules of enacted law,
and, second, rules or principles of the traditional law and precepts established by precedent. If no precepts of either sort ex79.
Nature and Sources of the Law (2 ed. 1921) 170-172.
80.
1 Planiol, Traitd 4ldmentaire de droit civil (11 ed. 1928) nos. 204, 205.
80a. Ldon Julliot de la MorandiMre, The Draft of the New French Civil
Code: The Role of the Judge (1956) 69 Harvard Law Rev. 1264.
81. 1 Enneccerus, Kipp, und Wolff, Lehrbuch des biirgerlichen Rechts (21
ed. 1928) 27, 32.
[134]
10.
The Nature of Law
ist, we expect the court to ground its decision upon some general
precept to be worked out from the traditional legal materials by
analogy, and that precept then takes its place in the legal system
as an authoritative ground of deciding like cases. Bentham, and
Austin following him, had statute before their minds as the type
of a law in our system. But they were not in error in regarding
a precept fixed by judicial decision, in a system where the doctrine of precedents obtains, as generically like one fixed by legislative enactment. E. g. the common-law rule against perpetuities is generically like a statutory enactment of it. Even where
the doctrine of precedents is not admitted, a rule established by
usus fori is generically like an enacted rule.
As to Gray's point, to Bentham's proposition that law is only
an aggregate of laws, he would say that a law is a source of the
law but not part of the law. We may leave this on one side for
the moment, since it only affects a question whether Austin, in
his analysis of a law is ultimately analyzing the law or one of the
sources of the law.
Secondly, Austin's analysis assumes that the precept

element of law is made up of rules; that a law is a rule.
In a wide sense of the term "rule" this is so. Administration of justice according to law is administration by
rule in the sense of an authoritative guide to the result,
as contrasted with administration according to the personal feeling of the magistrate for the case in hand. But
analytical jurists have been prone to think of rule in the
narrower sense of a precept attaching a definite detailed
legal consequence to a definite detailed state of fact, as in
a rule of property or a section of a penal code. The threat
theory assumes rules in this sense. It is possible, no
doubt, to make Austin's assumption apply to legal princi[ 135 ]
The Nature of Law

ples and to conceptions and standards as well as to rules
in the narrower sense. We might say that there is a rule
to deduce decisions from the principle; a rule to refer
cases to the appropriate conception; a rule that the
standard must be lived up to. But what rule tells us
which principle to start from when, as often happens,
more than one of equal authority is at hand? The authoritative technique and received ideals are decisive in
such cases. The Continental jurists assumed that there
was one and only one principle of natural law or text of
the Digest or section of the code from which to reason.
Austin had learned from them.
Austin was a chancery barrister. We must note that the
Court of Chancery in the first half of the nineteenth century was
mostly concerned with family settlements and trusts and administration suits in which detailed rules such as those of the law
of property are chiefly significant. Gray was a teacher of the
law of property. Thus both Austin and Gray analyzed the law
of property and put the result as an analysis of all law.
Thirdly, Austin assumed that laws are rules of action, and of human action. From the standpoint of the
individual looking at the body of precepts in accordance
with which the legal order is maintained through the administration of justice, this is clear enough. They have
to do with what one does, not with what he is. From
Austin's standpoint laws are rules of conduct governing
the acts of each so far as they affect others.
[ 136 ]
10.
The Nature of Law
Assuming these things, Austin finds five characteristics of laws or of rules of law in a developed legal system. The first is that a law is a command of a sovereign.
This proposition came down to him from the eighteenth
century. He simply worked it out logically to its full
content. As he puts it, laws are commands set by sovereign to subject.2 To understand this we must look into the meaning which he gives to each of the three substantives. By sovereign he tells us that he means that
person or body of persons to whom the bulk of a given
society are in the habit of obedience, such person or body
of persons not being in the habit of obedience to any determinate human superior. 3
Examples which he had in mind were the Eastern Roman or
Byzantine emperor, the French king of the old rdgime, the Czar
of the old r~gime in Russia, and King, Lords, and Commons in
Parliament in Great Britain. The labor leader who is obeyed implicitly by half a million workingmen was unknown in Austin's
day. But no doubt he would have said that they were not the
bulk of the political society in which they lived, and that the
leader in most of the affairs of life was in a habit of obedience to
the determinate body of persons who exercise the authority of
the politically organized society.
A command, Austin tells us, "is distinguished from

other significations of desire, not by the style in which the
desire is signified, but by the power and purpose of the
82.
1 Jurisprudence (5 ed. 1885) 86-87.
83.
Id. 220-221.
[137]
The Nature of Law

party commanding to inflict evil or pain in case the command be disregarded." 84 Where this power and purpose
exist, Austin says, the person commanded is "bound" or
"obliged" to obey. He is under a duty to obey. He may
or may not be morally bound, but he is obliged or bound.
In case of a command of the state he is legally bound.'
As Mr. Justice Holmes put it, Austin washes the conception of duty in cynical acid."
In appraising this we should bear in mind that the nineteenth century, by way of reaction from the infusion of morals
into law and identification of law with morals in the seventeenth
and eighteenth centuries, sought to separate them. It sought
certainty rather than ethical results. Also we should remember
that Austin began life in the army. His conception of command
and duty of obedience is thoroughly military.8 7 Hobbes puts the
idea in another way, saying that commands are "precepts in
which the cause of obedience depends on the will of him who
commands; not counsels which are precepts in which the reason
for obedience is taken from the thing itself which is advised." 88
This is in contrast to the philosophical jurists who found the basis of the authority of a legal precept in its intrinsic justice or inherent reasonableness.
A good example of what Austin meant is furnished by the
enactments of Congress under the Articles of Confederation.
Hamilton said of them: "Though in theory their resolutions
84.
Id. 89.
85.
Id. 89-92.
86.
Collected Legal Papers (1921) 173-174.
87.
See example given by Austin, 1 Jurisprudence (5 ed. 1885) 93.
Z8.
De Cive, cap. 14,
1.
[ 138]
10.
The Nature of Law
. . . are laws, constitutionally binding on the members of

the Union, yet in practice they are mere recommendations, which
the states observe or disregard at their option." 89 Austin would
say that the Congress of the Confederation had no power to inflict any consequences if its enactments were disobeyed. Hence
they were not binding. They were only recommendations, not
laws. No court administered the Articles of Confederation as
the supreme law of the land. Note the contrast to the naturallaw way of thinking, which would be that they were morally
binding and hence were legally binding. Austin would say they
were not binding because they were not imposed nor imposable
as commands. Nothing happened or could happen if they were
disregarded. There was no agency to make or try to make anything happen. On the other hand, the Civil War showed that the
Congress of the United States had the power and purpose of inflicting consequences if its enactments were disobeyed. Hence,
Austin would say, its acts within the limits of its power are binding and are laws. Today this is put in another way by saying
that a law is a threat of certain action by the agencies of a politically organized society.90
By subjects, Austin means those whom the determinate person or body of persons who exercise the power
of a politically organized society is in a position to coerce
into obeying his or its commands.9
Even as to developed systems of law there are serious objections to this idea of a law as a command. In the
first place, Austin's sovereignty is a postulate which he
89.
Federalist, no. 15.
90. Ldvy-Ullmann, La ddfinition du droit (1917) 165; 1 Roguin, La science

juridique pure (1922) 122; Kelsen, Reine Rechtslehre (1934) 25.
91.
Jurisprudence (5 ed. 1885) 95-97.
[ 139]
The Nature of Law

takes from the jurists of the era of absolute governments,
the seventeenth and eighteenth centuries. It has not
been easy for jurists of today to place the Austinian sovereign in democratic and in federal states. There is not
so much difficulty in a purely democratic state in which
all laws would be enacted by referenda and all administration would be carried on by town meeting in a smalltown city-state. While not so simple a case as Justinian
or Louis XIV, or the Czar of the old r6gime in Russia,
or as King, Lords, and Commons, yet where laws are enacted by referenda the greater number for the time being
of those who have the ius suffragii, taken collectively, in
Austin's sense promulgate a command, or in Kelsen's
sense make an authoritative pronouncement as to an item
of desired behavior.2 In a federal state there is more
apparent difficulty. But it may be said that exercise of
Austinian sovereignty is parceled out by mandates between central government and states and among departments of government and officials. 3
Lundstedt objects that "commands are not conceivable without the existence of a will that forbids or enjoins" and that "the
legal command cannot apply to anyone else but to the person who
has received and understood the command." 94 But a threat im92. Kelsen, The Pure Theory of Law and Analytical Jurisprudence (1941)
Z5 Harvard Law Rev. 44, 58.
93. Constitution, X Amendment; Coxe, Judicial Power and Unconstitutional Legislation (1893) 114-121. See also 1 Austin, Jurisprudence (5 ed. 1885)
258-262.
94. Superstition or Rationality in Action for Peace-A Criticism of Juris,prudence (1925) 35-37.
[ 140 ]
10.
The Nature of Law
plies a will quite as much as does a command. We may say that

those who exercise the authority and power of a politically organized society command, or that they threaten; in that sense the
state does so. As to the proposition that command implies communication to and understanding by the person commanded, is
not that equally true of a threat? It might be argued in morals
that no one ought to be bound by the command nor subjected to
the threat unless it has been communicated or understood. However, the implication here is from the standpoint of morals only.
For the practical purposes of maintaining the general security,
the legal order may well postulate communication and understanding from the prescribed promulgation. An unpromulgated
command or threat is none the less a command or a threat if the
one who makes it chooses to enforce it or to carry it out. The
difficulty which Lundstedt raises is not logical but moral. It may
be conjectured to have arisen from the ethical element in the,
word used to mean law on the continent.
A second objection arises from the difficulty of reconciling the establishment of legal precepts through adjudication with Austin's theory of the precept as the command of a sovereign. Cases arise which are not governed
by settled precepts but which courts must decide. The
courts decide them and in the common law, if the decision
is one of a court of ultimate or appellate jurisdiction, a
precedent results. A legal precept is established by the
decision. In the civil law, a tendency to decide the same
question in the same way results, which develops into usus fori (jurisprudence fixe, Gerichtsgebrauch)and thus
creates an authoritative legal precept having its origin
in judicial decision. The nineteenth-century legal theory
was that the precept was pre-existent, and was found by
[ 141]
The Nature of Law

the court rather than made. Historical jurists held that
it existed in customs transmuted into legal precepts by
legislation or judicial decision. 5 Philosophical jurists
held that it existed in principles of morals or of reason
applications of which got the guinea stamp of the state
by some agency of law finding. 6 Austin thought that
customs or precepts of positive morality were "turned
into rules" by judicial decision." Courts and practitioners, with the civilians, conceived that the precept applied
to decide the new case was contained logically or potentially in (a) the principles of the common law,"8 or (b)
the sections of a code, or (c) the subsidia to which a code
refers the judge,99 and was simply drawn therefrom by a
logical process. In fact, this judicial finding or making
of law takes place chiefly by analogical application of
rules and doctrines and by analogical reasoning from the
data which the existing body of law affords. But it is and
ought to be influenced to a greater or less extent by similar considerations to those which affect legislative lawmaking, namely, the judicial sense of right and justice,
and the judicial conception of social advantage.1 O Such
95.
Carter, Law: Its Origin, Growth, and Function (1907) 79, 310-312.
96. "The decision . . . is the exposition of the idea of right involved

in the particular relation of two self conscious beings." Miller, Lectures on
the Philosophy of Law (1884) 59.
97.
1 Jurisprudence (5 ed. 1885) 101-102.
98.
Rensselaer Glass Factory v. Reid, 5 Cow. (N.Y.) 587, 628 (1825).
99.
2 Austin, Jurisprudence (5 ed. 1885) 672-673.
100. Holmes, Collected Legal Papers (1921) 180-184.

this the argumentum ab inconvenienti, Co.Lit. 66a.
[ 142]
The old books called
10.
The Nature of Law
things are decisive in the choice of a starting point for

reasoning from among a number of equal authority. But
usually they operate in the form given them by received
ideals.
Consider the difference which it makes in many places in the
law of partnership whether start is made from the idea of a business device or of a juristic person, on the one hand, or from an
idea of co-creditors, co-debtors, and co-owners, on the other
hand; 101 whether in the law of water rights start is made from
a possessory idea or a use idea; 102 whether in the law of de facto
corporations start is made from an idea of a corporation as a
state-granted monopoly or from one of a business device.10 3 Compare the result of our starting from the analogy of a feudal relation of co-tenants owing one duty to the lord to work out the liability of co-promisors 104 with the Roman working out of the
same question in the obligatio plurium pro parte on the analogy
of co-heirs. 10 5
It is said that legal precepts established in this way

are not commanded by the sovereign. Austin's answer
is that they are "tacit" 1' commands while statutes are
express commands. This is a characteristic bit of eight101.
See e. g. Crane, Unintended Partnership (1924) 31 W.Va.L.Q. 1.
102.
E. g. 1 Wiel, Water Rights in the Western States (3 ed. 1911) 500.
103.
Compare Davis v. Stevens, 104 F. 235 (D.C.S.D.1900) with Merchants
Bank v. Stone, 38 Mich. 779 (1878).

104.
Sheppard's Touchstone, 375; White v. Tyndall, 13 App.Cas. 263, 276
(1888).
105. Inst. 3, 16, pr.; Dig. 45, 2, 11, 1.
Groves v. Sentell, 153 U.S. 465 (1894).
106.
Such is the law of Louisiana also.
"Tacit" is the civilian's word for our term "implied."
[ 143 ]
The Nature of Law

eenth-century thinking, derived from his study of the
early nineteenth-century Pandectists. The Roman jurists of the early empire held that the will of the Roman
people was the basis of law, but that it could make no difference whether this will was signified by voting or by
usage." 7 The eighteenth-century civilians, however, by
derivation from the academic conception of the Corpus
Iuris as legislation binding on Christendom, thought of
statutes as the normal form of law, so that the authority
of custom could only rest on the tacit consent of the lawmaker.0 8 In the spirit of this doctrine, Austin says:
"If the desire be signified by words . . . the command is express. If the desire be signified by conduct,
the command is tacit. Now when customs are turned
into rules by decisions of subject judges,1' the legal rules
which emerge from the customs are tacit commands of
the sovereign legislature. The state which is able to abolish, permits its ministers to enforce them; and it, therefore, signifies its pleasure by that voluntary acquiescence, that they shall serve as a law to the governed." 110
There is a false assumption here. Customs of popular action are seldom the basis of decision. Mostly decision goes on
107.
Dig. 1, 3, 32.
108. 1 Bierling, Kritik der juristischen Grundbegriffe (1883) 23; 1 Dernburg, Pandekten (8 ed. 1911) 20.
109. Note the erroneous assumption that judicial lawmaking turns customs
of popular action into rules of law. This is seldom true. It turns professional habits of thought into legal precepts.
I10.
Jurisprudence (5 ed. 1885) 102.
[ 144]
10.
The Nature of Law
analogical reasoning. This argument by which Austin meets

