CHAPTER 16

Positivism: British theories

The start of the nineteenth century might be takers as marking the beginning
of the positivist movement. It represented a reaction against the a priori
methods of thinking that characterised the preceding age. Prevailing theories
of natural law shared the feature of turning away from the realities of actual
law in order to discover in nature or reason principles of universal validity.
Actual laws were then explained or condemned according to these canons.
Unverified hypotheses of this sort failed to satisfy the intelligence of an age
nurtured in the critical spirit of new scientific learning. Scrutiny of natural
law postulates had damaging results, for they were shown to be without
foundation or else the products of extrapolation.
The term 'positivism' has many meanings, which were tabulated by Pro-
fessor Hart as follows': (i) Laws are commands. This meaning is associated
with the two founders of British positivism, Bentham and his disciple Austin,
whose views will be considered in this chapter. (2) The analysis of legal
concepts is (a) worth pursuing, (b) distinct from sociological and historical
inquiries, (c) distinct from critical evaluation. () Decisions can be deduced
logically from predetermined rules without recourse to social aims, policy or
morality. () Moral judgments cannot be established or defended by rational
argument, evidence or proof. () The law as it is actually laid down, positum,
has to be kept separate from the law that ought to be. Whatever meanings
are ascribed to positivism, it is contrasted with natural law, which also has
different meanings*. In view of these differences one needs to be chary of
classifying any particular writer as positivist or naturalist. However, subject
to that general caution, it would be safe to assert that the authors discussed
in this and the following chapter are commonly regarded as positivists. What
natters are their views on particular issues, not how they are labelled.
The fifth meaning given above seems to be the one currently associated
with positivism. It may spring from a love of order, which aims at the
clarification of legal conceptions and their orderly presentation. To insist
that 'what the law is' is one question, 'what the law ought to be' is another,
looks neat thd tidy. Precision may be elusive but striving towards it whenever
possible is commendable and prfitable. Positivism flourishes in stable social
conditions; the difficulties of maintaining a rigid separation between 'what
is' and 'what ought to be' are only projected to the forefront when conditions
are in turmoil. It is worth remarking that neither Bentham nor Austin should
be thought of as writing in periods of particular stability. What they repre-
sent is the intellectual reaction against naturalism and a love of order and
precision. Bentham was a tireless campaigner for reform, and both he and

i 'Positivism and the Separation of Law and Morals' (1957-58) 7! Harvard Law Review at
1)601 fl25.
2 See 1)470 Post-
3 J Hall Foundations of Jurisprudtnce ch 2.
332 Legal theory

Austin insisted that prior to reform there has to be a thorough-going clari-

fication of the law as it is. The significance of stable conditions might con-
ceivably be seen in the, fact that the Austinian theory made no headway
until after his death, until after the Chartist movement had collapsed, and
it then rapidly reached the zenith of its influence in the serene atmosphere
of Victorian England.
Whether a separation between the 'is' and the 'ought' is tenable or not is
a debateable issue to which allusion will be made on several occasions. It is
necessary, therefore, to try and clarify what that issue is. The preceding
portions of this book, especially the analysis of 'Duty', will have shown that
a large part of law consists of prescriptive patterns of behaviour, ie models of
conduct to which people ought to conform and by which their actual be-
haviour is judged. Therefore the 'is', which positivists are anxious to preserve
inviolate, is largely composed of'oughts'. So far most positivists would agree4,
but they would add that only those 'oughts' acquire the character of 'law'
which have filtered through certain accepted criteria of validity. In English
law these are precedent, legislation and immemorial customs. The distinc-
tion, in other words, between an 'ought' proposition that 'is' law and an
'ought' proposition that 'ought to become' law lies solely in the fact that the
former has passed through one or other of the media which regulate the use
of the label 'law'. It follows that positivists need not deny that judges make
law; indeed, the majority admit it'. They also acknowledge the influence of
ethical considerations on judges and legislators, and that generally it is
because a proposition was thought to be moral and just that a judge or
legislator adopted it. What they do say is that it is only incorporation in
precedent, statute or customs that imparts the quality of 'law'. This quality
follows from such incorporation irrespective of morality, so that even if an
unjust proposition were embodied in precedent or statute, it would be 'law'
none the less because it would exhibit the formal stamp of validity. Therefore,
they maintain, every proposition which passes through one or other of the
accepted media is 'law' irrespective of all considerations which go towards
saying that it should be, or should not be, law. It-is—this contention which
touches the heart of a modern controversy to which some anticipatory refer-
ence is necessary. Natural lawyers would assert that a proposition is 'law' not
merely because it satisfies some formal requirement, but by virtue of an
additional minimum moral content. According to them an immoral rule
would not be 'law' however much it may satisfy formal requirements.
It is also thought to follow from the positivist obsession with the 'is' that
they distinguish between formal analysis on the one hand, and historical and
functional analysis on the other. Those who assert this do not deny the value
of the latter, but contend that these should be kept apart from the former.
Any such attempt, however, suffers from the inherent difficulty that it is
seldom possible to study institutions as they are except in the light of their
history and function. Many can only be understood in the light of their.
origins and past influences, which is especially the case with common law
institutions, reaching back as they do unbroken for centuries. The suggested

Though not, perhaps, some of the early'realists', whose views are considered inch 21 post-
5 Ponuvism has sometimes been taken to refer to the doctrine that judges do not make law,
but this has been discredited.
6 Sa,jjad Ahrnad J in .jiIau s GOSVStflI of Punjab PaILD (1972) SC 139 at 26 r; pp 500-501
post. Se also PP 8 7 Ct seq ante.
 Positivism: British theories
t^ i vision
between 'analytical' and 'functional' study is unhappier still. The
preceding chapters should have demonstrated that legal conceptions are
shaped by the way in which they are used and the ends which they serve, all
'I which import social, moral and other value considerations
7 . This leads to
a more general objection. If the analysis of legal conceptions as they are
inevitably brings in a consideration of their function, which in turn as inevi-
tably brings in considerations of what ought to be law, what then becomes
of the alleged distinction between formal and functional analysis?
Some further objections to the 'is'/'ought' distinction may also be men-
tioned at this juncture. It is said that a law is what its maker thought it
ought to be, whether it be moral or immoral, as with Herod's decree for the
massacre of the innocents. In so far as this assertion relates to the content of
a law, no positivist need disagree. The real thrust of the objection, however,
becomes apparent when one considers the structures of concepts, which are
shaped by the ends which they serve. This is not a mere matter of content,
but of the texture of the law itself. The point is also apparent in the judicial
process which, as pointed out, is guided by values. In a situation uncovered
by authority, for instance, a judge will enunciate as law an appropriate rule,
which will lead to the desired decision; but the point is that he states the
rule to be what he feels it ought to be. As far as he is concerned he accepts it
as law already because it appeals to his sense of right and before it is made
into a precedent. As Sir Garfield Barwick CJ said 'the common law is what
the court, so informed, decides that it should be ... For where no authority
binds or current of acceptable decision compels, it is not enough, nor indeed
apposite, to say that the function of the court in general is to declare what
the law is and not to decide what it ought to be". As has been suggested,
the same sentiment may underlie the converse situation: what ought not to
be law cannot have been law, which may be the explanation of the retro-
spective effect of overruling. Even where there is a rule of law, its application
blirs the line between the 'is' and The 'ought'. As should have been evident
from the discussions of precedent, statutory interpretation and values, rules
are occasionally shaped and reshaped so as to yield the desired conclusion,
ie the rule is stated as being what it ought to be to lead to the decision.
Another point is that principles and doctrines operate differently from rules
in that they exert presure as to the direction in which rules ought to de-
velop". No-one disputes that they, too, are part of law, so what 'is' law here
are statements as to what it ought to be. If, then, for these reasons a total
separation of the 'is' and the 'ought' cannot be maintained, any assertion
that they are separate does not represent the position that 'is', but only what
positivists think ought to be; which makes positivism itself an ideology".
When considering this debate two questions have to be asked: How far is
there a separation? and, Is it desirable that there ought to be a separation?
With regard to the first, the relationship between the 'is' and the 'ought' is
close, as both sides will agree. It is submitted that if the matter is viewed in
A temporal perspective a reconciliation may be found. There is no separation
in a continuum, since the continuity of laws, their application and even their

7 See pp i6-i8, 226 ante.

8 Mutual bj& Citizens Assurance CovE,au(1968)42ALJRSI6at3I8
9 Seep I56ante.
10 Sec p46 ante.
ii Silving Sources of Law pp 298 et seq.
334 Legc.Itheoy

criteria of validity are in the long run dependent on conformity with moral
and other such dictates. In this time-frame the naturalists can make out a
case". On the other hand, in the present time-frame positivists can likewise
make out a case for at least some degree of separation for the practical
purposes of here and now. They themselves must concede that total separa-
tion is difficult to maintain in the day to day business of applying rules. So
their contention narrows itself to the means of identifying 'law' at any given
point of time, in short to the criteria of validity. When the matter is reduced
in This way, the two questions can be restated as follows: Are the criteria of
validity purely formal and separate from moral considerations? and, Should
they incorporate a minimum moral criterion? Identification of that which is
'law' is the concern of lawyers in their daily business, and in this context the
answer to the first question is on the side of the positivists. Even so, it may
be possible to draw a slight distinction between precedent and statute as
criteria of identification. A lower court is bound to apply an undistinguish-
able precedent of a superior court, however wrong it may be, so that, with
regard to such court, there is a distinction between what 'is' and what '.1ght
to be' law 13. A superior court, however, when overruling the unjust precedent-
declares that it never was law notwithstanding the formal stamp of validity
which it had borne until then. With regard to such a court the 'is'/'ought'
separation in precedent as a criterion of identification breaks down at that
point. Repeal of a statute, on the other hand, takes effect only from the date
of repeal, and even when the effect of repeal is expressly made retroactive,
there is no denial that the repealed statute was law until it was repealed.
Summing up, therefore, one may say that the answer to the first question is
that, within the limits of here and now and for the purpose of identifying
laws, there is a separation in the criteria of identification (subject to the
suggestion to the contrary with regard to precedent). It is for this reason that
ways had to be explored in Chapter 5 for introducing a moral element into
the criteria of identification (validity).
The second question is whether such a separation is desirable. The argu-
ments that it is undesirable have been considered and need not be re-
hearsed". In this chapter it is necessary to consider why positivists contend
that separation is desirable. Their arguments are practical. (a) Valid laws
are what those charged with administering laws identify as such, and the
principal reason for keeping the means of identification as clear cut as pos-
sible is convenience. For otherwise no one could know how to regulate his or
her daily actions and the task of lawyers when advising clients, law-teachers in-
structing pupils, businessmen conducting their affairs etc would be impossible.
The importance of being able to tell as clearly and simply as possible whether
this is, or is not, a 'law' at any given point of time is obvious. The intro-
duction of morality into the criterion of identification presents difficulties.
Morality is a diffuse idea and no one, not even a naturalist, maintains that
everything which is moral is 'law'. Since the area of 'law' is bound to be
narrower than that of morality, its boundary should be made as clear as
possible. (b) There is a difference in the application of formal and moral
criteria. Establishing the validity of a precept by means of a formal test and
a moral test involve different processes. Courts have neither the time nor the

12 See pp 498 et Seq.

13 .fthwgot r George Frank (Te.rtikc) Ltd [1976] AC 443 at 478, (197513 All ER 801 at 822.
14 See p89 ante.
 Posuwtsm: British theories

training to undertake the latter. (c) A separation between the 'is' and the
'ought' is useful in providing a standard by which positive law can be eval-
uated and criticised. Even naturalists concede that there will always be some
discrepancy between law as it is and as it ought to be, and as long as this is
so the latter can be used to evaluate the former". This argument is thus not
conclusive.
The above is an attempt to clarify wha,t is perhaps the most important
contention of contemporary positivism. In considering positivist theories it
should not be forgotten that although there is value in identifying laws
clearly for practical purposes, there is more to law besides that; but these are
matters which will have to be dealt with in due course.

BENTHAM

Analytical positivism in Britain will be associated to posterity with the names

of Jeremy Bentham (1748-1832) and John Austin (1790-1859). The latter
used to be styled until recently the 'Father of English jurisprudence', but it
is clear from a work of Bentham first published in 1945 that it is he, if
anyone, who deserves such a title. Bentham was a champion of codified law
and of reforming English law, which to him was in chaos He saw, however,
that there could be no reform of substantive law without reform of its struc-
ture: so analysis of structure was an essential prelude to reform. Accordingly,
he distinguished between what he termed 'expositorial' jurisprudence (what
the law is) and 'censorial' jurisprudence, or the art of legislation (what law
ought to be)". In the course of writing An introduction to the Principles of Morals
and Legislation he was moved to ask:' 'What is a penal code of laws? What is
a civil code"'? In seeking the answer he had to investigate the nature of 'a
law', which led him into a maze through which he mapped out a path in Of
Laws in General. Thus, what was originally conceived as a substantial appen-
dix developed into a major contribution on its own and which was finished
more or less in 1782. It remained unpublished and was disinterred fom the
vaults of University College, London, by Professor CW Everett in 1939 and
published under the title The Limits of Jurisprudence Defined in 1945. A revised
edition was published as Of Laws in General in 1970 under the editorship of
Professor Hart".
Bentham's analysis of a law has to be approached through his Theory of
Fictions, which in modern terminology would be styled semantics. There is a
tendency to believe that each word corresponds to some object. Indeed, some
- words do: 'real entities'. Other words stand for 'fictional entities'. These have
to be understood in terms of real entities by a process called 'paraphrasis"9,
a new method of elucidation with a new name made necessary by
the inapplicability of the traditional per genus et djbrerentiam technique".
15 Unless it is said with Hobbes that no positive law can be unjust: Leviathan ch3o. Cf Keben
'The Pure Theory of Law' (ig) 5o LQR at 482.
i6 Bentham As Iniroduction to the Principles of MoraLs and Legislation (edt Burns and Hart) p 293.
i' Beniltampsgg.
i8 Reference, will be to this edition (01.0).
19 Bentham The Theory of Fictions (eel Ogden) pp 86 et seq 138 Ct seq; OLG ppa5I-25' Cf
In
low-order' and 'high-order' rcfcrcata of Ogden and Richards. The Meaning of Meard.'g.
a letter to the author shortly before his death in 1956. Ogden expressed the view that
Bentharn s work would reveal him to have been one of the greatest semanticists. See also the
Introduction to his edition of The Theory of Lzgislatio,s pp xi et seq.
20 OLG pp 294-295. -
336 Legalthtory

Parenthetically it might be remarked here that Bentham anticipated modern

linguistic philosophy in a remarkable way by his insight that the meaning of
words depends on how they are used in statements in which they occur'. 'A
law', as distinct from 'law', was to him a real entity, and so was an 'act';
rights and duties, on the other hand, were fictional'. 'Law' is a fictional
entity made up of an aggregate of individual laws*. At this point a comment
has to be made. As pointed out earlier, 'law' in the sense of 'legal system' is
much more than the sum-total of laws, just as a railway system is more than
the sum-total of tracks and rolling stock'; it is the pattern of their linkage
and a good deal more besides. By assuming that the clue to 'law' lies in the
nature of 'a law', it would seem that Bentham overlooked a significant and
different set of phenomena.
'A law may be defined' said Bentham 'as an assemblage of signs, declara-
tive of a volition, conceived or adopted by the sovereign in a state, concerning
the conduct to be observed in a certain case by a certain person or class of
persons, who in the case in question are or are supposed to be subject to his
powey' 6 . Bentham's concept of a law is thus an imperative one, for which he
himself preferred the term 'mandate' 6 . This definition is flexible enough to
cover 'a set of objects so intimately allied and to which there would be such
continual occasion to apply the same propositions', eg not only laws made
by legislators, but also judicial, administrative, domestic orders as well as
declaratory laws'. It also isolates a unit in terms of which more complex
phenomena may he analysed. An important point is that permissions are
included; but this so waters down the idea of mandate that it seems inap-
propriate to rank Bentham among the imperative jurists. Indeed, the im-
perative aspect of his theory, such as it is, is its least happy part, as will
appear. Finally, every law may be considered in eight different respects:
source, subjects, objects, extent, aspects, force, remedial appendages and
expression8.

SOURCE
The source of a law is the will of the sovereign, who may conceive laws
which he personally issues, or adopt laws previously issued by former sover-
eigns or subordinate authorities ('susception'), or he may adopt laws to be
iszued in future by subordinate authorities ('pre-adoption')'. Pre-adoption
may take the form of (a) permission given to the subordinate in the negative
sense of his 'not being made the subject of a law commanding him not to
issue the subordinate mandate which is in question'; or (b) a more positive
permission to issue the mandate (which may be reinforced by permission to
punish offenders, and by commands to others to assist); or (c) a mandate
issued to the subjects of the subordinate to obey". Pre-adoption in senses (b)
i Bowring edition, vol 8, p 322; Hart Bentham.
2 OLGpp 293-294.
3 Bentham Collected Works p si. Cf Jo]owicz: 'For him, as for his disciple Austin, there is no
Law but laws': Jeremy Bent/tam and the Law (eds Keeton and Schwarzenbcrger) plo.
4 See pp 60-62 ante, and
pp 503-505 Post.
5 OLGpi.
6 OLGppIo-16.
7 OLGpp -io.
8 OLCpi.
g OLGpp2I,22.
OLG pp 22, 27, 28.
 Positivism: British theorie s 337

and (c) can be accommodated within B.entham's broad version of an im-

perative theory. The difficulty is with susception and pre-adoption in sense
(a). Where a sovereign consciously allows a .prior law to continue, or a
subordinate to continue issuing laws, he may be said to exercise his will not
to interfere; but where such continuance goes by default, this can hardly be
said to be an exercise of will, except by way of an exceedingly tenuous fiction.
Bentham's sovereign is 'any person or assemblage of persons to whose will
a whole political community are (no matter on what account) supposed to
be in a disposition to pay obedience: and that in preference to the will of
any other person". There is a difficulty about this in that 'political com-
munity' is defined elsewhere as follows: 'Where a number of persons (whom
we may style subjects) are supposed to be in the habit of paying obedience to a
person, or assemblage of persons of a known and certain description (whom
we may call governor or governors), such persons altogether (subjects and gover-
nors) are said to be in a state of political society"". The result is partly circular:
'sovereign' is defined partly in terr s of 'political society' and the latter is
defined partly in terms of the former. Also, it is not clear what exactly is
meant by 'supposed'.
The attributes of sovereignty , are interesting. Such power is indefinite un-
less limited by express convention or by religious or political motivations".
The sovereign may Consist of more than one body, each of which is obeyed
in different respects. Habitual obedience may thus be divided and partial, ie
owed in certain areas of conduct". When divided in this way the power of
each is limited by the other and each has a limited power to prescribe for
the other". These laws are of a special kind: 'The business of the ordinary
sort of laws is to prescribe to the people what they shall do: the business of
this transcendental class of laws is to prescribe to the sovereign what he shall
do"'. Thus, there is created a form of self-bindingness which has legal qual-
ity. This fascinating piece of analysis seems to hive been lost on Bentham's
disciple Austin, whose simplification in this and other respects long stultified
British jurisprudence by providing nothing better than an and basis for
exploration and criticism.

SUBJECTS
These may be persons or things". Each of these may be 'agible' (active) or
'passible' (passive) subjects, ie the agent with which an act commences or
terminates. Thus, a person may be the striker or the party struck, a thing
may be the instrument of destruction or the thing destroyed. They may be
direct or indirect, the latter constituting the circumstances of an act.

OBJECTS
It is crucial in understanding Bentham's analysis to appreciate that each
act-situation (including forbearance) is the object of an individual law".
ii OLGpi8.
is A Fragment on Governmentch i, para 10.
13 A Frogmen: on Government ct, 4, para 23 aI,dL, i; OLG PP 68-70.
14 OLGppi8nbi68nn,
15 OLGp68n.
i6 OLGp64
17 OLG PP 34 et seq.
1 8 OLGpp4tetseq.
338 Legolthior,

This was because he believed that 'a law' is a 'real entity', and so sought to
reduce it to its factual basis. It is perhaps unfortunate that he did not apply
here his own insight into the way words are used rather than seek their
reference. An act originates in persons, but may end in a person or thing.
(He might perhaps have amplified the part played by forbearance in this
respect.) All laws regulate conduct positively or negatively, by imposing
duties or granting permissions, 'imperatively' or 'dc-imperatively'. To classify
act-situations would be too cumbrous a task, but it is possible to classify the
sovereign's reactions to them so that they become offences or not. These
reactions are the 'aspects' of the sovereign's will.

EXTENT"

Direct extent means that a law covers a portion of land on which acts have
their termination; indirect extent refers to the relation of an actor to a thing,
eg being in a certain place at the time of the act, in short the circumstances.
Bentham also alluded in passing to extent in point of time, or duration of a
law'°. He was thinking of time only as a way of determining the subjects of
a law. It has been pointed out that time is significant in another way.
Whatever the intended duration, the very concept of duration is dependent
on certain factors, which, following Bentham's own line of thought, could be
regarded as a part of ever)' law'. At this point Bentham seems casually to
have opened a door without pausing to peer at the vistas that it reveals.

ASPECTS

Ever)' law has a 'directive' and a 'sanctional' or 'incitative' part. The former
concerns the aspects of the sovereign's will towards an act-situation; the latter
concerns the force of a law. Command is only one of four aspects of the
sovereign's will, permutations of which comprehend the whole range of laws.
These four are related by 'opposition' (incompatibility) and 'concomitancy'
(compatibility); and Bentham evolved a 'deontic logic' with which to dem-
onstrate the relationship between command, prohibition and permission'.
Decided aspects— ob/igative
Command (C) -..--- P,olsibition (P)
Po.m'e d.recciv. ' -' Negatn,, directive
(Do X) (Do not doX)

Kon-proaibi,ion (NP) Non-command (NC)

P*sçitve flOfl-dsctrce Positiv. non-directive
(Psrmu.on to do X) '-___ (Pe,nsion not to do X)
Undecided aspects—urtob/igetive

The logic of imperation is as follows:

(i.) C ('Do X')
(a) can co-exist with NP ('Permission to do X')—an obligative
duty is not cancelled (dc-obligated) by an unobligative liberty
to do the same thing;
t9 OLGpp72etSeq.
20 OLGPP 74, 75 -
I See pn ante.
2 OLD pp 95 Ct seq
 Positivism: British tluories
339
(b) cannot co-exist with P ('Do not do X')—an obligative duty
is cancelled (dc-obligated) by an obligative duty to do the
opposite;
(c) cannot co-exist with NC ('Permission not to do X')—an ob-
ligative duty cancels (de-obligates) the unobligative liberty to
do the opposite.
(2) P ('Do not do X')
(a) can co-exist with NC ('Permission not to do X')—for the
same reason as in (i) (a);
(b) cannot co-exist with C ('Do X')—for the same reason as in

cannot co-exist with NP ('Permission to do X')—for the same

(c)
reason as in (t (cL
() NC ('Permission not to do X')
(a) cannot co-exist with C ('Do X')—an unobligative liberty is
cancelled (dc-obligated) by an obligative duty to do the
opposite;
(b) can co-exist with P ('Do not do X')—an unobligative liberty
is not cancelled (dc-obligated) by an obligative duty to do
the same thing; or
(c) with NP ('Permission to do X')—an unobligative liberty is
not cancelled (dc-obligated) by an unobligative liberty to do
the opposite;
but not both together, since (b) and (c) cannot co-exist.
() NP ('Permission to do X')
(a) cannot co-exist with P ('Do not do X')—for the same reason
as in (3) (a);
(b) can co-exist with C ('Do X')—for the same reason as in (3)
(b); or
(c) with NC ('Permission not to do X')—for the same reason as
in () (c);
but not both together, since (b) and (c) cannot co-exist.

The difficulty of reconciling permissions with an imperative theory, even

in the extended sense of mandate, has been mentioned. This weakness, how-
ever, is a minor blemish when set against the depth and incisiveness of this
demonstration of jural opposition and contradiction, which is more acute
than Hohfeld's depiction of it 131 years later'.

FORCE OF A LAW, SANCTIONAL OR INCITATIVE PART

A law is dependent upon motivations for obedience'. The sovereign's wish in
respect of a class of acts is a law as long as it is supported by a sanction,
even if this is not explicit, though usually, of course, it would be. It includes
physical, political, religious and moral motivations', comprising threats of
punishment (commination, coercion) and rewards (invitations, allure-
ments)'. There is, however, a difference which appears to be glossed over.
The failure to do, or not do, what a law supported by punishment requires

3 See p 28 ante.
4 OLGpp 133 Ct seq.
OLG pp68-o, 2 4 8. Cf An Introduction to the Principles of .'f oralj and Legislation ch 3,
6 OLGppi34-i36.
340 &-galtheory

is illegal; but it is not illegal to do, or not do, what a law supported by
reward requires.
Regulation of conduct and stipulation of sanction govern different act-
situations, so they require separate laws: one saying 'You shall not murder',
and the other 'If you do, you shall be punished'. Non-prohibitions and
non-commands are unobligative aspects of the sovereign's will and are sup
ported by sanctions affecting, not the subjects of the laws, but others who
are subjects of 'corroborative' laws not to interfere. From the legislator's
point of view, actual punishment is a prediction, since it is outside his prov-
ince to carry out the threat. Accordingly, he issues subsidiary laws, eg that
ajudge must verify that the accused did murder. The judge in turn is assisted
by various officials all of whom are likewise under subsidiary laws. If no one
obeys these subsidiary laws, the principal law becomes a dead letter. Now,
even though it is true to say, in Bentharn's view, that all these suhidiary
laws are expressions of sovereign wishes, the inescapable fact is that they add
up to no more than a prediction, dependent on probability, of punishment
as prescribed in the sanctional part of the principal law. In other words, the
functioning of a law is implicitly a part of Bentharn's own concept of a law,
and this imports many considerations of a social and psychological charac-
ter'. This further dilutes the imperative character of a law. Nevertheless, he
should be given credit for an illuminating hint. For yet again he anticipated
the twentieth century to a remarkable degree. His analysis of sanction resem-
bles that of Kelsen and the implication that sanction is a prediction based
on probabilities foreshadows the views of the American Realists'. On the
other hand, he differed from both these in separating the regulation of
conduct and the stipulation of sanction into two distinct laws. It is a matter
of opinion which view is preferable, but it will be submitted in due course
that Bentham's is better.

REMEDIAL APPENDAGES
Sanctions are provided by subsidiary laws. They themselves require a further
set of subsidiary laws, 'remedial appendages', addressed to judges with a
view to curing the evil (compensation), stopping the evil or preventing future
evil'.

EXPRESSION
The ways in which the sovereign's will may be expressed are various". The
Connection with will immediately raises the problem of discovering the will
from the expression, which is a root difficulty encountered by any imperative
theory. Expression may be 'complete', ie the matter to be regulated coincides
with one law. In all such cases a judge should adopt a literal interpretation.
Only where expression is incomplete may he adopt a liberal interpretation.
Bentham, the relentless enemy of judge-made law, sought to minimise judi-
cial discretion by trying to ensure that laws were complete, not only in
expression, but also in 'connection' and 'design', and this feature of his
analysts needs to be considered separately.
7 See p2I ante.
8 Sec pp 449 et seq post.
9 OLGppI49Ctseq.
a OLG pp 152 et seq.
 Pos,tinsm: British theories 341

Individuality of a law
What, then, is a 'complete law', ie 'complete' in a jurisprudential sense? The
individuality of a law he says 'results from the integrality and the unity of it
laid together"'; and the purpose of individuation 'is to ascertain what a
portion of legislative matter must amount to in order on the one hand not
to contain less; on the other hand not to contain more than one whole law'".

INTEGRALITY. This means that a law should be complete in expression, con-

nection and design. With regard to the first, the standard of reference is
whether the actual will of the legislation has been completely expressed.
Every law contains an imperative provision which may be qualified or un-
qualified, further expounded or unexpounded. If it is unqualified and unex-
pounded, it is complete in expression in itself, if it requires qualification or
exposition, it is incomplete without these. Qualifications and expositions can-
not, of course, be complete in themselves without the principal provision.
With regard to completeness in connection, Bentham said that more often
than not parts of a law 'lie scattered up and down at random, some under
one head, some under another, with little or no notice taken of their mutual
relations and dependencies"'. Moreover, these parts may have been brought
into existence by different bodies at different times. Thus, a statutory pro-
hibition of driving while under the influence of liquor includes, inter alia, a
police force, courts, judges, breathalysers, procedures etc, each of which has
been brought into existence by different laws at different times. They need
to be co-ordinated before a law can be said to be complete in point of
connection. One implication of this is that the individuation of every law
imports a temporal dimension.
If the legislator's general idea of the mischief deviates from that which, in
the light of the particular case, he should and might have formed, the law in
question is incomplete in design. The deviation may be that it does not go
far enough, in which case it is incomplete in joint of amplitude; or it may
go too far, in which case it is incomplete in point of discrimination. All
exceptions must therefore be set down".
Judicial interpretation of laws is made to depend on their completeness.
Interpretation is strict when the will attributed to the legislator is that which
he really entertained. Interpretation is liberal when the will attributed by a
court is that which he inadvertently failed to entertain, but which he would
have entertained had the particular case been presented to him, ie when the
law is incomplete in point of design. When it is incomplete in point of
amplitude, liberal interpretation has to be 'extensive'; when it is incomplete
in point of discrimination, interpretation has to be 'restrictive'. In all such
cases incompleteness results from the legislator's inadvertence. If, however,
incompleteness is only supposed, ie when what is thought to be a shortcoming
or an overstatement was intended, then liberal interpretation ceases to be
interpretation and amounts to overruling the legislator. The weakness of all
this lies in the assumption that the wish which the legislator 'really' enter-
tained is somehow knowable independently of its expression. To start on the

ii OLGp 156; and see pp 9-6o ante.

12 OLG 'description of that which is to be looked upon as neither more nor less than one cutiie
law': p 247.
1 3 OLGpi5g.
ii, OLGpt68.
 342 'ird Lileory
basis that the mode of expression has to be interpreted according to the
legislator's will, and then to discover that it is often impossible to discover
what this is apart from the mode of expression frustrates the whole exercise.
Such is the consequence of any imperative approach, requiring as it does the
'ascertaining of the intention of the legislator"'.