the objection that his theory of a law is not applicable to legal
precepts established by judicial decision was much discussed in
the nineteenth century. The debate was occasioned in great part
by the exigencies of the dogma of separation of powers. When
and where the separation of powers was received as a fundamental juristic dogma, writers were loth to admit that a legal
precept could be or was made by the judicial organ of the state.
But in a developed state there is often much formal warrant for
saying that judges exercise a certain expressly conferred power
of lawmaking. Thus it is provided in the French Civil Code that
where there are no rules in the code to govern a cause, the judges cannot refuse to decide or refuse relief for that reason. They
are made liable if they refuse."' In such cases it is said in the
Conferences on the Code that the judges may resort to natural
equity, natural law, the Roman law, the old customary law, usage,
the course of decision, general principles, maxims, and text books,
The Austrian," 3 Italian," 4
for the ground of decision.11
115
Swiss,
and Brazilian 16 codes have express provisions for
these subsidia, as Savigny 17 and Austin "s following him call
them. In other words, the judges are expected to frame a rule
for themselves for the case in hand. In the civil law this did not
IH. French Civil Code, art. 4.
revision of 1955.
This provision is omitted in the draft
112. See Savigny, Vom Beruf unsrer Zeit fUr Gesetzgebung und Rechtswissenschaft (3 ed. 1840) 74, where there are full references.
113.
Austrian Civil Code, Introduction, 7.
114.
Italian Civil Code, art. 3.
115.
Swiss Civil Code, art. 1.
116.
Brazil, Civil Code (1917, 1919) Intr. art. 7.
117. Vom Beruf unsrer Zeit fUr Gesetzgebung und Rechtswissenschaft (3

ed. 1840) 73.
118.
Jurisprudence (5 ed. 1885) 672.
2 Pound Jurisprudence-[10
[ 145 ]
The Nature of Law

make a rule for other like cases.11 In the theory of the civil law
only legislation could do that. But if it was followed in other
cases, the resulting usus fori was treated as having the force of
law.120 Thus ultimately in all systems the judges as well as the
legislators do make rules which are held to be binding upon tribunals.
Austin's position as to these judge-made or judicially established legal precepts is borne out to some extent by American
legislation. In at least twenty-seven states by constitution or
statute 121 it is enacted that in the absence of constitutional or
statutory provision the common law of England is to be made the
119. Cod. 7, 45, 13; French Civil Code, art. 5; Austrian Civil Code, Introduction, 8; 1 Planiol, Trait6 6l6mentaire de droit civil (11 ed. 1928) nos.
208-210.
120. 1 Dernburg, Pandekten (8 ed. 1911) 23; Erskine, Principles of the
Law of Scotland (1754) bk. i, tit. 1, 17.
121. Code of Ala.1940, tit. 1, 3; Pope's Dig.Stats.Ark.1937, 1679 [Ark.
Stats. 1-101]; Arizona Code 1939, 1-106 [A.R.S. 1-201]; Deering's Pol.
Code of California 1937, 4468 [West's Ann.Civ.Code 22.2]; 1935 Colorado
Stats.Ann. chap. 159, 1 [C.R.S. '53, 135-1-1]; 1941 Florida Stats. 2.01
[F.S.A. 201]; Code of Georgia Ann. 2-8503; Smith-Hurd, Illinois Ann.
Stats. chap. 28 1; Burns' Ann.Indiana Stats.1933, 1-101; Ann.Code of
Maryland (Flack) 1939, Const. art. 5 [Code 1957, Const. art. 5]; Rev.Stats.
Missouri 1939, 645 [Section 1.010 RSMo 1949, V.A.M.S.]; Rev.Codes of Montana 1935, 5672 [R.C.M.1947, 12-103]; Comp.Stats.Nebraska 1929, 49-101
[R.R.S.1943, 49-101]; Nevada Comp.Laws 1929, 9021 [N.R.S. 1.030]; New
York Con.Laws Ann. bk. 2, art. 1, 14; North Carolina Code of 1939, 970
[G.S. 4-1]; Oklahoma Stats.Ann. tit. 12, 2; Rhode Island Gen.Laws 1938
Ann. chap. 306, 1 [Gen.Laws 1956, 43-3-1]; South Dakota Code of 1939,
65.0103; Vernon's Ann.Rev.Civ.Stats.Texas 1925, tit. 1, art. 1; Rev.Stats.
Utah 1933, tit. 88, 88-2-1 [U.C.A.1953, 68-3-1]; Pub.Laws of Vermont 1933,
chap. 53, 1234 [V.S. '47, 1263]; Virginia Code of 1942, tit. 2, chap. 2,
2 [Code 1950, 1-10]; Remington's Rev.Stats. of Washington Ann. to 1931,
chap. 1, 143 [R.C.W. 4.04.010]; West Virginia Code of 1937, chap. 2, 22;
Wisconsin Stats.1941, Const. art. XIV, 15 [W.S.A.Const. art. 14, 13]; Wyoming Rev.Stats.1931, chap. 26, 101 [W.C.S.1945, 16-301]. See also Const.
Kentucky, 233, Rev.Stats.1942 [KRS Const. 233].
[ 146 ]
10.
The Nature of Law
rule of decision in the courts.1 2 Such legislation might be said

to be a command to apply the traditional legal precept either immediately or in a novel case by analogy, and to make a precedent
and adhere to it in the future according to the common-law doctrine of precedents. But is there really anything more here than
a direction to the judges how to decide and from what materials?
There is no command directly to private individuals.
In the states where the common law is in force by the usage
of the courts only 123 there is an authoritative technique and there
are authoritative ideals which enable a starting point for use of
the technique to be found in the received materials. No one has
commanded the parties to do or not to do something. If there is
any command it is one addressed to the courts to employ the received technique of developing and applying grounds of decision.
This, too, is not like a legal precept or rule of conduct addressed
to private individuals.
In the common-law system, after the decision in such a case,
a precept is established which is thereafter binding on private
persons as well as on the courts. That precept, Austin argues, is
impliedly commanded by the sovereign. But this does not meet
the decision in the first instance. As to that, Austin's proposition
would require us to say there was a decision without law; not
a very satisfactory theory. If, however, we recognize the received
technique and received ideals as part of the law, then the first
122. Such provisions are generally construed as adopting the common-law
system rather than as prescribing adherence to English decisions of any particular date.
Williams v. Miles, 68 Neb. 463, 470, 94 N.W. 705, 708, 62 L.R.A.
383 (1903); Pope, English Common Law in the United States (1910) 24 Harvard Law Rev. 6.
123. In some of these the common law was prescribed by the colonial charter. In others it was prescribed by the Northwest Territory Ordinance of
1787, which was afterward extended to the Mississippi Territory, or what
is now Alabama and Mississippi.

(1830).
See State v. Cawood, 2 Stew. (Ala.) 360
[147]
The Nature of Law

decision on the novel point is according to law, simply when a
precept in point is lacking, employing the other elements to frame
one for the case in hand and others like it thereafter.
To understand Austin's position we must remember

that most writers in the nineteenth century were under
the influence of Montesquieu's exposition of the separation of powers. 4 Hence it was natural at that time to
assume that judicial lawmaking in modern states was a
survival from a stage before a separation of powers had
been achieved. It was natural to assume that until a
complete system of express commands had been set up,
the deficiency would be eked out by a device of judicially
established precepts, which the state impliedly commanded ad interim until it got around to issue express commands. If one accepted the separation of powers as a
fundamental juristic dogma he might well say: There
is difficulty in applying the theory of a law as a command
to judicial lawmaking because that belongs to an older
condition in the development of the state in which judicial, executive, and legislative functions were undifferentiated or confused, whereas the command theory is
appropriate to a fully developed political and legal order
in which these functions are well differentiated and hence
the legislative organ does tacitly command what part of
the law is established by judicial decision. But the separation of powers is a political rather than a juristic dog124.
L'esprit des lois (1748) liv. XI, chap. 6.
[ 148 ]
10.
The Nature of Law
ma. As we understand it, it is a doctrine of American

constitutional law and political theory. It is not a doctrine of universal law. The functions of finding the law,
interpreting the law, and applying the law, are to some
extent inseparable. The judge from the very nature of
his office, whether he will or not, is compelled to be in
part a lawmaker." 5
A third objection to Austin's theory of a law as a
command is that a legal precept is often addressed to
courts, to govern decision, rather than to private individuals to govern conduct. In the earlier history of law a
law or a legal precept has for its object more directly to
give directions to the tribunal, to impose rules upon it to
determine the decision of controversies, than to lay down
a course of conduct for the private individual.
Good examples may be seen in the tariffs of compositions in
the beginnings of law. Even modern legislation takes both forms.
For example, in one statute the legislature will enact that if persons contract for more than a fixed interest, no interest shall be
recoverable in the courts and all payments by way of interest
shall be credited on the principal (a precept addressed to the
courts) ; 1-6 in another it will enact that railroad companies shall
fence their rights of way and shall be liable for all damages to
cattle straying on the track if they do not 121 (addressed to both
125. See Zitelmann, Die Gefahren des biirgerlichen Gesetzbuches flir die
Rechtswissenschaft (1896) 19.
126. See the different statutes summarized in Folsom, A Summary of

Usury Laws and Decisions (1927) 104-107.
127.
Smith-Hurd, Illinois Ann.Stats. ch. 114, 53.
[149 ]
The Nature of Law

the railroad companies and the courts) ; and in another that when
a chattel mortgage is paid it shall be cancelled of record or removed from the files in the office where filed, with a civil penalty
recoverable by a party injured if this is not done.128 All of these
may be construed as commands to the individual. But they may
also be construed as rules of decision imposed upon the courts.
Historically, the first type in our law is rules as to how and
when one may have a legal remedy. The significant law book of
the medieval common law is the Registrum Brevium. It is true
that in a modern industrial community the individual must have
legal precepts to go by or there could be no division of labor and
no industrial enterprise. Hence more and more it becomes the
function of the state to lay down rules of conduct as such. In
the maturity of law a great part of the law has been laid down by
the legislative organ of the state in this way and another great
part in substance indicates to the private individual or his adviser the line he may safely take in his conduct, and so may be
made to serve as a body of rules of conduct. In that sense it is
possible to say that the individual is commanded to adhere to
these rules. But that portion of the law which consists of general
doctrines, modes of thought, principles (i. e. premises upon which
juristic and judicial reasoning may proceed), and legal conceptions does not fit into such a theory except as by straining a point
we say that the lawmaking organ of the state acquiesces in these
doctrines, modes of thought, premises and conceptions, and so
tacitly commands their logical consequences. As to this, one
must repeat that it is seldom that application of doctrines and
principles and conceptions is so simple. Usually the reasoning
is analogical rather than deductive. The idea that it is deductive
and that all finding of law for new cases is a drawing out of the
logical content of authoritatively established texts, comes from
128.
663.
See the statutes summarized in Jones, Chattel Mortgages (2 ed. 1883)
[150]
10.
The Nature of Law
the teaching of law in the universities from the twelfth century

to the Reformation, under the academic dogma of the continuity
of the empire, as a drawing out of the logical content of the
Corpus Iuris.
On the whole, without regard to historical considerations, which will be noticed presently, merely from
the analytical standpoint, Austin's theory of a law as a
command rather shows us what tends to become the most
prominent type of law in a developed state in the maturity of law, in the service state where there is so large a
delegation of power to administrative agencies, than a
sound criterion of laws in general.
A second characteristic upon which Austin insists
is that laws are rules set by determinate authority; that
they proceed from a tangible source instead of arising,
as it were, at large. This characteristic, he urges, sets
off laws strictly so-called from moral laws or rules, which,
he says, rest on conscience, from natural laws resting on
reason, and from rules or laws of honor, resting on public opinion. His proposition is that laws strictly so-called
proceed from the state, which is a determinate authority,
whereas moral precepts, principles of natural law, and
rules of fashion or of honor proceed from the conscience
or the ethical sentiment of a greater or less but wholly
indefinite portion of society."
It is a sound distinction from a strictly analytical standpoint
that a law has the state behind it while ethical principles and
129.
1 Jurisprudence (5 ed. 1885) 87, 179.
[151 ]
The Nature of Law

moral precepts have only public opinion of greater or less force
behind them. But the premises of a legal system, the modes of
thought, the Systematik, which play so large a part in the interpretation and application of laws have no definite authority
behind them which establishes them. Their origin is quite as
much at large as the origin of moral precepts. What state is
behind the common law or the civil law? Yet these general
systems often count for more than the statutes for the time being
of this or that state. A better distinction between legal precepts
and moral precepts is that courts apply and are required to apply
legal precepts, but not moral precepts as such nor except as resort to them may be necessary in order to supply a gap in the law
or furnish a guide to interpretation or application. When courts
do apply moral precepts as rules of decision, in our law they
thereby become legal precepts; in the civil law they are put in
the way of becoming legal precepts when so applied. Hence
judicial application and enforcement, to which we must now add
administrative application is a criterion which does all that is
required in distinguishing laws from analogous bodies of precepts. It avoids the difficulties involved in Austin's proposition.
A third characteristic of laws, according to the analytical jurists, is that they are rules of general application. 30 Postulating that laws are rules, Austin argues
that it follows that they are general rules. That there
are general rules for the determination of controversies,
instead of a special rule for each individual case (which
would be no rule) is what distinguishes administration of
justice according to law from administration of justice
without law. But, as he points out,' 3 ' laws may or may
130.
Id. 92-95.
131.
Id. 92-93.
[152]
10.
The Nature of Law
not oblige generally all persons or all persons of a class.

Special exemptions of greater or less extent have been
and are common.
For example, in state anti-trust and anti-conspiracy laws a
generation ago it was common to exempt labor unions and farmers. 132 Except for constitutional restrictions there is nothing to
prevent exemption of a single union or a particular farmer.
Indeed, American colonial legislation did make such particular
The Romans called them privilegia. 34 In comexemptions. 1'
menting on this Clark 135 says truly that generality as to persons
or persons of a class enters into the idea of law.136 This idea is
expressed in provisions against special or class legislation in a
majority of the state constitutions in the United States in the last
century. 137 The natural-law theory especially insists on generality. But today, as the political idea of law as will has come to
132.
E. g. Michigan, Public Acts, 1889, no. 225, 6, p. 333.
133. E. g. 1 Hening, Stat.L.Va. 252; 2 id. 321; Rhode Island Laws, 17681773, 24, 32-33, 47; 1 Colonial Laws of New York, 555, 768; 2 id. 868; 5
id. 771, 911, 992, 1028, 1036; 1 Laws of Delaware, 1700-1797, 95; 38 Archives
of Maryland, 132, 134, 137, 237, 257.
134.
Dig. 50, 17, 156.
135.
Practical Jurisprudence (1883) 113.
136. "Laws are established not for individual persons but for general application." Ulpian in Dig. 1, 3, 8.
137. Const.Ala.1875, art. 4, 23-25; Ark.1874, art. 5, 24-26; Colo.1876,
art. 5, 25; Fla.1868, art. 1, 12, art. 5, 17-18; Ga.1865, art. 2, 6, 1868,
art. 2, 26; I1.1870, art. 4, 22-23; Ind.1851, art. 1, 23, art. 4, 22-23;
Iowa 1846, art. 1, 6, art. 3, 30 (also in Const.1857, art. 3, 30); Kan.1859,
art. 2, 17; Ky.1850, art. 2, 38; Me. amendment of 1876 to Const.1820, art.
4, pt. 3, 12, 14; Md.1867, art. 3, 33; Mo.1875, art. 4, 53; Neb.1875,
art. 3, 15; Nev.1864, art. 4, 20-21; N.J. amendment of 1875 to Const.1844,
art. 4, 7,
11; N.Y. amendment of 1874 to Const.1846, art. 2, 18; N.C.
Const.1868, art. 2, 13; Ohio, 1851, art. 2, 28; Ore.1857, art. 4, 23; Pa.
1873, art. 3, 7; Tenn.1870, art. 11, 6, 8; Tex.1876, art. 3, 56; W.Va.
1872, art. 6, 39.
[ 153]
The Nature of Law