UNITY.
'The unity of a law' said Bentham 'will depend upon the unity of
the species of the act which is the object of it". The way in which different
species of acts are designated is largely a matter of wording dictated by
convenience. His point was that each act-situation is the object of a separate
law. Here lies the difference between the unity of a law and its integrali$17.
Also, nowhere did he assert that one species of act could give rise to only one
offence. Two different laws can create two separate offences out of the same
act, as where a criminal offence is also a tort.
If an act-situation is the object of every law, what of the 'la-,;s' of contract
or property, whjch deal with the requirements of a contract and title to
property? These neither impose duties nor grant permissions. Bentham's
answer was that these are not laws in themselves, but parts of laws. Laws
forbid breaches of contracts and interferences with property". Statements as
to what a contract is and those determining title to property are 'expository'
(amplifying and limiting the acts and sanctions) and 'qualificatory' (limiting
the scope of the la'vs forbidding interference). Such 'parts of Jaws' are often
very complex and pertain to different laws, which is why they are set out on
their own for convenience. Ingenious as this explanation is, it is unsatisfying.
The point that it cuts across traditional usage and habits of thought might
be countered to some extent by the reply that he was trying to straighten
out the tangle resulting from traditional thought and that divergences from
accepted terminology is only to be expected. Nevertheless, the divergence
should not be too great"; indeed, Bentham himself at various points did
make concessions to convenience. The point is whether such wholesale div-
ergence oversteps the limits of convenience. More serious is the objection that
this classification only follows from squeezing the concept of a law into the
strait-jacket of an imperative theory: all laws have to be either commands or
permissions. It takes no account of powers, eg powers to make contracts,
create title etc".
Customary laws received short shnIt at Bentham's hands. In his view they
could never be complete'.
At the end of his analysis he returned to the question with which he began:
'What is a penal code of laws? What is a civil code?' He concluded that the
former consists of laws creating 'offences' (those composed of directive and
sanctional or incitative parts), while the latter consists of expository and
qualificato,y matter. 'Offences' in this Context are wider than crimes. The
characteristic of criminal offences, as distinct from civil offences, lies not in
their intrinsic nature, but in the degree of mischief they occasion, the degree
of displeasure they evoke and the degree of punishment meted out. To the
13
Sec pp 166-68 ante.
16 OLGpp,66, io.
'7 OLGp,71.
18 OLGpp I76_18.

9 Raz TA€Concep,ofaL0/S,5,
115, 142.
?° Cf identifying 'legal material' (not laws') with reference to function: pp ii, 23 ante.
OL.Gpp 184c1 seq.
 Positivism: British theories

category of civil offences belong 'such offences as it is not judged necessary

to punish with any extraordinary degree or species of punishment: to the
criminal, such offences as it is judged necessary to punish with some extra-
ordinary degree or species of punishment' 2 . It may be asked how such a
distinction is applicable to the gradations of treatment, penal, reformative
and curative, meted out to criminals. It also breaks down in the case of a
tort visited by exemplary damages', whereas pulling the communication cord
in a train needlessly can only be visited by a C50 payment. Why is the
former civil and the latter criminal? Or are they both 'civil'? The proposed
distinction will lead to a formidable restructuring, which seems scarcely
worth the price.
Bentham's ultimate objective was an ideal code. His analysis of a law led
him to conclude that such a code should Consist of laws analysablejurispru-
dentially, and its penal and civil branches should be separated'. Its advan-
tages would be to minimise the risk of incompleteness of laws and conse
quently 'vhat he termed 'licentiousness' of interpretation; to exhibit a
common standard by which different systems might profitably be compared:
and to create and improve the method of teaching the art of legislation.
Whether, in the light of the difficulties that have been pointed out, this kind
of code would indeed be ideal is a matter of opinion. So strong were his
feelings as to the merits of a code that he remained a life-long enemy of
judge-made law, which he hoped would be largely eliminated, thereby re-
ducing the judicial function. The likelihood of his hopes being realised in
present-day Western-type societies may be doubted; but should these be
replaced by forms of totalitarianism, in which the judiciary only reflects
governmental values, those hopes may well become a reality.
An assessment of his work is not easy. His main interest lay in advocating
reforms, but he also examined problems of international law. In fact, it was
he who coined that name'. The current resurgence of interest in his work is
leading to a great deal of re-evaluation, while his remarkable anticipations
of modern thought in so many directions make one wonder whether a final
judgment is yet possible. Even as it is, the breadth and depth of his analyses
and brilliant insights are such that it does not seem too extravagant to say
that had all his writings been known, he could well have been the greatest
single contributor to European jurisprudence; which makes it all the more
regrettable that the world of scholarship lost so much for so long.

AUSTIN

Throughout the nineteenth century Bentham's Of Laws in çer.eral remained

hidden in London University and British positivism came to be dominated
by the views of his disciple John Austin (1790-1859) until virtually the
outbreak of the 1939-45 war. As will appear, his work is largely derivative
and far less satisfying than Bentham's. The first six lectures, the most influ-
ential part of his work, were published in 1832 under the title of The Province
of Jurisprudence Determined, and the rest were published posthumously in
1861g.
2 OLGp2II.
Within the limits of Rookec a Barnard [196 4 ] AC 1129, ( 1 964 ] i All ER 367.
OLG pp 183, 232 CL seq.
Bentham As Introduction to th€ Principles sf 'f orals and Legislation ch i, para 25.
6 Austin Lectures inJuri.sprudence (5th edn, ed Campbell).
34-4 Legal theory

Austin, in sympathy with Bentham as to law reform, conceived his initial

task to be a critical analysis of the law as it is. The time he had spent in
Germany preparing for his lectures and his study of Roman law brought
home to him the contrast between the orderliness of Roman law and the
chaos in England. Commentators on Roman law had Justinian's codification
as their starting point, while their British counterparts were groping amidst
a thicket of statutes and diverse and often poor law reports. German lawyers
had behind them centuries of exegetical work, while Blackstone's Commentaries
was still the only attempt at a systematic arrangement of English law.
Accordingly Austin set himself the task of making a beginning with the
analysis of the principal concepts of English law. Before doing so he felt it
necessary to demarcate the province of 'law' and to distinguish it from what
it ought to be. in his first six lectures he sought to elucidate 'iSW' in the light
of which its concepts would then be analysed. Although his fame rests on
these preliminary lectures, they were only a prologue to the study of juris-
prudence which, to him, meant the analysis of concepts. His concept of law
is an imperative one influenced by his preparatory studies, which had im-
pressed upon him the powerful position occupied by the sovereign in muni-
cipal law. In Roman law the authority of the Princeps and later of the
Emperor was seen to have been unquestionable. European writers had
preached in like vein. Bodin, for instance, said that sovereignty was the
absolute and perpetual power within the state and, perhaps most impor-
tandy, in the work of Hobbes was to be seen the connection between the law
of the state and enforcement by organised power. He had also spoken of law
as being grounded in 'natural reason', but that it became 'law' only by
virtue of the command of a sovereign. Bentham's approach, too, was an
imperative one based on sovereignty. With these influences behind him Aus-
tin's adoption of similar basis is hardly surprising.
Like Bentham, Austin believed that 'law' is only an aggregate of individual
laws. In his view, all laws are rules the majority of which regulate behaviour.
These are either directives or those imposed by general opinion. Directives
have to be laid down 'posited'; and a directive, whethec .-general or particular,
is 'the expression or intimation of your wish' that another shall do or forbear,
issued in the form of a command. Accordingly, a law in its most comprehen-
sive signification is 'a rule laid down for the guidance of an intelligent being
by an intelligent being having power over him". This can only be accom-
plished by a determinate person or body, since an indeterminate body cannot
express wishes in the form of commands:
Austin proceeded to distinguish between what he called 'laws properly so
called' and 'laws improperly so called"'. The key to a law 'properly so called'
lies in obligation, which was approached as follows. Every wish with regard
to conduct is favourable to conduct which is desired, and unfavourable to
conduct which is not desired. Such wishes may emanate from directives or
from general opinion, but wishes that are directives are distinguishable in
that they render conduct obligatory. A person is under an obligation, not
simply when consequences harmful to him ensue, for, if so, there would be
an obligation not to put one's hand in the fire. An obligation exists when
another has the power and purpose of inflicting an evil on any actor, who
fads to conform to the desired conduct 9 . This other may be God, or human
7 Azsti'p86.
8 4ujljn pp 79, 86 et seq.
3 p8g.4 pg6.
9 Austin p&g.
 Positivism: British theories 345
beings acting as political superiors, ie a sovereign person or body of persons
in an independent political society, or private persons acting in pursuance of
rights conferred upon them by political superiors. General opinion cannot
create obligations. Every directive, then, is a command, the threat of evil is
a sanction, and the party commanded and threatened is under an obligation
or duty. Duty and sanction are correlative and fear of sanction is the motive
for obedience.
A command may be particular (addressed to one person or group of
persons) or general. General commands are addressed to the community at
large and enjoin classes of acts and forbearances"; they are also continuing
commands. A particular command is effective when the commanded person
or group obeys; a general command is effective when the bulk of a political
society habitually obeys it. A commander, who receives 'habitual obedience
from the bulk of a given society', is sovereign in that society. It is not
necessary for general opinion to authorise the issue of commands, since a
person can command and threaten without such authority. From all this
Austin concluded that a law is a general command of a sovereign backed by
a sanction.
He subdivided laws 'properly so called' into laws set by God, Divine laws,
and laws set by men to men acting as political superiors or in pursuance of
rights conferred by political superiors. To every law set by men to men he
applied the term 'positive law' or 'law simply and strictly so called' so as to
distinguish them from the laws of God". 'Positive laws' are the subject matter
of jurisprudence. Separate from all these are laws set by men to men neither
as political superiors, nor in put suance of rights conferred upon them by
such superiors, eg those set by a master to a servant or the rules of a club. They
are still laws 'properly so called', because they are commands, but he distin-
guished them from positive law by giving them the term 'positive morality'.
Under the heading of laws 'improperly so taIled' he placed, first of all,
'laws by analogy', ie laws set and enforced by mere opinion, such as the laws
of fashion, international law and so forth. These also he somewhat confus-
ingly termed 'positive morality'—'positive' so as to distinguish them from the
laws of God, 'morality' so as to distinguish them from positive law or law
strictly so called. Laws 'improperly so called' also included 'laws by meta-
phor', which covered expressions of the uniformities of Nature.
Austin's model is open to several comments. The first is that the distinc-
tions which he drew were arbitrary. Not that there is any objection to doing
this provided clear indications are given of what they mean; and Austin was
scrupulous in this respect. He did, however, commit two errors. Although he
did not specifically say so, it is clear that he fashioned his concept out of the
material of English law With an an occasional sprinkling of Roman law, but he
proceeded to use it as a criterion of 'law in general' and so excluded, eg
international law. He was also misguided in applying the epithet 'proper' to
what was, after all, his own stipulatiye definition of'a law'.
Austin was seeking to provide a means of identifying a law for the purposes
of the moment, but to link this with the means of securing obedience is to
confuse identification with functioning. Obedience is a factor relevant to the
latter, and in this context, as has been pointed Out, fear of sanction is not the
sole, or even principal, motive for obedience". Many objections may also be
to Austin p96.
it For this and the subsequent divisions, see Austin pp 86 et seq. and Lecture V.
12 See pp 51-52. 248 ante.
 346 Legal thiory

levelled at the association of duty and sanction, which have been developed
earlier' 3 . Another weakness is the fact that he found himself compelled to
treat nullity as a sanction in order to accommodate, eg the rule, 'You must
make a gratuitous promise under seal', within his command dutysanction
model"'.

LAWS AS COMMANDS

This idea has encountered the heaviest criticism. Austin's association of duty
with command was probably the result of his having been misled by the
imperative form in which duties are expressed You must', or 'You shall'.
Professor Olivecrona has pointed out that everyone has a store of experiences
of actual commands addressed in the imperative form, so that whenever one
encounters that form of expression there is a tendency to suppose that it must
have emanated from a command. He points out that duties are 'ought'
propositions which are phrased imperatively, and it is a non sequitur to suppose
that such phraseology of itself implies command".
With regard to the wider aspects of the command theory, it may well be
that the idea at the back of Austin's mind was, in Buckland's words, 'pri-
marily an English criminal statute". Even so, there is a difference between
this sort of law and command. The function of a law is to regulate future
conduct indefinitely and to serve as a standard by which to judge deviance;
a command is more usually directed to a specified individual or individuals
with reference to a particular act or forbearance and does not serve as a
general standard ofjudgment. Apart from this, there are laws which are not
commands. Austin himself was somewhat exercised by declaratory statutes,
repealing statutes and 'laws of imperfect obligation', which include laws
defining, eg what a contract is, or a crime, or a law which says that no
action shall succeed after the lapse of a limitation period. He concluded that
these were exceptions". In this he was perhaps unduly hesitant, for, as
Buckland pointed out, declaratory statutes could have been treated as re-
peating earlier commands, while repealing statutes may be said to create
fresh claims and duties by their cancellation of earlier ones and so be said to
command". Nevertheless, Austin's hesitation and the fact that he was driven
to admit exceptions betray some uneasiness with the command thesis. The
question of custom troubled him not at all. To him custom., were laws when
commanded either directly by incorporation in statutes, or indirectly in
judicial decisions".
Command presupposes a commander. Austin perceived clearly that 'no
indeterminate party can command expressly or tacitly, or can receive obedi-
ence or submission"°. The question is whether a determinate person, or body
of persons, can be discovered who might be regarded as having commanded
the whole orpus of the law. Never at any point in history is such a person or

13 See pp 236 et seq.

14 Ausnn p 505. criticised on p 44 ante.
15 See P 2 3 1
ante. There is also the duty accompanying all types of legal material that they
shall be treated as 'law'.
t6 Buckiand Some ROCtiOPJOnJUpg
17 .4lLswzpp98-,oJ
18 Ausw pp49-51.
9 pp 101-102, 199.
20 .4uWl Lecture VesJ)CCIOJIy pp 183
__
 Positivism: British theories

group discoverable. Who, for instance, commanded the rule that precedents
shall be binding? A sovereign is sovereign within a 'state', and 'state' is a
legally defined organisation consisting of territory, population, government
and a measure of independence in external relations. Who commanded these
requirements? Again, it might be thought that the present monarch and
members of both Houses of Parliament can command any law they please.
However, as Professor .Olivecrona pointed out, the individuals who comprise
the sovereign body have attained their positions by virtue of laws. Who,
then, commanded these laws? Whoever commanded them in turn owed their
authority to command to the observance of other laws. There is no sense in
saying that the laws which brought them to their positions were their own
commands'. Even if the Crown in Parliament as a composite entity is taken
to be the uncommanded commander, a study of the events of 1688-1689
shows that this body in no sense commanded the rule that its commands
shall be law. It was acceptance of it as the supreme commander, particularly
by the judgu, that entitled it to command henceforth'. Moreover, it is
artificial to pretend that any member of Parliament believes that the law of
the land has emanated from his commands, for the vast majority of laws
existed before he was born. To attribute commands to people, who have
neither commanded nor believe that they have done so, is a fantasy.
Although the Crown in Parliament was accepted in i689 as the Austinian
commander, the bulk of the common law and much legislation was already
in existence and continued to exist unaffected. Even if it is assumed with
Austin that these laws had emanated from earlier commands, the question
is why and how commands of a former sovereign continue to be laws under
his successor. Austin's reply was that this comes about by virtue of 'tacit
command': what the sovereign permits, he commands'. This implies that the
sovereign knows of the earlier commands and decides not to interfere. When
does he so decide? It cannot be when their applicability comes before a judge
(who, according to Austin, is the sovereign's delegate), since he has no choice
in the matter: a previous enactment, however ancient, is always accepted by
a judge as being law already. If so, the decision, assuming that there was
one, not to interfere with this prior command, and which thereby invests it
with fresh authority, can only be that of the sovereign himself. Professor Hart
has demolished the idea of 'tacit command"'. (i) A sovereign may consciously
permit the continuance of a former law, or (ii) such a law may continue by
default simply through not being repealed. Tacit command may superficially
fit case (i); though it will be noticed that even an actual decision not to
repeal is a decision not to command. How, then, can a decision not to repeal
impart fresh law-quality to something which never ceased to possess it? Tacit
command ceases to be even superficially applicable to case (ii), since non-
repeal by default is in no sense 'the expression of a wish', which was Austin's
own description of command. The continuance of the majority of the laws of
a previous sovereign are instances of (ii). In any case, tacit command fails to
explain why the laws and system which continue are the same laws and

, Oiivc,,ona 14w as Fact (1939) pp 36-37; (1971) pp 67-77. For Further objections, sec 'The
Imperative Element in Law' (1964) t8 Rutgers LR 79.
2 Hart points Out that for a successor sovereign's commands to be 'laws' there must have been
acceptance of a rule which entitles the successor to succeed: The Concept of Law p 54 p 352
pt.
3 Asstinpios;ch3o.
4 Hart ch,sss-...
348 Legal fheoiy

system. If, then, tacit command is rejected, as it must be, what remains is
the proposition that laws remain in force until repealed.
Finally, it has been pointed out that even actual commands of a sovereign
only acquire the character of laws when certain procedures have been
followed'. If the Queen, Lords and Commons unanimously assent to a
measure at a garden party in Buckingham Palace, it would not become a
law, because the appropriate Parliamentary procedures have not been gone
through. If these procedures are laws, it is difficult to square them with
command (still less with sanction save by way of nullity). If they are not
laws, they are indistinguishable from the dictates of etiquette and morals.
Yet, distinguished they must he. What all this shows is the inadequacy of
the command doctrine.

SOVEREIGNTY
Austin's distinction between positive law and positive morality was that the
former was set by a political superior. In elaborating this notion he evolved
his theory of sovereignty.
Sovereignty has a 'positive mark' and a 'negative mark'. The former is
that a determinate human superior should 'receive habitual obedience from
the bulk of a given society', and the latter is that that superior is 'not in the
habit of obedience to a like superior 6 . The reference to 'habitual obedience'
touches obliquely on the point that every legal system is ultimately founded
on some social fact for which no legal justification can be adduced'. The
addition of 'the bulk of a given society', however, is arguable, since this is
hardl y the body that matters. For instance, it was obedience on the part of
the judges after 1689 that established the sovereignty of the Crown in Par-
liament. On the other hand, it has been pointed out that Austin confused
the di facto sovereign, or the body that receives obedience, with the dejure
sovereign, or the law-making body'. In Britain the Crown receives allegiance
from its subjects, while the Crown in Parliament is the supreme law-maker.
When Austin talked of the uncommanded commander who makes laws, he
was referring to the dejure sovereign. Another criticism is that the 'negative
mark' is not so much the concern of municipal lawyers as of raternational
lawyers. For the former the question is, Whose enactments constitute 'laws'?
It is a matter of indifference to them that the law-maker obeys some other
body in the international sphere as long as he can make laws in the municipal
sphere. Finally, it has been questioned whether it is necessary to have a
sovereign in a state. The answer depends on the meanings of 'neces.ary' and
'state'. A sovereign may be 'necessary' because definition has made it so. In
another sense the question is whether a sovereign is 'necessary' as a practical
matter. The word 'state', too, has shades of meaning into which it is not
proposed to enter. The short answer to the question is that there is no need
for only one law-making body, though in practice this might be convenient.
Austin went on to assert that a sovereign cannot command himself, ie
place himself under an obligation. Further, to confer a power on another is
to specify the conditions under which other-persons may create obligations,
subject to sanctions specified by the sovereign. Delegation of authority is thus
5 See pp 52 Cl seq.
6 Austin pp 220-22 1.
7 Cl acceptance of the Crown in Pa rliament in 689: pp 53-54 ante.
8 Brvce Studies in History and Jurispn&yc II, pp 5 1 -6o.
 Positivism: British theories 349

commanding that people shall obey the commands of another. The attributes
of sovereignty, which followed from this, are that it is illimitable, indivisible
and continuous; and he has encountered criticism in each respect. His denial
that the sovereign could be limited" relegated substantial areas of constitu-
tional law to positive morality. The sovereign cannot be under a duty, since
to be under a duty implies that there is another sovereign above the first
who commands the duty and imposes a sanction; in which case the first is
not sovereign. Jethro Brown argued that the sovereign could well be bound
by a duty; Buckland, supporting Austin, denied it". As to this, it is to be
observed, in the first place, that Austin overlooked limitations through dis-
abilities rather than duties". Secondly, the exercise of sovereign powers may
be limited by special procedures"'. Thirdly, Bentham showed how sover-
eignty may be divided in such a way that each component has a limited
power to prescribe for the other, and how this creates legal self- bindingneS3
on a sovereign' 3 . Connected with duties is the question whether the sovereign
can have claims. Austin again denied it since, in his view, a claim has to be
conferred by a sovereign on someone, therefore to say that one sovereign
confers a claim on another is to deny the sovereignty of the latter. It may be
thought that the sovereign may confer a claim upon itself, to which Austin
replied that this would be to confuse 'might with right'. Buckland pointed
out that this answer is inconsistent with his concept of claims and duties
according to which a person is under a duty if he is subject to an evil, which
the party with the claim could cause to be inflicted in the event of disobe-
dience. There is no contradiction in saying that the sovereign could fulfil
both roles. Accordingly, Buckland himself suggested that since the situation
looks like one in which there is a claim-duty relation, there is no point in
denying that the sovereign can have a claim". The question may also be
asked whether anything of practical moment tufns on the issue. It is also to
be noted that in most of these discussions there has been a tendency to refer
to the Crown as the Austinian sovereign, which it is not; the Crown in
Parliament is the sovereign's.
The attribute of indivisibility creates other difficulties. The question is
whether sovereign authority can be vested in more than one body, not

9 Austin p 263.
to Brown The Austinia't Theory of Law p tg-; Buckta.'sd pp 10 7 - 109-
it See pp 39. 102 ante-
IS See pp 93 et seq ante.
13 See p337 ante.
14 Austin pp 282 et seq; Buckland p 110.
15 It has been contended by Professor Paulson that the rejection by the War Crimes Tribunal
law making was
at Nuremberg of the defences of act of state, superior orders and cx post facto
tantamount to a rejection of the Au.stinian doctrines of sovereignty and of law as command
backed by sanction. (t) The defence of act of state presupposes the Austiniari thesis that a
sovereign cannot be subject to a duty since there is no sovereign superior to a sovereign
state. The Tribunals answer was to point to instances where sovereign states are under
duties; which leads to a rejection of the Austinian thesis. (a) The defence of superior orders
by the accused is based on the thesis that the validity of a sovereign's order cannot be
impugned on moral grounds . . The Tribunal rejected this defence on the ground that the
test was whether a moral choice was open to the accused persons individually. (3) Inc
law making is based on the concept of law as
defence that the trial amounted to ex post facto
command backed by sanction, the answer to which was that there had been laws forbidding
the kind of conduct that was on trial although they lacked effective sanctions. The absence
of sanction in no way impugn4 the quality of 'law S ; the Nuremberg Charter did not create
but only provided sanctions: Classical Legal Positivism at Nuremberg
offcnces cx post facto,
(1973) 4 Phil & Pub Affairs 132.
 350 LIgaIt&oy

whether it can be exercised by more than one, which Austin would have
admitted" Bentham showed how sovereignty could be divided; besides,
there are obvious examples eg the old Roman assemblies, the United States
of America and the concurrent powers of a colonial legislature and the
Westminster Parliamentl7.
Finally, the attribute of continuity may be questioned by asking where
sovereignty resides during a dissolution of Parliament. Austin fell into con-
tradiction in trying to anticipate the objection by saying that sovereignty,
lies
with the Queen, Lords and Electorate. This is contrary to his assertion that
it lies with the Queen, Lords and Commons, and it also renders the whole
concept meaningless". Who, on this view, is the commander, and who the
commanded?
In assessing Austin's contribution it is to be noted that he helped to
propagate the positivist doctrine that it is necessary, to some extent at least,
to separate the law as it is from what it ought to be. His concept of a law,
shorn of its sovereignty, command and sanction attributes, is reducible to a
prescriptiori of conduct phrased in imperative form; but this is not a sufficient
basis for drawing the distinction he desired between the 'is' and the 'ought'.
His method of logical analysis, ie of deducing the nature of legal conceptions
from his conception of a law, is, as Julius Stone pointed out, no more than
the use of a model to reveal the logical consistency of a system". The value
of any such model depends on the degree of correspondence between it and
the way in which laws and legal conceptions are actually used. Austin
presented his scheme in the belief that, notwithstanding some discrepancies,
there was a sufficient measure of correspondence with actuality. In this he
was mistaken. Also, he did not reveal the reasoning which led him to his
concept of a law; he simply made certain assertions and applied them logi-
cally. It is always more interesting to probe and test the reasoning behind
premises than to follow out their logical implications. The material of his
book consists mainly of co
ntemporary English law with occasional bits of
Roman law thrown in. The concept of a law which he fashioned out of these
data should have been confined within those limits. Unhappily, he extrapo-
lated them into a test of law in general. Even so, what he was doing was, in
effect, to give a stipulative definition of how he proposed using the term 'a
law'. By proffering it as 'law properly so called' he assumed that 'law'
has a
'proper' meaning and he also utilised the emotive connotation of 'proper'.
His exclusion of international law and portions of Constitutional law from
'law properly so called' was logical according to his premise; and had he said
that he was only doing this because they fell outside the subject as he saw it,
it would have been a permissible attitude for him to have adopted. To
exclude them, as he did, on the ground that they were not 'law properly so
called' was needlessly provocative'0
16 Austin ps38.
1 7 Eg .41adzimbamuto Is T-BZLTkJ [1969
] i AC 645, [1968] 3 All ER 61;
Since a colonial legislature can delegate its power to legislate, it is not itselfPP54-55 ante.
Westminster,
&l eatus delegari non potest: Powell o Apollo Candle Co (188 a delegate of
Indivisibili t 5 ) to App Cas 282.
y of sovereignty was rejected by Lord Evershed MR in
241 at 298, [1959] All ER Re Mweiya It g6o] t QB
525 at 533-53 . Se too R v
Secretat, of State for Foreign and
Commonwealth Affairs, ex Indian Association of Alberta [igssJ
QB 89, [1982] 2 All ER 118;
18 Austin lip s45_24 Ch 77, 11982] 3 All ER 786,822.
19 Stone
2galSpLema,.4 4zszyeTs'Reaoi Ii 2.
20
The
whichinternational lawyj must Shoulder some responsibility for the fruitJ
developed: see PP 495-498post. controversy
 Posit ztnsm: British theories 351

Austin paid lip-service to 'general jurisprudence', by which he meant 'the

exposition of the principles, notions and distinctions which are common to
systems of law; understanding by systems of law, the ampler and maturer
systems". This is unhelpful without a criterion for 'amplitude and maturity',
and some indication as to whether the 'common' principles are those which
are in fact found to be common; or those which for some reason are 'neces-
sarily' common. Nor did he provide evidence that the notions which he did
put into his book are in truth. shared by 'ampler and maturer systems',
whatever these may be. Indeed, Austin to some extent belied his own thesis
by confining his demonstration to English and a little Roman law. Perhaps,
he thought that in so far as the legal orders of the Old and New Worlds were
based, as far as he knew, on these two systems, they would furnish between
them a sufficient basis for general jurisprudence. However, as Buckland
observed, Austin and others like him, who profess general jurisprudence,
seldom adhere to it2.
A comparison of Bentham and Austin must lead to the conclusion that the
former provided a deeper and more adaptable theory. His concept of sover-
eignty was flexible in that it avoided the shackles of indivisibility and illim-
itability. He was thus able to accommodate the division of authority between
organs, as in a federation, or division in certain areas, as well as restrictions
of authority and self-bindingness. His concept of a law was broader than
Austin's and he avoided the absurdity of 'law properly so called'. His sanc-
tion was both wider and less important than Austin's: laws are still laws even
though supported by moral or religious sanctions, they may even be accom-
panied by rewards. He thus had no need to resort to 'sanction by nullity'.
The imperative foundation is a weakness in his theory, as has been pointed
Out, but it was so much broader and less uncompromising than Austin's that
he was able to accommodate permissions up to a point; and he certainly
avoided the 'tacit command' fiction.
Austin's successors in the positivist traditidn have abandoned his concept
in favour of other formulations. Holland concentrated, not on command, but
on 'enforcement by sovereign political authority' 3 . This suffers from all the
difficulties concerning enforcement that were previously examined'. Salmond
spoke of law as consisting of 'the rules recognised and acted on by courts of
justice". The reference to justice is not clear. It may be no more than an
embellishment of 'courts', for nowhere does Salmond appear to make justice
a criterion of identification. A minor difficulty is that courts often apply, for
example, rules of arithmetic in the course of giving their decisions, but these
do not thereby become 'law'. What is required is the addition of a rider to
the effect that the rules are 'recognised and acted on' as law by the courts.