be more prominent in the United States, there is not the same insistence on generality. 138 The criterion should be generality of
application to persons or acts within their scope rather than generality of scope. They apply to all acts within their scope, but
need not have general application to persons.
Analytical jurists put it as a fourth characteristic

of laws that they are rules dealing with external human
action. They have to do with acts-with doing, not being. No one seriously questions this except when, in the
stage of equity and natural law, law and morals are
thought of as identical. 3 9
Finally, the analytical jurists insist on sanction as
a characteristic of laws. In developed legal systems this
is a significant characteristic. Austin treats it as a corollary of his fundamental proposition that a law is a command. Commands, he tells us, imply a sanction, that is,
they imply, if they do not express, an intimation that
their author will see to their being obeyed.1"'
In developed law sanction is added to legal precepts
by (a) punishment, (b) interference of courts or officials
in advance of threatened disobedience in order to prevent
it, (c) reinstatement of things either specifically or by
138. E. g. The Norris-LaGuardia Act, 47 Stat. 70-73 (1932) and like legislation in many states putting "labor disputes" in a special category, exempt
from the law governing other controversies. Cf. the English Trade Disputes
Act, 1906 (6 ed. 7, c. 47).
139.
See ante, 33, notes 4-10.
140.
1 Jurisprudence (5 ed. 1885) 89-92, 443.
[ 154]
10.
The Nature of Law
substitution of some equivalent to the position in which

they were before infraction of the precept. Discussion
of this subject has not been helped by a tendency to think
of legal precepts in terms of sections of a penal code and
of sanctions in terms of punishment.
The origin of the term brings out its meaning.
Sanctio was that which made the legal precept holy, that
is, put it on the same basis as the divinely ordained rule
breach of which involved sacratio,devotion of the wrongdoer with his household and wealth to some one of the
gods."" Consciously made human laws were fortified by
giving them the same consequences as those involved in
breach of the traditional precepts regarded as proceeding
from the gods.'
In considering this feature of Austin's analysis it must be
borne in mind that punishments are only one class of sanctions
and that motive is not sanction, although the purpose of sanction may be in part to furnish a motive for conformity to the
sanctioned precept. Sanction implies constraint; an application
of force or a threat of applying a force which is at hand. In the
beginnings of law, sanction is at best but feebly developed. A
judgment creditor is simply authorized to help himself. 43 In
Roman law the older seizure of the person was superseded by
141.
35.
Festus, 3 Bruns, Fontes Juris Romani Antiqui (6 ed. 1893, 7 ed. 1909)
142. See examples in 1 Bruns, Fontes Juris Romani Antiqui (6 ed. 1893)
7, 31, 14. There is such a provision in one of the Twelve Tables, tab. VIII,
1. 21-1 Bruns, Fontes (6 ed. 1893) 33.
143.
Gaius, 4, 21.
[ 155]
The Nature of Law

universal execution. 1 44 But it was not till the empire and the
post-classical period that special execution by distraint and public sale of single items of property or natural execution (enforcement manu militari) developed. 145 There was only an indirect
specific enforcement through the clausula arbitraria,which in
default of specific restitution by a defendant allowed the plaintiff to assess the value. The assessment was not looked into
critically, 146 and the prospect of a heavy money judgment was
relied on to coerce performance. In the Anglo-Saxon dooms, it
is only exceptionally that the king threatens to "ride" to a
neighborhood where the law is not observed.1 47 In Pennsylvania, before the courts were given equity jurisdiction, specific
performance could only be enforced indirectly by directing a
jury to find heavy damages, to be released if the condition in the
verdict was complied with.1" Effective sanctions belong to
developed law. As the legal order develops, the enforcing machinery becomes continually better organized. There is a continuing tendency toward enforcement of rules of conduct
through the force of politically organized society. The history
of laws and legal institutions is full of illustrations of the function of sanctions in giving precepts character as laws.
For example, as already pointed out in another connection,
Congress under the Confederation had no power to enforce its
acts and resolves. Hence they were not regarded by the states
144.
Id. 3, 78-79.
145.
Dig. 42, 1, 31; Dig. 6, 1, 68.
146.
Dig. 12, 3, 11.
147.
Laws of Athelstan, Judicia Civitatis Lundoniae, cap. vii, 2 (about 930).
As to the feebleness of executive power in English law before the Conquest,

see a good statement in Pollock, English Law Before the Norman Conquest
(1898) 14 Law Quart.Rev. 291, 296-297.
148. Clyde v. Clyde, 1 Yeates (Pa.) 92 (1791); Decamp v. Feay, 5 S. & R.
(Pa.) 323, 328 (1819).
[ 156]
10.
The Nature of Law
and were nugatory, although on subjects which the states had

delegated to Congress. 149 Another illustration may be seen in
the constitutional "understandings" or customs of which England has many and we have a few. In the last century critics
of analytical jurisprudence made much of them. Historical
jurists spoke of them as laws. Thus in a book published in 1890
by a professor of law, the then supposedly established custom
of no third term for the president and the custom that presidential electors vote for the candidate nominated by the party which
nominated them are vouched for the thesis of an unwritten constitution. 150 The customs of the Senate as to seniority upon
committees and unlimited debate have sometimes been called
constitutional law. But the custom as to a third term for the
President went by the board without any formal abrogation and
there is an obvious distinction between the case of a president
elected by electors nominated to vote for someone else and that of
a person claiming to have been elected who was not a native born
citizen. Dicey has pointed out that one or another of these constitutional customs is frequently disregarded without entailing
any legal consequences.' 51
Again, the canon law was a system of law. It actually obtained as a body of precepts governing many important departments of human relations and items of human conduct and had
behind it a religious organization of society in western Europe
which had the power and the intention to see its precepts enforced. Until the sanction of excommunication lost its force at
and after the Reformation, it was a developed system of law.
Now, except for the internal government of the Roman church,
it has only historical interest.
149.
Supra, note 89.
150. Tiedeman, The Unwritten Constitution of the United States (1890)

chaps. 3, 4.
151.
Dicey, Law of the Constitution (8 ed. 1915) chap. 14.
[ 157 ]
The Nature of Law

To sum up the characteristics of a law in a developed
system which Austin makes the basis of his definition,
he says that a law is (1) a command, (2) set by a sovereign to subjects and so set by determinate authority,
(3) a general command, (4) laying down a course of action, and (5) sanctioned because sanction is implied in
command.
It has been pointed out in another connection 15
that the second generation of English analytical jurists
modified this analysis by substituting as a test enforcement by the sovereign for command of the sovereign or
establishment by the sovereign. In this view legal precepts are not necessarily set by the sovereign, but the
agencies of politically organized society add sanction to
precepts which may be set by the legislative organ or discovered and formulated by the courts or may be traditional. The precepts to which this sanction of state enforcement is added are laws. As a rule, traditional principles, the premises of the legal system, are not expressly
set forth by the lawmaking organ.153 But in this way of
thinking, if traditional principles and doctrines are part
of the law it is because of the sanction involved in enforcement in the judicial tribunals of the state. Later
152.
Ante, 54.
153. There are cases, however, of statutory assumption or adoption or declaration of a common-law doctrine. See the Sherman Anti-Trust Law of 1894
(26 Stat. 209); the Federal Trade Commission Act, 38 Stat. 717, 5.
[ 158 ]
10.
The Nature of Law
writers add enforcement by administrative tribunals.!M

This is clearly an improvement upon Austin's analysis.
Professor Gray's formula, "rules which the courts
lay down," "I is an American variant influenced by the
judicial attitude toward legislation in this country. It
assumes the universality of the Anglo-American doctrine
of precedents.
If laws are commands, they may be set by the state
through the agency of the legislature or of the courts.
Professor Gray rejects the idea of laws as commands,
but does not reject the idea of a law as something set by
public authority. Only, he says, they are really set not
by the legislature but by the courts through application
of statutory rules, traditional rules and traditional principles. Hence, he argues, common law, statute, and text
writing are the sources or raw materials out of which
the courts fashion the law. He wrote before the rise of
administrative adjudication in the United States, and
until the limits of judicial review of administrative adjudication become settled it is not clear how application and
development of statutes by administrative agencies is
to be fitted to his theory. In any event, I should prefer
to say that the sanction is given by judicial and administrative application. Nothing that is not so applied and
sanctioned is law in the second sense of that term. But
154.
Clark, Roman Private Law: I Jurisprudence (1914) 75.
155.
Nature and Sources of the Law (2 ed. 1921) 93.
[159 ]
The Nature of Law

the court is not a free agent as the legislature is. It is
referred to statutes, traditional principles, and traditional precepts for the bases of its decisions-both for
the raw materials and for the modes of developing
them-and its work of lawmaking or law finding, by
selecting and developing by analogy the rules which it
will apply or the starting points for its reasoning, is incidental only. The raw materials of decision are the law
in the second sense. Even precedents pass into this mass
of raw materials. Hence Professor Gray's view comes
to this that there is no law, there are only sources, that
is, raw materials. Moreover, courts are less and less doing the work of formulation.
There are signs that the courts in America may not be able
to maintain the conditions demanded for purely judicial development of the common law. Pressure of business in the courts of
today is making it unlikely that the courts will much longer be
able to do more than give authoritative form to what has been
worked out and formulated by other agencies. In 1813, the ratio
of cases disposed of to the number of judges in the Supreme
Court of the United States was twelve to one.156 In 1913, the
ratio had become 33 to one. 157 In 1934, it was 113 to one.1 58
In the October term, 1941, it had become 129 to one.1 59 A like
156.
9 Cranch, covering February 1812 to March 1913.
157.
See 230
U.S.
reporting 60 cases in which opinions were handed down
on June 16, 1913.

158.
See 290-292 U.S.
159. See the table, 316 U.S. 719. Perhaps it should be added that since
the abrogation of the rule in Swift v. Tyson, 16 Pet. (U.S.) 1, 10 L.Ed. 865
(1842) by Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188,
[160]
10.
The Nature of Law
story can be told of the highest courts of the states. 6" All this
does not mean merely that the judges are compelled to work
rapidly and with the minimum of deliberation. In order to hear
these cases at all the time allowed to counsel must be greatly
abridged, and many cases are determined upon printed arguments. Hence where a century ago counsel were heard until
every detail had been gone into thoroughly in oral argument,
today the courts are compelled to restrict arguments to an arbitrary allowance often of no more than half an hour and seldom
more than an hour and a half to each side. 16' It is increasingly
manifest that the formulation of law is taking place out of court.
It could hardly be contended that either legislation or judicial
decision, with no aid from without, could have done for our law
of evidence what has been done by Wigmore, or by Williston for
contracts, or for conflict of laws by Beale, or for trusts by
Scott, or for restitution (quasi contract) by the reporters of the
American Law Institute. Indeed, the work of American law
teachers in the Restatement of the Law, and the reception of the
work by the courts and the profession speak for themselves.
Now that jurists have given up the exclusively historical method which governed in the immediate past and have come to believe that the law can be bettered by conscious effort, the law
teacher and the law writer (and they very likely will be one)
must be our ultimate reliance. There are signs of this in England, especially in the increasing use of text books by the
114 A.L.R. 1487 (1938) the creative influence of decisions of the Supreme
Court of the United States upon questions of private law has probably come
to an end.
160. Jackson, The Supreme Court in the American System of Government
(1955) 13-17.
161. See a statement as to the state courts in Pound, The Judicial Office
Today (1939) 25 Am.Bar Ass'n Journ. 731, 731-732. See also Cardozo, The
Growth of the Law (1924) 11-17.
2 Pound Jurisprudence-l
[ 161 ]
[1
The Nature of Law

courts. 12 The teacher of law is coming to work in the conditions of permanence and independence which were the strength
of the common-law judge. He is in a position to do historical,
critical, and analytical work which would be impossible, even if
in place, in a modern judicial opinion. Moreover, he may deal
with the law and with departments of the law as a whole, while
a court must look at each piecemeal. Questions of law are ceasing to be local. We are so unified economically that no question
is limited by jurisdiction and venue as it used to be. Questions
of law have been coming to be country-wide or even world-wide.
Creative work cannot be done upon them under limitations of
parties and jurisdiction and venue.
162. Formerly it was the rule in England that a text book was not to be
cited unless the author was or had become a judge, and the living were not
to be cited. Lord Eldon in Johnes v. Johnes, 3 Dow, 1, 15 (1814); Ion's Case,
2 Den C.C. 475, 488 (1852); Kekewich, J. in Union Bank v. Munster, 37 Ch.Div.
51 (1887); Note (1888) 4 Law Quart.Rev. 236; Note, id. 360-361; Note, id.
229. In the most recent English reports the judges frequently refer to or
even discuss the views of living text writers not on the bench. See the long
list of citations in Pound, The Formative Era of American Law (1938) 167,
note 2. To this list should be added from subsequent volumes of the law
reports, United Australia v. Barclays Bank, [1941] A.C. 1, 18 (the restatement
of the law of restitution by the American Law Institute cited and approved
by Lord Simon); Joseph Constantine Steamship Line v. Imperial Smelting
Corporation, [1942] A.C. 154, 169, 205 (Salmond and Winfield on Contracts
cited by Lord Porter); In re An Arbitration, [1942] 1 K.B. 232, 239 (Oppenheim's International Law cited by DuParcq, L. J.); Sea and Land Securities v. William Dickinson & Co., [1942] 1 K.B. 286, 289, 298 (Carver on Carriage by Sea, and Maude and Pollock on Merchant Shipping cited and discussed by Atkinson, J.); In re O'Keefe, [1940] Ch. 124, 130 (Cheshire on
Private International Law cited by Crossman, J.). In addition in these volumes there are many citations of Halsbury's Laws of England. Dicey on
the Conflict of Laws is cited and relied on in In re Paine, [1940] Ch. 46, 49;
In re O'Keefe, id. 124, 130; In re Luck's Settlement Trusts, id. 864, 883884, 890. Also Westlake on Private International Law is cited in In re Paine,
supra, and by Scott, L. J. in In re Luck's Settlement Trusts, supra, 915. Scott,
L. J. also cites Foote on Private International Law, id. 914, and Lafleur on
Conflict of Laws, ibid.
[ 162]
10.
The Nature of Law
What the courts do, then, is to put the guinea stamp

of the state upon precepts which in part they work out
and formulate themselves, but in larger part they select
and develop and adapt from doctrinal writing.163
60. NORMATIVE AND REALIST ANALYTICAL THEORIES." A different type of analysis, culminating in Hans Kelsen's pure theory of law, begins
with Binding's Die Normen und ihre Uebertretung.'
Writing from the standpoint of criminal law, he thought
of law in the second sense as a body of norms. Norm
means literally a model or pattern. But in jurisprudence
it has an imperative connotation. Binding and those
who have followed him mean an imperative statement of
what ought to be as distinguished from a statement of
what is or a prediction of what will be. So they think of
a law as an authoritative statement of how courts should
163.
See Pound, The Formative Era of American Law (1938) 138-167.
I. 1 Binding, Die Normen und ihre Uebertretung (2 ed. 1890) 5-20;