HL HART

Professor Hart (1907 — ) may be regarded as the leading contemporary repre-

sentative of British positivism. In his influential book, The Concept of Law,
published in 196 1, he brought to bear the training of a philosopher, barrister

Austin p 1073.
2 Bick1andpp7I-72.
3 HoU and The Elements of Jurirprudence p43.
4 See pp 235 et scq ante.
5 Salmond Jurisprudence p 36.
 352 Legaltheoij

and jurist to the elucidation of jurisprudential problems. As a linguistic

philosopher he belongs to the school which sees how words are used rather
than what they refer to', and he subscribes to the view that a wordpossesses,
not a 'proper meaning', but an inner 'core' of agreed applications surrounded
by a 'fringe' of unsettled applications. Asan analytical jurist, he is keenly
appreciative, inter alia, of Hohfeld's distinctions, the influence of which is
evident throughout his writings. -
He approached his concept of law as follows. 'Where there is law', he says,
'there human conduct is made in some sense non-optional or obligatory'7.
Thus, the idea of obligation is at the core of a rule. He commences his book
by taking Austin's command theory to task. The idea of command will
explain a coercive order addressed to another in special circumstances, but
not why a statute applies generally and also applies to its framers. Secondly,
there are other varieties of laws, notably powers. Thirdly, the continuance of
pre-existing laws cannot be explained on the basis of command; as pointed
out, he was able to demolish completely the 'tacit command' myth'.
Fourthly, Austin's 'habit of obedience' fails to explain succession to sover-
eignty because it fails to take account of important differences between
'habit' and 'rule'. Habits only require common behaviour, which is not
enough for a rule. A rule has an 'internal aspect', ie people use it as a
standard by which to judge and condemn deviations; habits do not function
in this way'. Professor Hart maintains that the significance of 'rule' has been
neglected. Succession to sovereignty occurs by virtue of the acceptance of a
rule entitling the successor to succeed, not because of a habit of obedience.
He also uses 'rule' to distinguish between 'being obliged' and 'having an
obligation'. Austin's command-duty-sanction thesis fails to explain why, if a
gunman threatens X with 'Your money or your life', X may be obliged to
hand over his purse, but has no obligation to do so. The reason is that one
has an obligation only by virtue of rule.
Rules of obligation are distinguishable from other rules in that they are
supported by great social pressure because they are felt to be necessary to
maintain society". How, then, do they acquire the character of 'laws'?
Regulation of behaviour is by means of what are called 'primary rules'.
Societies which possess only these are in a 'pre-legal' condition and suffer
from three drawbacks". One is uncertainty as to what these rules are and
their scope; but this can be met by having a 'secondary rule of recognition'
by which to identify primary rules. Secondly, primary rules are static; but
this can be met by having secondary rules providing powers to change
primary rules' 2 . Thirdly, the maintenance of primary rules is inefficient
because of the absence of authoritative arbiters of disputes; but this can be
met by having secondary rules of adjudication. Thus, primary rules acquire
the character of a legal system through their union with secondary rules, ie
the union of rules creating duties and rules creating powers to create, extin-
guish, modify and adjudge, as well as a rule of recognition with which to
6 Qhis elucidation of 'right': 'Definition and Theory in jurisprudence' (1954) 70 LQR 49.
7 Hart The Concept of Laze p 80.
8 See pp 347-348 ante.
g Ha,'! pp 55-56, 99; see p 48 ante.
to hart p84; p 228 ante.
it Hart ppociseq.
12 Cr Maine's distinction between 'static' and 'progressive' societies. The latter develop beyond
this stage through fiction, equity and legislation: Maine Anci€ni Law (cci Pollock) p 35. See
also pp 318 ante.
 Positivism: British theories

identify primary rules. Thus 'law' for Professor Hart is equivalent to 'legal
system'. Also, the union between primary and secondary rules is more than
a plus sign; primary rules acquire the unity of a system through their union
with secondary rules". Moreover, there can be primary rules without a rule
of recognition, which 'is not a necessity, but a luxury, found in advanced
social systems'. His point is that 'in the simpler form of society we must wait
and see whether a rule gets accepted as a rule or not; in a system with a
basic rule of recognition we can say before a rule is actually made, that it
be valid if it conforms to the requirements of the rule of recognition"'.
will
He also attaches much importance here to the 'internal aspect' of rules, ie
should have
their acceptance as standards, since what is crucial is that officials
the internal point of view'5.
The volume of discussion which Professor Hart's concept has evoked is
comment in itself on the stimulating quality of his contribution". It is un-
necessary to marshal all that has been said about different aspects of his
work, but some remarks are needed on those relevant to the purposes of this
book. lu the first place, it is to be observed that a private club prescribes
patterns of behaviour for its members and also possesses machinery whereby
such prescriptions are added to, modified, abolished, applied and identified.
It would seem, then, that the systems which prevail in a club and in a state
What is needed is some means of identifying
exhibit the same characteristics .
the one as the 'law of the club' and the other as the 'law of the land'. It is
not enough simply to incorporate, identification by officials into the rule of
recognition A club has officials. What has to be answered is the question:
Why is one set of officials 'officials of the state'? In other words, the system
of club can only exist within, and presupposes, a legal system, and Professor
inguishing be-
Hart does not appear to give an adequate criterion for dis t
tween them. The difference lies in the nature of the institutions, of which his
theory takes no account. A club is an institution, so is law and legal system,
and it is at the institutional level that the distinttion has to be found".
Next, it is submitted that the distinction between a legal and a pre-legal
state of affairs is not at all clear. If, as is alleged, a rule of recognition is not
essential to the validity of primary rules in social systems that have not
advanced, what precisely is the criterion? According to Professor Hart, in
accepted as a rule
these societies 'we must wait and see whether a rule gets .
or not'; which then raises the question, When do we know the category of a
know that there is a rule of recognition? This rule
given society, w hen do we
a hypothesis, but a rule of positive law and, therefore, its own validity
not
cannot relate to itself. The answer to the latter question is that for the most
in the way
part the rule of recognition is not stated but its existence is shown
in which particular rules are identified, either by courts or other officials
or private persons or their advisers". It is not clear why private persons
are included. Since the rule of recognition identifies the rules by which
the conduct of private persons is to be judged, it would seem that only
courts and officials need be included. Comparison with umpires in a game

13 Summers Professor H LA Hart's Concept of Law' (1963) 98 Duke LJ at 639.

14 Hart p229.
15 Hart 113.
16 See Ds Bibliography.
7 For a way of distinguishing them. see Raz 'The Institutional Nature of Law' (1975) 38
MLR 489.
LS Hart p98.
 354 LegdM€oiy

( Pr
ofessor Hart's Own analogy) brings out another difficulty. One can indeed
discover what rules umpires recognise, but they, and still less th
not in a position to choose which e players, are
and private persons rules to recognise. Professor Hart's official,
seemfree
different from Austin's 'habitualtoobe do just this. The result, -then, is not very
dience'. If one knows what the rules are
in a given legal system, one can discover what its rule of recognition is; the
difficulty is to find the rule of reco
gnition d€not,o.
The rule of recognition is grouped under powers as a secondary rule, but
it looks more like the acceptance of a special kind of rule than a power'
9.
Besides, there appear to be some rules of recognition which are not
such as those which indicate the criteria to be applied, eg powers,
constitutive rules
of procedure". It has even been suggested that the rule of
recognition is not
a power, but a duty addressed to officials'.
Professor Hart's concept is based on the distinction between rules
duties and rules creating powers, since a legal system is creating
c onstituted by their
Union. It is questionable whether so sharp a distinction can be drawn. It has
been pointed out, for example, that the same rule may create a power plus
a duty to exercise it, or a power plus a duty not to exercise it*. Professor
Fuller instances a situation where the same rule may confer power and duty,
or power or duty according to the cir
give the beneficiary power cumstances". A trust instrument may
to transfer the estate to himself on a
condition The trustee is of course entitled to reimbursemen certain
t out of the estate
and has the power to reimburse himself, correlative to the liability in the
beneficiary to have the estate reduced in this way. If, however, the
benefi-
ciary exercises his power on the occurrence of the condition but before the
trustee has reimbursed himself, the beneficiary comes under a duty to reim
burse him. Which, asks Professor Fuller, is the rule creating the power and-
which is the rule creating the duty? The distinction lies, not in the rule, but
in the circumstances The rule in Hedley Byrne
duty not to make careless 4 is not one rule imposing a
mis
to disclaim r statements and another rule conferring a power
esponsibility; on the contrary, it is one rule which is power and
dutyconf
erring_not to inflict pecuniary loss by careless misstatemen
t ex-
cept where there is a disclaimer. Some rules abolish one's duty on an event,
eg a contract discharged by frustration' Such a rule is neither power nor
duty
-conferring
be power There may even be rules about secondary rules, which may
or d uty-conferring, eg
a rule requiring a governthent to change a
law on a referendum, or the duty of a judge to hear a case. If, then, in the
light of such examples the distinction between rules creating powers and
r
ules creating duties is as fluid as this, one wonders whether it is a sure
enough foundation for Professor Hart's concept. The relation between pri-
mary and secondary rules seens to be more complex than would
from his treatment of it. appear

Professor Dworkin has pointed out that in unprovided cases what the law
ig
See Cohen', criticism that Hart lumps together power, in the sense of capacities enjoyed by
h.-ge numbers, eg to make contracts,
c'.Jifledorins F,..5.,. will, etc, and power conferred on persons specially
Review in (1962)71
20 For the difficul t Mind 4o8.
:963 GoJ Phil 197,y of209.
rules of Procedure and evidence see Singer 'Hart's Concept of Law'
tRa The Concepi of a Legal Sjsle,n p 'gg.
2 Se pp 36-38 ante.
3 Fuller The Mora!i!j of Law pp 134-136.
4 1 : 964J AC 465, [1963 ] 2 All ER
5 MacCormjck 'Law as Institutional Fact' ('974)9
0 LQR 118-I20.
 Positivism: British Meor 'es
355
is has to be determined with reference to doctrines, standards and principles,
which do not derive their law-quality from a rule of recognition. To relegate
them to 'discretion' is inconsistent with judicial acceptance of them as 'legal'.
Also, at this point it might be appropriate to mention again that insufficient
allowance appears to be made for 'institutions', ie a legal system consists of
particular ways in which rules and clusters of rules operate'. These evolve in
many ways which cannot be attributed to a rule of recognition.
Professor Hart's avowed positivism in relation to his concept of law is also
open to criticism. He says that the acceptance of a rule of recognition rests
on social facts', but he does not concern himself with the reasons why, or the
circumstances in which it comes to be accepted. Social and moral considera-
tions may well set limits on a rule of recognition at the time of acceptance so
that it may have built-in limitations that provide safeguards against certain
abuses of power". A different point arises in the light of the thesis of the
present book that when legal phenomena are considered in a continuum,
moral and social factors, which are indispensable to continued existence, are
an integral part of any concept of them. Professor Hart has spoken elsewhere
of 'the acceptable proposition that some shared morality is essential to the
existence of any society' 10. ' Existence of any society' must mean 'continued
existence', and he does concede that a 'minimum morality' is an essential
part of every community. This minimum morality is rooted in five facts:
human vulnerability, approximate equality, limited altruism, limited re-
sources and limited understanding and strength of will". As a positivist, he
excludes morality from his concept of law, for he says that positivists are
concerned to promote
'clarity and honesty in the formulation of the theoretical and moral issues
raised by the existence of particular laws which were morally iniquitous but
were enacted in proper form, clear in meaning, and satisfied all the acknow-
ledged criteria of validity of a system. Their view was that, in thinking about
such laws, both the theorist and the unfortunate official or private citizen who
was called on to apply or obey them, could only be confused by an invitation
to refuse the title of 'law' or 'valid' to them. They thought that, to confront
these problems, simpler, more candid resources were available, which would
bring into focus far better, every relevant intellectual and moral consideration:
we should say, "This is law; but it is too iniquitous to be applied or obeyed".
It was pointed out at the beginning of this chapter that the principal call for
a positivist concept of law is to identify laws precisely for the practical
purposes of the present and that, for this limited purpose, it is desirable to
separate the 'is' from the 'ought'. To accomplish this no more would appear
to be needed than simply those uses of the word 'law' by courts; which is
akin to Salmond's definition alluded to above. Professor Hart's concept,
however, is of 'legal system', which is 'a continuing phenomenon. Indeed, the

6 Dworkin 'Is Law a System of Rules?' in Essays in Legal Philosophy (ed Summers)
also Fitzgerald in SalmordonJurisprufrn .e )5I. p 25. See
7 See pp 442-443 post. Sec also articles by Raz and MacCormick referred to above.
8 Hart 107.
9 See ch 5 ante. For a relation of this point to Hart, sec Fuller
10 Han Law, Liberty and Morality p5t p 112 ante. pp 137-139-
ii Hart pp 'go-'g.
12 Hart p 203. See also 'Positivism and the Separation of Law
and Morals' (1958) Harv LR
595 . Hart is not implying that 'might' (in the form of an unjust enactment) is71
only that 'might' is law'; and to say that it is 'right', but
'law' does not imply that it has to be obeyed.
For difficulties, see pp 114-116 ante.
35 6 Legaltheorj
very union of duties and powers would imply this for, as pointed out earlier,
the exercise of a power and the duty created by it can only be brought into
focus in a temporal perspective". He concedes also that some morality is
essential to the continued existence of society. Is a distinction being drawn
between the continued existence of society, for which some morality at least
is essential, and the continued existence of a legal system? This cannot be,
for while a community (a moral system) could exist without a legal system,
a legal system presupposes a community. The relation between morals and
a legal system is that the latter only develops within and around the morality
of a community. It is submitted that underlying all this is a confusion of
time-frames. There is no contradiction in saying that an immoral precept is
'law' here and now and also that its immoral quality is likely to prove fatal
to its continuity. When Professor Hart thinks in a continuum, as he does
with society, he has to bring in morality; but in order to defend positivism
he shifts ground and takes refuge in the present time-frame, for only in this
way can he justify the exclusion of morality for the purpose of identifying
laws here and now There would thus appear to be a greater separation
between his concept of law and his positivism than ever he alleges between
law and morality. For the limited purpose of identifying 'laws' his concept
seeks to accomplish more than is necessary; for the purpose of portraying law
in a continuum it does not go far enough.

13 Ser pp 43-44 ante.

 Positivism: Briti.s/l thrje

READING LIST

J Austin Lectures on Jurisprudence (5th edn ed R Campbell) chs 1-6..

J Bentham Of Laws in General (ed H LA Hart).
MS Blackman 'Hart's Idea of Obligation-and his Concept of Law' (ig),
94 South African LawJournal 415.
J Bryce Studies in History and jurisprudence I!, ch 10.
W W Buckland Some Reflections on Jurisprudence chs 1, 5, 9, pp 107-110.
SC Coval and JC Smith 'The Completeness of Rules' (i) 36 Cambridge
Law Journal 364.
J Dewey 'Austin's Theory of Sovereignty' (1894) 9 Political Science Quart-
erly 31.
• M Dworkin Taking Rights Seriously chs 2-3.
• A Eastwood and C W Keeton The Austinian Theories of Law.
\V Friedmann Legal Theory (5th edn) chs 20-21.
H L A Hart The Concept of Law.
M H James 'Bentham on the Individuation of Laws' in Bentham and Legal
Theory (ed M HJames) gi.
J WJones Historical Introduction to the Theory of Law ch 3.
D B Lyons In the Interests of the Governed, A Study in Bentham's Philosophy of
Utility and Law chs 6-7.
LJ Lysaght 'Bentham on the Aspects of a Law' in Bentham and Legal Theory
(ed M HJames) 117.
N MacCormick Legal Reasoning and Legal Theory chs 9- to.
NV L Morison 'Some Myths * about Positivism' (1959-60) Yale Law Journal
212.
K Olivecrona Law as Fact (1939) chs 1-2; (1971) chs 1-5.
J Raz The Concept of a Legal System.
WJ Rees 'The Theory of Sovereignty Restated' in Philosophy. Politics and
Society (ed P Laslett) ch 4.
• Sartorius 'Hart's Concept of Law' in More Essays in Legal Philosophy, Genera!
Assessments of Legal Philosophies (ed R S Summers) 131.
• S Summers 'Professor Hart's Concept of Law' (1963) Duke Law Journal
629.
Law, Morality, and Society. Essays in Honour of HL Hart (eds PM S Hacker
and Raz).
CHAPTER 17

The pure theory

The theory of Hans Kelsen (1881-1973) represents a development in two

directions. On the one hand, it marks the most refined development to date
of analytical positivism; on the other, it marks a reaction against the welter
of different approaches that characterised the opening of the twentieth cen-
tury. This is not to imply that Kelsen reverted to ideology. Far from it; he
sought to expel ideologies of every description and to present a picture of law
austere in its abstraction and severe in its logic.
It is necessary to begin with the premise from which he argued. A theory
of law, he said, must deal with law as actually laid down, not as it ought to
be. In this, as in some other respects, he agreed with Austin, although he
was unaware of Austin's work when he first propounded his views. Insistence
on this point has earned him the title of 'positivist'.
A theory of law must be distinguished from the law itself. There isno logic
in natural phenomena, but a theory of nature, which purports to take
account of them, must be logically self-consistent. In the same way, the law
itself consists of a mass of heterogeneous rules, and the function of a theory
of lw is to organise them into a single, ordered pattern. Kelsen obviously
did not evolve his theory, of law in uacuo, but out of a study of legal material
as it was actually found. What he did was to proffer it as a way of regarding
the entire legal order and to demonstrate the pattern and shape into which
it falls when looked at in the way he suggests', and the brilliance and
organising power of his concept is bet appreciated after the substance of the
law and its problems have been studied.
A theory of law should be uniform, ie it should be applicable at all times
and in all places. Kelsen thus advocated general jurisprudence. So did Aus-
tin, who, as will be remembered, only paid lip-service to it. Kelsen, however,
carried out his analysis on an undoubtedly general basis. Austin's concept of
law was derived from limited material, namely, English and Roman law,
and ran into trouble outside that sphere. Kelsen, who had the advantage
over Austin of profiting from roughly a century of varied developments, was
able to arrive at generalisations which hold good over a very wide area.
A theory of law must be free from ethics, politics, sociology, histor - etc; it
must, in ot er words, This follows rom t e last point, or
fi:y is to be general, it needs to be shorn of variable factors such as
those mentioned. One suspects at this point a measure of reaction against the
modern introduction of these other influences which has enormously widened
the scope of jurisprudence. Not that Kelsen denied their value: all he said
was that a theory of law must keep clear of them
Finally, laws being 'ought' propositions, knowledge of-law means a know-
ledge of 'oughts', ie 'norms', and a norm is a proposition in hypothetical
i Philosophically Kelsen is regarded as a neo-Kantian, but in his distinction between 'is' and
'ought' (see p 359 post) he is a descendant of Hume.
2 Ketsen Piic Theory of Law pi.
 TAe pure Lheoiy 359

form: 'if X happens, then V ought to happen'. The science of law, or what
in Anglo-American parlance is called 'jurisprudence', consists of the exami-
nation of the nature and organisation of normative propositions as they are
found. It includes all norms created in the process of applying some general
norm to a specific action. According to Kelsen, a dynamic system is one in
which fresh norms ate constantly being created on the authority of an ori-
ginal, or basic, norm, a Gntndnonn; a static system is one which is at rest in
that the basic norm determines the content of those derived from it in addi-
tion to imparting validity to them.
Around these points Kelsen unfolded his picture of law. It appears as a
hierarchy of norms. One should, in his view, distinguish between propositions
of law and propositions of science. In his earlier writings the distinction,
adapted from Kant, was drawn in a straightforward manner. Propositions of
science relate to events which are observed to occur and which do occur.
Thus, whenever an apple is parted from a tree, in the absence of support it
falls to the ground. If a new fact or event is observed which fails to conform
to a scientific 'law', then that 'law' has to be modified to include it. Propo-
sitions of science may thus be described as dealing with what does happen,
ie what 'is' (sein). Propositions of law only deal with what ought to occur, eg
if a person commits theft, he ought to be punished. Even though in a given
case events may not work out according to the legal 'ought', that does not
invalidate it or call for modification. X may Commit theft but go unpunished,
for he may escape detection, he may bribe the officials who administer the
law, or he may die. Even though any of these things may happen, the
proposition that 'if a person commits theft, he ought to be punished' remains
good. Legal propositions, therefore, deal with what ought to be (so/len). 'The
principle according to which natural science describes its object is causality',
said Kelsen; 'the principle according to which the science of law describes its
object is normativity' 3 . It is true that in quantum physics strict causation has
been abandoned in favour of the 'principle of indeterminacy', a modified
version of causation in terms of probabilities. Accordingly, the Kantian dis-
tinction between the 'is' and the 'ought' requires modification too. However,
the laws of science, though based on probabilities, remain descriptive of
behaviour; juristic laws are not concerned with description, but with impu-
tation of responsibility and are prescriptive of what ought to ensue. So put,
Kelsen's distinction can be preserved, for it is a cardinal feature of his theory
that laws consist of'ought' propositions.
Two observations might be made on all this. In the first place, Kelsen in
his early writings expressed this distinction rather misleadingly. He said in
one place:
'The law of nature (meaning causality) runs: If A is, then B must be. The legal
rule says: If A is, then B ought to be .. It is evident that this connection is not
that of cause and effect. Punishment does not follow upon a delict as effect
upon a cause. The legislator relates the two circumstances in a fashion wholly
different from causality. Wholly different, yet a connection as unshakeable as
causality. For in the legal system the punishment follows always and invariably
on the delict even when in fact, for some reason or other, it fails of execution.
Even though it does not so fail, it does not stand to the delict in the relation of
effect to cause". -

3 Kelsen General Thoiy of I4W and State p46.

4 Kclscn 'The Pure Theory of Law' 0 934) 5o LQR 48c.
 6o Legal theory
This kind of expression is misleading and may induce others to do less than
justice to his thesis'. In more recent works he distinguished between causality
and imputation without the disturbing touches as above. 'Under certain
conditions' he said later 'a certain consequence ought to take place. This is
the grammatical form of the principle of imputation'8.
A second source of misunderstanding is more important. Legal norms are
expressions of 'oughts'. The sense in which this is so will shortly be explained.
Such 'oughts' should be distinguished from the 'oughts' of valuation. The
legal 'ought' is in the form, 'If X happens, then V ought to happen'; value
'oughts' shape the content of legal propositions, whether or not they are
desirable, and with these Kelsen was not concerned. He did not deny that
there are such 'oughts' apart from the formal 'oughts' of the law. What he
said was that the latter should be kept separate from these others. Nor did
he deny that the 'oughts' of the law may have their origin in these other
'oughts'. To formulate a theory of law account need only be taken of the
formal 'ought' without reference to origin or content.
Kelsen found the distinction between legal and other 'oughts' in that the
former are backed by the force of the state, the preoccupation of law being
with the prospect of disobedience rather than obedience. Thus, it is the
prescription of sanction that imparts significance to a norm, or putting it
in another wa y , 'Law is the primary norm, which stipulates the sanction".
Only in this way does 'law arrive at its essential function". It is true that in
the statement, 'If a person does X, then Y ought to happen', there is implicit
the idea that a person ought not to do X if he wants to avoid Y, ie not doing
X is the effective means of avoiding Y. Yet the law is only invoked when X
has been done. What matters in law is what should happen then. In this way
a legal norm prescribes conduct by attaching a sanction to contrary be-
haviour'. This, it is urged with respect, is a weakness of Kelsen's scheme. It
was argued in Chapter to, (a) that the 'essential function' of law is by no
means confined to dealing with wrongdoing, (b) that the form, 'If X, then
Y ought to happen', does not necessarily imply that 'V is a sanction for the
breach of some duty, and (c) that, in any case, sanction is not essential to
duty. As to (a), as will be seen presently, Kelsen made the efficacy of the
total legal order a condition of the validity of every norm", which means
that the very existence.oIa legal system implies that its laws are in the main
obeyed rather than disobeyed. This suggests that the main function of laws is
to give guidance by prescribing how people ought to behave. Further, pre-
scribing behaviour, even in Kelsen's indirect sense, suggests that moral and social
values are indispensable despite his effort to exclude them. The use of force
in the event of disobedience becomes very much a secondary function. As to
(b), it was pointed out earlier that the form, 'If X, then 'V ought to happen',
would fit the rule that if one earns more than a certain amount, then one
ought to be taxed; but taxation is in no sense a sanction, nor is there a duty
not to earn more than that amount. As to (c), it was also pointed out that
it is erroneous to associate sanction with duty in view of the numerous
instances of sanctionless duties. In the light of all this it is submitted that any

Eg Oliverciona Law as Foci (1939) pp 17-21.

6 KeIen What is Justcr.' ) 349
Kclscn General Theory of Law and Slaltpp 2 9 , 61.
8 Ketscn (1934) 50 LQR 487; Pure Theor of Law p33.
9 Kcts-n Genera! Theory of Law and State p g; Puce Theory of Law pp 33. 115-
io Kdscn Ge.,.eral Theoru of Lou- and State p 11 9; p 363 pOst.
 TkeuretJlt-c?ry 361

concept of law which revolves around sanctions is not an accurate reflection

of law as it actually is.
To the extent that the provision of sanctions is regarded as crucial, the
theories of Austin and Kelsen agree, but they differ in elaboration. For
Austin, a law is a command backed by sanction. Kelsen disagreed in two
respects. First, he rejected the idea of command, because it introduces a
psychological element into a theory of law which should, in his view, be
'pure". The most that he conceded was that a law is a
'de-psychologised command, a command which does not imply a 'will' in a
psychological sense of the term .. a rule expressing the fact that somebody
ought to act in a certain way, without implying that anybody really 'wanLs
the person to act in that way"'.
Secondly, to Austin the sanction was something outside a law imparting
validity to it. To Kelsen such a statement is inadequate and confused- For
the operation of the sanction supporting a rule resolves itself into the opera-
tion of other rules; and further, the validity of a rule has nothing to do with
its sanctions. Thus, Austin would have said that the sanction behind the
proposition, 'you ought not to steal', is that if you do steal, you will be
imprisoned. To Kelsen, the operation of the sanction itself depends on the
operation of other rules of law. One rule prescribes that if a man has corn-
mitted theft, he ought to be arrested; another prescribes that he ought to be
brought to trial; others prescribe how the trial ought to be conducted; an-
other rule prescribes that if the jury brings in a verdict of 'guilty', the judge
ought to pass sentence; and another prescribes that some official should carry
that sentence into execution. In this way the Contrast between law and
sanction in the Austinian sense disappears.
With reference to the validity of a rule, Kelsen asserted that the validity
of an 'ought' is not to be derived from any 'is' of fact outside the law' 3, but
from some other 'ought' standing behind it and imparting validity to it. The
validity of a norm is ascertained with reference to its authorising norm,
which confers a power to create it and may also specify conditions for its
exercise. A particular norm, therefore, is 'authorised' if it can be subsumed
under a more general norm". The conjecture which this opens up is the end
of the progression. Kelsen's solution was that in every legal order, no matter
with what proposition one may begin, a hierarchy of 'oughts' is traceable
back to some initial, fundamental 'ought' on which the validity of all the
others ultimately rests. This he called the Grundnorm, the basic or fundamental
norm. For example, the validity of each of the rules comprising a sanction

ii 'The norm is an ought, but the act of wiil is an is': Kelsen Pure Theory of Law p5.
12 Kelsen General Theory of Lads and State p 35.
13 This proposition is traceable to Hume A Treatise on Human BeAn rsour III, 1.1.
14 'Authorisation' and 'subsumption' are difficult notions. For a critique of Kelsen. see Harris
'Kelsen's Concept of Authority' (ig) 36 CLJ 353; and Paulson 'Constraints on Legal
Norms: Kelsen's View in the Essays' (jm) 42 U ChLR 768. In an answer to Harris,
Paulson draws distinctions. 'Validity' is looking at the iav.-quality Of the cud prckiuct; from
the point of view of the dynamism of law-creation and app!ication'validity' is the author-
isation of lower-order activities. 'Authorisation' is of two kinds: 'formal', which is given to
an organ or institution, eg legislature or courts, to create, apply or validate a norm; and
'material', where a norm has to fall within the limits of the applicability of some higher
norm and is derived directly from it. Formal authorisation cannot be questioned by courts,
material authorisation can be questioned on judicial review. See Paulson 'Material and
Formal Authorisation in Kelsen's Pure Theor y' (io8c) 50 CIA i " 2
362 Legal theory