Thon, Rechtsnorin und subjektives Recht (1878) 1-11; 1 Bierling, Juristische
Principienlehre (1894) 3; Jellinek, Allgemeine Staatslehre (3 ed. 1914) 332337; 1 G6dny, Science et technique en droit priv6 positif (1914) 22; LivyUllmann, La ddfinition du droit (1917); Roguin, La rggle de droit (1889); 1
Roguin, La science juridique pure (1923) 118-130; Kelsen, The Pure Theory
of Law (1934) 50 Law Quart.Rev. 474; id. Das Problem der Souverdinitht
(1920) 85-101; Pound, Progress of the Law: Analytical Jurisprudence (1927)
41 Harvard Law Rev. 174.
See also Kelsen, Apergu d'une th,6orie gndrale de l'dtat (1926) 33 Revue du
droit public, 562, 571-578; Voegelin, Kelsen's Pure Theory of Law (1927) 42
Political Science Quart. 268; Wilson, The Basis of Kelsen's Theory of Law
(1934) 1 Politica, 54; Jones, Modern Discussions of the Aims and Methods of
Legal Science (1931) 47 Law Quart.Rev. 52, 78-84.
2.
Vol. I (1872, 2 ed. 1890), vol. II (1877, 2 ed. 1914-1916), vol. 1II (1918).
[ 163 ]
The Nature of Law

decide, how officials should act and how men should conduct themselves. A law, as they see it, is an authoritatively established model or pattern of action or conduct
or behavior backed by threat of exercise of the force of
a politically organized society. Thus a law as a norm is
much the same idea as Austin's idea of a law as a command, but is not so rigid and is more inclusive.
Kelsen and his followers treat ethics and jurisprudence as
''normative" sciences and contrast them as such with natural
sciences, holding that the latter depend on observation whereas
the former depend on postulates. Thus postulates are at the
foundation of jurisprudence; that is, we find a logical foundation in assumed postulates instead of a political foundation in
the state. But Austin postulates the state as the basis of his
theory of law. This point of view is to be contrasted with the
positivist sociological position that jurisprudence depends upon
observation of what takes place in the legal order thought of as
a specialized social control.
Recent writers from the analytical standpoint conceive of
law in the second sense as an aggregate of norms or of delimiting precepts, derivable from the highest norm set up by those
who wield ultimate political power. They agree on what gives
efficacy to these precepts, holding that they have behind them
politically supreme power, definite governmental agencies, and a
systematic application of physical constraint. The characteristic
marks of these norms, which set them off from the purely subjective ethical precepts to which a judge resorts in matters left
to discretion in contra-distinction from those governed by law
in the second sense, are generality, universality, and predictability. But predictability is a quality of the judicial process, not
of norms or precepts. What is meant is adaptability to serve
as the basis of prediction as to how they will be developed and
[164 ]
10.
The Nature of Law
applied by legal reasoning. They are norms applying generally

to all matters within their scope; they are universal norms so
far as possible-an outgrowth of the demand for equality in the
maturity of law; they are certain norms so far as possible-an
outgrowth of the demand in the maturity of law for security,
that is the social interest in the security of acquisitions and
the security of transactions. It will be seen that this is a developed form of Austin's doctrine.
Of recent anlytical theories those most urged today

are Holmes's prediction theory, partly adopted and
amended by Cardozo, and urged on the Continent by
Jahrreiss, and Kelsen's normative theory, a formulation
in terms of threat. These are framed in terms of how
law (in the second sense) works, how it achieves the ends
of the legal order, instead of in terms of how it comes into existence. In this insistence on function we may see
the influence of sociological jurisprudence.
Holmes argues that law is a body of predictions as
to how courts will decide.' The idea seems to be the same
as Binding's and Kelsen's norm or pattern. Law in the
second sense is considered not with respect to a function
of furnishing guides for conduct or guides for decision
but with respect to the function of furnishing a basis of
advice for the counselor who has to advise as to conduct
and the conduct of enterprises. Indeed, the context
shows clearly that the standpoint chosen was that of the
3. The Path of the Law (1897) 10 Harvard Law Rev. 457, 460, 461.
[ 165]
The Nature of Law

practising lawyer.4 He was lecturing to law teachers
and pointing out a feature to which the attention of students ought to be directed. Certainly for the judge the
law is not a body of predictions as to what he will do. It
is a body of authoritative statements of what he ought
to do or of authoritative materials from which he feels
bound to reach his decision. The norm theory is applicable from his standpoint. The individual at the crisis of
action might regard the law in the second sense as a body
of predictions of legal consequences. This is another
way of putting the threat theory. He might equally,
however, think of a body of authoritative precepts for
guidance. The counselor, called on to advise, might look
on law in the second sense as a body of predictions. But
it is he that does the predicting, not the law. Even from
his standpoint, the law is not a body of predictions. It
is a body of authoritative materials serving as the basis
of predictions. This point was well made by Cardozo.'
Although Kelsen has pointed out fully the difference
between his pure theory of law and English analytical
jurisprudence with respect to the nature of law,' his idea
4. "People want to know under what circumstances and how far they will
run the risk of coming against what is so much stronger than themselves,
and hence it becomes a business to find out when this danger is to be feared.
The object of our study, then, is prediction, the prediction of the incidence
of public force through the instrumentality of the courts." Id. 460.
5.
The Growth of the Law (1924) 52. See also Jahrreiss, Berechenbarkeit
und Recht (1927); Bingham, What is Law? (1913) 11 Mich.Law Rev. 1, 11, 15.
6. The Pure Theory of Law and Analytical Jurisprudence (1941) 55 Harvard Law Rev. 44.
[ 166]
10.
The Nature of Law
of the legal order as "an organic, interrelated totality of

positive norms" (compare the analytical idea of a system
of logically interdependent precepts), his sharp distinction of "is" and "ought to be," and his insistence on law
as "essentially a coercive system" connect with the analytical jurisprudence of the last century rather than with
the historical or the philosophical jurisprudence of that
time. As Kelsen conceives it, reduced to its lowest terms,
the rule of law pure and simple, involves a pronouncement with respect to unqualified human behavior, i.e.
not characterized as good or bad, but with all moral element excluded, and, second, a pronouncement with respect to the constraining action (Zwangakt) of those who
wield the force of the legal order. The latter is made to
depend upon the former. Given the behavior or the event
described in the first pronouncement, the constraining
action is to follow. So a law is an authoritative pronouncement, put forth or recognized by a politically organized society thought of as a legal order, that given
certain defined behavior or a certain defined event, certain defined action of those who exercise the authority
of the legal order shall follow.'
It should be noted how this meets the objections to the command theory and covers such cases as the Massachusetts minimum wage law 8 and the former Massachusetts mode of constrain7.
The proposition is well stated in English in Voegelin, Kelsen's Pure
Theory of Law (1927) 42 Political Science Quart. 268, 270-271.
8.
General Laws, Tercentenary ed. chap. 151, 4, 11.
[167 ]
The Nature of Law

ing a public utility 9 by extra-political social control; by publication of the findings of fact and appealing to public opinion instead of applying the force of the legal order. It should be noted
also that it conceives of law as an aggregate of laws and of a law
in terms of a rule. A section of the penal code is the type, as it
was to Bentham.10 But, as has been said in other connections,
there is much in law (in the second sense) and in the precept element, with which alone analytical jurists have been concerned,
which cannot be fitted to a theory of sections of a penal code.
For example, the maxims of Anglo-American equity are not unqualified pronouncements upon items of conduct. The clean hands
maxim, the doctrine as to fair conduct of a fiduciary, the doctrine
as to unfair competition pronounce definitely upon the moral aspect of conduct. It is not that there is a series of definite pronouncements that defined items of conduct will bar equitable relief. The court of equity reaches a moral judgment upon particular items in a case in hand and if it find the complainant's
conduct inequitable bars relief upon the principle expressed in
the maxim.1 ' Nor does such a maxim as "equality is equity" add
a threat of employment of state force to a pronouncement upon
any defined conduct or event. It is a starting point for legal reasoning.
9.
Mass.Acts and Resolves, 1869, chap. 408, 3, 4.
10. "The legal norm refers to the conduct of two entities: the citizen
against whose delict the coercive measure of the sanction is directed; and
the organ that is to apply the coercive measure to the delict. The function
of the legal norm consists in attaching the sanction as a consequence to certain conditions among which the delict plays a leading part." Kelsen, The
Pure Theory of Law and Analytical Jurisprudence (1941) 55 Harvard Law Rev.
44, 58.
II. The Court of Chancery would not "interfere on behalf of a plaintiff
whose own conduct in connection with the same matter or transaction had
been unconscientious or unjust, or marked by a want of good faith, or had
violated any of the principles of equity and righteous dealing which it is the
purpose of the jurisdiction to maintain." 2 Pomeroy, Equity Jurisprudence
(3 ed. 1905) 398.
[168]
10.
The Nature of Law
Partly as a development from the third stage of the English

analytical theory and partly as a development from the sociological theory-partly carrying out Gray's doctrine of "what the
courts lay down" and partly carrying further Holmes's prediction
theory-American realists have given over discussion of the nature of "a law," seeking instead a theory of single judicial determinations. 12
61. THE DOCTRINE OF THE HISTORICAL

SCHOOL.1 It has been seen that seventeenth and eighteenth-century jurists very generally looked on statute
as the only normal form of positive law.' Hence the authority of custom could only rest upon the tacit consent
of the lawmaker. The historical school in the nineteenth
century took an opposite position. It presupposed that
what it called Volksiiberzeugung (a people's conviction
based on experience) not arbitrary will had binding force
and it derived both custom and statute from this conviction of a people as to what was right and just.3 This
12. Frank, Law and the Modern Mind (1931) 42-47.
The Bramble Bush (1930).
See also, Llewellyn,
I. Maine, Early History of Institutions (1874) lect. 13; Clark, Practical

Jurisprudence (1883) pt. I, chaps. 7, 11-16; Clark, Roman Private Law: I
Jurisprudence (1914) 5; Carter, Law: Its Origin, Growth, and Function
(1907) lects. 1-8; Jenks, Law and Politics in the Middle Ages (1898) 1-6;
Rattigan, Science of Jurisprudence (4 ed. 1919) 8-11a; Wigmore, Prob-
lems of Law (1920) 5-10.

2. Hale, History of the Common Law (1713) chap. 1. "The statute law
is the will of the legislature in writing; the common law is nothing else but
statutes worn out by time; all our law began by consent of the legislature,
and whether it is now law by usage or by writing, it is the same thing." Wilmot, C. J. in Collins v. Blantern, 2 Wils. 347, 348 (1767).
3. A good statement of this doctrine may be found in Tiedeman, The Unwritten Constitution of the United States (1890) 7-15.
[1691
The Nature of Law

popular conviction, as the historical jurist held, was reflected directly in custom and indirectly in statute.4
As the historical jurists, while thinking of law as
an aggregate of legal precepts, took custom for the type
of precept and thought of it as something found, not
made, they examined the characteristics of law in archaic
or undeveloped systems in comparison with those on
which analytical jurists insisted in the analysis of matured systems. Thus they rejected most of what Austin
had laid down.
In the first place, laws in the beginning are not commands either express or implied. As men think at first,
it is not the sovereign or any organ of politically organized society that makes the law. The sovereign is bound
by the law, which is above all men.
Thus as late as the tenth century, a Saxon analist tells us
that the mooted question whether grandchildren were to share in
an inheritance by representation of their father along with their
uncles was regarded as one not to be settled by an assembly of
those taken to know the customary law, but as something calling
for discovery of the truth and so requiring ascertainment by battle.5 Compare also the saying attributed to Bracton (thirteenth
century) that the king ought not to be under any man but under
God and the law,6 and the first in the catalogue of abuses in the
4.
1 Bierling, Kritik der juristischen Grundbegriffe (1883) 23; 1 Dernburg,
Pandekten (8 ed. 1911) 20.
5. 2 Widukindi, Res gestae Saxonicae (ed. Waitz) 8 III Mon.Germ.Hist.Scriptorum (1839) 440.
6.
Bracton (1569) Fo. 74.
[ 170]
10.
The Nature of Law
Mirror of Justices (probably late thirteenth century) is "that

the king is beyond the law, whereas he ought to be subject to it." I
Sovereignty in Austin's sense and lawmaking are relatively
late developments. Even after no small degree of political organization has developed, after a real Austinian sovereignty has been
evolved, law is long thought of as something independent of the
state. Later politically organized society takes up the religious
usage, kin-group ethical custom and social habits, which are the
materials of social control, and puts the sanction of state enforcement behind them. But it does not command them. At most it
recognizes them. It provides a better enforcing agency for preexisting precepts.
Again, archaic law is not a body of rules set by a determinate authority. At first laws are not set consciously at all; there is no conscious lawmaking by any one.
The idea of conscious lawmaking is repugnant to the beginnings of law. As King Alfred put it, "I durst not set
down in writing much of my own." ' The legal precepts
in this stage are those which have grown up partly as social habits and partly in the practice of settling disputes
and administering justice-at first thought of as divinely inspired and afterwards as resting on immemorial
usage.
Thirdly, in the beginnings of a legal order there is
no sanction, in the modern sense of that term, or is at
most but feeble sanction. In the beginnings of Roman
7.
Mirror, bk. V, chap. 1, 1 (Selden Soc. ed. 1895).
8. Prologue to Alfred's Dooms (perhaps 892 or 893), 1 Thorpe, Ancient

Laws and Institutions of England (1840) 59.
[171]
The Nature of Law

law fas (what is directed or approved by the gods) and
boni mores (what is approved by the morality of the time
and place) with sanctions of pontifical correction and expiation and of discipline by the gens or collegium, in other
words, religion and opinion of one's fellows, were at
least as important for social control as ius. lus gradually took the task over from them.
State enforcement is
less efficacious in the beginnings of law than religious

pressure and self-help.
Thus, in the Anglo-Saxon laws there are many exhortations
which the king addresses to his subjects, exhorting them as Christians to keep the peace and obey the dooms. The laws are thought
of as binding them not as subjects but as Christians.9 The earliest sanctions of the Roman law are taken from religion. Execution was a sacrifice to an offended god. 10 The evil man whose impiety was offensive to the gods must be put away. The Twelve
Tables provide that the harvest thief be hanged as a sacrifice to
Ceres," and the incendiary burnt, as it is believed, by way of offering to the fire god.'2 A law attributed to Numa provided that
if one plowed up a boundary stone both he and the oxen were to
be "devoted." 13 The "devoted" man (homo sacer) is taken to
have been in the position of a sacrificial victim, awaiting the
9. For invocation of curses and religous preambles in charters and writs
in Anglo-Saxon and Norman England, see Winfield, Chief Sources of English
Legal History (1925) 289-290, 293-295.
10. Mommsen, Rimisches Strafrecht (1899) 902, 918; Girard, Histoire de
V'organisation judiciaire des romains (1901) 33-34; 1 Strachan-Davidson,
]Problems of the Roman Criminal Law (1912) 2.
II.
Pliny, Nat. Hist. xviii, 3, 12.
12.
Dig. 47, 9, 9 (Gaius on the Twelve Tables).
13.
Girard, Textes de droit romain (6 ed. 1937) 7.
[172]
10.
The Nature of Law
stroke of the ax before the altar. If he escaped, any man might

with impunity dispatch him to his appointed place. If by accident or the neglect or connivance of the magistrate he evaded
public execution, every man's hand was against him and he fell
by the private stroke of the first comer.14 Thus religious devotion
of the wrongdoer to the offended gods becomes outlawry and the
executioner's ax ceases to have religious significance and becomes
the symbol of magisterial authority.
Archaic law is full of provisions aimed at producing obedience indirectly because there was no machinery for bringing it
about directly. A striking example is the Hindu practice of sitting dharna.15 The suitor may get judgment, but he must execute
it himself. Even today, the sheriff is the agent of the execution
creditor.' 6 The state may aid eventually if the defendant's kinsmen prevent justice. But it is slow to move and often much formality is required to move it. Effective sanction and the authority which makes enforcement by the state possible are modern institutions.
Finally, archaic law is recognized rather than enforced.

No one at first is bound to come into court. The plaintiff
must get him in. The Roman Twelve Tables provided that where
one was summoned before the judicial magistrate (in ius uocatio)
if he did not go, after further summons with witnesses, he was to
be taken by force. If he evaded or absconded, his person was to
be attached. If sickness or old age prevented a carriage was to
14. Macrobius, Saturnalia (c. 325-385; ed. by von Jan 1848-1852) iii, 7, 5;
1 Strachan-Davidson, Problems of the Roman Criminal Law (1912) 8-9.
15. This and like institutions are described in Maine, Early History of
Institutions (Am. ed. 1875) lect. 10.
16.
Colvard v. Oliver, 7 Wend.(N.Y.) 497 (1832).
[ 173 ]
The Nature of Law

be used."7 Usually archaic law thinks of jurisdiction as requiring the consent of the defendant. In Roman law, there was a procedural contract by litis contestatio with coercion of this contract
by distress or by a penal action with attachment of the person
(manus iniectio) for not obeying a summons.' 8 In the beginnings
of legal procedure all manner of expedients are resorted to in order to bring about consent to adjudication. Distraint is the
commonest of them." At common law an action of trespass began with arrest and bail.20 Other actions employed mesne process, involving distraint of goods, seizing of the profits of lands,
attachment of the person, and ultimately outlawry.2 1 In equity
there was a commission of rebellion, treating the defendant "as
a rebel and contemner of the king's laws and government" for
not appearing in obedience to the king's command, and sequestration of his property.2 2 In the canon law, the defendant who did
not appear might be fined or his property might be sequestrated,
or some ecclesiastical sentence might be imposed, or in the end
the libel was taken for confessed as a punishment for contumacy
in not appearing.' 3 Pressure was employed to compel submission to the jurisdiction instead of the simple modern device of
rendering judgment by default.2 4 International arbitration fur17.
Tab. I, 1-3.
Girard, Textes de droit romain (6 ed. 1937) 12.
18. As to litis contestatio see Wenger, Institutes of the Roman Civil Procedure (transl. by Fisk, 1940) 13. As to the action for not obeying a summons, see Gaius, 4, 46.
19.
Maine, Early History of Institutions (1874) lects. 9-10.
20.
3 Blackstone, Commentaries (Lewis' ed. 1897) 281-285, 287.
21.
Id. 280-284.
22.
Id. 444-445.
23.
Lancelottus, Institutiones luris Canonici (1578) lib. iii, tit. 6.
24. Compare the crude method of compelling plea to an indictment by

peine forte et dure, where today the court simply enters a plea of not guilty
on the record. 4 Blackstone, Commentaries (Lewis' ed. 1897) 325-327.
[ 174 ]
10.
The Nature of Law
nishes a significant analogy ;25 likewise arbitration of industrial

disputes before recent legislation providing for administrative adjustment. Pressure of public opinion was employed to force arbitration. In other words, state enforcement and state enactment
are developments. Historically the state recognizes precepts
which have originated outside or independent of the state. In
time, it takes them over and enforces them. In time, it consciously and avowedly makes at least some of those it enforces.
Theories of sanction from the standpoint of the

historical school. 6 The importance of sanction in developed law is so obvious that historical jurists have devoted much attention to devising a theory of it which
would meet the circumstances of the beginnings of law,
archaic law, positive law in a modern state, international
law, and constitutional usage or customs of the constitution. 7 Historical jurists have found sanction in the displeasure of one's fellow men,"8 in the habit of obedience, 9
in public sentiment and opinion," and in the social stand25.
Maine, International Law (1888) 210-218.
26.
1 Vinogradoff, Historical
Jurisprudence
(1920) 353-361;
Hartland,
Primitive Law (1924) chap. 6.
27.
It might be asked, why were historical jurists in the last century so
eager to include constitutional usage? It was because in continental countries,

having little or no constitutional law in the analytical sense, the body of constitutional usage passed by the name of constitutional law; and this accord-
ed with the doctrine that custom was the type of law.

28.
Clark, Practical Jurisprudence (1883) bk. i, chap. 16.
29.
Maine, International Law (1888) 50-52.
30. Lightwood, The Nature of Positive Law (1883) 362, 389. For a recent
example of legislative reliance on appeal to public opinion as a sanction, see
Note, The National Industrial Recovery Act (1933) 47 Harv.L.Rev. 85, 96-98.
[ 175 ]
The Nature of Law

ard of justice.31 In substance these four reduce to two,
Clark's sanction of human displeasure and Maine's replacing of sanction by habit of obedience.
Clark contends that the four bodies of precepts referred to have in common what he calls "the ultimate
sanction of all law," namely, "human displeasure"-"the
displeasure of that human association in which the law
obtains." 3 As with historical jurists generally, "law"
here is used of all social control. Sociologists also generally give "law" the same wide meaning. Clark is defining sanction in a very wide sense with reference to all social control. But sociologists have been making some
needed distinctions. Malinowski distinguished "valid,
sanctioned customs" from "neutral or indifferent customs." "' This should be compared with the distinction
proposed by Sumner who divided folkways into usages,
which are merely practised, and mores, which are regarded as necessary to the welfare of the group and so are
held sacred. In a wide sense of the term "sanction," the
mores are sanctioned customs.3
The sanction may be
diffuse or organized. The mores are backed by what
31.
Carter, The Ideal and the Actual in Law (1890) 13 Rep.Am.Bar Ass'n
217, 224-225.
32. Clark, Practical Jurisprudence (1883) 134, 172, 188. See also Roman
Private Law: I Jurisprudence (1914) 76.
33.
Introduction to Hogbin, Law and Order in Polynesia (1934) at pp.
xxv-xxvii.
34.
Folkways (1934) 57.
[1761
10.
The Nature of Law
Radcliffe-Brown happily terms "diffuse sanctions." Institutional social control is backed by "organized sanctions." Ostracism or boycott may be joined in by any
one. Only the properly set up authority or appointed officer of an institution (in Hauriou's sense) may exercise
the sanctions or carry out the sanctioned procedures of
the institution.35 The highest type of institutional social
control is the legal order, control by the systematic employment of the force of a politically organized society.
The jurist, whose immediate concern is with the latter,
will probably continue to feel that limitation of the term
"law" to this type is expedient. Radcliffe-Brown considers it more convenient also "for purposes of sociological
analysis and classification." 36
From the standpoint of the jurist there are grave objections
to thinking of the effective sanctions of the maturity of law in
terms of the diffuse social pressure behind other forms of social
control. The analytical jurist is not wrong in distinguishing
between a motive persuading compliance and a legal sanction
compelling it. The discovery of effective sanctions is one of the
conspicuous achievements of legal development. The line between a motive to induce obedience to a legal precept and a sanction to compel it is clear enough in modern law even if it is not
so clear as we go back in legal history.
As Jhering has put it, "A legal proposition without

legal compulsion behind it is a contradiction in itself; a
fire that burns not, a light that shines not." 17
35.
Social Sanction (1934) in 13 Encyc. of the Social Sciences, 531-534.
36.
Primitive Law (1934) in 13 Encyc. of the Social Sciences, 202.
37.
Der Zweck im Recht (3 ed. 1893-1898) 322.

[ 177 ]
The Nature of Law

Effective sanctions come very late in legal development.
Compare the actio arbitrariawith execution in natura. Compare
specific performance in actions at law in Pennsylvania before
1835 with decrees enforced in rem under modern statutes. Compare the action of trespass quare clausum with injunction against
repeated trespasses or the action on the case for waste with injunction. But injunction to restrain torts is one of the later developments of equity. It did not become thoroughly effective till
the second third of the nineteenth century 3s and was long hampered by a doctrine that complainant's right must be first established in an action at law. 39 Compare also the modern English
affirmative decrees and mandatory injunctions with the older
prejudice against affirmative decrees. 40 Effective sanctions are
a mark of matured law. They are generically distinct from the
devices of the beginnings of law. Indeed, they mark the change
from the "recognized" of archaic law to the "enforced" of the
maturity of law. The theories of sanction urged by the historical
school ignore the course of development which has set off the legal order as a highly specialized form of social control. It does
not help us understand developed law to extend juristic use of the
term "sanction" to make it cover a stage in which sanction as we
now understand it had at most only begun to evolve. The "sanction of human displeasure" is as inadequate to describe sanction
in a developed system of law as Austin's theory is inapplicable to
the beginnings of law. The one has reference to social control
38. Compare Mogg v. Mogg, Dickens, 670 (1786) and Mortimer v. Cottrell,
2 Cox 205 (1789) with Lowndes v. Bettle, 3 New Rep. 409 (1864).
39. Gause v. Perkins, 56 N.C. (3 Jones, Eq.) 177 (1857). Compare Echelkamp v. Schrader, 45 Mo. 505 (1870) and 1 Ames, Cases on Equity Jurisdiction,
515, n. 2.
40. Compare Lane v. Newdigate, 10 Ves.Jr. 192 (1804) with Jackson v.
Normanby Brick Co., [1899] 1 Ch. 438. For successive stages in the development of mandatory injunctions, compare 2 Story, Equity Jurisprudence (1886)
862; 3 Pomeroy, Equity Jurisprudence (1 ed. 1883) 1359; Kennard v. Cory,
[1922] 2 Ch. 1.
[178]
10.
The Nature of Law
as a whole and the first stage of legal development. The other

has reference and applies to individual legal precepts in a matured system.
Historical theories of sanction, when applied to developed
law, are often supported by the analogy of "laws" of fashion and
"laws of honor," which are backed only by the displeasure of
one's fellow men.41 There is an analogy between these and the
unsanctioned or feebly sanctioned beginnings of law in the stage
in which religion, law, morals, and ethical custom are undifferentiated. But there is a radical difference between them and matured law. Men obey the laws of fashion and laws of honor or
not as they choose. They are compellable to obey the law of the
land whether it pleases them or not. Timasheff puts a very pertinent question: In the fore part of the last century it was universally held in many parts of the country that one who considered
himself insulted and so sent a challenge to a duel had a claim to
that form of satisfaction, to which a duty to accept the challenge
was correlative. There was also a social machinery which applied heavy pressure to one who refused the challenge. Shall we
say, therefore, he asks, that there was law as to duels, or shall we
differentiate the custom which called for them from the law which
later put them down? 42 The analytical jurists are entirely justified in insisting upon this point.
Sir Henry Maine sought to replace the idea of sanction entirely. He found a common element in the positive
41.
Clark, Practical Jurisprudence (1883) 189-192, 193-195.
42. Sociology of Law (1939) 277. See Alexander Hamilton's reason for accepting Aaron Burr's challenge. Smucker, Life and Times of Alexander Hamilton (1857) 359, 363, 395-396; Lodge, Alexander Hamilton (1883) 248-249.
Compare the case of an injunction against an order of bishops and preachers
of a religious sect who had ordered a boycott of one who had departed from
the practices of the sect. Chafee and Pound, Cases on Equitable Relief
against Torts (1933) 136-137.
[ 179 ]
The Nature of Law
law of each state, international law, constitutional usage,

and the beginnings of law in the habit of obedience on the
part of those subject to them. He considered that this
rather than sanction, was the significant point in law.
It was the common element by virtue of which each of the
four bodies of precepts might be called law.43 What has
been said as to Clark's sanction of human displeasure
applies here also.
While the beginnings of law may rest chiefly or solely on individual habits of obedience, developed systems have got beyond
this. There may be a well developed habit of individual disobedience, as, for example, the old land laws in Ireland, excise laws
in many communities, the Fugitive Slave Law in the northern
,states before the Civil War,44 the National Prohibition Act. 45
Such laws illustrate also the objection of the analytical jurist to
Clark's sanction of human displeasure or Carter's sanction of the
social standard of justice. 4a There may not be any special public feeling behind statutes even in the wider area whose political
,organization is behind them. It may be that they simply have
organized political machinery back of them which mechanically
gives them effect. Again, in a modern urban, industrial community, where a multitude of minor police regulations are required,
the public as a rule is largely, if not wholly, indifferent to them.
Yet they are recognized and given effect by tribunals as laws. If
43.
International Law (1888) 50-52.
44. See In re Booth, 3 Wis. 1 (1854); Ex parte Booth, 3 Wis. 145; In re

Booth and Rycraft, 3 Wis. 157; Ableman v. Booth, 21 How. (U.S.) 506, 15 L.
Ed. 464 (1858).
45. National Commission on Law Observance and Enforcement, Report on
the Enforcement of the Prohibition Laws of the United States (1931).
46. The Ideal and the Actual in the Law (1890) 13 Rep.Am.Bar Ass'n 217,
224-225.
[180]
10.
The Nature of Law
they had behind them only human displeasure or habit of obedience they would achieve nothing. Again, as to traditional precepts and doctrines there is neither pleasure nor displeasure involved. There is only indifference. The doctrines of equity as
to conversion or clogging the equity of redemption, the rules of
law as to contingent remainders and future interests in property, are wholly indifferent to the public.
Human displeasure as a sanction is rather a theory

of social control as a whole, as a regime, than of the sanction of particular laws or legal precepts. It is more a
theory for the simple tabus of a tribal society than for
the complex penal code, police regulations, and positive
private law of a developed industrial society. Likewise,
Maine's theory is one of what is behind the legal order as
a whole, not of what is behind particular laws or legal
precepts, which is what Austin is speaking of. Maine is
thinking of the legal order. Austin is thinking of "a
law" and of law as an aggregate of laws, that is, of law
in the sense of a body of authoritative rules of conduct or
guides to determination.
Results of philological investigation. Philological
inquiry into the words used to mean law has been resorted to in order to discover what Clark calls the "unconscious definition." " Summarily it comes to this: The
first words used mean etymologically that which is fitting, and have a religious flavor-that which is fitting
47. Clark, Practical Jurisprudence (1883) 11-89; Noyes, The Institution of
Property (1936) 562-569.
[181]
The Nature of Law

for religious reasons or that which has been approved by
the gods; " thence they come to mean that which is orderly and regular by reason of long observance; " then as
the precepts of systematic social control are taken over
and administered by the developing state, and are enforced and finally to a large extent laid down by the
state, we get words meaning that which is established or
prescribed or set."0 This history of words largely reproduces the process by which law (in the second sense) was
differentiated from an undifferentiated body of religious
and moral precepts. The analytical jurist insists rightly
enough that it became law, for the purposes of jurisprudence, at the point when the state got behind it; that a
body of precepts is law because the state administers it
and is not law unless the state administers it; whereas
historically the state administered precepts because they
were held to be law, thought of as over even the state, and
the precepts were thought of as having an independent
validity, not as law simply because the state recognized
and enforced them.51
One may agree that the ought does not come from the state
nor from any one's will. What ought to be a legal precept and
what a legal precept ought to be depend on principles beyond the
state. Principles of lawmaking are above the state. But the is
fas, Anglo-Saxon dom.
48.
0teIu,
49.
A[Kfq, ius, Gothic witoth, Anglo-Saxon ae.
50.
N6bVoq, lex.
51.
1 Hensler, Institutionen des deutschen Privatrechts, 1.
[ 182 ]
10.
The Nature of Law
does come from the state through its tribunals and its legislative
organs. It is no ethical or philosophical justification of a legal
precept that it is ordained or recognized by the state; but it is a
criterion of its existence as a legal precept.
Summing up the results of the historical school, recognition by tribunals, becoming enforcement by tribunals, is the one characteristic of a law to which we may
tie. In its history and development law (or rather one
element in law in the second sense) is a body of precepts
recognized or enforced in the public administration of
justice among men. This still leaves two elements of law
in the second sense out of account, namely, the technique
element and the ideal element. But until the present
century, jurists have looked only at the precept element.
If we are describing the body of precepts it might be
better to say: The body of authoritatively recognized
materials made use of as the grounds of decision in the
public administration of justice. It will be seen that this
is not far from the position arrived at by the English
analytical school in its third stage.
62. THE DOCTRINE OF THE NINETEENTH-CENTURY PHILOSOPHICAL JURISTS.'
In contrast to the natural-law jurists of the eighteenth
I. Miller, Data of Jurisprudence, chaps. 4, 5; id. Lectures on the Philosophy of Law, appendix A; Lorimer, Institutes of Law (2 ed. 1880) 255-259;
Miraglia, Comparative Legal Philosophy (transl. by Lisle, 1912) chap. 7;
Korkunov, General Theory of Law (transl. by Hastings, 1909) 40-165; Binder,
Philosophie des Rechts (1925) 6; Del Vecchio, Legons de philosophie du droit
(1936) 177-249; Sauer, Rechts- und Staatsphilosophie (1936) 43.
[ 183 ]
The Nature of Law