depends on some other rule, which in turn rests on another and so on. Thus,
the imprisonment of a person for theft is valid in so far as the prison auth-
orities acted in accordance with the norm 'If a-judge so orders, then prison
authorities ought to imprison him'. The judge's order is valid in so far as he
acted according to rules regulating the competence of the court, rules as to
how the legal process ought to be conducted, a rule of law that 'If a person
steals, he ought to be punished by imprisonment (or in some other way)'.
These rules in their turn are valid in so-far as they emanate from certain
Statutes and precedents. To the question why statutes and precedents are
valid no answer can be given in law; they represent the end of the line. The
entire legal order in Britain is traceable back to the propositions that statutes
and precedents ought to be treated as 'law', with immemorial customs as a
possible third. In this way Kelsen's picture of a legal order emerges, not just
as a collection of 'oughts', but a hierarchy depending downwards from a
Grundnorm, or branching upwards from it, whichever way one chooses to
depict it.
Kelsen recognised that the Grundnorm need not be the same in every legal
order, but a Grundnonn of some kind there will always be, whether, eg a
written constitution or the will of a dictator. The Grundnorin is not the consti-
tution, it is simply the presupposition, dcmanded by theory, that this consti-
tution ought to be obeyed". Therefore, the Grundnorm is always adapted to
the prevailing state of affairs. The Grundnorin only imparts validity to the
constitution and all other norms derived from it, it does not dictate their
content. The difference between his positivism and natural law theory is that
the latter determines content as well. There is also no reason why there need
only be one GTundnorm, nor has it to be a written constitution' 6 . The fact that
in Great Britain the fount of validity rests with statute, precedent and im-
memorial customs does not contradict Kelsen's thesis, for what he contended
was that a system cannot be founded on conflicting Grundnormen' 7 . In Britain
there is no conflict between the authority of the Crown in Parliament, judi-
cial precedent and customs; they take precedence in that order18.
There are several features about the Grundnorm deserving of attention. In
the first place, in what sense is the Grundnorm a norm? It does not conform to
Kelsen's own formulation of a norm: 'If X, then Y ought to happen'; it only
empowers and does not impose sanctions. Next, according to Kelsen every
rule of law derives its validity from some other rule standing- behind it. The
Grundnorm has no rule behind it. Its validity has therefore to be assumed for
the purpose of theory, which is- why it is said to be the 'initial hypothesis',
'the postulated ultimate rule according to which the norms of this order are
established and annulled, receive or lose their validity"'. Put in another way,
one cannot account for the validity of the Grundnorm by pointing to another
rule of law. The Grwjdnor,n validates the rest of the legal system; one cannot
therefore utilise the system, or any part of it, to validate the Grwzdnorm. As
15 Kelsen Pore Theory of Law pp 201 et scq; 'Professor Stone and the Pure Theory of Law'
(1965) Stanford LR 1128 at 1140-1142.
tfi h.elsen Pure Th.eoy of Law p222.
17 Kelsen pp 72, 74, 1 95, where he spoke of 'unity' and 'unified systcm'; see also Central l7teory
of Law and Staie pp 400,407- -
18 For the formulation of the Cr,a,dnorm for Britain see Harris 'When and Why does the
Grundnorm Change?' ('gn] CLJ 103.
,g Kctscn General Theory of Law and StCj p 11 3 . See also pp 115-116, 134,401; Kelsen Pure
Theory of Law pp 1 94- 1 95 . Salmor,d had anticipated this point as early as 1902: Jurisprudence
(1st edn) p it o.
 Tht puT etho!, 363
one writer put it, such an attempt would be like trying to pick oneself up by
one's bootlaces. This point has already been considered from another angle,
namely, in connection with statute and judicial precedent, where the impos-
sibility of finding a reason in law why these should be able to impart the
quality of 'English law' was demonstrated".
Kelsen's distinction between validity and effectiveness has only been
touched upon. Every norm other than the Grzndnorni is valid, not because it
is, or is likely to be, obeyed by those to whom it is addressed, but by virtue
of another norm imparting validity to it. Thus, a norm is valid before it is
effective, as is the case with a new statute before it has been applied. Yet,
the validity of each norm does depend on the effectiveness of the legal order
as a whole. In Kelsen's own words,
'It cannot be maintained that, legally, men have to behave in conformity with
a certain norm, if the total legal order, of which that norm is an integral part,
has lost its efficacy. The principle of legitimacy is restricted by the principli of
effectiveness".
He later modified this somewhat to the extent of saying that the legal order
has to be 'by and large' effective'. It will therefore be seen that, with refer-
ence to a given norm, its validity and its effectiveness have to be kept
separate. Effectiveness of the order as a whole is a condition, not a reason,
of the validity of the Grundnorm and of any individual norm: 'a conditio sine
qua non, but not a condttio per quest' 3 . At the level of the Grundnonn
the question,
Why is it valid? is meaningless; what is important is that the Grundnorrn
should secure for itself a minimum of effectiveness, ie a certain number of
persons who are willing to abide by it". It is futile to say that the proposition
that the will of the Tsar should be accepted as law is the Grundnorm in Russia
today. On the other hand, the fact that enactments of the Crown in Parlia-
ment are in fact disobeyed quite frequently does not render the proposition
that the Crown in Parliament is law-constitutive any the less a Grundnor pz of
English law, There must not be a total disregard of the Grwtdnortn, but there
need not be universal adheren'e to it. All that is necessary is that it should
command a minimum of effectiveness.
When a Grunsinorm ceases to derive a minimum of support, it ceases to be
the basis of the legal order, and any other proposition which does obtain
support will replace it. Such a change in the state of affairs is said to amount
to a revolution in law. This is because, as pointed out, the Grundnorm is not
itself the constitution, but the assumption that this (effective) State of affairs
ought to be obeyed, and because, for that reason, the Grundnorm is adapted
to that state of affairs and not vice versa. It follows, therefore, that a change
in the situation involves a revolution in the theory adapted to it'. This
point was demonstrated in Chapter 5, where it was seen that the events of
1688-1689 must be regarded as a revolution in the basis underlying
the legal system. It was also illustrated with reference to both the Rhodesian
rebellion and the British Commonwealth. The constitutions of the various
Dominions derived their validity from statutes of the Crown in Parliament at
20 See cbs 5 and 7 ante.
iKelscn General Theory of Law and State p hg.
2 Kelsen Pure TFteoy of Law especially at pp 212 et seq; Kdscn What is Justice? p 262;
'Profcssor
Stone and the Pure Theory of Law' (1965) 17 Stanford LR 1128 at 1142; Harris at p 124.
3 Kelsen General Theoiyof Law and State p 119.
4 Cf Austin's criterion of sovereignty as habitual obedience of the bulk of a given society:
p348 ante.
Kelsen General Theory of Law and State p it 7; Pure The-y of Law p 200.
364 Legal theory
Westminster, from which it would seem to follow that the Grundnorrn of the
Commonwealth legal order is that enactments of the Crown in Parliament
at Westminster are law ipso jure for the Commonwealth. The Dominions, how
ever, have discarded that doctrine, and their acquisitiom of independence
has amounted to a revolution in the legal order of the Commonwealth'.
The Grundnorrn is thus a key concept in Kelsen's theory, but it raises many
difficulties. The change effected in the British Grundnorm in 1689 amounted,
according to his thesis, to a revolution in the system, but why did it remain
the 'same system'? Kelsen would probably have denied that it is the same;
which is not the way lawyers and jurists actually regard the position. It
would only be a suggestion as to how they ought to regard it. The point can
be illustrated in another way. British courts might abandon stare decisis to-
morrow, ie the Grundnorm that 'precedents ought to be binding', but it would
be odd to say that a new system comes into being thereafter 7 . All this,
however, harks back to the earlier question: 'What exactly is the Grundnorm
in Britain'?
Some writers have pointed out, with a hint of criticism, that in whatever
way effectiveness of the Grundnorm is measured, Kelsen's theory has ceased to
be 'pure' at this point. For, effectiveness would seem to depend on those very
sociological factors which he so vehemently excluded from his theory of law.
If, then, the Grttndnorm upon which the validity of all other norms depends
is tainted with impurity, it is arguable that the others are similarly tainted.
Another attack on the claim to purity is that Kelsen's scheme is an a priori
one dependent on empirical observation for confirmation. He offered it as a
'theory of interpretation"', which implies that it is not a description but a
model and thus evaluative in function. It is possible to make too much of
this, for Kelsen's analysis of the structure of the legal system is in no way
impaired by these comments. The criticism touches, not the theory, but his
claim to its purity. He admits that the Grundnorm is founded on factors outside
the law'°. That being the case, whether his theory is said to be pure only
from the Grundnorm onwards, or partially pure because of its initial impurity,
is not very material. The fact is, as the words of Kelsen indicate, that the
effectiveness of the legal order as a whole is prerequisite to the validity of
each single rule in it.
The objection, though verbal, carries more serious implications. If, as
seems clear, some inquiry into political and sociological factors has to
precede, or at least is implicit in, the adoption of a particular Grundnorm as
the criterion of validity, and if the validity of every part of the system is
dependent upon the continued effectiveness of the whole, then on his own
showing the study of jurisprudence should include the study of the social
environment. It might also be pointed out that Kelsen's picture is that of a
legal order viewed at any given moment of time showing how the validity of
every norm is derived from a Grundnorm. This explains his exclusion of moral,
sociological and other considerations from the question of the validity of any
rule at this or that moment. Yet, he could not avoid having to make some

6 Cross objects to the word revolution': Precedent in Engtuh Law pp 206-207. This is sca.dy
an objection to Ketsen's point, but rather to his choice of words. The real point hwhether
the system would still the 'same'
7 Seen 6 supra.
8 On which. see IIanit.
9 Kthcn Pure Tho9ofLswpI.
10 KeIsen What L$JUthCe?p294.
 The pure theory 365

measure of effectiveness a decisive attribute of the Grwzdnorm and of the legal

order as a whole. It was pointed Out in Chapter 5 that effectiveness is only one
reason why courts will in time accept a Grundnorm, ie it is a factor operative
in a continuum". If, then, he was prepared to accept one such factor, why
did he exclude others, eg morality? The force of this point may be seen when
one asks why a particular Grundnorin was accepted, especially if this followed
on a revolution? Might it not be that the new criterion of validity was able
to command a 'minimum of effectiveness' because it was thought to guar-
antee that measure ofjustice and morality, which the previous criterion did
not"? Why could it not be argued that the supremacy of the Crown in
Parliament was accepted in 1689 in order that tyrannous and arbitrary acts
should no longer be valid as they had been by virtue of the supremacy of the
prerogative? On this line of argument the GTundnorn'. is effective, and -ontinues
to be effective, in so far as an element of morality is built in as part of the
criterion of validity". If so, the continued validity of every proposition of law
derived from the validating source has an ultimate ethical basis and a total
separation of law from morality is untenable. Moreover, apart from the
Grundnorin, if, in Kelsen's own thesis, a norm in the form, 'If X, then Y ought
to happen', is an indirect way of prescribing the behaviour needed to avoid Y
(assuming Y to be a sanction), then the values that prompted the prescrip-
tion in this indirect way must also underlie the form; and the same applies
to every other such norm. All this amounts to an argument levelled not
merely at Kelsen, but at positivism in general. It is sufficient here to observe
that it would strike at the foundation of his separation of'is' and 'ought'.
Kelsen gave no criterion by which the minimum of effectiveness is to be
measured. All he maintained was that the Grundnorm imparts validity as long
as the 'total legal order' remains effective, or, as he later put it, 'by and
large' effective. As to t,is it may be asked, in the first place, what is the
measure of 'total' and 'by and large'? The Rhodesian case Madimbamuto v
Lardner-Burke", exposes the weakness here, for as one judge pointed out, an
effective order cannot be said to be totally, or even by and large, effective as
long as its judiciary refuses to accept the legality of its basis"; which the
Rhodesian judiciary did for over two years after the illegal declaration of
independence by the Smith regime. Secondly, for how long must effectiveness
be maintained for the requirentent to be satisfied? In The Slate v Dosso" the
Supreme Court of Pakistan had held a usurper to be effectively in power and
hence lawful on Kelsenian grounds (even though, incidentally, he himself
was deposed the day after the judgment was published. Later in Jilani v
Government of Punjab" the Supreme Court declared both the first and second
usurpers illegal, repudiated Kelsen in 1010 and overruled Dosso, which relied
on him so heavily and because of which, as one judge quoted approvingly,
'a perfectly good country was made into a laughing stock" 8 . The court was
not saying that the usurping regimes were lawful while they lasted, but
II See pp54-55 ante; Jllanit, Government of Punjab Pak LD (1972) SC 1 39 at 1 59, perHamoodur
Rahman CJ and at 232-233, 242, per Yaqub AliJ.
12 lbidatp 182.
13 Sec pp 55 et acq ante.
14 1968 (a) SA 284.
15 Ibid at pp 4 2 7-4 28, per Fieldscnd AJA.
16 PakLD (1958) SC 533.
17 Pak LD (1972) SC 139.
18 Ibid at 219, per Yaqub Ali J, who also regarded Madtmhamuto', case, as far as it went, as
the maximum success of Kelsen', theory: alp 244.
366 Legal theory

that they were unlawful ab inilio notwithstanding effectiveness. It is to be

noted that by the time of the later decision the usurpers had been over-
thrown, and it may well be that stich pronouncements will nearly always be
retrospective, since judges sitting under thepower of a regime may have little
alternative but to accept it as legal; those who refuse will be replaced, or
their judgments will be nullified 19 . Against this must be set the independent
stand of the Rhodesian judiciary after UDI and also of some Pakistani judges
who, while under the illegal regime, not only voiced doubts but even held
particular measures void 20 . Finally, what does 'effectiveness' itself mean?
Kelsen drew no distinction between effectiveness, which makes people
obliged to obey, and effectiveness which makes them feel under an obligation
to do so. A usurper may by force and fear achieve the former, but not the
latter, which, as judicially acknowledged, is the kind of effectiveness required
by Kelsen. A judge of the Supreme Court of Pakistan, examining the position
of the deposed usurper President, said in words reminiscent of Professor Hart,
'He obligated the people to obey his behests, but in law they incurred no
obligation to obey him".
Effectiveness is not necessarily a condition of validity even in the context
of the here and now. For instance, inthe lacuna that exists during a revo-
lution, when the old basis has been overthrown and something has still to
replace it, there is no longer a Grundnorm, but tribunals may continue to
apply 'laws' identified as such by means of some criterion which- they still
recognise, albeit provisionally. It does not matter that that criterion belongs
to the order that has gone; as long as it is accepted by the judges as imparting
the quality of 'law' to the proposition before them that is all that is needed.
This was indorsed in the test case of Afadimbamuto t Lardner-Burke2 , which
was brought during the Rhodesian rebellion. Here the revolutionary 1965
Constitution was acknowledged to be effective, yet for over two y ears the
Rhodesian courts refused to accept it as 'legal'. During that period the
Rhodesian courts were none the less prepared to uphold at least some
measures of the illegal regime as 'laws', and the displaced 196 Constitution,
which had ceased to be effective, was still held to possess controlling force to
the extent that the laws of the illegal authority had to conform to it. The
case is inexplicable on Kelsenian theory. It shows, firstly, that effectiveness
is not the criterion of the Grundnorm, but what courts are prepared to accept
as the fount of validity; and, secondly, that the validit y of a law does not
necessaril y derive from an effective Grundnorm, but that this, too, depends on
what courts accept as valid. A third point, which emerged since is that
validity itself has a temporal dimension. In The Stale v Dosso 3 the Supreme
Court of Pakistan accepted the régime, which had usurped power unconsti-
tutionally, as legal on grounds of effectiveness; but later in Jilaril v Goz'ernmenl
of Punjab' the same court declared it to have been illegal ab initio notwith-

19 The decision in Mir Hassan v The Slate Pak LD (1969) Lab 786, invalidating a Martial Law
Regulation was promptly nullified by an Order retrospectively depriving the courts of
jurisdiction in a number of matters.
20 Eg the bold decision in All, Hassan's case (seen *9 supra).
i Jilani's case (5Cc 0 *7 supra) at p229, per Yaqub Ali J. Also: 'the temporary iilencing of the
people and the courts is not enough': at p 243.
2 *968 (a) SA 284 at 35*, 42!; and see P 54 ante. For comment, see Brookfield 'The Courts.
Kelsen and the Rhodesian Revolution' (1969) *9 UTLJ 326. 345_6. -
3 Pak LD(t958)SC533.
4 Pak LD(i97a)SC 139.
 Thepweg€y 367
standing effectiveness, and overruled Dosso. All this boils down to the fact
that validity is a matter to be determined in the Context of a given point of
time and depends on what judges are prepared to accept at that moment as
imparting law-quality which seems a more useful way of regarding the
matter than a Gntndnorm enjoying a minimum of effectiveness.
In the result it would seem that Kelsen's theory does not apply in revo-
lutionary situations, in which case it ceases to be a 'general theory'; or, if
general, it ceases to be true. In settled conditions it teaches nothing new; in
revolutionary conditions, where guidance is needed, it is useless, for the
choice of a Grwtdnorpt is not dictated inflexibly by effectiveness but is a
political decision, as Kelsen has admitted'.
It is not clear what is connoted by the description of the Grunthzorm as a
'hypothesis' or 'postulate' or 'presupposed'. There is no analogy here, be it
noted, with scientific h ypotheses, which are assumptions used to account for
the totality of known facts. It is sometimes, the case that two alternative
scientific hypotheses may be equally apt to explain the phenomena in ques-
tion', but there is no room for alternative Crundnormen as postulates of a given
legal system. There must be only one Grundnorns, which is supreme and
uncontradicted; otherwise there can be no unified theory. As to this, the
requirement of effectiveness suggests, on the one hand, that the Gnatdnorm is
a fact and not a pretence or asumption 7 . On the other hand, it is not itself
the constitution but the presupposition, required by theory, that this consti-
tution ought to be obeyed. As such it is not a social reality and does not
march happily under Kelsen's positivist banner'. There is a further difficulty.
An effective constitution is a fact upon which the Grundnorm posits an 'ought'.
It has been axiomatic since Hume that an 'ought' cannot be derived from
an 'is' without the interposition of a value-judgment that the 'is' is desirable
and for that reason ought to be. It looks, therefore, as if Kelsen's theory
conceals an ideolog y that might is right and hence ought to be; which is no
different after all from the adoption of a priori assumptions by naturalists,
besides being an open invitation to revolt and crude force 9 . Many of these
difficulties would be avoided if what was said earlier is borne in mind.
The criterion of validity refers to the medium or media which impart to
a rule the quality of 'law', 'valid' here meaning 'legal'. The 'minimum of
effectiveness' refers to the acceptance of such media by those in charge of
administering 'law'. This is all that would have been needed for Kelsen's

5 What is Justice? pp 366, 368. The policy reasons behind judicial choice were amply demon-
strated in the Rhodesian test case, as to which see Dias 'Legal Politics: Norms Behind the
Grwtdnorm' [1968] CLJ especially at 254. The personal choice of the judges was admitted by
Beadle CJ in Re .VdJdov,g 1968 () SA 525 at 532. As
to the alleged disclosure after retirement
by Munir CJ, who presided over Dosso's case, that his acceptance of Kclsen's theory had not
been based on judicial considerations, see Yaqub Ali J in Jilani's case ( see n
4 supra) at 277. 4 supra) at 277.
6 Eg the 'corpuscular' and 'wave' theories of light. It used to be said that scientists applied
the one theory on Mondays, Wednesdays and Fridays, the other on Tuesdays, Thursdays
and Saturdays.
7 Han The Concept of Law p 246; Stone 'Mystery and Mystique in the Basic Norm' 0963) 26
MLR 34 at 47-48. For judicial comment on its vagueness see Harnoodur Rahman CJ in
Ji1anirGovenn,,,r..fP.,kj.j,,, Pak LI) (5972) SC i39att79-s0.
8 'It is,therefore, only a 'thought norm' which could hardly be recognised as a legal norm
furnishing a criteria (sic) of validity in any legal system. To give it the status of a legal norm
or legal rule was thus, in my opinion, unjustified: ibid per Hamoodur Rahnsan CJ at 180.
9 So Fieldsend AJA in Madzimba,nufo is Lardner.Buke tgGR (2) SA 248 at 430;
Jilani's case at
72 per Hamoodur Rahman CJ, at 259 per Sajjad Ahmad J.
 he seems to have inflated
demonstration, but by using the notion of Grundnorm
a pedestrian simplicity into something misleadingly large.
is a weak point in the
From all this it will be evident that the Grundnorin
theory. Yet such as it is, it provides the start of Kelsen's demonstration. The
rest of the system is pictured as broadening down in gradations from it and
becoming progressively more and more detailed and specific. The entire
process is one of the gradual concretisation of the basic norm and the fo-
It is a dynamic process, for
cussing of it to specific situations (StuJentheorie)'°.
the application of a higher norm involves the creation of new lower norms".
as a basis
Thus, the practical manifestation of the acceptance of a Grundnorm
is that it validates the creation of certain general norms, which may be
described as propositions of substantive law, as well as the machinery and
procedure for the application of these general norms. The application of
general norms by this machinery, as represented by a judge or other official,
to a particular situation in turn involves a creative element in so far as the
judge by his decision creates a specific norm addressed to one or other of the
parties. The final stage is the carrying out of the compulsive act. At the end
of the progression, therefore, sanction is a permission to someone to execute
the coercive act. This means that 'ought' here covers 'may' and 'can"'. It is
to be noted that in the application of the general norm the judge may be left
with an element of discretion, or he may consciously choose between alter-
native interpretations which the norm permits. The doctrine leaves room for
value-judgments in the course of the decisional process. Their exclusion from
the theory is not intended to diminish the actual parts they play. Again, the
application o a general norm may depend upon the act of the parties, eg an
agreement or some form of wrongdoing.
Several implications follow from such a view of a legal system. In the first
place, the traditional distinction between 'public' and 'private' law is seen to
be one of degree, while at times it disappears. They are both part of the
process of concretisation and both are norm-creating. The distinction be-
tween them lies sometimes in the fact that they operate at different levels of
the structure, and at others in the organs which apply them. With criminal
law, for example 5 the distinction would seem to disappear altogether.
Secondly, in a similar way the distinction between legislative, executive and
judicial processes appears in a new light. They are all norm-creating agen-
cies, the executive and judiciary being but steps in the concretisation of
norms in particular cases. Thirdly, the distinction between substantive law
and procedure is relative, procedure assuming greater importance. It is the
organs and process of concretisation that constitute the legal system.
Fourthly, the distinction between questions of law and fact also become
relative. The 'facts' are part of the condition contained in the 'if X' part of
the formula, 'If X, then Y ought to happen'. The application of a norm
concretises every part of it, including the if X' part. Therefore, the finding
of fact by a judge is not necessarily what actually happened but what he
regards as having happened for the purpose of applying the particular norm.
Fifthly, the legal order is a normative structure which operates so as
to culminate in the application of sanctions for certain forms of human
Kelscn
io Adapted by Kelsen from Merki Die Lehr von der Rechtskraft; Allgerreines VmvaltunSSleCht'
Genera! Theory of Law and State pp 123-153; Pure Theory of Law ch 5. 133;
it 'Creation of Law is always application of law': Kel.sen General Theory of Law and Stole p
What is Justice? p 280.
12 Kelscn Pare Theory of Law pp 5, zG, 134.
 ThureM€o1J 369•

behaviour. It follows that the idea of duty is of its essence, which is evident
in the 'ought'. Kelsen made no specific allowance for powers, while liberty,
in his view, 'is an extra-legal phenomenon"'. Liberty is the jural opposite of
duty, but Kelsen's stand in the matter reflects a wider issue, namely, between
an 'open' and a 'closed' concept of law. The former is one in which law
concerns only specific regulation so that anything as yet unregulated falls
outside law. The latter is one in which all aspects of behaviour are within
law, whether positively through specific regulation or negatively through
liberties; in short, liberty and duty are two sides of the same coin. Kelsen's
theory is an 'open' one14.
On the other hand, when he turned to the concept of claim, he stood on
firmer ground. This, he maintained, is not essential. It appears when
'the putting into effect of the consequence of the disregard of the legal rule is
made dependent upon the will of the person who has an irsierest in the sanction
of the law being applied'15.
Claim is only a by-product, as it were, of the law. Kelsen showed how
modern criminal law has for the most part discarded ancient ideas of the law
being set in motion by the injured person and is now enforced directly by
officials, ie the idea of individual claims is no longer the foundation of the
criminal law. It is still the basis of the law of property and contract and so
on, but in Kelsen's view there is no reason why it need be, and may well be
dispensed with in the future.
Sixthly, to Kelsen the concept of 'person' was simply a step in the process
of concretisation. This has been previously discussed' 6, and it was seen that
by 'person' he meant only a totality of claims etc. 'Person' is a legal concep-
tion, and he therefore rejected the traditional distinction between 'natural'
and 'juristic' persons. The former are biological entities, which lie outside the
province of legal theory. They are only the concern of the law in so far as
they focus duties and claims etc.
Lastly, a significant feature of Kelsen's doctrine is that the state is viewed
as a system of human behaviour and an orde
1 ewise a normative ordering of human behaviour backed by force which
ma es theuse of force a monopoly of the community' . Moreover, a state
is constituted by territor y , independent government, population and ability
to enter into relations-with other states, and each of these requirements is
legally determined. The inescapable conclusion is that state and law are
identical. This is not to say that every legal order is automatically a state, eg
highly decentralised orders like primitive communities; only relatively cen-
tralised legal orders are states. Kelsen further rejected any attempt to set the
state apart from law or to say that law is the 'will of the sca '.
Kelsen also applied his theory to t e system known commonly as 'inter-
national law'. His earliest work did not touch on this field, and it was only
after Verdross, one of his disciples, had started to adapt his approach to
international law, that Kelsen himself took an interest in it. When applied
in this field his theory does reveal some limitations. However assured his

13 Das Problem dc, Sourera,,ität p 247.

14 As to this, sec pp 31-32 ante.
15 Lauterpacht Kclscn's Pure Science of Law', in .Ilodrn, Theories ofLaw asp its; Kelsen Pure
7-heory Law pp 126-127.
16 See pp 267-268 ante.
17 Kelsen Central Theory of Law and Slate p 21.
thesis appears when demonstrated with reference to long established and
settled municipal systems of law", in the palpitating condition of inter-
national relations it has shortcomings. The Pure Theory demands that a
Grundnorm be discovered. If there are conflicting possibilities, then, as Kelsen
himself admitted, his theory provides no guidance in choosing between them.
All he said was that the Grundnorm should command a minimum of support.
In the international sphere there are two possible Grundnormen, the supremacy
of each municipal system or the supremacy of international law. The argu-
ment based on the former, as pictured by Kelsen, would run as follows.
Every national legal order cannot ex /ypothesi recognise any norm superior to
its own Grundnorrn. The English legal order does not apply in France, nor vice
versa. Nevertheless, the English legal order recognises the validity of the
French legal order in France; and if the only Grundnorm known to English
law is its own, it follows that the English legal order regards the validity of
the French legal order in France as being in some way a delegated normative
order from the English Grundnorin. Similarly, approaching the matter from
the French side, the French legal order can only recognise the validity of the
English legal order in England as being derived from the French GrundnoTm.
Such is the outcome of the doctrine of national sovereignty and it tends to
a state of anarchy in which each national order recognises only its own
Grundnor,n and endures other legal orders as subsidiary to it.
Kelsen would have none of this". He argued instead for a monist view of
the relationship between international and municipal law, and declared that
the Grundnorm of the international system postulates the primacy of inter-
national law 20 . Nations in practice, he argued, recognise the equality of each
othr's legal orders, and the doctrine of equality must mean that they recog-
nise the existence of a GrundnoTm superior to the GTundnormen of their own
particular legal orders. The equal force of national systems is an impossible
notion unless there is some higher authority, which bestows equality. The
same conclusion is arrived at in a different way; Much of international law
rests on custom, which Consists in rationalisations of the actual practice of
states. When a description of the conduct of states is transmuted into a
prescription of how they ought to behave, it becomes international law. Now,
Kelsen's insistent contention was that the validity of an 'ought' cannot be
derived from an 'is', but only from a superior norm. He also maintained that
a legal norm is distinguishable from norms of morality, ethics and the like in
that it is backed by force. In the international sphere he found the element
of force in war and reprisals'.
All this is questionable. The first thing which his theory requires, is the
Grundnorin of the international order. This is by no means clear: it may be
the principle pacta sun! .rervanda, or 'coercion of state against state ought to be
exercised under the conditions and in the manner, that conforms with the
custom constituted by the actual behaviour of the states"; but other Sugges-
tions have been offered by other writers. As Stone has commented,

iS Kelsen admitted that his theory of municipal law applies only to advanced systems: Kelsen
What is Justice? p 246.
ig Kelsen pp 284-285.
20 Kelsen pp 283 et scq; Genera.! Theory of Low and State pp 328 et 2eq; Pure Theory of Law ch 7;
'Sovereignty and International Law' (i960) 48 Georgetown Lj 627.
i Kelscn Genera! Theory of Law and State PP 3 28 ct seq.
2 Kelscri Pure Theory of Law ) 26. For comment see Hart The Concept of Law p230.
 T/spuret/eorj 375
'It is difficult to see what the pure theory of law can contribute to a system
which it assumes to be law, but which it derives from a basic norm which it
cannot find".

It looks as if Kelsen shifted the meaning of Grundnor,n. With reference to

municipal law it was pointed out that the Grundnorm has to possess some basis
in fact, namely, a minimum of effectiveness. It would seem that with refer-
ence to international law the Grund,wrm is a pure supposition lacking even
this basis. Assuming that a monist legal theory has to be offered to account
for the present state of international society, then one way of explaining the
assertion of equality by states would be by hypothesising a norm superior to
that of each national order from which equality might be said to derive. It
is open to doubt, however, whether even an attempt at a monist explanation
is worth while, for one is entitled to question whether there is any Grundnc'rm
which commands the necessary minimum of effectiveness demanded by Kel-
Sen's theory. States recognise such doctrines as pacta sunt servanda or equality
only in the sense of paying lip-service to them; they talk about them, but are
only too ready to ignore them when it Suits their convenience to do so.
Indeed, an alternative, and as plausible, a hypothesis to explain equality is
that it springs from a sense of mutual forbearance inspired by fear. Indeed,
it has been asserted judicially that 'in International Law there is no "legal
order" as such"'. So the hypothesis of a superior norm of the international
order is no more than one possible assumption, and unreal at that. With
reference to municipal law, on the other hand, Kelsen's theory is meaningless
unless the Grundnorm commands a minimum of effectiveness in action and not
just in words. Post hoc is not propter hoc.
It is not easy to accept a monist theory of the primacy of international
over municipal law in the face of the conflicts between the two. Kelsen's
general theory does allow, it is true, for limited conflicts within a given order,
but those between international and municipal law are too extensive to
ignore. The case of Jilani v Government of Punjab' is an illustration, not just of
conflict, but of the categorical rejection by a municipal court of Kelsen's
monism. An attempt had been made to buttress the effectiveness of a revo-
lutionary fegime, and hence its legality, with the fact that it had received
rccognition at international law. The Supreme Court said that to do this
would be to assume the primacy of international law over municipal law, a
doctrine which it emphatically repudiated. With reference to the emergence
of a new government as well as a new state, it was pointed Out that their
recognition at international law is irrelevant to their legality at municipal
law. 'The validity of a new government is governed by the law of the state',
said the Chief justice". Even when a new state comes into being through
secession, the Courts of the parent state are not bound by international
recognition accorded to it. The creation of the State of Bangla Desh out of
East Pakistan was precisely in point, and as to this a judge of West Pakistan
said: 'While under International Law, East Pakistan has become an inde-
pendent state, the municipal courts of Pakistan will not confer recognition
On it or act upon the legal order set up by the rebel Governmen. t'; and he

p
3 Stone Legal System and zyeTs' Reasonings 130.
4 Jilani v Government of Punjab Pal LD (5972) SC 539 at 18 1, per Hamoodur Rahnian CJ.
, See ibid.
6 }bidat,8i.
372 Legal theory

added that Kelsen's monistic theory is 'wholly inapplicable to municipal

courts".
In view of the absence of a minimum of effectiveness in support of any
Grundnorm for the international order, there is no reason to prefer a monist
explanation to a dualist one, as indeed Kelsen seemed ready to concede. It
appears then, that in postulating the primacy of international law Kelsen
was making an assumption as to what ought to be the case rather than what
actually is. Little wonder that Sir Hersch Lauterpacht, one of Kelsen's own
pupils, was moved to question-whether he was not here reverting to natural
law ideology'.
These difficulties will be avoided if the idea of a (3rundnorm is replaced by
that of an identifying criterion, accepted by courts, which would regulate the
use of the label 'international law'. Propositions concerning the conduct of
states would then be 'international law' because the appropriate tribunals
accept them as such whenever they satisfy the criterion. It is true that
different types of tribunals might view the criterion differently, or might even
accept different criteria. Notwithstanding this, there-might be here a suffi-
cient basis for constructing a more realistic theory of international law than
amonist one.
Finally, to treat war and reprisals as providing the element of force would
be acceptable only if resort to them was permitted by the international legal
order and forbidden as instruments of national policy. It is true that inter-
national law does not forbid war and reprisals entirely as instruments of
national policy, not even after the Briand-Kellogg Pact 1928, or the Charter
of the United Nations, but the object of international law is to try to prevent
these. War represents the breakdown of international law.
In the light of all this, as Professor Friedmann observed:
'Logically Kelsen should have been led to deny the character of law to inter-
national law in present international society".
In any case, in view of the differences between the connotation and function
of the word 'law' as applied to international and municipal legal orders, it
is questionable whether the attempt to construct a unifying theory is feasible.
The conclusion of many writers is that, notwithstanding the logical co-
herence of Kelsen's structure, he provided no guidance in the actual applica-
tion of the law. Thus, he showed how, in the process of concretising the
general norms it may be necessary to make a choice either in decision or
interpretation. The judge or the official concerned is already aware of that
necessity; his need is for some guidance as to how he should make his choice.
The answer is not to be found in Kelsen's teachings, but in value considera-
tions of one sort or another, which Kelsen sedulously eschewed". One should
not level this point as a criticism against Kelsen, who insisted that he was
not concerned with that aspect. To Criticise him for not having done some-
thing which he expressly disclaimed would be unfair. He set out to achieve
a limited objective, namely, to present a formal picture of the legal structure,
and what he set out to do, he did do. To say that he should have aspired to
do more is not a Criticism of what he has done, but a comment on his limited
objective.
Ibid at 230, per Yaqub AIiJ.
8 Lautcrpacht 'Kelsens Pure Science of Law' in Modern Theories of Law at pp 129-13 i
g Friedmann Legal Theory p 279.
80 Laski commented on his theory as gan exercise in logic and not in life': Graamnar of Politics
p vi.
 Th( /?ure Lheoiy 373

Another more serious aspect is that a legal order is not merely the sum
total of laws, but includes doctrines, principles and standards, all of which
are accepted as 'legal' and which operate by influencing the application of
rules". Their validity is . not traceable to the Grundnorin of the order. Are
these, then, to be lumped with values and banished from a theory of law,
even though they are admitted to be 'legal'? If so, it is a weakness in any
such theory.
Finally, although Kelsen has been hailed as having provided the outstand-
ing theory of the twentieth century from a positivist point of view, it has to
be remembered that Bentham's Of Laws in General only saw daylight after
Kelsen had made his contribution. Some differences between them are sig-
nificant. Kelsen avoided the weakness of Bentham's imperative basis, but in
some other respects Bentham's analysis is preferable to Kelsen's. The most
important of these is that Kelsen's method individuating a norm, 'If X, then
V ought to happen', minimises the regulatory function of law. This, as has
been pointed Out, stems from his obsession with sanctions: conduct is only a
condition which brings them into play or avoids them. Bentham took full
account of the regulatory function and perceived that one law prescribes
behaviour and another prescribes a sanction: they are two different act-
situations. Bentham kept them apart, while Kelsen rolled them into one.
Kelsen was also driven to the difficult conclusion that laws are ultimately
permissions to apply sanctions and that 'ought thus includes 'may' and
'can'; which Bentharn avoided. Bentham gave sanction a much broader
meaning than Kelsen. On the other hand, both of them perceived that
'constitutional law' is a part of every law as ordinarily formulated, the link-
age for Bentham being that such laws are compounded of other laws
enacted at other times and in other contexts, while for Kelsen the linkage
being their validity traceable through to the Grundnorm.
I See pp 4 5-46 ante. Cf Jilaiii r Government of Pwjab Pak LD (1972) SC 139 at 232-233.
374 Legaitheory
READING LIST

'N Ebenstein The Pure Theory of Law.