century, who held that a law was formulated reason, the
metaphysical jurists of the nineteenth century conceived
of it as an expression of the idea of right 2 But they
would have had to admit that there were other expressions of the idea besides laws. Political institutions generally would also be expressions of this idea. Hence,
even from their standpoint, laws would be those expressions of the idea to which effect is given in the public administration of justice. But the nineteenth-century
philosophical jurist felt this too narrow and would have
said, "to which effect may be given in tribunals." However, this confusion of what a particular writer thinks
ought to be and what is has no place in the maturity of
law and the analytical jurists did a service in ridding us
of it. The real point of the metaphysical jurist is that
expression of the idea of right is philosophically more
significant than sanction. It is the justification of sanction. As Kant says, his is a theory for making law.3
The lawmaker does well to remember that he is seeking
to express an idea of right rather than to express will.
After Kant, philosophical jurists often considered the legal
order, rather than law in the second sense-a condition of reconciling wills in action,4 or of life measured by reason, 5 or of social
2.
Miller, Philosophy of Law (1884) 9.
3.
Metaphysische Anfangsgriinde der Rechtslehre (1797) Intr. A.
4.
Id. 27.
5.
Krause Abriss des Systemes der Philosophie des Rechtes (1828) 209.
[ 1841]
10.
The Nature of Law
coexistence,6 or of harmonious coexistence of the individual with

the whole,' or of right (in the ethical sense) realized in and
through the state.8
When the metaphysical jurists thought of law after the older philosophical fashion as an aggregate of precepts, they did not
ask how the precepts came into existence (as the historical jurists did) nor how they got their practical authority (as the analytical jurists did) but instead whence they derived their moral
authority. So Puchta, substituting a Hegelian concrete universal
for a Kantian abstract universal 9 holds that a law is a recognition of liberty.10 To Acollas, it is a rule assuring liberty through
the force of society.' To Miraglia, it is an ethical principle realized by force.'2
So with Kohler's theory of laws as derived from the jural
postulates of the civilization of the time and place.' 3 The lawmaker should seek to discover and express these in precepts, not
to discover and formulate any one's will. But these postulates
are not themselves laws. It is their logical consequences, recognized and applied in tribunals which are laws. The jural postulates give us a critique of legal precepts and starting points for
legislation and for creative finding of law by judicial decision.
6.
Pulszky, Theory of Law and Civil Society (1888) 312.
7.
I Lioy, Philosophy of Right (transl. by Hastie, 1891) 121.
8.
Herkless, Jurisprudence (1901) 45-47.
9.
James Hutchison Stirling, The Secret of Hegel (1865).
10.
1 Puchta, Cursus der Institutionen (1841) 6.
II.
Introduction A l'6tude du droit (1885) 2.
12. Comparative Legal Philosophy (transl. by Lisle, 1912) 118-the translation is from the 3d ed. 1903, but the book speaks from the first ed. 1873.
13.
Philosophy of Law (transl. by Albrecht, 1914) 4.
[ 185 ]
The Nature of Law

Korkunov's theory of law as the delimitation of interests, i. e.
fixing the limits within which they are to be secured, 14 builds on
Jhering. While still in the historical period of his juristic thinking, Jhering began to look at legal precepts functionally; to consider what they did rather than how they came into existence or
what was the immediate practical or the ultimate moral source
of their authority. Thus he came to the idea of the securing of
interests. 15 The functional point of view was taken up and developed by the sociologists. But one development in the philosophical direction deserves mention, namely, the idea of law as a
system of canons of valuing social relations.'6
It is enough to say of these philosophical theories

that the philosophical jurist is more concerned with the
sources of law-the formulating agencies, the principles
which should determine the content of legal systemsthan with the nature of law. His real field is criticism
of the received ideals which are part of the authoritatively received legal materials. He criticizes them with
reference to general ethical and social ideals.
63. THE DOCTRINE OF THE SOCIOLOGISTS.1 Sociology of law is a matter of the present cen14.
General Theory of Law (transl. by Hastings, 1909) 52-first ed. of or-
iginal in 1887.
15.
3 Geist des rdmischen Rechts (1864) 60.
16.
Perassi, Introduzione alle scienze giuridiche (1922) 23.
I. Gray, Nature and Sources of the Law (1 ed. 1909) 191-247; Gareis,
Science of Law (transl. by Kocourek, 1911) 5; Dicey, Law and Public
Opinion in England (2 ed. 1914) 483-494; Willoughby, The Fundamental Concepts of Public Law (1924) chap. 10; Cardozo, The Growth of the Law (1924)
21-55; Ehrlich, Fundamental Principles of the Sociology of Law (transi. by
Moll, 1936) 26-38; Timasheff, Introduction to the Sociology of Law (1939)
[186 ]
10.
The Nature of Law
tury 2 Comte had only vague, lay ideas as to law. He

wrote in the period in which French jurists identified
law with the Code Napoleon. 3 At the same time, the historical school was propagating disbelief in legislation.
Hence Comte's prophecy of the disappearance of law
looked forward to the disappearance of legislative law,
to be replaced by law produced "naturally" by the operation of social forces.' Spencer treated of laws, as what
he called political institutions, rather than of law, thinking of law as hardened custom "formulating the rule of
the dead over the living." ' Ward thought only of legislation which, much in the manner of the contemporary
historical jurists, he took to be attempt to affect the operation of the "real law" which the sociologist found behind the phenomena of social life.' Durkheim sought to
chap. 11; Gurvitch, Sociology of Law (1942) 50-60; Pound, Sociology of Law
and Sociological Jurisprudence (1943) 5 Univ. of Toronto L.J. 1; Llewellyn
and Hoebel, The Cheyenne Way (1941) chaps. 1-12.
2. There had been attempts in the last quarter of the nineteenth century
to connect sociology with philosophy of law. Vadale Papale, La filosofia del
diritto a base sociologica (1885); Ratto, Sociologia e filosofia del diritto (1894);
Vaccaro, Le basi del diritto e dello stato (1893) translated as Les bases sociologique du droit et de l'Fitat (1898). Also much had been written in the last
quarter of the century by way of application of the biological sociology to law.
Post, Der Ursprung des Rechts (1876); id. Bausteine fir eine allgemeine
Rechtswissenschaft (1880); id. Die Grundlagen des Rechts und die Grundztige seiner Entwickelungsgeschichte (1884); id. Grundriss der ethnologischen
Jurisprudenz (1894-1895); Richard, L'origine de l'idde de droit (1892).
3.
See ante, 53(3).
4. 6 Cours de philosophie positive (1842) 651-652;

positive (1854) 361.
5.
2 Principles of Sociology (1882) 514.
6.
1 Dynamic Sociology (1883) 36 ff.
[ 187]
1 Systgme de politique
The Nature of Law

explain law as the expression of a basic social fact, but
got no further than a general differentiation of repressive law and restitutive law, the one corresponding to
solidarity through similarity of interest and the other
to solidarity through division of function. 7 At the end
of the century, in a series of articles published between
1896 and 1901 8 and reprinted as a volume in 1901,"
Ross gave us the idea of social control and of means of
social control, putting law as the "most specialized and
highly finished engine of social control employed by society." 10 Sociology of law is in this line of development.
It proceeds from sociology toward law. The pioneer, and
in many ways the most useful work for the lawyer, is
Ehrlich's Grundlegung der Soziologie des Rechts. n A
succession of books on sociology of law has followed.'
7. De la division de travail social (1893) bk. I, chap. 1, 3, Simpson's
transl. as The Division of Labor in Society (1933) 68-69.
8. In American Journal of Sociology, I, 513, 753, II, 96, 255, 433, 547, 823,
III, 64, 236, 328, 502, 649, 809, V, 475, 604, 761, VI, 29, 238, 381 550.
9.
10.
Social Control (1901).

Ibid. 106.
II. (1913) Transl. by Moll as Fundamental Principles of the Sociology of

Law (1936). See critiques by Kelsen, Eine Grundlegung der Rechtssoziologie
(1915) 39 Archives fiir Sozialwissenschaft und Sozialpolitik, 839-answered
by Ehrlich, 41 id. 844 (1916) with reply by Kelsen, id. 850-and by Vinogradoff,
The Crisis of Modern Jurisprudence (1920) 29 Yale Law Journ. 312; reviews
of Moll's translation by Simpson (1937) 51 Harvard Law Rev. 190, by Timasheff (1937) 2 American Sociological Rev. 120, and by Rheinstein (1938) 48 International Journ. of Ethics, 232; and appreciation by Pound, Fifty Years
of Jurisprudence (1938) 51 Harvard Law Rev. 777, 805-809.
12. Cornil, Le droit privd: Essai de sociologie juridique (1924); Jerusalem, Soziologie des Rechts (1925); Burckhardt, Die Organisation der Rechts-
[ 188 ]
10.
The Nature of Law
Ehrlich used "law" to mean all social control, following in this respect the usage of the historical school.
For example, the idea of sanction urged by the English
historical jurists,13 is rather a theory of the sanction of
social control as a whole than of the sanction of particular laws or legal precepts, which is what Austin is talking of, 4 and Vinogradoff's preliminary discussion is directed to social control as a whole, not confined to that
highly institutionalized form of social control which analytical jurists and lawyers think of as law. The respect
in which Ehrlich differs from the historical jurists of the
last century is that they, like the jurists of the past, were
thinking of the body of authoritative materials in which
tribunals find the grounds of determination. He, on the
other hand, was looking functionally at the legal order,
at the ordering of relations which makes up the legal
order, and at particular legal precepts. In particular,
he stressed the limited function of the norm for decision.
In this he is followed by later writers on sociology of law.
His method was to grasp the relation of law in the sense
of the body of norms of decision to the inner order of the
associations and relations which make up a society. He
saw that, using "law" in the sense of the legal order, this
gemeinschaft (1927); Querios Lima, Principios de sociologia juridica (1922, 2
ed. 1931); Horvfth, Rechtssoziologie (1934)-review by Wilson (1936) 52 Law
Quart.Rev. 138; Timasheff, Introduction to the Sociology of Law (1939); Gurvitch, M1fments de sociologie juridique (1940); id. Sociology of Law (1942).
13.
Ante, 61.
14.
[ 189]
The Nature of Law

inner order of groups and associations is the original and
is still the basic form. The body of legal precepts and the
technique of the judicial process are logically derivative
forms. But in speaking of this inner order as law, as in
speaking of the legal order of a developed politically organized society as law, there is a confusion of (1) the
regime maintained with (2) the processes which maintain it in a developed society both political and legal and
with (3) the body of authoritative guides and the received technique by which those processes are carried on.
Jerusalem 1 deals with the inner order of groups
and associations and its phenomena as an ingredient of
social life without regard to value.
Horvith discusses law (Recht) as a substitute for strife 16
(which is what law in the lawyer's sense was historically in its
beginnings), as limitation of power,17 and as organization of power.18 Limitation of power is the idea of Anglo-American public
law. Organization of power is the Continental idea. He uses the
term "law" partly in the sense of the legal order and partly in the
sense of the judicial and administrative processes.
Timasheff defines law as ethico-imperative coordination. 9
This is not exactly the Roman idea of what is right backed by
the authority of the state; so that law is the ethical backed by
15.
1 Soziologie des Reehts (1925).
16.
Rechtssoziologie (1934)
17.
Id. 63.
18.
Id. 64.
19.
Introduction to the Sociology of Law (1939) 17.
The book was not completed.
51-53.
[190]
10.
The Nature of Law
the political, as in natural-law thinking. He uses the term "legal," quite differently from the way it is used by English and
American writers, using it to refer to precepts as to what is done
and what is not done, which we should be likely to call ethicalcustomary. Using the word "legal" in this sense, he holds that
a system of legal rules "recognized and supported by the active
center" corresponds to every "power structure"-e. g. to a pioneer mining district, or a trade union, or a bar association, or a
state. Hence, the hierarchy of power structures is paralleled by
a hierarchy of what he calls legal orders, that is, regimes of control, those recognized by structures lower in the hierarchy giving way before what he calls the "legal rules"-i. e. precepts of
social control-supported by structures of higher degree. He
puts the state as the highest of these power structures, and so
holds that the "upper layer of law" is to be found in "legal rules
emanating directly from the state or directly recognized by it."
But, he adds, other social groups have their "legal rules" also,
and these are the lower level of law. He proposes to call the
upper level "state law," and the lower level "social law." 20 Here
"law" and "legal" refer to the inner order of groups and associations of every kind. But "law" is used to refer also to the body
of precepts and technique and even to the internal authoritative
process, or in the "upper layer" the judicial and administrative
processes by which the inner order is maintained. All social control and all its agencies are included. Does it help understand either law in the lawyer's sense or the lower levels of social control
to use a word, already of many meanings, to include so much
more? The use of the word "legal" is unusual in English. Moreover, the matter is not wholly one of terminology. It would be
desirable to find a word for the lower level, using "social control"
for the whole, using "law," as jurists do, for his "state law," and
finding a new adjective in place of "legal" for the order or orders
and precepts of Timasheff's "social law."
20.
Id. 302-303.
[191]
The Nature of Law

With Gurvitch, this use of "law" for all social control and
all its agencies, as forming one idea to be expressed in one word,
is behind the whole system of sociology of law. At the outset he
tells us that jurists are concerned only with quid iuris-whatof
right and law-but sociologists with quid facti in the sense of reducing social facts to the relations of forces.2 ' But the English
and American lawyer may well feel that the first part of the
proposition, at least to the extent of the word "solely", comes
from thinking of law in terms of droit. What is right in the adjustment of relations is suggested more by the words used in the
languages of Continental Europe than by our word "law," which
suggests primarily what is backed by the force or bears the
guinea stamp of a politically organized society. That this is so
is illustrated by the dominance of natural law in different forms
on the Continent, while the idea of the English analytical school
has been no less accepted in the English-speaking world. Both
sociology and sociological jurisprudence have sought to overcome the separation of the two ideas. But it may be doubted
whether the way to overcome it is to add to the multiplicity of
meanings of the lawyer's term "law."
Gurvitch conceives of a need of objectifying the spiritual
values and ideas which set the standard of what is good for society, and that this need brings about a symbolizing. That is, if I
understand aright, my personal ideas of what is done and what is
not done, as I hold them, are subjective. For example, I may
think I ought to be free to make my own contracts. To objectify
an idea of this sort we must get my purely subjective personal
picture out of it and reach one applicable generally. But, he
holds, the symbols-i. e. such words as liberty or security-do not
clearly reflect the nature of the values. We have to understand
them, that is, to know them intuitively. Law has the function of
regulating the shaping of human conduct so that organized col21.
Sociology of Law (1942) 1-2.
[ 192]
10.
The Nature of Law
lective action and individual behavior harmonize with the spiritual values of the "noetic mind." This is a term taken from phenomenology. We are told that "concepts which are non-sensuous and non-empirical but are conceived by reason alone are noetic." 22 1 take it he means that law is to make organized collective action and individual behavior harmonize with the values recognized by the generalized group mind; so that collective action
and individual behavior accord with a generalized picture of
what all of us think ought to be. He tells us that justice is the
effective harmonizing of them. Law has to do more. It must
reconcile the conflicting spiritual values of the collective mind in
such a way as to bring about an orderly system of conduct73 He
says that law is not synonymous with social control because jural
precepts (i. e. precepts of right-and-law) are multilateral and
are of determined and limited character, based on claims and duties. But social control is multilateral, too. In substance, he also
is using the term "law" for all kinds of social pressure involved in
the existence of groups and associations.
Malinowski makes a distinction between "what might be
called valid, sanctioned customs, with a strong pull of the parties concerned towards evasion, breach, circumvention, and, on
the other hand, customs which are neutral or indifferent." The
former, in a primitive society, "must not only be made safe by
subsequent punishment of breach but, so to speak, temptation
proof at every juncture. The very possibility of a breach is prevented by elaborate arrangements and constant vigilance." On
the other hand, the "rules of ordinary or neutral custom are never
22. This idea of group mind as something conceived by reason alone disappeared from the social sciences in America a generation ago. As applied
in jurisprudence, it reminds one of Savigny's Volksiiberzeugung (see 1 Bierling,
Kritik der juristischen Grundbegriffe, 23) and its turning up in this connection is one of many indications that a type of philosophical school on the
Continent is the successor of historical jurisprudence.
23.
Sociology of Law (1942) 52-59.