J 'N Harris 'Kelsen's Concept of Authority' (1977) 36 Cambridge LawJour-
nat 353.
J 'vVJones Historical introduction to the Theory of Law ch 9.
JWJories 'The 'Pure' Theory of International Law' (i35) 16 British Year
Book of International Law 5.
H Kelsen General Theory of Law and State (trans A Wedberg, 20th-Century
Legal Philosophy Series I).
H Kelsen 'Professor Stone and the Pure Theory of Law' (1965) 17 Stanford
Law Review 1128.
H Kelsen Pure Theory of Law (trans M Knight).
H Ketsen 14'/zat is Justice?
H Kelsen 'What is the Pure Theory of Law?' (1959-60) 34 Tuiane Law
Review 269.
H Lauterpacht 'Kelsen's Pure Science of Law' in Modern Theories of Law (ed
W Ijennings) ch 7.
SL Paulson 'Material and Format Authorisation in Kelsen's Pure Theory'
(198.0) 39 Cambridge Law journal 172.
J Raz 'Kelsen's Theory of the Basic Norm' (1974) 19 American Journal of
Jurisprudence' 94.
J Stone Legal System and Lawyers' Reasonings ch 3.
J Stone 'Mystery and Mystique of the Basic Norm' (1963) 26 Modern Law
Review 34.
Essays in Honor of Hans Kelsen (contributions to (1971) 59 California Law
Review 609-8 19, published in book form).
CHAPTER 18

Historical and anthropological

approaches

The theories hitherto considered have sought to depict the formal structure
of law and to elucidate the criterion of validity of the legal 'ought'. The
theories about to be dealt with in this and the following two chapters are
concerned with content and application. These also come under the umbrella
of positivism so far as they accept laws as they are found. The difference
between these and theories previously coi,sidered is one of emphasis, for they
are concerned with the analysis of those factors, historical, economic and
social excluded, by analysis of only form and structure. As will appear, there-
fore, a conception of law, viewed in this perspective, assumes a material and
functional aspect.
The historical outlook will be dealt with in this chapter. It comprises, on
the one hand, inquiries into the past and evolution generally with the object
of elucidating the position today. The question to be answered is to what
extent the 'oughts' of contemporary laws have been fashioned by the past.
This is what some of the jurists, who belong to what is known as the Histor-
ical School, have purported to do. On the other hand, there are inquiries
into the , past, especially into primitive and undeveloped communities, which
are conducted for their own sake in order to discover what 'law' might
appropriately be taken to mean in them. Such inquiries are distinguishable
as the Anthropological approach and will be touched on at the end of the
chapter.

HISTORICAL SCHOOL

The Historical School arose more or less contemporaneously with Analytical

positivism at the beginning- of the nineteenth century, and should be re-
garded as another manifestation of the reaction against natural law theories.
It did not emerge as something novel in European thought, for it had been
germinating long before then.- The reaction against natural law theories
provided a rich bed in which the seeds of historical scholarship took root and
spread.
The prelude to the historical approach to law is the story of the study and
reception of Roman law in Europe. The gradual disappearance and decay
of Roman law in the ages which followed the dissolution of the Roman
Empire were arrested by a revival of academic interest in that system in the
eleventh century in France and in Italy and principally at the law school in
Bologna. This new interest took the form of adding to the texts explanatory
glosses and commentaries. The Glossators accepted Justinian's boast ticat
conflicts had been eliminated from his codification, and they devoted their
ingenuity to reconciling and explaining away the many conflicts that did
undoubtedly exist. There was another more significant side to their work,
which was that they endeavoured to fit the problems of their feudal society
 - 6

into Roman terminology and thus paved the way for the later reception of
Roman law into Europe. The work of the Glossators culminated in the Glossa
Ordinaria of Accursius in the early twelfth century, which superseded all
previous glosses and came to be accepted as the final resolution of the con-
flicting opinions of individual Glossators. The scholars who followed them
were known as the Post-Glossators or Commentators. The most interesting
feature of their work is the way in which they attempted to relate the Roman
law to contemporary problems, but they used for this purpose, not the ori-
ginal texts, but the Glossa. So it was that when Roman law was eventually
received into Europe in the fifteenth and sixteenth centuries it was a diluted
version adapted from the Glossa that was received.
The Renaissance kindled fresh interest in the teachings of the Romans
themselves. The outstanding name in this connection is that of Cujas, a
Frenchman, who resorted to the Roman originals underneath the accumu-
lated silt of commentary and gloss. He did more: he was the first scho!ac to
understand Justinian's Corpus Juris in historical perspective. It is difficult to
appreciate nowadays how lacking in historical sense people were in those
days. The tendency was to regard the Corpus Juris
more or less as a simul-
taneous product, rather than as a collection of materials which had been
changing and developing over centuries. More than one hundred years
spanned the jurists of the Classical period, whose writings comprise the Di-
gest, while between them and Justinian another three centuries elapsed. This
lack of historical sense led to elaborate and fanciful explanations of differences
which were easily explicable on historical grounds. The admirable work of
Cujas, however, was confined to the academic sphere and failed to penetrate
through to practice. For this there was good reason. As long as Roman law
remained 'the law' in the countries of Europe, inconsistencies had to be
reconciled and historical explanations of their origin were of no avail. The
living law could not be sel f-contradictory. Accordingly, there developed a
gulf between the academic jurist and the practitioner, which also explains
shy the historical approach remained for so long in the background.
The position of Germany at the start of the nineteenth century deserves
special mention, since this was the cradle of the Historical School. Roman
law functioned as the common law subject to canon law, imperial enactments
and customary law, so far as this was still extant. The Roman law was
assumed to have been accepted as a whole, not in fragments, in the form of
J ustinian's codificaijor, as found in the works of the Glossators and Com-
mentators'. The practical problems which lawyers had to solve had altered
with the ages, but the methods of applying the law differed little from that
of the Italian courts in the time of the Glossato,-s. Moreover, the panorama
of the law as a whole was confusing, for local variations were innumerable.
In these circumstances a proposal was made by Thibaut, of Heidelberg, in
1814 for a code on the lines of the Code Napoleon'. This was immediately
answered by von Savigny ( 1 779- 186 1) in an essay entitled
our Age for Legislation and jurisprudence, On the Vocation of
a new ju with which, in the words of Ihering,
risprudence was born. So powerful was his influence that the move
towards co
dification was effectively halted and it was not until 1900, after
i Summarisj by \%'indscheid in
2 For review of the events of Lekybuth des Parulekienrechis.
181 4 leading to Savigny's publication,see Stainmier 'Funda-
mental
Tendencies in M dezn Juthpdcnce' (1923) 21 Mid, LR 623
3 Savigny Von, Beruf wzsCTCr
2efir Gesezgebwzg und Rechiszdssenchaft, hereafter referred to as
'Ox the Vocation'.
 Historical and anthropological approaches

many years of sustained agitation, that Germany ultimately acquired hr

code, the Birgerliches Gesetzbuch.
Although Thibaut's proposals were the immediate stimulus for the rise of
the Historical School, other factors had combined to prepare the way. The
first of these has already been mentioned, namely, the reaction against the
unhistorical assumptions of the natural law theorists. As these vere exposed
as hollow and false, so the need was felt for a realistic investigation in:o
historical truths. Secondly, the attempt to found legal systems based cri
reason without reference to past or existing circumstances had proved to he
revolutionary, culminating in the French Revolution, with all its brutalities.
A reaction set in against the rationalism that promoted such barbarity. This
was a factor which weighed heavily with Savigny, a conservative nobleman,
who acquired a deep and lasting hatred for the revolution. Thirdl. the
French conquests under Napoleon aroused the nationalism of Europe.
Fourthly, the French had spread the idea of codified law, and the reaction
against anything French carried with it hostility to codification. Finally, the
influence of certain early pioneers in the new way of thinking should not be
ignored. MontesqUieu had maintained that law was shaped by social. geo-
graphical and historical considerations; Burke in England had voiced the
same sentiment by pointing to the importance of tradition as a guide to
social change'. These factors, boosted by the genius of Savigny, started Euro-
pean thought along a new, road. and was nurtured in the nauraI
Savigny was born in Frankfurt in 1779,
law discipline. His interest in historical studies was kindled at the uni\ eriit!c5,
h en he
first of Marburg and then of Gottingen, and was greatly encouraged
became acquainted with Niebuhr at the University of Berlin. He also ac-
quired a lasting veneration for Roman law. In 1803 appeared his first major
which was considered in
work, Das Rechi des BesiteS (The Law of Possession),
stinctive method became
Chapter 13, in the last section of which Savigri's di
apparent. He traced the process by which the original Roman doctrines of
possession had developed into the doctrines and actions prevailing in contem-
porary Europe. Savigny next set himself the task of laying the foundation for
future historical labours by producing a basic history of the development of
Roman law in mediaevl Europe. It was his thesis that Roman law had been
received into Germany so long ago that her legal soul had become a mixture
The History of Roman Lai in the
of Roman and local laws. In this great work,
which appeared in six volumes between 1815 and 1831, he
Middle Ages, The
analysed the Rortian element to its roots, and in his other great work,
he analysed Roman and local lass. These two
System of Modern Roman Law,
togetherform an imperishable monument to his learning and industry. He
opposed to reform;
was also supremely conscious of his mission, which was not
it was to preach the warning that reforms, which went against the stream of
. He emphasised that the muddled and
a nation's continuity, were doomed 5 -
outmoded nature of a legal system was usually due to a failure to comp re
hend its history and evolution. The essential prerequisite to the reform of
German law was, for him, a deep knowledge of its history. Historical research
was therefore the indispensable means to the understanding and reform of
true, but none the less
the present, arid he said, somewhat belatedly it is
clearly:

Refiectio".s on the Reo1,t10' in France 1790.

Prij33Iafl
5 Sasigny was
 378 Legal thtoy

The existing matter will be injurious to us so long as we ignorantly submit to

it; but beneficial if we oppose to it a vivid creative energy—obtain the mastery
over it by a thorough grounding in history and thus appropriate to ourselves
the whole intellectual wealth of preceding gencrations'.
His warning, then, was that legislators should look before they leap into
reform, but he spoilt this advice by ov
er-generalisation The core of Savigny's
thesis is to be found in his essay On site Vocation.
The nature of any particular
system of law, he said, was a reflection of the spirit of the people who evolved
it. This was later characterised as the Volksgtht
devoted disciple. All by Puchta, Savigny's most
mon c onsciousness. Helaw, according to him, is the manifestation of this com-
wrote,
Law grows with the growth, and strengthens with the strength of the people,
and finally dies away as the nation loses its nationality".
A nation, to him, meant only a community of people linked together by
historical, geographical and cultural ties. The boundaries of some nations
may be clearly defined, but not of other nations, and this is reflected in the
unity or variety of their respective laws. Even where the unity of a people is
clear, there may he within it 'inner circles' of variations, such as cities and
guilds. He then went on to elaborate the theory of the Volksgeist
by contend-
ing that it is the broad principles of the system that are to be found in the
spirit of the people and which become manifest in customary rules. From
this premise it followed that law is a matter of unconscious growth. Any
law-making should therefore follow the course of historical d evelopment.
Custom not only precedes legislation, but is superior to it, and legislation
should alas conform to the popular consciousness. Law is thus not of
universal application; it varies with peoples and ages. The Volksgeiss
cannot
be criticised for being what it is. It is the standard by which laws, which are
the conscious product of the will as distinct from popular conviction, are to
be judged. An individual jurist may misapprehend the popular conviction,
but that is another matter. In place of the moral authority, which the natural
lawyers of the preceding age had sought to posit behind law, the Historical
School substituted social pressure, which provided the bridge between the
work of the Historical School and that of the Sociological School'.
This view of the nature of law dovetailed with Savigny's historical method
of work, for if law is a reflection of people's spirit, then it can only be
understood by tracing their history. It is clear, all the same, that in his revolt
against the lack of historical sense, which characterised natural law theory,
he swung the pendulum of legal thought too much the other way. To point
out Savigny's exaggerations, however, is not to detract from the importance
of his contribution
On the idea of the Volksgeisi
several comments should be made.
(t
There is an element of truth in it, for there is a stream of continuity
and tradition'; the difficulty lies in fixing it with precision. Savigny,
6 Savigny I ntroduction to
The System of Moder,, Roman Law.
7 Puchta Oudfr,r, of the Scsen(e (ti- Hastic)
$ For American parallels see Sumner Fotkways, on which see Sawer Law in Society; Carter Law:
The Ideal and the Actual in Law' (1890) 24
g It is Am LR 752.
with Interesting
the past as ittoisnote that the Soviet Uiiion, which claimed to make as complete a break
see P 415 post. possible to conceive has found itself unable to slough off its traditions:
 Hulorica! and anthropologzcal app rache.s 379
however, made too much of it. As with most pioneers, he drew too
sweeping an inference from modest premises. The idea of the
Volksgeist certainly suited the mood of the German peoples. It was
a time of the growing sense of nationhood, a desire for unification,
an interest in the dramatic marking the appearance of the Romantic
movement. German thinking, also, seems prone to personify the
abstract, and to attribute a mystical coherence to ideals. Gierke's
personification of corporate . existence, considered in Chapter 12,
was an example: Savigny's Volksgthl is another. The idea of a Voiks-
geist is acceptable in a limited way. Thus, the psychological associa-
tions built up around the law-making institutions in a particular
state could be regarded as a manifestation of the Geist of that com-
munity". Savigrsy, however, extrapolated his Volksgtht into a sweep-
ing universal. He treated it as a discoverable thing; but it is common
experience that even in a small group (afortiori in a nation) people
hold different views on different issues. 'The' spirit does not exist.
So Savigny's thesis is probably best treated as the juristic contri-
bution to Romanticism. In this it would appear that his historical
sense deserted him, for it amounts, in effect, to the adoption of an
a priori preconception. It will be remembered that in dealing with
possession he did much the same thing, namely, to draw an infer-
ence from limited data, and then to use it as an a priori talisman".
() The transplanting of Roman law in the alien climate of Europe
nearly a thousand years later is inconsistent with Savigny's ida of
a Volksgdst. It postulates, if anything, some quality in law other
than popular consciousness. His endeavour to establish that the
reception of Roman law had taken place so long ago as to make
the Germanic Volksgcist an expression of it was unconvincing. Apart
from this, a survey of the contemporary scene shows that the Ger-
man Civil Code has been adopted in Japan, the Swiss Code in
Turkey and the French Code in Egypt without any apparent vio-
lence to popular susceptibilities. The French Code was also intro-
duced into Holland during the Napoleonic era, displacing the
Roman-Dutch common law, and it is significant that after the
overthrow of Napoleon the Dutch never went back. They had,
however, taken Roman-Dutch law to their colonies in the Cape of
Good Hope and Ceylon (now Sri Lanka) with the odd result that
it flourishes today in two such dissimilar national climates as south-
ern Africa and Sri Lanka, although it has long since disappeared in
its homeland. The reception of English law in so many parts of the
world is also evidence of supra-national adaptability and resili-
ence". Indeed, the protest in South Africa today is that far too
much English law has been allowed to overlay the 'national'
Roman-Dutch law.
() The Volksgeist theory minimises the influence which individuals,
sometimes of alien race, have exercised upon legal development.

io See pp52 etscq antc;p465post.

ii Some of the criticisnu that follow have been adapted from cbs jand 2 of Allen Law ix iA
Makiag.
IS Walton 'The Historical School ofJurisprudence and Transplantation of Law' (1927) 9JCL
(3rd series) 183. Cf Pound 'Comparative Law and History as Bases for Chinese Law ('947-
48) 61 Harv LR
 380 Legal theory

Every man is a product of his time, but occasionally there are men
who by their genius are able to give legal development new direc-
tions. The Classical jurists of Rome, Littleton, Coke, may be cited
as examples. This is especially the case in modern times when new
doctrines are deliberately introduced by a handful of policy-makers.
Ehrlich pointed out that customs are norms of conduct, juristic laws
are norms for decision. They are always the creation ofjurists'3.
() The last two points lead to the further objection that the influence
of the Volksgeist is at most only a limited one. The national character
of law seems to manifest itself more strongly in some branches than
in others, for example in family law rather than in commercial or
criminal law. Thus, the general reception of Roman law in Europe
did not include Roman family law. Even more significant is the fact
that the successful i ntroduction of alien systems into India and Tur-
key affected the indigenous family laws least of all"'. The inference
appears to be that very few branches of law, perhaps only family
law and succession to some extent, are really 'personal' to a nation.
A further distinction may have to be drawn between the creative
influence of the i'olksgeist
and its adaptative and abrogative influ-
ence. It is undoubtedly the case that new doctrines have been, and
are constantly being, introduced by individuals. The most that in-
digenous tradition can do is to bring about practical modifications
of these gradually and by degrees. Turkey provides an example,
where new marriage laws, which were contrary to the existing tradi-
tional laws, were introduced as a matter of deliberate policy. The
result from ajuristic point of view was a fascinating process of action
and reaction between the old and new law' 5 . It might be thought
that this bears out Savigny's contention that legislation should con-
form to existing traditional law, or it is doomed. In a sense so it
does, but an example such as this also reveals something else. It
shows that in modern times the function of the Volksgeiss is that of
modifying and adapting rather than creating, and that, in any case,
even this function manifests itself only in the very 'personal'
branches of the law. There is less evidence today of its creative force
and none of its influence over the whole body of the law. f one
thinks in the time-frame of the moment, the Volksgeist is of little or
no relevance, for many existing laws have come from 'outside'.
Savigny's theory only makes sense to a limited extent in a contin-
uum. Even so, the Volksgeis: is discernible only in retrospect, but he
sought to make it a test of validity, ie to use it in the present time-
frame where it is irrelevant This confusion in his frames of reference
left his theory open to attack.
(5) Law is sometimes used deliberately to change existing ideas"; and
it may also be used to further inter-state co-operation in many
spheres. Even in Germany one may instance Bismarck's shrewd and
13 EtrljchFundamental Principles of the Sociology of 14w
Ferior&ahzy of Lawwrr, Pound (trans Moll) ch ig. Cf Weyrauch 77w
Interpretations of Legal Hi.rtoiy ch 6.
14 S
et L1çstc1n'71l Reception of Western Law in Turkey' (1956) 6 Annales de la Faculté de
Droit d'Istanbul to, ss; 'The Reception of Western Law in a Country of a Different Sociai
and Economic
parado 6g, 213. Background: India' (1957-38) 8-9 Revista del Instituto de Derecho Corn-
15 bpset*.
16 Eg in India, on which see Stone
Socjj Dimenjionj ofLew and Justice, pp '12-114
 historical and arthropohgicai approaches 381

successful attempt to Cut the ground from under, the feet of the
socialist movement by introducing the Railway and Factories Acci-
well before social conditions were ripe".
dent Law 1871, Volksgeist, but in the
(6) Many institutions have originated, not in
convenience of a ruling oligarchy, eg slavery.
Many customs owe their origin to the force of imitation rather than
(7)
to any innate conviction of their righteousness.
Some rules of customary law may not reflect the spirit of the whole
(8)
population, eg local customs. Savigny, it will be remembered, did
;thin
allow for these by recognising the existence of 'inner circles' ­
Volksgeist,
a society. The question remains: if law is the product of a
how is it that only some people and not all have evolved a special
rule? On the other hand, some customs, eg the Law Merchant, were
cosmopolitan in origin: they were not the creatures of any particular
nation or race.
In short, it is not at all clear who the Volk are whose
Gd-SI determines the law.
() Important rules of law sometimes develop as the result of conscious
and violent struggle between conflicting interests within the nation,
and not as a result of imperceptible growth, eg the law relating to
trade unions and industry. Evolution does not follow an inexorably
determined path. came from Savign's oppo-
(to) A different objection to the Volksgeist
nents They pointed out that, taken literally, his thesis would thwart
the unification of Germany permanently by emphasising the indi-
viduality of each separate state and by fostering a parochial sense
of nationalism.
(it) An inconsistency in Savigny's work was that, while he was the
doctrine, he worked at the same time
protagonist of the Volksgeist
for the acceptancr of a purified Roman law as the law of Germany.
There was in Germany in his day a vigorous school of jurists who
strongly advocated the resuscitation of ancient Germanic laws and
customs as the foundation of a modernised-German system. The
leader of this school, Eichorn, was a fellow professor with Savigny
at the University of Berlin. Savigny never opposed the work of
Eichorn, but he opposed the expulsion of Roman law". The obvious
objection to Savigny is that his endeavour to preserve Roman law
as the law of Germany was inconsistent with his idea of the Volksgeisi
of the German nation. One explanation lies in his personal devotion
to Roman law. Another is that in his earliest work on possession he
had been able to expose the misinterpretations of Roman law by
later commentators, and this possibly implanted in his mind the
idea that the Romans were better craftsmen than incompetent mod-
erns. Even so the point apparently overlooked by Savigny was that,
whatever may have been the case with possession in other branches
of the law these post-Roman interpretations were 'adaptations',
emporary needs. It might
rather than 'perversions', to meet con t
even be argued that the so-called 'misinterpretations' were indeed
of each different country. Another and
expressions of the Volksgeisl
better reason for the preservation of Roman law might have been

17 Reichsh.ftpJLc/l2gesetZ 181. C..

18 On this se Walton The Historical School oF Jurisprudence and the Transplantation
Law' (1927) 9JCL (3rd series) 183.
 382

that, in view of its long established reception, to dispense with it

would have unsettled three centuries of developmen
account for the t . In order to
that at that original reception of an alien system Savigny argued
date the Germanic law was incapable of expressing the
Volkgejst This questionable pr oposition fails to show how an alien
system was better able to express it than the indigenous law. Far
from the law being a reflection of the Volksgeist,
the Volksgthi had been shaped by the law. it would seem that

Such are the

objections to Savigny's idea of the Volksgeis:.
Other aspects of
his work also need mention. His veneration for Roman law led him to
advance certain dubious propositions For instance, there was in Roman law
a strict adherence to the doctrine of privity of
c ontractwith few exceptions,
ie no one other than parties to a contract can be entitled or obliged under
it. The law of negotiable ins
truments, of course, is a contradiction of this.
Savigny accordingly condemned negotiable instruments
as 'logically impos-
This reveals one of the more unfortunate results of devotion to a
Postulate as well as the limitations of the Volksgeisi
idea. It could hardly be
supposed that the populace had any feeling in the matter one way or the
other, while the feelings of the co
of negotiable instrumen t mmercially minded were strongly in favour
s Indeed, the crucial weakness of Savigny's
approach was that he venerated past institutions withou
suitabili t y to the present. t regard to their
The Volk51,
according to Savigny, only formulates the rudimentary
principles of a legal system. He saw clearly enough that it could not provide
all the detail that is necessary. He accordingly maintained that as society,
and consequen t
ly law, becomes more complex, a special body of persons is
called into being whose business it is to give technical, detailed expression to
the Volksgeisg
in the various matters with which the law has to deal. These
are the lawyers whose task is to reflect accurately the prevailing Geist.
is nothing but a fictitious This
assu mption in no way related to reality, to cover
up an obvious w
eakness in his principal contention. As Sir Carleton Allen
said, it is not possible to pretend that the rule in
Shelley's Case, for instance,
is rooted in the instincts of the British'. Savigny's thesis, however,
another and even more awkward i contained
of the Volksgeisj mplication. The only persons who talked
were academic jurists unversed in the practical problems of
legal administration Therefore, the Volksgtht
t resolved itself into what these
heorists imagined it to be. On the other hand, it is possible that there is a
limited sense in which Savigny's contentio fl is
been pointed out that the Volksgejt a cceptable. It has already
manifests itself, if at all, only in a few
branches of the law and, even in these, by way of modifying and adapting
any innovations that may be introduced So, Savigny's proposition might be
taken to mean
legislators took simply
accoun that in these spheres of the law it would be helpful if
t of tradition when framing new laws.
Co
nsistently with this theory, Savigny further maintained that legislation
was subordina t
e to custom. It should at all times conform to the
Volksgeist.
It has
of been pointed
codifi cation at some out that he did not oppose legislation or reform by way
appropriate time in the future, but his attitude was

ig Sarigris OhligazioncnrecIjJj p
20 aCarrer Law: Its Ongi,, Growt, and Funclio..
 Historical and anthropological approaches 383

generally one of pessimism 2 . He certainly opposed the project of immediate

the first place, he pointed to the defects
codification on several grounds.
of contemporary codes which, to his mind, preserved adventitious, subsidiary
and often unsuitable rules of Roman law, even while they rejected its main
a code, in his
principles. Secondly, in matterson which there is no Volksgeist,
opinion, might introduce new and unadaptable provisions and so add to the
prevailing difficulties. Such an argument would appear to have been disposed
of by the subsequent experience of many countries. Thirdly, he argued that
codification could never cater exhaustively for all problems that are likel to
arise in the future and hence was not a suitable instrument for the develop-
ment of law. Fourthly, he suggested that an imperfect code would create the
worst possible difficulties by perpetuating the follies underlying it. On the
other hand, when lawyers were in a position to create a perfect code, no
code would then be necessary since the lawyers could adequately cope with
the problems that arise. Fifthly, he argued, even more oddly, that codifica-
tion would highlight the loopholes and weaknesses of the law and so encour-
age evasion. The short answer to the last two contentions is that they leave
Out of account the possibility of amendment and alteration. Codication, in
Savigny's view, should be preceded by 'an organic, progressive, scientific
of the law', by which he meant of course historical study. Reform
study
should await the results of the historians' work. It is true that reformers
should not plunge into legislation without paying some heed to the past as
well as to the present. Savigny was over-cautious in this respect, for as Allen
obseed. his doctrines had the unfortunate tendency 'to hang traditions like
fetters upon the hands of reformative enterprise". o little in fact did the
historians contribute in the years that followed that drastic legislative action
became imperative; which it did in 1900.
Savigny's work, on the whole, was a salutary corrective to the methods of
the natural lawyers. He did grasp a valuable truth about the nature of law,
but ruined it by overemphasis.
Another writer of whom some mention should be made is Gierke (1841
1921)', who was profoundly interested in the 'association', which has always
exercised a peculiar fascination for German thinkers. Associations have sig-
nificance in law, and are sometimes treated as persons. As seen in Chapter
12, Gierke denied that the recognition of an association as a person depended
on the state. The reality of social control lies in the way in which autonomous
groups within society organise themselves. He then proceeded to trace the
progress of social and legal development in the form of a history of the law
• and practice of associations and propounded a classification of associations
on the following lines: firstly, he contrasted groups organised on a territorial
basis, such as the state, with those organised on a family or extraterritorial
basis: then he contrasted associations founded on the idea of fraternal colla-
with those founded on the idea of domination
boration (Genossenchaften)
(Herrschaften).
In his view legal and social history is most accurately por-
and the Herrschafl.
trayed as a perpetual struggle between the Genossen.schaft
Thus, in feudal society men were organised in tight hierarchical groups based

2 For a parallel dcvelopmcflt in America, see Field 'Codification' (1886) 20 Am LR t; opposed

by Carter 'The Province of the Written and the Unwritten Law' (iSgo) 24 Am LR i. Sec
further Field (i800) 24 Am LR 255; Willston 'Written and Unwritten Law' (1931) 17 Am
89-93, 233-239, 291.
BAJ 39; Gray The .Vosure and Sources of the Law (2nd edn) pp
3 Allen P17.
.Vatum! La,- a,'.d the T,,s', of Society z500-,8os (trans Barker) and Barker's 'introduction'
384 Legal theory

on the holding of property; this system was opposed in the Middle Ages by
the emergence of collaborative groups such as the guild and the city. These
degenerated in turn, and with the Renaissance and Reformation the state
appeared as the significant factor in social organisation. In his own day
Gierke felt that the collaborative principle had prevailed and that the state
encouraged the growth of independent collaborative organisations within its
own framework. The pivot of social control, then, lay not in state organisa-
tion but rather in these collective bodies within the state.
Gierko represented a collectivist, rather than an individualist, approach.
To this extent his work touched on that of the sociologists, but his interpre-
tation of this development on historical lines entitles him to be ranked among
the historians. His doctrines of mass psychology, though largely fanciful,
anticipated modern inquiries. He also never quite succeeded in reconciling
the independence of autonomous bodies with the supreme power of the state.
He devised a pyramidal structure, which made society consist of a hierarchy
of corporate bodies culminating in the state. He wished at the same time to
defend the independent existence of the lesser corporate bodies and to limit
absolute state power by arguing that the state was the expression of reason
and the sense of right. This, of course, was easily brushed aside by those who
wished to use Gierke's doctrines as a justification for absolute totalitarian
power.

THE DIALECTIC INTERPRETATION

Savigny and his followers did not face the question of how the l 7olksgeist is
formed. His theory therefore appeared to be somewhat incomplete and this
opened the was' for the reintroduction of a naturalist explanation; it became
possible to posit again an immutable ideal behind evolution. Variations in
historical development emerge in the course of progress towards the realisa-
tion of an ideal. If there is some unchanging ideal at the root of it all, then
all systems, notwithstanding their evolutionary variations, should share cer-
tain common features; which, according to this view, they do. This is the
explanation of such resemblances, not so much conscious borrowing and
analog-v. Such an idealised historical interpretation of law is associated with
the name of Hegel ( 1 77 0 - 18 3 1 )'- It is so abstract as to bear little relation to
fact an is far removed from the work of men like Savigny and Gierke6.
Hegel distinguished between laws of nature and positive laws. The former
are outside human consciousness and can neither be improved nor assisted
by men; they have to be accepted because they exist. Positive laws, on the
other hand, are man-made and, as such, do not have to be accepted because
they exist. This would seem to be appsoaching the distinction between the
'is' -and the 'ought', but with Hegel that distinction tends to be blurred. He
also proceeded to distinguish between the philosophy of law, which concerns
the rationality of law, and the study of the positive law itself. Thought is the
rational process of synthesising contradictions and of reconciling the general
with the particular, the abstract with the concrete. Legal philosophy, being
rational, should conceive of law in a rational way. Philosophy is only con-
cerned with reality so far as this is rational, ie so far as it is the rational
reconciliation of appearance and essence. So, mere factual existence is not
Hegel Pkdosopity of Right (trans Knox). See also Stace The Philosophy of Hegel.
6 In particular, it is noteworthy that Hegel did not share Savigny's hostility to legislation, and
denounced such an attitude: The Philosophy of Right §211.
 Historical and anthropological #'sacAs 383

'real' in this sense, since it might be the product of fortuitous (irrational)

factors. When therefore Hegel asserted, 'That which is rational is real and
that which is real is rational', this remark should be understood in the
context of his approach and the fact that he was only concerned with ideas.
Hegel sought to explain history on an abstract, evolutionary plane'. The
idea of evolution as expounded biologically by Darwin was shortly to influ-
ence human thinking profoundly. Hegel, however, a little earlier saw it
unfolding as a process of action and reaction between opposites, thesis and
anti-thesis, which results in their synthesis, the whole broadening slowly
towards the realisation of freedom. The 'idea', says Hegel, has as its antithesis
the 'idea outside itself', which is nature. The synthesis is 'spirit' (of which
possibly an aspect). The subjective spirit (thought and
Savigny's Volksgeisl is
consciousness) and its anti-thesis, the objective spirit (legal and social iristi-
lutions) are synthesised in the absolute spirit. Law comes into the category
of objective spirit. Law and other social institutions are the result of free
subjective will endeavouring to realise freedom objectively. In this develop-
ment the starting-point is the idea of freedom, which implies will. Freedom
and will are complementary. Personality arises when the will becomes mdi-
vidualised. The idea of freedom has a three-fold sphere of operation. There
is. first, the freedom of the individual in relation to himself, which concerns
his proprietary rights. Secondly, there is the perception of freedom in others
in conformityithwthe common will of all, which brings in contract. Thirdly,
the freedom of the individual opposes itself to the common will, which is
wrongdoing. Taken in turn, and stated baldly, the explanations are as
follows. As to propert y , the free will of a person is imposed on a thing, which
is unfree and impersonal. A thing has no end in itself and only acquires one
from the will of the individual. The right of property is. therefore the first
manifestation of freedom. Contract is approached from the angle of property.
Not only may property be the subject of one person's will, but it may also
come within the purview of another person's will. When a thing is held by
virtue of the individual's conformity with their mutual will, the matter falls
into the sphere of contract. Wrongdoing occurs when the will of the indivi-
dual is opposed to the general will. The conflict then brings about morality,
which is the anti-thesis of freedom. Social ethics is the synthesis between
these two. Social ethics starts at the level of the family. When members of
the family become independent, society comes into being with its attendant
institutions of law etc. Society is then the anti-thesis of family. The synthesis
is the state, which combines freedom and social co-existence. In the state
Hegel found the highest achievement of human endeavour, and to be a
member of the state was to him the supreme objective. The individual is the
product of his culture and age, which are realised only through the state.
Law and state are thus concrete manifestations of the national spirit, which
together with others are in turn a manifestation of a world spirit.
On all this it might be remarked that one seeks in vain for the facts to
which these formidable abstractions relate. For the purpose of his demon-
stration of conflict Hegel attributed objective existence to values and natural
phenomena. It should be pointed out that the conflict between thesis and
anti-thesis is a logical contradiction, which is not the case with natural
phenomena. If he had confined his attention to the action and reaction of

For a critique of the inevitability of historical dcvdopment. see Popper The Open Sode asd
its Esemics, especiall y vol II. See also The Poco't y of Historicism. -
386 Legaitkeo,

ideas as evidenced by historical fact, he might, well have been led to other,
though less imposing, conclusions. Besides, to treat values as having objective
existence is to make an 'is' out of'ought'. All in all, his highly abstract
scheme is nothing but a verbal juggle into which divergent interpretations
can be fitted. It is therefore not surprising to find it being utilised in support
of two such dissimilar ideologies as Nazism and Marxism'.

THE BIOLOGICAL INTERPRETATION

A variant of the historical interpretation and one which also sought to find
the clue to the nature of contemporary law in evolutionary processes is the
so-called Biological approach. The publication of Darwin's On the Origin of.
Species in 1859 was destined to affect human thought profoundly in many
directions. Side by side with this there was the rise of psychology as a new
fashion in thinking with a concomitant preoccupation with group psy-
chology. Its effect in legal theory is to be seen in the interpretation of law
as the product of evolutionary forces in connection with which the work of
Herbert Spencer (1820-1903) is characteristic'.
Darwin's thesis was that evolution was a struggle for existence in which
those creatures that are able to adapt themselves to changing conditions
survive. In human beings the survival of the fittest called for the development
of the social instinct. Spencer also adopted the idea that a collection of
individuals form a community. He promulgated three fundamental laws of
society, the principles of persistence of force, the indestructibility of matter,
and the continuity of motion. The combination of these principles with other
laws" results in the process of evolution, which is that process by which an
amorphous, homogeneous mass evolves into a series of distinct, orderly bod-
ies . Spencer then proceeded to draw parallels between the social organism
and biological organisms.
The adaptation of the individual to social conditions is due to heredity.
He inherits a social instinct from his ancestors, including ideas of morality,
obligation, right and justice. In this way different sociological groups evolve
differently and so, too, do their laws and institutions.
There are two stages in the progress of civilisation. In the first, which is
primitive, war and compulsion figure prominently; in the second, which is
advanced, peace and freedom are prominent. Spencer, however, was a strong
individualist with a laissez-faire approach to government. He denied the
complete absorption of the individual in the state and maintained that the
duty of government was to secure the greatest possible amount of individual
freedom. He abhorred any form of welfare activities by the state. Each person
may do what he likes, provided he does not infringe the equal freedom of
others. His theory of evolution together with his laissez-faire idea of govern-
ment led him to a reactionary position with regard to legislative reform. He
held that all conscious legislative attempts to improve social organisations
-were doomed to failure and that Man must await the working Out of evo-
!utlonary laws.
Whatever may have been left of Spencer's theory has disappeared with the
8 For this perversion, see Friedrich Tkc Philosophy of L4w in Historical Perspective
ch 15.
9 Social Statio(i85o);Justice ( 189 0. See also Sabine A History of Political Thoej ch 32.
- The l.aw of the persistence of the relations among forces, the law that force is never lost but
only transformed, the law that everything moves along the tine of least resistance or greatest
attraction, and ihe law of rhythm or alternation of motion.


Historical and anthropological approaches 387

advent of the welfare state; his biology would now be dismissed as crude.
The objections to his theory were epitomised by Mr Justice Holmes, who
said: -
'The libert y of the citizen to do as he likes so long as he does not interfere %,i-_h
the liberty of others to do the same, which has been a shibboleth for sore
well-known writers, is interfered with by school laws, b y the Post Office, L
every state and municipal institution which takes his money for purposes
thought desirable, whether he likes it or not. The Fourteenth Amendment does
not enact Mr Herbert Spencer's Social Statics"'.
Spencer's work does represent, however, the transition from the historical
approach to the sociological.

THE RACIAL THEORY OF LAW

This was the theory of law that prevailed in National Socialist Germany
under Hitler. It was nothing more than an emotional and militant adapta-
tion of theories and ideas in support of the quest for power. From the
biological interpretation was derived the idea that law was inherited b\
blood. The Historical School was made to lend its support in seeking the
roots of the law in the past and for the nationalistic flavour that was imparted
to it. The writings of Hegel, who showed how the individual could be inte-
grated into society, were utilised so as to suppress individual rights.
The National Socialist theory of law revolved round two cardinal princi-
ples, the 'leadership principle' and the 'racial principle'. The application of
the first was as follows. The state is a group and a group has no strength or
unity without a leader. The leader, therefore, becomes the mystical personi-
fiation of national unity. Law and state mean the same thing, and since the
leader is the embodiment of the state, law is what the leader commands.
This had three implications. (a) Unquestioning obedience was demanded.
(b) Law should serve political ends. (c) Nothing, not even reverence for
statutes, should stand in the way of implementing the will of the leader.
According to the 'racial principle' law was inherited by blood. It should i
serve the ends of the state and its policies. (ii) It should help to preserve
racial purity, for the state cannot be strong unless it is racially pure. This
was the justification for the persecution of the Jews. (iii) The Code of 1900
was attacked on the ground that its basis was Justinian's Byzantine version
of Roman law. Therefore, besides being an alien system, it was condemned
as being 'Oriental' and 'Jewish' in origin. (iv) The only international system
which could be tolerated was a Nordic one, ie one based on a blood tie. The
League of Nations could therefore command no respect. Every state has a
natural privilege and power to prevail over other states and to take their
land as room for its people. Any treaty which attempted to restrict this
privilege could rightly be ignored.
It is no longer necessary to dwell on the details of this perverted conception
of law, nor to enter into a refutation of it. The answer of a sort that did come
at the end of a world shattering war was effective enough.

ii Loc/o,r r ..Veo York 178 us 45 at 75 (1904).

 388 Legal OiroDr

ANTHROPOLOGICAL APPROACH

A nthropological investigations into the nature of primitive and undeveloped

systems of law are of modern origin and might be regarded as a product of
the Historical School. Pride of place will here be accorded to Sir Henry
Maine (1822-1888), who was the first and still remains the greatest repre-
sentative of the historical movement in England"'. It is not easy to place
Maine's contributions to the theory of law. He began his work with a mass
of material already published, on the history and development of Roman law
by the German Historical School, and he was able to build upon that and
also to bring to bear a more balanced view of history than is found in
Savigny. Maine, however, went further. He was learned in English, Roman and
Hindu laws and also had knowledge of Celtic systems. In this respect he parted
company with the German historians. Instead of stressing the uniqueness of
national institutions, he brought to bear a scientific urge to unify, ussify and
generalise the evolution of different legal orders. Thus heinauguraicd both
the comparative and an thropological approaches to the study oflaw, and history
in particular, which was destined to bear abundant fruit in the years to come".
Maine set out to discover whether a pattern of legal development could
be extracted from a comparative examination of different systems, especially
between Roman law and the common law. What he sought were laws of
historical development. He was led to distinguish between what he called
'static' and 'progressive' societies. The early development of both types is
roughly the same and falls, in his thesis, into four stages. The first stage is
that of law-making by personal command, believed to be of divine inspira-
tion, eg Themistes of ancient Greece, and the dooms of the Anglo-Saxon
kings. The second stage occurs when those commands cry s tallise into cus-
toms. In the third stage the ruler is superseded by a minority who obtain
control over the law, eg the pontiffs in ancient Rome. The fourth stage is
the revolt of the majority against this oligarchic monopoly, and the publi-
cation of the law in the form of code, eg the XII Tables in Rome.
'Static' societies, according to Maine, do not progress beyond this point.
The characteristic feature of 'progressive' societies is that they proceed to
develop the law by three me thods—fiction, equity and legislation; Ample
examples of the use of fiction are to be found in Roman and early English
law. The operation of equity and legislation has been considered in the
earlier chapters of this book.
As a general inference Maine believed that no human institution was
permanent, and that change was not necessarily for the better. Unlike
Savigny, he favoured legislation and codification. He recognised that the
advance of civilisation demanded an increasing use of legislation, and he
often contended that the confused state of English law was due to its pre-
eminently judge-made character. Codification is an advanced form of legis-
lative development, and represents the stage at which all the preceding
phases of development are woven into a coherent whole. He also did not
share Savigny's mystique of the Volksgeisz.

12
The opinion is entured that neither Maitland nor Holdswonh has made the contributions
to legal theory that were made by Maine.
13 Maine Ancien! Law (Pollock's edn). At
th e time of its publication his knowledge of Hindu
law was not as profound as it became later,
for he only took up his Indian appointment in
the following year.
 Historical and anthropological approaches 38.9

Side by side with these doctrines Maine developed another thesis. In early
societies, both 'static' and 'progressive', the legal condition of the individual
is determined by status, ie his claims, duties, liberties etc are determined by
law". The march of 'progressive' societies witnesses the disintegration of
status and the determination of the legal condition of the individual by free
negotiation on his part. This was expressed in one of Maine's most famous
generalisations
'The movement of progressive societies has hitherto been a movement frcrn
Status to Contract'".

An evaluation of Maine's work must take into account the pioneer charac-
ter of his comparative investigations. Since his day the study of anthrop-
ology has developed into a separate branch of learning. Modern research
over a wider field and with better equipment has corrected Maine's work at
many points, and departed from it at others. One should be charitable about
his errors and marvel at his genius in accomplishing so much. Some comment
should, however, be made about the development from status to contract.
There was much to support it. In Roman law there was the gradual' ameh-
oration of the condition of children, women and slaves, the freeing of adult
women from tutelage, and the acquisition of a limited contractual capacity
by children and slaves. In English law the bonds of serfdom were relaxed
and eventually abolished. Employment came to be based on a contractual
basis between master and servant. Maine's own age was one in which legis-
lation was removing the disabilities of Catholics, Jews, Dissenters and mar-
ried women. He witnessed the triumph in the American Civil War of the
North, a community based on contract, over the feudal and sta:us-regulatcd
South. In the modern age, however, a return to status has been detected. In
public affairs, and in industry in particular, the individual is no longer able
to negotiate his own terms. This is the age of the standardised contract, and
of collective bargaining. Such developments, 'however, should not be held
against Maine. He was not purporting to prophesy and, indeed, he expressly
qualified his proposition by saying that the development had 'hitherto' been a
movement towards contract".
Modern anthropologists have had the advantage of following the trails
blazed by Maine and by others after him with the added advantage of being
able to profit from the researches of fellow-workers in many directions. It is
not surprising, therefore, to find that Maine's conclusions about primitive
law have now been discredited or modified. The idea that early development
passed through the successive stages of personal judgments, oligarchic mon-
opoly and code has been abandoned as drawing too simple a picture.
Primitive societies are seen to have been more complex than had been sup-
posed. There have beets several forms of such societies, so there is an initial
problem of determining what Sorts of societies should be classified as 'primi-
tive'. It is now thought that there were seven grades of them, the First and
Second Hunters. the First, Second and Third Agricultural Grades, and the
First and Second Pastoral Grades. The agricultural and pastoral grades are
to some extent parallel. The degree of development of social institutions does

14
Those societies which remain governed by status arc 'stauc'. Note the etymOlogiCat COflttCC
cion between status and static'.
15 Maine (Potlocki edo) p iSs; but see Graveson Status in the Common Law ch 3.
the
16 Dicey Law and Public Opinion in Eo1asdduring the 19th Centurychs 7-8; Law and Opidon in England tn
20th Ceot(usy (ed Ginsberg) ch t.
390 Lgalthn,rj
bear some correspondence with the degree of economic development 17 . From
all this it will be gathered that primitive societies exhibit a wide range of
institutions; there is nothing like a single pattern as Maine had supposed.
There has also been modification of the sequence, as stated by Maine, of
later development, namely by means of fiction, equity and legislation. De-
liberate legislation is now seen to have been an early method of law-making
with fiction and equity coming in at a later stage. The codes, which one
finds at the culmination of the primitive period, were chiefly collections of
earlier legislation.
Primitive law was by no means as rigid as Maine had supposed, nor were
people inflexibly bound by it". Field-work among 'contemporary primitives'
has revealed that considerable latitude is inherent in the content of their
customary practices. For instance, Malinowski's first-hand experience of life
among certain Pacific islanders enabled him to demonstrate how, eg their
practices make allowance for good and bad harvests, or take due account of
an excess of generosity on the part of individuals"'. Observations by Cluck-
man of the Barotse in Northern Rhodesia have shown that the very indeter-
minate character of their standards permits a desirable flexibility in applica-
tion'. Rigidity develops at a much later period. Above all, it is generally
agreed that even in primitive societies people do control their destinies, that
the y are by no means blindly subservient to custom. The conscious purpose
of achieving some end precedes the adaptation of human behaviour, and the
adaptation of behaviour is followed by adaptation of the structure of social
organ isa tion 2 . -
It used to be accepted that law and religion were indistinguishable in
primitive societies. This view has given way to an increased recognition of
the secular character of primitive law. The exact extent to which law and
religion were associated, seems, however, to be in some doubt. Diamond, for
example, criticises Maine most strongly for his assertion that they were in-
distinguishable; the association of the two, in his view, is a comparatively
late development'. Hoebel, on the other hand, defends Maine on this point'.
Hocart believed that the dualism between religion and the secular authority
the state) originated in a division of function between a 'sky-king', who was
the supreme regulator and as such responsible for law, and an 'earth-king',
who was charged with the task of dealing with evil and wrongdoing; the
former was reflective and unimpassioned, the latter quick in decision and
violent in action. The role of the 'sky-king' would seem to have combined
religion and law'. Further, if Hocart is right there seems to be implicit in
this the distinction between the primitive, prescriptive patterns of conduct
and the secondary machinery of sanction; which leads on to the next point.
It is likewise agreed among anthropologists that there is, at any rate as far
17 Hobhouse, Wheeler and Ginsberg The Material Culture and So.-ial Institutions of the Simpler
Peoples.
18 For criticism of Maine's idea of rigidity, see Hoebd The Laze of Primitive Man.
9 Malinowski Crime and Custom in Sazage Society pp i-.68.
I Gluckman The Judicial Process among the Barotse ofYorthern Rhodesia; Politics, law and Ritual in Tribal
Society. CfGul1iverSocialControlinan African Socie. On the importance ofmaintainzngsocial equili-
brium, see Dribcrg 'The African Conception of Law' (14) 16JCL (3rd series) 230.
2 Malinowski'ANew Instrumeniforthe InterpretationofLaw —especially Primitive (1941-42)51
'iaIeLJ 1237.
Diamond Primitive Law; The Evolution of Law and Order; Lloyd The Idea of Law pp 231-239.
The Law of Primüive Man.
Hocart Kings and Councillors.
 Historical and anthropological approaches

as contemporary primitive societies are concerned, a phenomenon that can

be isolated from religious and other social observances and for which the
term 'law' would be convenient. Bohannan has suggested that law comes
into being when customary reciprocal obligations become further institution-
alised in a way that society continues to function on the basis of rules. These
concern mainly the relations of individuals inter se and of groups, ie pIma
patterns of conduct importing an 'ought'. Gluckman has shown that amcg
the Barotse the laws consist mainly of positive injunction;, 'you ought', rather
than negative, 'you ought not'. These 'oughts' of primitive law are dist:n-
guishable from others by the nature of the obligation to obey them 7 . It s as
a cardinal point of Malinowski's thesis, supported by Hogbin, that obedience
to customs rests on the reciprocity of services'. People do unto others what
the law bids them do because they depend on some service in return as part
of their mutual co-existence. It is spontaneous and incessant goodwill that
promotes and preserves social existence. It is possible that Malinowski un-
derestimated the part played by sanction'. It might also be that the cere-
monial with which these services are usually rendered underlines their obli-
gatory character, but this is of minor significance. Moreover, it is obedience,
not disobedience, that is contemplated by law, the primary rule, not sanction.
Yet some mechanism there has to be for dealing with cases of conflict and
breach. As long as obedience prevails there is no call for this machiner).
Examples of its working are also of interest. For instance, the records kept
by Gluckman of the judicial processes among the Barotse show that the main
task is reconciliation rather than the ordering of sanctions, which irnp!Ies
that even at the secondary stage an attempt is made to ensure conforrnit)
with the primary pattern of conduct". Sanctions apply only when reconci-
liation has failed or is not possible. One form which these take is to abandon
the wrongdoer to the avenger, who has the moral support of the community
behind him. In other cases, compensation may be.payable to the \ictim, and
it is a matter of dispute whether vengeance preceded compensation or
whether they existed side by side. This is why it is difficult to distinguish
between civil and criminal wrongdoing in early societies. The question de-
pended on whether the action was thought to affect the society or onl) the
individual. In th tcsult, the conclusion which most anthropologists have
reached is that what is called 'law' should be described in terms of its function
and the attitude of the people towards it rather than in terms of form or
enforcement. It would appear to be something compulsorily observed and
certainly far from what is commanded or backed by sanction.
Lastly, another point, which has emerged from modern investigations, is
the disposal of the belief in communism as the primitive form of soctet)
This maybe seen in many ways, particularly in the prevalence of jealously
protected private ownership of socially productive weapons and institutions,
such as spells, incantations and, above all, ritual.
American Anthropologist 6. Part
6 Bohannan 'The Differing Realms of the Law (196) 67
II, p 35. Barstje ofVorthern Rhodesia.
Gluckman The judicial Process among the
Hogbin Law and Order in Polyrena and
8 Malinoki Crime and Custom in Savage Society;
btaiinonsk'5 '!nuciduiction'.
.MailnowskisT'nC0rir50fl.ms Sn
9 For this criticism, and for changes ir. his thinking, see Sdsapera
Man and Culture (ed Firth) 9 39 .
o Forthe handling 01 'roublecases' by the Cheyenne India s,seeLlcwellynand HoebelTheChe.1'i"
Way.
ii Lowie 'Incorporeal Rights in Primitive Society' (1927-28) 37 Yale LJ 35i.
 So far not much has been said, save indirectly, of the organisatiort of
government. In this connection the oustanding contribution of Hocart de-
serves mention, especially as his name is insufficiently known among jurists".
On the evidence collected from a large number of widely separated tribes in
many parts of the world, Hocart came to the conclusion that the functions
of modern government were gradually fitted into the framework of a mach-
inery that was previously fulfilling other functions. In other words, the frame-
work of government was there before there was any governing to be done.
Man does not consciously seek government; he seeks life, and with that end
in view he does one thing after another, evolving and adapting special pro-
cedures and techniques, till he finds himself governed. The means by which
primitive societies sought life was ritual. The lives and well-being of indivi-
duals depended on the life and well-being of society. Ritual was therefore a
social affair and society had to organise itself for it. The structure of ritual
was such that different roles were assigned to different individuals and
groups. In all this one may detect the origin of caste; the various Castes that
one finds, the fisher, the farmer, the launderer, the potter etc, may not have
derived from the trades that the people actually pursued, but from the roles
they fulfilled in the ritual. There probably was some connection between
trade and a role, for no doubt it was usual to assign to a person the role
which he was fitted to fulfil whenever this was possible.
It was the organisation, founded on ritual, that was adapted for purposes
of government. Since the king could not play every role simultaneously, he
assigned to each chieftain a particular role which had a particular objective.
The aim of the ritual was the control of nature so as to render it bounteous
and abundant. The particular form which the ritual assumed in any given
case depended on the aspect of nature which was to be controlled, whether
sunshine or rain or harvest or game etc. To the group that was identified
with some aspect of nature was entrusted the ritual concerning it. It follows
from this, first, that only the group that exclusively owned a particular ritual
was competent to perform it; secondly, every rifual had its leader; thirdly,
the performers did not merely imitate nature as it happened to be at the
moment, but as they wanted it to behave, eg to shed rain at a time of
drought—an 'ought' not an 'is'; fourthly, in order to control nature the
performers had to become one with nature and identify themselves with it;
and fifthly, such equivalence was accomplished by the 'word', which thus
acquired special significance.
There was always a tendency for rituals to coalesce in one person or group
of persons. The greatest cumulator was the king, and this process of cumu-
lation is centralisation. Even after the king had begun to fulfil several roles,
his chiefs had to stand ready to lend their assistance if called on to do so. In
the role of the sun the king became the supreme regulator of the world, and
this regulative function assumed greater and greater importance and eventu-
ally became the mark of the king. The aim of the ritual, as has been re-
marked, was to make nature bounteous. It followed that nature should itself
be amply provided before a generous return could be expected of it. The
king being identified with nature, the prosperity of the people could only be
achieved by making the king prosperous. Revenue and tribute were the
means of making him so.
In these and various other ways Hocart discerned the outlines of govern-
2 Hocart Kings and Counczltors; Kingship; The Northern States of Ful; Social Origins.
 Historical and anthropological approaches 393

ment, the organs of which were fitted into the existing framework of ritual.
It is not possible in this short space to pursue his demonstration further, nor
to consider his parallel investigations into the meaning of ceremonial state-
ments, doctrines and courtesies relating to monarchy even today. One thing
which his analysis has indorsed is the prescriptive nature and function of
primitive law.

CONCLUSION
Too much attention on those factors of the past that have shaped the content
of the 'oughts' of the law of today should not be allowed to throw other
factors out of focus. Historical factors are not nearly so important as those
factors of today, for it is not so much what shaped an 'ought' in the past
that matters as the factors that combine to keep it alive. It is suggested that
historical approaches would find their appropriate setting as part of a general
sociological approach. Another weakness is the mystical, nationalistic flavour
which it imparted to theories about law, but this has not penetrated through
to this country. Again, historical interpretation can so easily be made to lend
its support to the particular ideology of the interpreter. Savigny's teaching
evolved Out of his strongly conservative, anti-revolutionary, Civil law bias.
Spencer's biological parallels could just as easily have led him to conceive of
the state as an unifying organism in which the individual loses his identity;
in fact, it was only his individualist outlook that led him to other conclusions.
Of the manner in which historical interpretation was used in support of the
Nazi ideology it is not necessary to speak.
Against all this, some of the practical contributions of the Historical
School, leaving aside its more extreme manifestations, have had lasting effect.
It provided the great stimulus to the historical study of law and legal insti-
tutions, which has ingrained a sense of historical perspective in the outlook
of lawyers. In England it inspired men like Maine, Maitland and Holdsworth
and others scarcely less famous. It has demonstrated the perils of over-hasty
legislative experiment and has taught the cautionary lesson that development
should flov, in some spheres at any rate, within the channels of tradition. As
to the nature of law, it has demonstrated the connection between some parts
s
of law and cultural evolution, and the need to delve into the pa t sometimes
in order to obtain a full understanding of the law as it is at present .Above
all, it awakened new confidence in convictions relating to the content of law
by insisting that formal criteria of validity are of subordinate importance. In
this way it may have had an indirect result in paving the way for the
resurgence of natural law in this century, which seeks to base even the
validity of law on its moral content.
On the question what kind of a concept of law would be apt for historical
investigation, it would seem that so far as the study seeks to uncover the
factors that have shaped the institutions of today what is needed is a concept
which not only identifies the 'oughts' of the law, but also includes the dy-
namic forces that have shaped and developed them. So far as the investiga-
tion is anthropological, a formal criterion of identification does not appear
to be appropriate or applicable. A broader conception is needed and one
that will distinguish institutions according to function, the scale of their social
operation and the social reaction to them. It is clear from what has been said
that anthropological inquiries have given to the 'ought' fascinating new
interpretations.
394 Legal theory

READING LIST

C Allen Law in the Making (7th edn), pp 87-129.