2 Pound Jurisprudence-[13
[ 193 ]
The Nature of Law

sanctioned in the sense that their breach provokes dissatisfaction
in any one." 24 He holds, therefore, that law runs back into the
most primitive society and that "our own law [i. e. in a developed
politically organized society] is nothing but intrinsically valid
custom safeguarding the smooth working of our institutions;
custom obeyed not so much through fear of penalties but for
much deeper reasons which the sociologist and psychologist have
to discover." Hence, he concludes, "there is no fundamental
breach of continuity between our own society and that of primitive peoples." 25 This, it will be seen, is a sociological version of
the doctrine of the historical school. On another side, it recalls
Jellinek's view of law as the indispensable ethical minimum in
distinction from the "ethical luxury." 26 But it is strictly sociological, holding that the binding force of law is derived from
the structure of institutions in a given society.
As Ehrlich had done before him, Malinowski points out that
the relationships within families, in business, between physician
and patient, are not products of legislation or adjudication and
that but a very small part of all breaches of legal precepts which
might come before tribunals are actually taken there. But one
has only to compare what took place when the machinery of
execution was relatively feeble with what has followed the working out of effective sanctions, such as execution in natura,mandatory injunctions, and doing for a defendant, by agencies appointed by the court and at his expense, what he refuses to do, in
order to perceive that the circumstance that conflicts of interest
may be taken to court, and knowledge of what will be done there
24. Introduction to Hogbin, Law and Order in Polynesia (1934) xxv-xxviii.
But qu. A man may be disliked generally for breaches of the neutral customs.
Is it not a matter of degree?
25.
Ibid. xxx.
26. Die suzialethische Bedeutung von Recht, Unrecht, und Strafe (1878, 2
ed. 1908) chap. 2.
[194 ]
10.
The Nature of Law
if they are, play a role in social control which is increasingly significant with the development of legal institutions and legal systems. It is a mistake to assume that legal precepts are not
brought into play except in case of breach. The counseling process brings them into play continually to adjust relations and order conduct. Such proceedings as the actio negatoria, suits for
instructions to trustees, and suits to obtain declaratory judgments are of continually increasing importance and do not involve or depend on any breach of any precept. Malinowski is
thinking of the provisions of a penal code, e. g. against arson,
burglary, or robbery. These must be broken to come before the
courts. On the other hand, on the civil side of the law one may
go to a court in order to get an authoritative pronouncement
as to what his rights are so as to forestall breach. Compare
also what happens when the sanctioning agencies are temporarily in abeyance, as in a police strike, in a riot, in a revolution,
or in time of flood, or conflagration, or earthquake. Violence and
looting break out spontaneously. It is the layman's idea that law
is a body of prohibitory rules enforced by penalties in criminal
prosecutions. In the same way, Malinowski thinks only of one
type of rule, namely, precepts attaching definite detailed legal
consequences of penalty to a definite detailed state of facts. Developed law gets far beyond this. But this type of precept is
characteristic of the societies with which anthropologists have to
deal and even of societies much farther advanced. If the anthropologist can see nothing more in the politically organized societies
of today, the jurist may, for his purposes, see no law in primitive
societies, where political organization is little advanced, and may
say of even more advanced societies that they have laws, if you
will, but not law.
From a juristic sociological standpoint the outstanding recent contributions are those of Llewellyn." After
27. K. N. Llewellyn, The Normative, the Legal, and the Law-Jobs: The
Problem of Juristic Method (1940) 49 Yale Law Journ. 1355; Llewellyn and
[ 195]
The Nature of Law

a notable beginning in skeptical realism he turned to the
sociological approach. In his paper on the problem of
juristic method he gives us much the best outline of the
task of a sociology of law and of the way of going about
performance of it which has appeared. His striking
terminology has, at any rate, the merit of not using old
terms in new meanings and of conveying a vivid impression of the meaning sought to be conveyed. "Law-job,"
"law-ways," ".law-stuff," the "trouble-case," and the
"cleaning up of messes" all but explain themselves.
He begins with the entirety or group. Next we see
that "divergent urges or desires" arise among members
of a group which "tend to friction and disunity." Here is
a "constituent of law-life as fundamental as the group
order which it may disturb." Third, there is the "claim
made by some member or members upon or against others and the relation of those claims to the order of the
whole." Claims are generated either by expectation or
by wish, but there is an "inveterate drive" for them to
be asserted in title of the whole, as involved in the working of the whole and so justified and rightful. The
handling of the claims goes to the very heart of group
existence. Unless the resulting "law-jobs" get done, the
group breaks up, dwindles away, or dies. This fundaHoebel, The Cheyenne Way: Conflict and Case Law in Primitive Jurisprudence (1941) pt. I, chap. 3 (Primitive Law and Modern) and part III (The
Law-Jobs and Juristic Method-chap. 10, Claims and Law-Ways, chap. 11,
The Law-Jobs).
[196]
10.
The Nature of Law
mental sociological exposition goes to the root of such

questions as the nature of law, the basis of legal recognition and securing of interest, the end of law, and whether "rights" have some reality behind them or are merely
inferences from threats and are asserted only because a
legal order has taught men to do so. Any group or any
society is "subject occasionally or insistently to the annoyance or even disruption of members at odds or outs
with one another over expectations and demands disappointed or resisted." There is need of some kind of settlement unless the group is ultimately to be dissolved.
There is, therefore, a continuing strong pressure for
instances of settlement and settlement procedure to become institutional.
This leads him to make a sound distinction in comparison with Timasheff as to the term "legal." The
legal in the order of a group or culture is, he tells us,
"more than mere norm, more than mere normative standard. The legal has teeth." It is true, he points out, that
the legal has normative aspects. There is a more or less
normative purpose, but the "heart of the legal lies in this
character of being imperative rather than merely normative." There is more than a model-a model one is
coerced to follow. Taken in connection with RadcliffeBrown's distinction between "diffuse" and "organized"
sanctions, 8 we get a use of the term "legal" more satis28.
Social Sanction (1934) 13 Encyc. of the Social Sciences, 531-534.
[197]
The Nature of Law

factory to the Anglo-American (to whom "legal" does
not have the double meaning involved in droit, Recht,
ius), than Gurvitch's use of it. The legal is not merely
successful force. The legal is part of an order. Violence
outside of the order is extra-legal or contra-legal. In other words, there is an institutional social control backed
by organized sanctions. The case for regarding law as
social control through the systematic application of force
by an organized society could not be put better. His discussion of authority and regularity as involved in the
"legal" 9 clears up an old subject of debate in jurisprudence. Also Llewellyn has taken the right course in
showing how the judicial process and case-law operate
from the beginning. Despite Malinowski's criticism,"
the lawyer will feel that The Cheyenne Way bears out
Sir Henry Maine's teaching that the judge precedes the
law; that judgments precede "customary law." 31 There
was no mistake in the "almost exclusive stress" put by
Llewellyn and Hoebel on "the specific mechanism which
is brought into existence when a conflict of claims arises,"
and in their finding law in the "cleaning up of messes"
and experience of how they may be cleaned up with the
least friction and waste. The way in which the term
29.
The Cheyenne Way (1941) 283-289.
30.
A New Instrument for the Interpretation of Law (1942) 2 Lawyers
Guild Rev. 1, 4-7.
31.
Ancient Law (1861) chap. 1.
[198]
10.
The Nature of Law
"custom" has befogged the discussion is well brought

out."2
64. PUBLIC LAW, INTERNATIONAL LAW,
AND THE ANALOGY OF "LAW" IN THE PHYSICAL AND OTHER SCIENCES. Thus far the subject
has been discussed as if all that has to be considered is
the so-called "municipal" law of each state. The term
"municipal" here is not a good one. But it is in settled
usage and is the only term in general use which seems
available. It goes back to the legislation of the citystates of medieval Italy in contrast with the universal
law of the "empire," that is, the Roman law taught in
the universities as the "civil" law of Christendom. We
cannot well say "civil" law in English because that term
has too many meanings in settled usage already. Thus
we use "civil law" for the modern Roman law in contrast
with the "common law" or the general system of law
which obtains in the English-speaking world, just as the
French or the Germans, for example, speak of the modern
Roman law as the "common law." Again, we speak of
"civil law" in contrast with "criminal law" because the
latter was not governed by Justinian's books which were
called the "civil law." "Civil law" is also used in contrast with the canon law. It has been felt that we must
apply theories of law to not only municipal private law
32.
The Cheyenne Way (1941) 274 ff.
[199]
The Nature of Law

but also public law (including constitutional law and administrative law) and international law.
Difficulties arise from constitutional law and international law. In the United States, it is true, constitutional law makes no trouble for the analytical jurist.
There it is enforced or applied in the courts the same as
any other part of the body of authoritative grounds of decision. But in countries without a written constitution
or where, although there is a written constitution, there
is no judicial power of interpretation and application of
its provisions, there is difficulty in adjusting theories of
law to what is called constitutional law. In such countries at most it is made up of two quite distinct bodies of
precepts. Dicey called attention to this, distinguishing
(1) constitutional law truly so-called-that which is enforceable and enforced, that which can be and is administered by the courts, e. g. in Great Britain, rules as
to the powers of the Crown and the relations of the Crown
and the subject-and (2) constitutional convention or
usage-that which rests only in usage and public opinion
and habit of obedience.' Here would be put, for example,
the traditions of the United States Senate as to debate,
as to places on committees, seniority, and the like. In
this country we should not think of calling these constitutional laws. But in Continental Europe, where the
I. Law of the Constitution (8 ed. 1915) 1-34, 413-434, 435-468.
edition was published in 1885.
[ 200]
The first
10.
The Nature of Law
courts have no power to enforce their interpretations of

constitutions, and each department of government is the
judge of its own powers, where the legal unaccountability
of sovereignty has devolved upon each, the written provisions have no greater force, so far as practical efficacy
goes, than the unwritten customs and precedents, and
hence Continental writers have not distinguished constitutional law from constitutional usage.' A sort of working understanding between the departments of government has developed which jurists have referred to natural law. It is a body of understandings of how the departments of government are to work in harmony, in part derived from experience, in part worked out rationally by
teachers and doctrinal writers, and given form by jurists.
But occasional coups d'gtat, where we should use quo
warranto or injunction show the difference between this
type of constitutional law and that known to the English-speaking world.
Administrative law is a term used to mean (1) the
system of adjustment of relations and ordering of conduct by administrative agencies instead of through the
2. E. g. Hatschek, Englisches Staatsrecht (2 vols. 1905-1906). See the review of vol. I in 21 Law Quart.Rev. 211-213.
Hatschek denied the validity
of Dicey's view as to conventions of the constitution and, because he considered them or some of them to be rules of law, and saw that the House of
Commons changed items of its procedure by resolution, concluded that the
House of Commons committed usurpations of law. Naturally the English reviewer could not agree. The English "law" did not translate the German
Recht and vice versa. The author and the reviewer had radically different
ideas of what constituted law.
[ 201]
The Nature of Law
courts, (2) the body of administrative usages which has

developed in the work of these agencies, and (3) the administrative as distinguished from the judicial process.
In all of these senses administrative law has grown out
of conflict and overlapping of interests and the need of
adjusting conflicting claims, has the authority of politically organized society behind it, and has organized
sanctions. At one time it seemed that certain administrative tribunals were turning into something very like
ordinary courts.3 In common-law jurisdictions what is
called administrative law is largely a part of the municipal private law which has to do with securing individual rights by judicial review of administrative action.
In America, the usage of administrative agencies (as administrative law) is thus far chiefly the usage of each
particular agency. There is little systematic, authoritative, binding usage because there is no general administrative appellate tribunal (as in the countries of Continental Europe) to require this, and the powers of review by the ordinary courts have come to be much limited. But some American administrative agencies have
been developing a systematic usage and legislation pre3. E. g. the Interstate Commerce Commission Reports, the Reports of the
Railway Commission of Wisconsin, the Bulletin of the Ohio Industrial Commission read very like ordinary law reports. Some of our older administrative
agencies seemed to be becoming courts on their "quasi-judicial" side until
more recently the idea of law as whatever is done officially began to affect administrative action.
[ 202]
10.
The Nature of Law
scribes procedure to some extent. Administrative law

has good title to be called "law."'
What we call international law is made up of two
types of precepts: (1) Precepts which are sanctioned by
a politically organized society, which courts can and do
recognize and apply as grounds of decisions-a common
element in the municipal law of modern states; (2) precepts which have only a moral force behind them, with
which courts have nothing to do, which are not applied
by any one and so far as they obtain are recognized in
conduct, not in decision. The latter are matters for foreign offices and departments of state rather than for
courts. Between the two types of precept in international law there is a body of precepts which have been recognized and applied in international arbitrations or recognized and applied in the Permanent Court of International Justice or are to be applied in the World Court.
These are authoritative grounds of decision and would
seem to come within the proper scope of the term "law."
But the analytical jurist would be troubled about lack of
sanction and hence would admit no more than that they
were on the way to become law.
4. See Dicey, Law of the Constitution (8 ed. 1915) 324-401; Frankfurter,
The Task of Administrative Law (1927) 74 Univ. of Pa. Law Rev. 614; Frankfurter and Others, A Symposium on Administrative Law (1933) 18 Iowa Law
Rev. 129; Berth~emy, Trait46l mentaire de droit administratif (13 ed. 1933)
1-8; Hauriou, Prdcis de droit administratif (10 ed. 1921) 1-12; 1 Jcze, Lea
principes g~ndraux du droit administratif (3 ed. 1925) 1-2.
[ 203 ]
The Nature of Law