J Bryce 'The Interpretation of National Character and Historical Environ-
ment on the Development of the Common Law' (1908) 24 Law Quarterly
Review 9.
J C Carter Law: Its Origin, Growth and Function.
M Gluckman Judicial Process among the Barolse (revised edn).
AM Hocart Kings and Councillors.
H I P Hogbin Law and Order in Polynesia. *
H U Kantorowicz 'Savigny and the Historical School' (i) 53 Law Quart-
erly Review 326.
J M Lightwood The J"falure of Positive Law ch 12.
K Lipstein 'The Reception of Western Law in Turkey' (1956) 6 Annales de
la Faculté de Droit d'Istanbul lo, 225.
K Lipstein The Reception of Western Law in a Country of a Different
Social and Economic Background: India' (1957-58) 8-9 Revista del In-
stituto de Derecho Comparado 69, 213.
HJ S Maine Ancient Law (ed F Pollock) chs z and 5.
B Malinowski A New Instrument for the Interpretation of Law—especially
Primitive' (1941-42)5 Yale Law journal 1237.
E \V Patterson Jurisprudence pp 403-435.
K R Popper The Open Society and its Enemies (5th edn) I and II.
R Pound Interpretations of Legal History chs 1 , 4-
G H Sabine .4 History of Political Thought (3rd edn) chs 30, 32, 35.
F C von Savigny On the . Vocation of Our Age for Legislation and Jurisprudence
2nd edn trans A Hayward).
WT Stace The Philosophy of Hegel Part IV, pp 374-438.
CHAPTER 19

Economic approach

The discussion of this approach will proceed mainly with reference to the
doctrines of Karl Marx and Friedrich Engels with which it is usually asso-
ciated. It might be regarded as a variant of the historical approach in so far
as it has sought to unfold a pattern of evolution; but it also concerns the part
which law has played and is playing in society and as such is sociological.
This approach, like these others, concerns the content of law, the nature of
which is regarded as being but a reflex of an economic substrate. Another
point is that the original Marxist interpretation challenged the indispensa-
bility of law and foreshadowed its eventual disappearance. 'Law' in Marxist
theory lumps together laws and their administration and it is in this sense
that the term will be employed herein.
Many factors contributed to the rise of the movement under review. The
critical spirit of positivism had accustomed people to challenge existing stan-
dards. Advances in contemporary science shed their influence in the same
direction. The failure of religious ideals to stand up to critical inquiry led to
the substitution of materialist ideals in their place. The new movement had
as its object the improvement of the condition of poor and working people,
who found in it new hope and encouragement. Formal positivism was largely
indifferent to the justice or injustice of existing conditions of life. Although
Bentham was more concerned with reform than with formal analysis, his
sutcessors in the analytical tradition, notably the Austinians, concerned
themselves increasingly with the law as laid down and not with efforts to
improve it. In consequence, positivism fell into disfavour with those who
were dissatisfied with existing conditions, and was regarded as casting a cloak
of legality around injustices. The new movement was iconoclastic and ex-
posed the itijustices concealed behind traditional façades. It appealed to a
certain type of mind, which for the first time felt enlightened and emanci-
pated. Unfortunately, the enthusiasm which it aroused prevented its own
assumptions from being subjected to similar scrutiny. It called for action and
change and was revolutionary in purpose and appealed to all who felt in-
clined to rebel against complacency and monotony.
The interpretation of law as part of an economic interpretation of social
evolution is a by-product of the social and political theories of Marx and
Engels, which have since been put into practice by Soviet Russia and certain
other countries. Russia was the first to do so, and for over twenty years until
after the 1939-45 war remained the only one. Other countries have largely
copied her, so the ensuing discussion will proceed with reference to Russia.
One difficulty in the way of its presentation is the absence of a theory of law
worked out on this basis. Neither Marx nor Engels elaborated one for reasons
that will shortly become clear. What they say about law is incidental to their
views on society generally. Jurists in Russia today, however, are having to
work out a theory of law, but as yet none of them has said a great deal that
is new: each plays a variation on the basic theme derived from Marx and
3 96 Legal theory

Engels. It is therefore to their works that attention should first be paid. The
practical application of their doctrines since their day has necessitated certain
changes and adaptations, which leads to the next difficulty, namely, deciding
into what periods the narrative should fall. On this there is no unanimity'.
For present purposes it is sufficient to adhere to the following scheme. (i)
The period of 'war communism', including the 'theoretical' period from
Marx to 1920, ie the establishment of the proletarian dictatorship in Russia.
(2) The period from 1921 to 1937, which could be subdivided into the period
of the New Economic Policy, the NEP, from 1921 to 1929; and from 1930 to
1937, the 'construction of socialism', during which the NEP was abandoned.
() The period from 1938 to the present day, which could be subdivided into
the period from 1938 until the death of Stalin in 1953, which may be called
'consolidation of socialism'; and the post-Stalin era, which may be called
'construction ofcommunism', at least since 1961.

THE PERIOD FROM MARX TO 1920

The views about law of Karl Marx (1818-1883) and of his great friend,
Friedrich Engels (1820-1895), are to be gleaned from their various works.
Marx was influenced, so Lenin insisted, by developments in contemporary
science, in particular the prevalent belief that the physical world was gov-
erned by a universal principle of causation. He believed that social pheno-
mena were likewise governed by some universal principle, namely, the eco-
nomic principle. In this respect he was a social scientist in that he sought
descriptive propositions about social evolution. He was also influenced by
the dialectic philosophy of Hegel, but differed from him over the notion that
reality and, indeed, history was the unfolding of an 'idea'. On the contray,
said Marx, the 'idea' is a reflection of reality, otherwise the idea is only a
distortion or 'ideology"; and this is what he meant when he said of Hegel's
dialectics that 'with him it is standing on its head. It must be turned right
side up again". Marx and Engels insisted on being 'scientific'. Although, like
Hegel, they visualised history as unfolding according to the recurrent conflict
between a thesis and an anti-thesis', in place of his ideals they substituted
material and economic forces as the determinant factors of development.
'Scientific socialism', so they preached, must replace 'utopian socialism'.
The primitive tribal society, in their view, contained no anti-thesis within
itself as long as there was equal distribution of commodities. It was a com-
munist order, an Eden, before it was perverted through selfishness and greed.
When distribution became unequal, the society was destroyed and split into
dasses patterned by the division of capital and labour 4 . Man became avari-
cious and self-centred with no thought of the common weal'. The value of
commodities then came to be governed by the cost of the labour required to
produce them. The place of the tribal society was taken by the state, which
became the instrument of the stronger class, whether this is described as a
slave-owner's state, a feudal state, or bourgeois state. The moderncapitalist

i Sec on this Hazard Introduction to Soviet Legal Phil000ph,y ( 20th Century Legal Philosophy
Society v) pp xix-xx.
2 Preface to the second German edition of Marx capital vol 1.
3 Sec p 383 ante-
4 For Renncrs analysis as to how this came about tee p 302 ante.
5 Engels The Origin af the Family, Private Property and the State. --
 Economic approach 39

state necessarily involves the domination of the labouring majority by a

minority, which controls the economic resources of the country; law is an
instrument by which this minority exploits the workers. The tension between
capital and labour will eventually break into conflict, a revolt of the majority
against the minority, and the majority will gain control of the economic
resources and will seek to eliminate the minority. The state thus established
is the proletarian dictatorship.
'After the proletariat has grasped power, the class struggle does not cease. It
continues in new forms, and with ever greater frenzy and ferocity, for the
reason that the resistance of the exploiters to the fact of socialism is more savage
than before".
The dictatorship of the proletariat is said to represent 'the highest form of
democracy possible in a class society"', and is also 'substantially the dictator-
ship of the Party, as the force which effectively guides the proletariat' 8 . The
term 'democracy' is here used in a sense differeht from that in the livest. The
proletarian dictatorship is indeed a dictatorship, but in so far as it has been
formed by the masses and acts in their interests it is a democracy'. The
distribution of commodities at this stage of development will follow the
maxim, 'From each according to his ability, to each according to his work"".
Inequality inevitably persists and state organisation continues to be neces-
sary.
Out of this conflict will eventually emerge communism or the classless
society . Domination will cease, inequalities will vanish, and with them the
state and law will disappear as well. It is not altogether clear when Marx
and Engels expected the advent of utopia. It may be when production has
reached such a point that all people can be supplied with their needs without
having to compel them to work, in short, when the maxim, 'From each
according to his ability, to each according to his needs', can be applied. Or
it may be when crime and other forms of wrongdoing have been eliminated,
for as long as these continue the machinery for their repression will continue
to be needed. Lenin believed that after the removal of the economic causes
of crime, a great part of, if not all, wrongdoing will disappear. Recent Soviet
jurists have tended to postpone the disappearance of the state until capitalism
disappears in all, or most other countries, in other words, when the danger
of capitalist encirclement disappears".
Marx supposed that the defects and inequalities in human society were
due to factors that lay in production and economic conditions and outside
the nature of Mar,. This assumes that Man is by nature equal and free, and
that only in the communist society would he be able to realise his true self:
For, as both Lenin and Stalin asserted, the individual will only be liberated
when the mass is liberated. 'Everything' said Stalin 'for the mass"'.
From all this the following doctrines are deducible as to the nature of law.

6 Vyshinsky The Law of the Soviet State p 39; see also p 3.

7 Vjshüukypi.
8 Stalin Questions a! L.eni,,isrn I p 33 . -
Civil rights are restricted on class lines: first Constitution 1918 arts 9, 23, 65.
i o Constitution of 1977, Art 13; on the 1936 Constitution see Vyshinsky pp 77, 204 Ct seq.
ii Vysh.irsky pp 59-62, 65-70; Colunskii and Strogovitch 'The Theory of the State and Law' in
Soviet Legal Philosophy pp 353, 400.
is Stalin 'Anarchism or Socialism' i Collected Works (1946) p 295; Lenin 24 Collected Works (4th
cdn 1935) p241.
398 Legal theory
Ideas, according to
DOCTRINE OF THE ECONOMIC DETERMINATION OF LAW.
Marx, are reflections of reality; and in this respect he differed, as pointed
out, from Hegel, who maintained that reality was but a reflection of an
idea. A false or distorted appreciation of reality was to Marx an 'ideology'
in a derogatory sense. The bourgeois picture of society is an ideology
distorted to suit the situation of those who present it, namely, the ruling
class, in whose interest it is to give a false picture and quieten the masses
and further their own ends. Law is a superstructure on an economic
system; economic facts are independent of and antecedent to law. The
notion that law is a reflex of an economic substrate is not an ideology, for
theories of law, however, which present it
it accords with reality. Bourgeois
as something other than this, are distortions. There may be other super-
structures and other ideologies, eg religion, but they all have their ultimate
reality in the economic background.
Law is an instrument used by
DOCTRINE OF THE CLASS CHARACTER OF LAW.
the economic rulers to keep the masses in subjection. Even after the estab-
the proletarian dictatorship law will continue to be used as the
lishment of
instrument by Which the working-class majority can crush and eliminate
T here will still be the need to force people to work,
the capitalist minority.
to punish wrongdoing. to stamp out 'counter-revolutionary' and other
subversive activities, and to maintain some inequality of distribution,
which is still unavoidable. Law is thus an instrument of domination.
The state came into existence
DOCTRINE OF THE IDENTITY OF LAW AND STATE.
commodities and class dis-
as soon as there was unequal distribution of
tinctions developed. Law was one of the means whereby the capitalist
minorit y sought to preserve and increase its power, while those who had
property sought to protect it against those who had not. So lass and the
state in capitalist societies together form an apparatus of compulsion
wielded by the minority to oppress and exploit the working majority. Even
of com-
in the proletarian dictatorship these will remain as instruments
pulsion and domination. The state, therefore, reflects an essentially une-
it as a just and fair institution
qual condition of affairs. The depiction of
is again a distorted ideology. It will be noticed that this doctrine of the
Kelsen, but for
identity of law and the state corresponds with that of
different reasons.
When the communist
DOCTRINE OF THE WITHF.RING AWAY OF LAW AND STATE.
or classless society arrives, there will no longer be any domination or
inequality. Therefore, the instruments of domination, ie law and the state,
will, in the words of Engels, 'wither away' and be replaced by 'an admin-
istration of things'. If it is asked how criminality and ssrongdoing will be
dealt with, Lenin replied that, in the firs: place, no special machinery will
be needed:
'this will be done by the armed people itself as simply and readily as any crowd
or does
of c,sliscd people, even in modern society, parts a pair of combatant s
not allow a woan to be outraged': secondly, 'we know that the fundamental
social cause of excesses which consist in violating the rules of social life is the
exploitation of the masses, their want and their poverty. With the removal of
this chief cause, excesses will mcvii ably ben to 'wither away".

.enin Stat! and Re:oIaan p 70.

 E.cnomic approach 399

This doctrine of the withering away of the state is an uncomplimentary

comment on the dialectics of Hegel. It was observed in the last chapter
that his abstractions were such that they can be used to support even two
such irreconcilable doctrines as Nazism and Marxisin_ It is now worth
noticing that, whereas to Hegel the state was the highest achievement of
human endeavour, Marx used his method of reasoning to arrive at the
extinction of the state. It should also be noted in this connection that what
will wither away is the proletarian dictatorship, which is, as it were, a step
towards the classless society. The bourgeois state will not wither away; this
has to be smashed and destroyed.

The reason why neither Marx nor Engels elaborated a theory of law is
obvious. Law, in their view, is an instrument of domination, to be done away
with, not developed and elaborated. Although they regarded law as reflecting
economic conditions, it would not be fair to suggest thr they thereby de-
prived it of all its creative force. It can play, and has played, a creative part,
but always conditioned by its economic substrate. In the proletarian dicta-
torship law should be a means to an end, namely, to prepare the way for the
classless society. It is thus in instrument of governmental policy"'. There is
certainly rule by law: there cannot be a rule of law, for reverence of the law
for its own sake is a 'bourgeois fetish'. Since law is but a means to an end,
it should on no account hamper the work of the proletarian state. There
should be no division between 'public' and 'private' law, because (a) law
being a reflection of an economic substrate, there will be no public and
private spheres of interests in the economy, and (b) law being an instrument
of domination, only the proletarian government will dominate and there is
thus only governmental law. Nor will there be any separation of powers.
Judicial independence as traditionally understood must go. Judges, like law
itslf, are instruments of policy and must give effect to this, to which end
they have to be strongly indoctrinated before they can be fit for office. Thus,
in the early days of the proletarian dictatorship in Russia judges had to
apply their 'socialist consciousness' of justice and such Tsarist laws that were
useful guides" in the absence of decrees of the Soviet government. Even so,
they did not have to apply a provision which they considered unsuited to
the new conditions"'. In crir"nal cases severer penalties were to be inflicted
on enemies of the régime than on those who interfered with their fellow
citizens from purely personal motives". It was left originally to the judge to
decide whether a given act was prejudicial to the régime or was purely per-
sonal in character. This was the notorious 'principle of analogy' according
to which all socially harmful conduct could be treated as criminal". This
doctrine went into decline' 9 , but it did carry the interesting corollary that
conduct which, although technically criminal, was not socially harmful
should not be treated as such. Equally drastic was 'guilt by association'
whereby members of the family of a person convicted of certain offences

, Law is a political measure, it is politics': Lenin ti6; 23 Collected Woe-ks ( 4 th edn) p36.
i Decree No i (Courts) 27 November 1917 [191i) Sob Uzak RSFSR, No 4, item o; also
Statute of the People's Court November 30 1918, art 22.
16 Civil Code RSFSR, Decree of 31 October 1922, art i.
17 Civil Code 1992, art 5.
18 Art ,o, Criminal Code RSFSR, operative iJune 1929 [1922] i Sob Uzak RSFSR, No 15,
item 53; Decree of November 22 1926 [19261 i Sob Uzak RSFSR. No 8o, item 600, art 16.
g Excluded in the Criminal Code RSFSR, t January 1961; (ig6i) Sovestskaia lustitsiia, No
17, pp 5 et seq. art 3.
400 Legal theory

against the state, who knew of his activities butdid not denounce him, were
punishable. This, tco, has gone. Finally, although it would not be true to
aver that individuals should enjoy no liberties other than those expressly
conferred upon them, there has to be nevertheless a strict regulation of these,
especially in regard to property, according to governmental policy.
The principal difficulty in the way of assessing the doctrines of Marx and
Engels lies in sifting the parts that are valuable from irrelevancies. In the
first place, causation is no longer the inexorable principle governing the
material world. This is similar to the erroneous assumption made by the
Historical School. In social phenomena Marx and Engels sought to discover
in the economic principle the counterpart of-causation. Towards the end of
his life Engels admitted that both he and Marx had exaggerated the eco-
nomic influence and that it was not the sole motivating factor in human
society 20 . What they would say, then, is that it is the ultimate or most
important factor. That depends on the criterion of 'ultimate' and 'most
important'. It ceases to be objective and becomes a matter of personal eval-
uation. The economic factor is undoubtedly important, but other factors
have also to be reckoned with. Traffic law, for example, and large parts of
criminal law are not based on economics. Indeed, the law which has to deal
with violence to the person has been brought about by weaknesses in human
nature. It is a wishful pretence to say that impulses such as anger, lust,
revenge and jealousy, to mention but a few, are alwa y s rooted in economics.
Today, the second and later generations of Soviet y outh, which never knew
capitalism, exhibit the same tendencies as youth elsewhere, and the Russians
.ave started somewhat belatedly to develop criminology. Cupidity is not
rc,oted exclusively in the economics of capitalism, but in human nature;
increased availability of the good things of life whets the appetite for more.
It has previously been pointed Out that Marx's analysis of ownership is
outdated in many respects; and although he foresaw the 'managerial revo-
lution', he treated it as part of the dialectic of capitalist development and
did not appear to have grasped its implications'. Modern economists have
long since abandoned Marx's labour theory of value, which has become
inapplicable to conditions of mass production and still more so to 'automa-
tion'. There can be no other conclusion than that an explanation of history
in terms of some single determinant factor will inevitably fail, for it is bound
to be an over-simplification.
This leads to another point. Both Marx and Engels purported to be 'scien-
tific' and to expel ideologies. They found the cause of existing ills in economic
conditions and suggested that the cure lies in a rectification of the economic
sy stem. So far as the economic factor is not the only one underlying law and
society, the picture they drew of these in the light of the economic factor
alone is incomplete; it is, in other words, a distortion of 'ideology' in Marx's
own sense of that term. The degree of distortion is proportionate to the
importance of the factors omitted. Marx seems to have confused legal theory,
which may be described as an 'idology' in his sense of the term in that it
reflects 'reality', and actual laws, which are an integral part of the economic
infrastructure of society, ie part of the 'reality' itself. The classless society,
which he envisaged is the end which he wanted to bring about, and in this is
a distortion of another kind, the introduction of a teleological consideration,
o Engets. Letter to Bloch, September 21-22 1890, and to H Starkenburg, January 25 1894:
Marx-Engeb Sdecud Corrcspodewe.
i Sec p303 ante.
 Economn'approah 401

of politics into science, carrying with it a moral obligation to further this

end; which is why Marxists try to force the pace of events, said to be
evolutionary, by fostering revolutions in other countries. The ideological
character of Marxism is likewise evidenced by the fact that the Soviet autho-
rities dare not admit that there are flaws in the basic thesis. Their attitude
has been that the 'truth' is there if only the correct interpretation can be
found, or else to ignore or minimise awkward facts, thereby making the
doctrine a religion.
Marx explained the evolution of society on the basis of the class struggle,
the struggle between capitalists and workers. It is undeniable that there has
been considerable friction between them, but generalisations should only be
made with the utmost circumspection. 'The' class struggle is an abstract and
misleading expression: 'The' class struggle, or any class struggle, should al-
ways be related to the place where it occurred, the period, the persons
involved, and other circumstances'. It is a shortcoming in this respect that
leaves Marx's handling of historical facts open to doubt. There have been
many class struggles in the course of human history, all of which have
influenced the development of law and societ y , eg religious struggles and not
least between Trotskvists, Leninists and Chinese communists, It is also not
clear why 'the class struggle' has to culminate in violence'. It may be that
human nature being what it is, capitalists will not relinquish their position
without force. Against that. Great Britain and the Scandinavian countries
have shown a peaceful road to socialism. Although a recurrent pattern of
conflict between workers and capitalists can be detected, the danger of er-
ecting it into a principle and of arguing mechanically from it can be seen in
the following fact. According to Marx, the tension between workers and
capitalists grows more acute with the development of capital. This will tend
to become more and more international, and hence the famous call to the
workers of the world to unite. This led to the conclusion that the conflict
will be precipitated in those countries where capitalism is most developed.
Instead, it occurred in Russia, which was at that date semi-feudal and had
only the rudiments of capitalism. This was why some orthodox Marxists at
the time wondered whether they would not be better engaged in promoting
a capitalist revolution instead. For a quarter of a century Russia remained
alone, and the next country in which the conflict occurred was China,
another backward state, and Cuba. The countries of Eastern Europe,
which turned over to socialism at the end of the 1939-45 war, are scarcely
examples, since, with the possible exception of Yugoslavia, the presence in
those countries of the Russian armed forces at the critical time was no small
factor. The other prediction that capitalism will become more and more
international has been fulfilled up to a point. It fails, however, to take
account of the strong sentiments of nationalism aroused by two world wars.
It will thus be evident that there are dangers in erecting 'the class struggle'
into a principle for the purpose of drawing the sweeping deductions that
Marx sought to make.
Marx and Engels were strictly materialistic and the 'scientific method'
figured prominently in their discussions and in those of their followers. Yet

2 See Corbin's appreciation of this in 'Jural Relations and their Classification (1920-21) 30
Yale LawJournal at 227 02, quoted p6 ante.
3 'Evolutionists' maintain that socialism would evolve without the need for a violent revolu-
don, eg the views of the French and Italian delegations to the XXV Communist Party
Congress, February 1976; SoLzhenitskyn August
402 Legal theory

they themselves could not escape from a priori assumptions in their nature as
unscientific as those of the 'ideologists' whom they condemned. The adoption
of Hegelian dialectics is one. Hegel treated values and natural phenomena
as enjoying objective existence; but to treat values in this way is to derive 'is'
from 'ought'. Further, conflicts in natural phenomena are not logical con-
tradictions as required by the dialectic method. Marx would have been
better advised not to have linked his 'class struggle' with this, since it is no
more than an abstract juggle of words into which almost anything might be
fitted'. Implicit in his adoption of it are the following assumptions. (a) that
the dialectic interpretation of history is correct; (b) that the conflict between
'thesis' and 'anti-thesis' is identifiable with 'capital' and 'labour'; and (c)
that the 'synthesis' will be the classless society. All three are open to question.
The first two are insufficiently supported by evidence, the third has no
evidence at all. Besides, why stop there? Why should not the classless socicty
in turn become a thesis with its own anti-thesis, evolving into some other
synthesis? Equally serious is theassumption that primitive society was happy,
containing no anti-thesis within itself, communism without state and law;
and that Man is so intrinsically nice that once the corrupting influence of
economic maladjustment is done away with he will become a paragon of
virtue. This looks like a reversion to a natural law theory, and by saying that
primitive society had no anti-thesis within itself and 'that corruption set in
with the unequal distribution of commodities, it would seem that the legend
of the Fall of Man has been given a new meaning. Besides, as pointed Out
at the end of the last chapter, this view of primitive society, especially its
communist character and the absence of private property, is wholly suppo-
sitious. Again, though there is some truth in the assumption that the sicked-
ness of men is prompted, perhaps in large measure, by economic conditions,
it is no justification for Lenin's generalisation that all criminality stems from
unequal economic conditio.ns. s
Actual legal systems usually precede theory- Ru sian Marxists, however,
claim that their philosophical theory came first and that the legal system was
modelled on that. This makes reality a reflection of an idea as Hegel had
propounded, but whose thesis needed to be turned upside down according
to Marx. Be that as it may, while the claim of Russian Marxists is true up.
to a point it should be noted that from the start, and increasingly since about
1920, legislators and judges were forced to proceed according to social needs,
and jurists had to struggle to provide theoretical support". So theory could
not help having to follow actual law after all.
The characteristic feature of law in the Marxist picture of things is that it
is an instrument of domination and exploitation wielded by capitalists against
workers. In this there is a further erroneous inference. Whatever truth there
might be in the statement that law has been used as an instrument for the
repression of one class by another, it does not follow that this is, or need
necessarily be, its sole function. For (a) regulation, and even coercion, is
unavoidable to enable the intricate concatenation of interests and activities
that make up any society to function efficiently. Engels said that after the
advent of communism there will be an 'administration of things', which

In this respect there is force in Duhring's comment on which Engels pours such ridicule:
Anti-Dthfl"& Part I, ch 13. Jstice? PP 3 1
For Ketsen's comment on the illusion of the basic virtue of Man. see What jg
ci seq.
6 Eg Pashukaris see pp 4 0 7 -408
 L.fioTnlc approach 403

implies that regulation and judging of conduct will continue, perhaps more
through executive than judicial machinery. What is this but 'law' under
another name? (b) Law is a means of preserving security and moral stan-
dards. Not only is it necessary to set standards, but also to maintain them.
This remains true in the proletarian dictatorship, which has to educate the
masses in the values of communism, and also in the communist society where
each new generation needs education'. In the execution of so huge a task
law is indispensable. Therefore, it is implicit even in Marx's own teachings
that law possesses an educative function other than exploitation and domi-
nation. (c) Law also serves to restrain oppression by classes or individuals.
Rule by law inevitably leads to abuses, which could hamper the task of
educating the masses by weakening people's respect and confidence in law.
On the contrary, the educational task will be greatly aided if people see in
law a bulwark . So, even for Marxist purposes, ideas of 'rule of law' and 'due
process' are not so absurd after all. (d) Law gives practical expression to the
balance that has to be struck between competing interests; and this is true
even in Russia today where there are no classes. Judges no longer simply
reflect governmental values, since all values are governmental. Law, then,
ceases to be merely an instrument of domination and becomes a means of
adjusting interests, and, more important, a measure ofjudicial independence
becomes necessary. Above all (e) law satisfies the ineradicable human craving
for justice, ie like treatment in like cases, and certainty; both of which require
rules and precedents. Marx it would seem, failed to distinguish sufficiently
between the various uses to which law can be put and has sometimes been
put; and, in any case, his observations should be limited to the purpose
which law was being made to serve, as he saw it, in some countries in his
day.
When the proletarian dictatorship was established in Russia the repressive
use of law reached greater heights than before, but this was explained as a
temporary phase and a means of achieving utopia to which this period of
travail would give birth. For there was still a capitalist minority, which the
working-class majority had to dominate and eventually eliminate. By the
mid-1930s, however, there was no longer a minority left, but law continued
to flourish even more vigorously". Indeed, it was possible to say in 1935 that
all minorities had been eliminated'. The continued need for law, then, was
to provide the economic organisation for the new society, which is of slow
development; and to discipline the social conscience of people. It is easy to
lead the ignorant. Education inevitably teaches people to think, and the
more they are taught to do this, the harder it is to keep the power of thought
within channels. Precisely for these reasons legal enforcement had to become
increasingly ruthless. The state cannot wither by degrees, but has to remain
strong until communism is achieved. It was also emphasised that the state is
a defence mechanism, which is necessary as long as the Soviet Union is
surrounded by enemies. All this was summed up in the Stalinist dialectic:
'The dying out of the State wilrcome not through weakening State authority,
but through intensifying that authority to the utmost"'. (Stalin did not
7 1977 Constitution, Preamble. Internal Affairs, see
8 For Stalin's creation of 'Special Boards' within the Commissariat
of

Soviet Communism: A J'.-'ezv Civilisation? I, p 83.

9 Sidney and Beatrice \\'ebb
the Central Committee to the XVI Congress' 1930. This speech was
10 'Political Report of
attacked by Krushchev in his speech to the XX Communist Party Congress, 25 February
1956.
404 Legal they

regard himself as bound by any law.) It may be that this aggrar'disement of

the state also lies behind the oft-stated need for a perpetual state of revolu-
tion. However, the point remains that law is not necessarily bound up with
exploitation. What is left is a picture of law as an instrument of coercion no
different from the concept familiar to the West. Modern Soviet disquisitions
on the subject now seek to draw distinctions between 'bourgeois' and 'social-
ist' law and tend, on the whole, to avoid reference to domination and ex-
ploitation".
The state, according to Marx, is an engine of compulsion by which the
economic rulers keep workers in subjection. So the idea of a 'classless state',
which developed under Stalin after about 1938 and has become prominent
since, undermines the Marxist foundation of state in class conflict. Krushchev
adopted the policy of 'peaceful co-existence', which meant that other states
were not to be treated as constant enemies". This weakened further the
Stalinist justification of the continued existence of the state as a defence
mechanism. Krushchev also took the line that the 'classless state' is an inter-
mediate stage, 'a state of the whole people', interposed between the prole-
tarian ditatorship and communism, which might even be called the 'first
stage of communism". This is another contradiction of Marxist doctrine
according to which the state is solely an institution of class inequality and
oppression. It also contradicts Stalin's thesis of the state as a defence mech-
anism. The Communist Party has become the 'party of the whole people',
which, on the face of it. is a Marxist absurditv, since the party is that part
of a class which is organised to serve as its spearhead and guide in the
struggle. What was now meant, as explained by Krushchev, was that the
Commu;st Party is one of two 'friendly classes' in an 'all-people's state'. In
these circumstances the continued existence of the Party can only be a return
to a new ruling class' 4 . The 1977 Constitution openly acknowledges the elitist
character of the Party in its Preamble and in Art 6. Art 99 confers the power
of nominating candidates for election on the Party and other public organi-
sations; but the Party remains the guiding force as Art 6 la ys down. The
contradiction of Marxist dogma that state and class-conflict are synonymous
remains glatingly obvious.
It was predicted that with the arrival of the classless society law will
'wither away', but that there will remain 'an administration of things'. This
follows from the thesis that law is but the reflection of an oppressive economic
system: once oppression is removed, there will be an economic system without
law. As was admitted, however,, there will still have to be some regulation of
behaviour, which is what Engels referred to as 'an administration of things',
and the point has been increasingly recognised in later Programmes of the
Soviet Communist Party. According to Krushchev 'Under communism, too,
there will remain certain public functions similar to those now performed by
the state, but their nature and the methods by which they will be accom-
plished will dffer from those existing in the present stage". In other words,
there will probably be a tendency to deal with more and more areas by

11 Golumkii and Strogos-itch 'Thc Theory of the State and Law ,nSo,,et Ligol Philosophy (trans
Babb pp385-36, 392.
12 Now enshrined in the 1977 Constitution, art 28.
13 'A state of the whole people' is in the Preamble to the 1977 Constitution.
t. Cf Djila.s The New Cbs,.
15 Report to the XXI Extraordinary Congress of the Communist Party of the Soviet Ln,on,
reported in Prasda 28Jafluary 959.
ministerial decree than by courts: transfer, not abolition, from the category
of private law to public or administrative law. This would appear to be a
verbal point: the regulation of conduct which will remain is not to be called
'law'. For, if 'law' is defined with reference to domination and oppression,
when these have disappeared what remains will not be 'law'. There may be
a deeper reason. To Marxists the word 'law' carries a strong pejorative
connotation, and because it is so associated in their minds with everything
unjust and oppressive, they cannot bring themselves to continue to apply so
odious a word once perfection has been reached. Despite all this, it is obvious
that a large sphere of human regulation will have to remain even after the
arrival of the classless society. Whether this is to be called 'law' or not is
immaterial. A similar obsession with the pejorative connotation of 'state' led
Lenin to deny that the proletarian dictatorship was anything more than a
'semi-state' or 'commune' state. It has also subsequently been conceded, that
there can indeed be 'law' without a state, and in this way it was sought to
uphold international law. On the other hand, there developed the theory,
which Stalin found convenient, that the state is superior to law. All these are
not just deviations from Marx, but denials of the class character of law, its
identity with state and its use solely as an instrument of exploitation. One
should be chary of levelling accusations of contradiction in a philosophy
which is rooted in the Hegelian logic of contradictions; but even so there are
contradictions and contradictions.
Finally, the maxim, which embodies the goal towards which all this en-
deavour is directed, namely, 'from each according to his capacity, to each
according to his needs', suffers from the weakness that it is difficult to see
how needs are to be measured and what checks there will be on exorbitant
demands. One wonders whether there ever will be abundance, for the more
people have the more are their appetites likely to be whetted".
The theories of Marx and Engels have been dealt with at length because
they have dominated subsequent theorising in Russia. Immediately after the
Bolsheviks seized power on 7 November 1917 (October 25 according to the
Julian calendar which prevailed in Russia), the tendency was to leap into
communism without the transitional period. This was due, not just to en-
thusiasm, but doubts among the Bolsheviks themselves of their permanence.
When, however, their reign was assured, they began to appreciate the im-
mensities of the tasks ahead and a more realistic approach set in.