Thus the four bodies of precepts we have been considering
fall into two classes. In the municipal law of each state, in constitutional law strictly so-called, in administrative law, and in that
part of international law which is administered by tribunals, we
find today (a) recognized organs of lawmaking, (b) recognized
courts or tribunals of a permanent character, (c) a definite and
recognized mode of enforcing the decisions of the tribunals. 5
Constitutional usage and that part of international law which is
not a part of the municipal law of each state lack the three significant characteristics. That part of international law which
comes within the jurisdiction of international tribunals lacks one
of them. The dual character of international law is insisted on
by analytical jurists. Thus the rule that matters of discipline on
a foreign merchant ship while in port and other things affecting
only the vessel or the ship's company, and not involving the peace
of the port or dignity of the country of the port, will be left by the
local authorities to be dealt with by the authorities of the nation
of the ship's flag according to the laws of that nation, is part of
the municipal law of each state. Courts recognize and apply it.
That it is part of the law of each state is shown by the circumstance that states differ as to its scope and application.6 On the
other hand, the doctrines of international law as to recognition
of belligerancy, recognition of independence, or as to mediation,
are not part of the law of any state. No tribunals recognize or
enforce them, nor can they do so. Hence, analytical jurists have
always contended that a great part of international law is not law
in the sense in which that term is used for the law of a modern
state. Hall calls it "authoritative international usage." 7 Hol5.
Clark, Roman Private Law:
I Jurisprudence (1914) 423.
6. Wildenhus's Case, 120 U.S. 1, 7 S.Ct. 385, 30 L.Ed. 565 (1887); Cunard
steamship Co. v. Mellon, 262 U.S. 100, 43 S.Ct. 504, 67 L.Ed. 894, 27 A.L.R. 1306
(1923); Case of Antoni (Supreme Court of Justice of Mexico, 1878) Hudson,
Cases and Other Materials on International Law (2 ed. 1936) 601.
7.
International Law (1915) introductory chapter.
[ 2041
10.
The Nature of Law
land calls it "law by courtesy only." 8 Austin calls it "positive

international morality." 9 Savigny saw there was a distinction
and spoke of this part of international law as "imperfect positive
law." 10 Lundstedt lays it down vigorously that "universally recognized international rules" do not have the character of "genuine law." 11 It got its name of "law" in the seventeenth and eighteenth centuries, in the confusion of law and morals in the stage
of equity and natural law, when all distinction between rules that
ought to govern and those that can or do govern was sought to be
eliminated. Whatever rules of conduct were shown by reason to
be morally binding on rulers were held to be for that reason on
the same plane with rules of conduct legally binding on men, since
both were regarded as getting their real authority from their intrinsic moral force. This was reinforced by the mode of thought
of the historical jurists, who thought of social control and law
as synonymous.
However much we may wish that those parts of international
law which are not cognizable by tribunals may gain the support
of some stronger force than the "sanction of human displeasure"
and a more or less constant and general "habit of obedience" on
the part of nations, we must perforce recognize that it has not
yet acquired such support or has at most begun to develop something of the sort through the evolution of international adjudication out of occasional arbitration. In truth, as has often been
remarked, international law is in many ways analogous to the beginnings of law. It is "analogous . . . to those customs and
observances in an imperfectly organized society which have not
fully acquired the character of law, but are on the way to become
8.
9.
1 Jurisprudence (5 ed. 1885) 173.
10.
1 System des heutigen rdmischen Rechts (1840) 11.
II.
Superstition or Rationality in Action for Peace (1925) 182-188.
[205 ]
The Nature of Law

law." 12 Law only does part of the task of social control of international relations. In the beginnings of Roman law /us only
did part and a relatively small part of the adjustment of relations
and ordering of conduct. In like manner fas and boni mores and
self-help do the most part of adjusting international relations and
ordering national conduct. International law is on the way to become law, in the same sense as the positive law of the state, rather than strictly law if we compare it with the developed law of
the modern state.
Historical jurists in the last century felt no difficulty about
international law nor about constitutional usage. They found an
element common to these and to the municipal law of each state
and to constitutional law in the Anglo-American sense in the sanction of human displeasure or the habit of obedience, or the social
standard of justice, which they regarded as the ultimate source
of authority in each case. If all social control is thought of as
law, the body of precepts on which international social control is
achieved can be called law equally with the body of those on
which internal social control is achieved in any given society.
But the difference between the diffuse sanctions in the one case
and the organized sanction in the other is fundamental.
From a sociological standpoint, if, with Ehrlich,

we think of law as the inner order of groups and associations and relations, how far is there any developed inner order of international associations or relations?
There is something of the sort, and functionally looked at
this might be called law. Ehrlich says that international law is denied the name of law because of an idea that
12.
Pollock, First Book of Jurisprudence (6 ed. 1929) 14.
[ 206 ]
10.
The Nature of Law
"all law is state law".13 He vouches ecclesiastical law,

the inner order of a church organization. If by that is
meant the law of the Roman Catholic church, this body of
precepts has organized sanction behind it but exercises it
in subordination to the law of the state where it is exercised. If he means the canon law as a universal body
of doctrine received on the Continent for certain subjects
as the civil law is for most, or as the common law is with
us, it must be said that these get the authority of the
states in which they are received and enforced. There
is no such reception of more than a part of international
law.
Gurvitch argues in much the same way as Ehrlich
and he, too, vouches the canon law, adding constitutional
law in the sense of constitutional usage. He thinks of
the unorganized "communion of civilized nations" as a
community "superior" to each state. In this way, ethical
valuations and ethical convictions are arrived at. This
view is affected by the word droit and requires distinction of "external and precise constraint from the more
general phenomenon of sanction and [of] sanction from
social guaranty." 1 One might compare the exhortation
of the Anglo-Saxon kings, addressed to the people as
Christians rather than as subjects.
13.
Fundamental Principles of the Sociology of Law (1936--the original
published 1913) 162-163.
14.
Sociology of Law (1942) 58.
See also id. 248-249.
[ 207 ]
The Nature of Law

Timasheff argues that each state, as a "power structure" limits itself. It declares it will act in certain ways
and not in certain other ways.15 This should be looked at
in the light of Llewellyn's remark that "the legal has
teeth." 1 It suggests Jellinek's doctrine of a constitution as the auto-limitation of a sovereign." Timasheff's
argument seems to go back to natural law. It is the
same as the argument as to constitutional usage.
One might refer here, also, to the doctrine that rules
provided by treaties and conventions are international
legislation.' 8 This suggests the teaching of the metaphysical jurists as to "private legislation" by conveyances
and settlement of trusts and contracts." The Romans
did use lex in that way-e. g. lex commissoria for the
strict foreclosure clause in a pledge. ' But this way of
thinking depends upon the natural-law theory of the inherent absolute binding force of a promise.
If we adopt Sorokin's idea of types of integrated
culture and his idea (after Max Weber) of a culture as
"the sum total of everything which is created or modified by the conscious or unconscious activity of two or
15.
Introduction to the Sociology of Law (1939) 260-261.
16.
The Cheyenne Way (1941) 284.
17.
Allgemeine Staatslehre (3 ed. 1929) 386, 476.
18.
See I Hudson, International Legislation (1931) xiii-xix.
19.
Miller, Lectures on the Philosophy of Law (1884) 71.
20.
Cod. 8,34(35) 3.
[ 208]
10.
The Nature of Law
more individuals interacting with one another or conditioning one another's behavior," 21 we can reach a sociological theory of an international culture on which
to found a theory of international law. It will be necessary, however, to assume that all social control is law.
When it is said, as the books on sociology do today, that
a state is not necessary to law, it is meant that social
control does not require a state. No one denies this.
But it has no bearing on the proposition that the highly
specialized regime of social control, which in the Englishspeaking world has gone by the name of law, does presuppose a politically organized society and depend upon
it. Theories of droit and theories of "law" will not reduce to one.'
Those who do not accept the lawyer's view as to the nature
of law have been wont to refer to what the analytical jurist regards as analogous uses of the term, e. g. laws of physical nature
21.
1 Sorokin, Social and Cultural Dynamics (1937) 3.
22. As to the nature of international law from the standpoint of writers

on that subject, see Oppenheim, The Future of International Law (1921);
Lauterpacht, The Function of Law in the International Community (1933) 3,
51, 60, 111-127, 245-248, 385-398, 407-439;
Wright, The Enforcement of In-
ternational Law Through Municipal Law in the United States (1916) introduction; 1 Hyde, International Law (1922) 1-13;
1 Mrignhac, Droit public in-
ternational (1905) 18-26; Bonfils, Droit international public (7 ed. 1914)

26-31; Mirkine-Guetz6vitch, Droit international et droit constitutionnel (1931)
35 Acad.mie de droit international, 307, chaps. 1, 2, 6 (also reprinted separately, 1931); Zorn, V6lkerrecht (2 ed. 1903) 2; Liszt, V61kerrecht (10 ed.
1915) 8-10; Triepel, Vt6lkerrecht und Landesrecht (1899) 1-10 (French transl.
Droit international et droit interne (1920) 1-10); Wenzel, Der Begriff des Gesetzes, in Juristische Grundprobleme (1920) 344-46& See also Kelsen, Reine
Rechtslehre (1934) 49.
[ 209
The Nature of Law

or laws of science, laws of grammar, laws of fashion, laws of
games. We have here two sets of phenomena. In laws of science,
laws of phonetics or linguistics, and the like, the matter is quite
independent of human volition. In laws of fashion, laws of
games, and the like, the matter is subject to the control of the human will. Law in the lawyer's sense is more like the second type.
Indeed, they had a common origin historically. Law in the lawyer's sense gradually differentiated from the custom of decision
as to conduct which in an archaic polity stood with morals, social conventions, ethical customs, religious rites and laws as an
undifferentiated social control.
As used in the physical sciences, and indeed in the sciences
generally, "law" is used to mean generalized prediction from experiment and from human experience of the course of events.
Thus, the "law of gravitation" is a formulation of human observation and experience of the manner in which bodies move toward
or are attracted by one another. If one holds that by observation
and experience we have discovered certain rules authoritatively
imposed upon the universe by the Creator, he will say these are
laws in the same sense as the rules of conduct or rules of decision
authoritatively imposed by the organs of the state. Such was
the eighteenth-century way of putting it, which goes back to the
juristic theory of the universe set forth by the scholastic philosophers, the lex aeterna of Thomas Aquinas.
What do law in the lawyer's sense and the two types of rules
above referred to have in common? Behind each of them is an
idea of order or regularity; of rules or principles underlying sequences of events, physical, or linguistic, or economic, or moral, or
social, or in a course of adjusting human relations in a politically ordered society. Today it is unusual to insist upon the laws
of science as furnishing any significant analogy. The theological
science which knew of laws imposed on the universe by an external personal sovereign, and knew exactly what those laws were,
as we know the statutes of the state in which we live, the concep[210 ]
10.
The Nature of Law
tion of the medieval philosophers, who thought of a Roman princeps on a large scale enacting constitutiones for the universe, no
longer finds much place in the books. Our "laws" of science have
proved to need so much and such continual revision that we have
come to recognize them as only human attempts to formulate observation and experience.
Historical jurists have urged the analogy of the rules or laws
of games. Carter made this the basis of attack upon jurists who
would limit law to social control through politically organized society.2 3 But at the very time he was writing the actual facts of
the rules of games had come to refute him. He speaks of "the
standard of justice founded on the rules and habits of the game."
This standard and these unformulated habits, however, soon become inadequate to meet the exigencies of conflicting interests.
Just as when men disagreed on the standard of justice according
to the usage of the community the sanction of human displeasure
could not keep the peace and the officials of politically organized
society had to step in, so in games partisanship interfered with
the workings of the so-called sanction of the standard of justice
founded on the habits of the game and made it ineffectual. Umpires and referees were required, and as judges are given laws
by which to administer justice, so in order to preclude arbitrary
action by umpires or referees, the usage of games came to be codified. Baseball is a notable example. First, the usage of the
game was put in authoritative form in Spaulding's Guide. Second, interpretations by particular umpires at particular games
were added in later editions. Third, representative gatherings of
clubs introduced amendments. Finally, fourth, there came to
be conventions and congresses and national commissions, rulemaking bodies, consciously laying down authoritative rules. The
same story can be told of football and of any game in which large
23.
Carter, The Ideal and the Actual in the Law (1890) 13 Rep.Am.Bar
Ass'n 217, 225-227.
[ 211
The Nature of Law

numbers take part or are interested and in which competition and
partisanship become serious. The jurist is not concerned with
what went on in the pre-umpire stage. Carter and others who
have used this illustration of the rules of games wrote with reference to things as they were in their boyhood, before the development toward what might be called a "positive law" of baseball
or football had set in. No one writing in these days of authoritative rule-making and codified rules governing all important sports
would be likely to take this illustration for a test. There is no
need of using "law" for the rules of games and no advantage in
doing so. The word "rule" will do well enough.
[ 212 ]

2 Roscoe Pound Jurisprudence

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2 Roscoe Pound Jurisprudence

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Citation: 2 Roscoe Pound Jurisprudence 97 1959

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57. The Question a Practical One.

The Analytical Doctrine.

Normative and Realist Analytical Theories.

The Doctrine of the Historical School

The Doctrine of the Nineteenth-Century Philosophical

The Doctrine of the Sociologists.

Public Law, International Law, and the Analogy of

HE QUESTION A PRACTICAL ONE. From

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The italics are supplied.

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Nice questions as to what the federal courts must take

to be authoritative forms of the state law have remained.' 2

4. Another type of case has arisen in connection with the

there been a change of law or did the parties to the transaction

court reverses its construction of a statute, this is to be treated

The Nature of Law

Bagby v. Martin, 118 Okl. 244, 247 P. 404 (1926).

1 Wall. (U.S.) 175, 17 L.Ed. 520 (1863).

53 L.Ed. 826 (1909).

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2. Historically, the oldest and longest continued

Kohler, Einfiihrung in die Rechtswissenschaft (1902) 1; id. I Lehr-

buch des biirgerlichen Rechts (1906) 2-4.

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Administrative Application of Legal Standards (1919) 44 Rep.Am.Bar Ass'n

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J 35; Stammler, Theorie der Rechtswissenschaft (2 ed. 1923) 633-641. As to

Voet, Commentarius ad Pandectas, Commentary on Dig. 41, 3 (transi.

by Krause 1922, 167).

"An old hexameter formulates the requisites of adverse

res habilis, titulus, ides, possessio, tempus."

-Pandekten (8 ed. 1911) 182 n.

Gaius, 2, 43, 51; Inst. 2, 6, pr.

French Civil Code, art. 2279.

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6l6mentaire de droit civil (12 ed. 1932) nos. 2459 et

See Hershey, Letters of Credit (1918) 32 Harvard Law Rev. 1, 29-30.

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See post 16 104.

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reference to judicial decision in the past; a traditional

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whole mode of approach to any new situation and determines

See Pound, Equitable Relief Against Defamation and Injuries to Per-

sonality (1916) 29 Harvard Law Rev. 640.

See Abbot, Justice and the Modern Law (1913) 32.

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Kennard v. Cory Bros. & Co., [1922] 2 Ch. 1.

42. Coke, C. J. in Bromage v. Genning, 1 Roll.R. 368 (1617); Holmes, The

2 Planiol, TraitoG 6l6mentaire de droit civil (8 ed. 1920-1921) no. 166.

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one state to create a right in a person in another state.44 No one

Nichols v. Winfrey, 79 Mo. 544 (1883).

Prohibitions del Roy, 12 Co. 64, 65 (1608).

The Nature of Law

There is also an ideal element in law (using "law"