THE PERIOD FROM 1921-1937

After the revolution in Russia, the proletarian dictatorship was established

along Marxist lines between the years 1918 and 1920. The period from 1921
to 1937, as already pointed out, can be divided into two parts. The first,
which lasted till about 1929, may conveniently be described as the period of
the New Economic Policy, the NEP, while the second from 1930 onwards,
marks a departure from the NEP and the construction of socialism.
The establishment of the proletarian dictatorship required a 'revolutionary
legality' by means of which the victorious majority could dominate and
eventually exterminate the capitalist minority. This period did not prove
to be as short-lived as had been hoped. So codes were introduced, and

16 Seep 67 ante.
.8u -'"' '"lJ
judges had been
professional judges appointed. Whereas in 1 918 and 1920
enjoined to rel y on their 'socialist consciousness of justice"', they had now to
abide by 'the general principles of the Soviet legislation and the general
policy of the government of the Workers and Peasants"'. Having won free-
dom from the power of the Tsars, the revolutionaries set up an even more
ruthless power-structure to prevent opposition to themselves. The cohesion
of the state would be wrecked if divisive values were allowed to develop and
people were allowed freedom to act in pursuance of them. Accordingly,
severe repression was introduced, which included one of the most effective
ways of nipping in the bud the growth of unwelcome values, namely, a secret
police to inhibit people from expressing views other than orthodox among
themselves. Without communication ideas cannot spread.
There was also what Berman felicitously styles the 'parental' function of
law". The Party had to guide the masses to communism by educating and
training them rather like children for the part they would have to play in
the future". All this was reflected in the administration of law, for it was
in this
recognised earl y that law enforcement had a decisive role to play
process. The need to educate and train the populace justified virtually unlim-
ited activities by the secret police, trials in secret and the like, and enabled
these to flourish notwithstanding constitutional guarantees of free speech and
respect for the individual. Side by side with this was an exclusive and cease-
less propaganda campaign coupled with a jealous exclusion of foreign influ-
erl:e and contact. The latter has only been relaxed slightly in very recent
times The work of educating the people for a communist society would be
gravely impaired, if not undone, if the y were allowed to see that conditions
elsewhere were at least not worse, and in some respects perhaps better, than
in Russia.
The wave of nationalisation that followed in the wake of the initial revo-
lutionary ardour proved to have been premature. The Soviet state was faced
with crises of the first magnitude in the spheres of production and distribu-
tion. The onl way out was to re-introduce private enterpise and capital to
a certain extent. A drastic revision of ideas was called for, and the New
Economic Polic was decided cn at the Tenth Communist Parts Congress in
March 1921.
The feature of the NEP was that it constituted a partial compromise
between Marxist ideas and capitalism under the strict supervision of the
state The NEP has been happily described as 'state-controlled private en-
terprise'. It was necessary in the interests of the nation to give scope to
private enterprise and at the same time to prevent an abuse of it. Private
enterprise and private rights were subordinate to the national interest, and
were deemed to be forbidden unless expressly permitted. Alongside this, in
the interests of efficiency, Lenin introduced the concept of 'one man man-
agenlent'.
Another characteristic of the period was the feeling of tension that pervaded

17 Statute of the Peoples Court, Nove mber 30 tgi8, art 22.

1 Cons t i t u t ion of t95, art a. Sec also Draft of a New Criminal Code of the
RSFSR 1930; and
Draft of the Fundamental Bases of the Criminal Code of the RSFSR ig3o.
19 justice ir R,.,ssia Part If.
20 To mould the citizen of communist society is one of the 'principal tasks of the state': 1977
Constitution, Preamble.
t First Decree on the Trusts, to April 1923 (1923) i Sob Uzak RSFSR, No 29. item 336;
followed by the Second Decree on the Trusts, 29 June 1927 (1927) i Sob Uzak RSFSR, No
39, item 392.
 &Oflomicapproath 407
the nation, which had just emerged from the throes of an unprecedented
upheaval, and was faced with internal crises and surrounded by enemies.
Little wonder that a state of emergency was felt to exist, and an attitude of
the utmost severity was adopted towards political deviations.
To meet the new Situation a theory of law was evolved. The principal
contribution of this period was that-of Pashukanis ( 1 891_1937) 2
who was
strongly influenced by two German writers, Jellinek and Laband. He de-
'eloped what is known as the 'commodity-exchange theory'. All law, he
maintained, was built up of relations between individuals. He followed Marx
in believing that law was a reflection of economic conditions, but departed
from Marx in supposing it to consist of the exchange of commodities between
individuals'. Com
modity-exchange calls for individual rights and legal rela-
tionships. The various aspects of law reflect these relationships. The thesis
that com
modity-exchange is the basis of law has been challenged by Dr
Schlesinger as being historically untrue. He quotes primitive blood-feuds and
the payment of wergild
and asks in what sense these relationships reflect
co mmodity-exchange'. Pashukanjs also maintained that law presupposes
theoretical equality, not subjection. Law is the peaceful means of settling
conflicting interests of persons, who are treated as being on an equal footing
however much they may be unequal in fact. In the ultimate perfect society
individual interests will not conflict, for there will then be unity of purpose.
Therefore, there will be no need for law. As Dr Schlesinger points out,
Pashukanis's contention leaves unexplained why there cannot be individual
relationships apart from com modity-exchange, and the relationships entered
into in the course of production
of commodities as distinct from their distri-
bution'. Following from the last point, Pashukartis maintained that once the
perfect society is reached the national economy will pass wholly into the
hands of the state. Law, however, which presupposes conflict of individual
interests, will come to an end. The implications of this are that law and state
are distinct, which is a departure from Marx, and that law will wither away
before the state. Finally, Pashukanis asserted that 'bourgeois law' had ceased
to exist in Russia as far as production was concerned, but that so far as
capitalism, and hence the conflict of private interests, was allowed to survive,
Russian law still bore ch aracteristics of it.
It is obvious that this theory was adapted only to the peculiar situation
during the NEP. By
about 1930 the position had altered. The concession
made of necessity to private enterprise was withdrawn. The Second Revo-
lution took place to eliminate the capitalists, a 'revolution from above' this
time, ie by those in power to exterminate the minority whom they had
hitherto permitted to exist. Private capital and private enterprise now be-
came illegal, and the change was justified on the ground that the ultimate
interest of the proletarian dictatorship rose superior to the sanctity of its own
prior laws. Moreover, it was clear by 1930 that the long-awaited revolutions
in other countries would not materialise and that Russia would have to wait
a long time in the midst of her enemies. The state and its apparatus were a
guarantee of defence and were necessary until all, or most, other countries
had turned socialist. The withering away of the state was postponed until
the remote future and less and less was said about it. Finally, in December
2 Pashukanis 'General Theory of Law
and Marxism' in Soviet Legal
3 Anthropologically the commoditycxchangc idea is only partially Phdosophy piir.
true of p rimitive societies.
4 Schlesinger Soviet Legal Philosophy p 157.
5 Sth!esingerp 152.
408 Legaltheoiy

1936 a new Constitution was promulgated and acclaimed as the triumph of

socialism. Strict observance of laws was insisted on. 'We need the stability of
laws now more than ever' said Stalin.
Once the special conditions which had brought the NEP into being had
passed, the theory of Pashukanis was outdated. His views were subjected to
attacks, both fair and unfair. There was its obvious weakness that law was
based on exchange and not on production. Marx himself had laid emphasis
on production. There was, moreover, another deviation from Marx in that
law was represented as regulating conflicting interests of equals and not as
an instrument of domination. Next, law on his doctrine was destined to
wither away before the state. By the 59305 law had become a firmly estab-
lished institution in Russia, which necessitated three important changes in
ideas. (a) The essentially sociological concept of Marx, Engels and Pashu-
kanis, which viewed law as the product of the economic structure of society,
was beginning to give way to a normative concept. (b) Since there was no
longer a capitalist minority left, the idea of law as an instrument of domi-
nation began to be replace by one. that identified it with the wishes of the
people themselves. (c) Though law was still viewed as an instrument of
policy, it was also the means of providing security for expectations as deter-
mined by policy. Although law was still viewed as 'a political category
Nevertheless law can no more be reduced simply to policy than cause be
identified with effect". So law was seen to have an important task to perform
and its withering away was something that should be indefinitely postponed,
if not forgotten Pashukanis's doctrine was attacked on the ground that it
encouraged 'a nihilistic attitude' towards Soviet law. Some people went so
far s to distort what he had said and alleged that he preached the withering
of the state as well, which it was pointed out was dangerous and
awa y
inexpedient in the face of a hostile world. In view of the fact that law had
become an important institution in Russia, it was necessary now to propagate
the idea that Soviet law was somehow better and different from capitalist
law. It is not surprising in consequence that Pashukanis's statement that
Soviet law partook of the character of 'bourgeois law' grew increasingly
unpopular. In the result Pashukanis was impeached and disappeared in
1937g.

THE PERIOD FROM 1938 TO THE PRFSEN r

This period falls into two parts, from 1938 until the death of Stalin in 1953,
and toe post-Stalin era from 5953 onwards.
The first part witnessed the consolidation of socialism in the form of a
monolithic state with complete subordination of legal theory to political
expediency. This was also the period of the 'personality cult', fostered by
Stalin. The doctrine of the 'classless state', previously mentioned, was pro-
pounded, and the state, represented by the Supreme Soviet, was held to be

6 Stalin 'On the Draft Constitution of the USSR 1936' Leninism p402. Smiet Legal Philosophy
Vyshinsky 'The Fundamental Tasks of Soviet Law' 1938; Schlesinger
329.
8 It is interesting to note the violence of the tanguage with reference to Pashukanis throughout
especially at PPM et seq. Even making allowances for
Vyshinsky The Law of she Soviet State,
Vyshin.sky's volatilenature one suspects that the succession of panegyric and abuse through-
out she book is a smoke-screen for an official change of front.
 Economic approach 409

superior to all its laws. A more interesting development was the Yugoslav
attack on the Stalinist régime as a counter-revolutionary dictatorship. While
differences in the conditions prevailing in different countries must inevitably
yield different applications of Marxist doctrines, it was accounted 'deviation'
to adopt any interpretation of them other than that of the USSR. In 1948
Yugoslavia, under Marshal Tito, insisted that each country should be left to
interpret Marxism in its own way, and denounced the Soviet model under
Stalin as a betrayal of Marxist-Leninism. It was alleged to be nothing but a
form of capitalism exploited by a new ruling class of bureaucrats, who have
merely substituted a bureaucratic state in place of a bourgeois state'.
Whereas Russia postponed the decline of state power and law to some distant
epoch, Yugoslavia was prepared to phase it into immediate effect as and
when it proved feasible. This is the approach which was termed 'Titoism'. It
called for new methods: for instance, in place of state ownership there should
be 'social ownership' by free associations of producers; and workers should
take as much part as possible in economic management. Such 'industrial
self-management' is achieved by allowing each enterprise to be run by a
workers' council, a measure of overall control and co-ordination being main-
tained by the appointment of a director by the People's Committee of the
Commune". The state as such is still responsible for order and national
defence, but its other aspects could we l l be allowed to wither away. Law and
state are not synonymous; the state may go, but law must remain.
After the death of Stalin there was a relaxation of centralisation; Stalin
had been a firm believer in it. Krushchev introduced decentralisation in his
administrative reforms of 1957, which were criticised as too localised and
unco-ordinated. Accordingly, in 1965 centralisation was reintroduced with
minor modifications towards giving state enterprises wider powers.
At the Twentieth Party Congress the image of Stalin was dethroned by
Krushchev, who denounced him as a criminal and for fostering a 'personality
cult"'. This made the Russians rather more inclined to self-criticism than
they would otherwise have been and readier to admit, to themselves though
not openly, that there might be some truth in the Ygpslav gibes after all.
Accordingly, the breach with Yugoslavia was patched up by the admission
that there could be 'several roads to socialism', although there has been a
renewal of differences from time to time. There was also relaxation of some
of the other rigid controls. In Russia this had no marked effect, probably
because the controls had never been felt to be unduly oppressive by . the mass
of people, who had no tradition of freedom. In Hungary, on the other hand,
the result of dc-control was the uprising in 1956, which had to be crushed
by massive Russian intervention, and controls were re-imposed. Later in
1968 the doctrine of 'several roads to socialism' was forgotten when Czecho-
slovakia attempted to introduce a relaxed form of 'communism with a human
face'. This, too, was crushed by massive intervention by Russia with some-
what half-hearted support from her Warsaw Pact partners. A different
g Cf Djitas The Yew Class.
10 One-man management was introduced in Russia by Lenin: see p 4o6 ante. Under Stalin the
'triangle' doctrine was introduced in the early 19305 whereby the manager had to be guided
by the Party secretary and the shop steward. In 1937 this system was abolished and the
marager became all-powerful. It was this managerial class which was the principal target
for Djilas's attack. Krushchev restored the 'triangle' principle, but after 1965 there was a
return to the all-powerful manager. Sec the Statute on the Socialist State Production Enter-
prise Ekonomac/zeitaia Gazeta 20 October 1965, p24, Part V.
ii Speech to the XX Communist Party Congress 25 February 1956.
410 Legai!theorj

breach has occurred between Russia and Albania, supported by China, and
between Russia and China. The Chinese, too, insist on their own interpre-
tation of Marxism and accuse the Russians of having betrayed socialism.
This clash is more than just ideological; it is a bid for leadership of the
communist world, the outcome of which remains to be seen.
It has already been pointed out that Krushchev emphasised the classless
character of Soviet society where there is now a 'state of the whole people',
that the Communist Party is a 'party of the whole people' and one of two
friendly partners in the 'all-people's state"'. These are all contrary to strict
Marxism and only reconcilable with a revised version of it to the effect that
a state, differing from the bourgeois state, can and should survive under
socialism as the 'first stage of communism'. This is the period of the 'construc-
tion of communism"-3 , for although socialism has won in Russia, the goal of
communism is still afar. Three conditions remain to be fulfilled before its
advent. (a) The menace of 'capitalist encirclement' has to be removed, which
calls for Strict prtective measures, within and without; (b) the masses need
to be completely re-educated; and (c) economic abundance has to be secured,
which necessitates experiments. 1980 was set as a vague, tentative date for
the-dawn of the New Age; but nothing has happened. The problem is to
know-.who decides, and on what criteria, that the time has arrived. Unless
some clear indication of this is forthcoming, the vision of a state ,-free and
law-free society must remain no more than a vision. After the fall of Krush-
chev, there was a return to severer treatment, but the doctrine of the state
of the whole people remains".
Soviet jurists are now increasingly confronted with problems similar to
those facing lawyers in other countries. Socialist legality is openly proclaimed
and the need for theory is increasingly felt. In so far as laws serve the socialist
economy they are just and deserve obedience from all bodies and persons;
but they are still only instruments of policy, not objects of veneration in
doctrine such as the 'rule of law' is still incomprehensible to Soviet jurists.
One danger is that this attitude opens the way for an unscrupulous abuse of
power by the rulers, as indeed happened under Stalin; another is that the
patent association of law with expediency weakens respect for it and may
well hamper the task of re-education. So 'due process' now tends to be
• insisted on". Moreover, it was felt to be expedient to incorporate in the 1936

12 1977 Constitution, Preamble, art I; and sec Program of the Conunwtist Party of the Satiei Union
October 31 tg6i, II § 3. For the function of law and administration: 'Theses of the Central
Committee of the Communist Party on the 5oth Anniversary of the Great October Socialist
Revolution', June 21 1967, Spravochnik Partunogo Rabotnika (1967) Vyp vii, Thesis is;
The Theory of the State and Law (ed Dcnisov) 247.
13 1977 Constitution, Preamble.
14 1977 Constitution, Preamble; Kanel 'The Rise and Fall of The "All-People's State": Recent
Changes in Soviet Theory of the State' (1968) 20 Soviet Studies 81.
15 There were no procedural rules in the early decrees on courts: 24 November 1917 and 15
February 1918 11917-181 Sob Uzak RSFSR, No 4, item 50 No 28, item 366. The first
procedural instruction was issued on 23 July 1918: No 53. item 597, although immediately
prior to it judges were told not to let procedure hamper justice: NO 52, item 589. The first
statute, People's Court Act, was passed on 30 November 19i8: No 8, item 889. Principles
of civil procedure were enacted in 1922, and principles og csiminal ptocedurc were enacted
on 31 October 1924 119241 , Sob i Zak SSSR, No 24, item 204. General principles were
enacted in the Constitution of 1936, arts 103, 110, III, 127. Stalin's erosions of these were
repealed on 19 April 1956 [ 1 9 6 ) Vcdomosti Vcrkhovrsogo Soveta SSSR, No . 9 (81), item
193. See now the Code of Criminal Procedure RSFSR 1961, and of Civil Procedure of the
USSR and Union Republics 1962. For substantive criminal law, see the Code of I92 [1922)
, Sob Uzak RSFSR, No 15. item '; replaced by the Code of 1926 [1926] , Sob Uzak
 Economic approach
Constitution, which was hailed as the final victory of socialism
in Russia,
and in the 1977 Constitution a bill of fundamental rights". Whether these
are likely to have any practical effect may be doubted, for they are subject
to the provision that 'Exercise by citizens of rights and freedoms must not
injure the interests of society and the state and the rights of other citizens"".
,
Who decides?
There are important differences between the structure of the Soviet state
and capitalist states, and these have wrought some changes in the Soviet
concept of law. The guiding principle of Soviet law was floridly described as
folow.s:
In Soviet law such a single and general principle is that of socialism—the
principle of a socialist economic and social system resting on socialist property,
annihilation of exploitation and social inequality, distribution in proportion to
labour, a guarantee to each member of society of the complete and the manifold
development of all his (spiritual and physical) creative forces, and true human
freedom and personal independence"
The practical working of this principle has resulted in the following broad
characteristics. In the first place, a distinction is drawn between ownership
of the means of production and ownership of consumer goods. The former is
wholly in the state", and only the latter is open to individuals, 'the home,
garden and a cow"', the land belongs to the state, but the individual has
title to his house'. The resale of consumer goods is subject to strict scrutiny.
Some problem remains with producers who employ no labour and with
individual artisans'. Apart from consumer goods purchased by means of
income from labour, there is inheritance. This was forbidden in the Cammuniji
Man ifesto as a method of perpetuating private ownership in means of pro-
duction'; but inheritance has been increasingly recognised over the years".
There is another distinction between state ownership and ownership by
co-operatives (kolk/Lozes), and there is also ownership by public and social
organisations, eg trade unions'. Ownership by co-operatives facilitates the
performance of functions and tasks. For instance, land is nationalised arid

RSFSR, No 8, item 600; and see now the Fundamental Principles of Criminal Law of the
USSR and of the Union Republics, 25 December 1968.
16 1936 Constitution, arts 122-135. The 1977 Constitution has a new Section II. The State
and the Individual', setting out the 'rights', 'freedoms' and 'duties' ofdtizens.
17 1977 Constitution, art 39.
18 Vjshin4yp77.
19 1977 Constitution, arts 9-to; Fundamental Principles of Civil Law of the USSR. and of the
Union Republics, 8 December 1961 ([1962] Vedomostj Verkhovnogo Soveta SSSR, No 50
(1085), item 525), art i; Stalin Econamic Probloins of Socialcsm in the USSR
20 197 7 (1952).
Constitution, art "; Fundamental Principles of Civil Law of the USSR and of the
Union Republics, arts 19, 25.
Decrees of ig February 1918 [1918] 1 Sob iJzak RSFSR, No so, item 346, and of so August
1918, No 62, item 674.
2 1977 Constitution, .rt 17; Rules for Registration of Artisans and Handicraftsmen who are
not memh'rs of co-Operatives 194 9 (Annotation to art 54 of the Civil Code 196i); Criminal
Code of the RSFSR 1966, arts 153, 162; Decree of the Council of Ministers of the RSFSR,
4 August 1965-
: Given effect in the Decree 0(27 April 1918 [1918] I Sob Uzak RSFSR, No 34, item 456.
4 Civil Code 1922, arts 416-418; 1977 C
onstitution,art is; Decree of 14 March 1945, 3
Sbornik Zak SSSR, 1945-1947 (1947) p163; Fundamental Principles of Civil Law of the
USSR and of the Union Republics 8 December 1961 [1962] Vedomo,tj Verkhovnogo Soveta
SSSR, No 50 ( 108 5), item 525, arts 117-119.
- .---r' -
V2 Legal theory
have the use of it in perpetuity for the purpose
belongs to the state; kolkho.tes
of management and cultivation in strict conformity with state planning. This
is a new form of ownership. The promise of abundance requires a centrally
directed national economy, which has entailed not only a vast mass of reg-
ulations but also severe regimentation of the populace. Whether this helps or
hinders the achievement of the ultimate objective is open to argument".
Secondly, in the sphere of production, economic and business relationships,
eg between transport, producing and manufacturing concerns, are essentially
State organs are of two kinds, those
transactions between state organs inter se.
that are subsidised by the state and those that have been made into autono-
nious bodies known as State Trusts. The latter are legal persons and corres-
pond with the public corporations in other countries. Their property is, as it
were, conceded to them by the state. The regulation of relations between
these agencies, eg a manufacturing and a transport concern, is conducted on
the basis that they are individual bodies.
Thirdly, there are the relations between the state and the individuals, eg
between a State Trust and its employees; but these do not present any novel
ideas.
Fourthly, industrial contracts are subject to the national economic plan'.
Sometimes the plan directs that certain 'contracts of supply' shall be entered
into and outlines the pattern of the nature, scope and timing of the obliga-
tions, leaving only details to be arranged by the contracting enterprises, who
know best their own particular needs'. To meet he situation where they are
has developed, its
unable to agree, a system of state arbitration (Gosarbitrah)
function being not merely to deal expeditiously with disputes, but also to
assist in negotiating the terms of proposed agreements'. At other times the
plan only posits the goal to be attained and the enterprises are left to decide
what contracts, if any, should be entered into and with whom. This leaves
greater freedom of contract, though it is bounded by the task fixed by the
plan for each enterprise. The freedom to select one's contracting partner
promotes competitive efficiency, since an inefficient enterprise will not secure
contracts. The achievement of a plan, and not profit, being the basis of
contracts, it follows that specific performance, reinforced by penalties, and
not compensation, is the accepted remedy. At the other end of the scale,
contracts with the consumer public and between private individuals are no
. As consumer goods become
different from contracts in Western countries' 0
increasingly available, these kinds of contracts increase too.
Fifthly, the admission of individual ownership in consumer goods involves
a recognition of private rights, albeit to a restricted extent.
Sixthly, the regulation of all these relations, and particularly disputes
between parties, have of necessity to be entrusted to tribunals, the courts,
which have to be impartial and independent. The familiar doctrine ofjudi-
cia1 i ndependence and impartiality has thus gained ground. 'Judges and
people's assessors shall be independent and subject only to the law': so runs
where the editors suggest
6 Cf The Sr'..-I liga! Syitim (eds Hazard. Shapiro and Maggs) p iso,
that it has actually hindered rational planning. 29 June 1927
The Plan was treated aslaw after 1927 and the Second Decree on the Trusts
(1927) Sob Uzak RSFSR, No 39, item 392.
8 Decree of a February 1931 [ 1 93 11 i Sob Uzak SSSR. No to, item 102.
g Decree of3 May 1931 (1931) 1 Sob Uzak SSSR, No 26. item 203.
Sc.vi,f Ciuti Laze ( i 959 ) I. ppo et seq; Fundamental Principles of Civil Law of the USSR
and of the Union Republics 8 December 1961 [1962) Vcdomoati VcrkhovnogO Soe13 SSSR,
to
No 50 (to83). item 525, art., 14, 33-34, 36-37.
 Economic approach 413
art 154 of the Constitution"". In this connection a tribute should be paid to
the Soviet Supreme Court, a conscientious and fair-minded body of men,
whose restraint and care have d9ne much to raise the standard of the Soviet
administration of justice". If the law is to be administered with firmness, it
must be certain and predictable.
Finally, observance of legislation is strictly enforced. Even so, the Consti-
tution is not treated as a fundamental law. Both the Praesidium and the
Council of Ministers have legislated contrary to it".
All this introduces new ideas in some respects, but only a redistribution of
emphasis in others. Not only are Soviet jurists now facing the same sort of
problems as those in other countries, but many laws themselves have ap-
proximated more and more to those obtaining elsewhere. Such has b&en the
case with criminal law, family law, private rights and many other branches.
Perhaps the biggest retreats have been in criminal and family law. The
abandonment of the idea that cilme is only the reflection of capitalist econ-
omy has induced a revised approach to the problem of criminality"'. The
vital influence of a stable family background on children has also been
recognised". Apart from these the following points may be noted:
(i) The emphasis has shifted fiom the protection of the interest of the
individual in himself and his property to the state's interest in the
individual. This does away with the distinction between 'public' and
'private' law; all law is 'public"'.
(2) The safeguarding of 'socialist legality' and protection against abuses
and oppression is entrusted to a body known as the ProkuTalura, which
may be compared with the Ombudsman".
() The task of counsel in courts is primarily to further the cause 01
socialism, and this circumscribes his duty towards his client'8.
() Since law is a superstructure on an economic foundation, its material
sources lie in collectivisation and the presence of a People's State. Its
formal source is legislation' 9 . There is no doctrine of the separation
of powers. Interpretation of legislation has to be in accordance with
the principles of 'socialist legality', ie judges are bound to reflect
official policy; which is difficult with the bulk, complexity and

ii For disciplining ofjudges, see Statute on Disciplinary Responsibility ofJudges of the Courts
of the RSFSR, 12 June 1965.
12 Statute of the Supreme Court of the USSR 1957, amended 30 September 1967.
13 Cf Stalin's declaration of the need to 'put an end to a situation in which not one but a
number of bodies legislate, see L.enisism: Selected Writingi p 402. For the function of a consti-
tution in a socialist state, we Farber and Rzhevskii Questions of the flory of Sotht Cmtctitutiew.l
Law (1967); Kalinychev 'The Principal Distinctive Characteristics of the Soviet Socialist
Constitution', Soveskoe Gosudaissvo I Pravo 1 96 7, No ii, p 48.
14 See p 400 ante. For recognition of inheritance, seeP 4 11 ante.
15 Fundamental Principles of Legislation of the USSR and of the Union Republics on Marriage
and the Family, 3 July 1968 [sg68] Vedomosti Verkhovnogo Soveta SSSR, No 27, item
241, p401. For the early liberalisation of divorce, see Decrees of 18 and 19 December 1917
[ 1 9 1 7] i Sob Uzak RSFSR, No so, item 152; No it, item 160; Family Code 1926. For
reversal of t hia policy, see Decree of 8 july ig [t] Vedomosti VerkhovnogoSoveta
SSSR, No 37, and now the Fundamental Principles 1968. For parental responaibihty for
crimes committed by children: Decree of 25 November 1935 1 1 9351 1 Sob Uzak RSfSR,
No z, item 1,ss 4, 6.
,6 Lenin sg Collected Works (3rd edn) 419.
17 Statute on the Procurator's Audit in the USSR 24 May 1955, No g, item 222.
18 Sukharcy Defend but do not excuse' (1967) Sovetskaia lustitsiia, No 18, p15.
Ig Shebanov Sources of Law' Encyclopaedia of Legal Knowledge ('965)171.
414 Legoi theory
technicality of modern statutes. In this climate the question whether
judges should adopt a creative attitude or merely abide by the letter
of the law involves a delicate balance of considerations. Since state
policy is paramount, it might be said that they are limited to inter-
peting, not to creating rules. As pointed Out earlier, however, this is
not possible owing to the very nature of the judicial process. So what
happens is that the judicial authorities, especially the Supreme Court,
help to develop law by publishing instructions as to how laws should
be applied for the guidance of other courts; and the Prokuralura is at
hand to guard against aberrations of the courts. This is a new form
of precedent in its broad sense and it has a creative function".
() The educational function is an important aspect of law. Not only
must the parties be made to feel that socialist laws are best and just,
but legal administration as a whole has to assist in a thorough-going
re-education of social conscience in preparation for communism'.
Thus, there tends to be more sermonising in Soviet courts than in
Western courts; and criminal courts especially are very much courts
of morals'.
(6) At present custom plays a very minor role, as an occasional aid in
the interpretation or application of legislation. Perhaps, in the future
truly communist society, when people will have been socially re-
educated, custom will come into its own as the principal source of
socialist conscience.
All these developments, whether approximating to Western ideas or evolv-
ing new ones, should show how far the Russians have gone in legal theory.
The only way to reconcile them with traditional Marxism is to say that law
will have to flourish before it will disappear. From at least one source ortho-
dox Marxists may derive comfort and hope. This is the intervention on
behalf of, or against, an accused or suspect person, and the performance of
various legalistic and preventive functions by representatives of the group to
The Comrades'
which he belongs, be it a factory or garage (obschestcennost) 3 .
(People's) Courts were revived by Krushchev in 1959 wherever there are at
least fift y persons living or employed, eg farms, factories, apartment blocks
and even chools 4 . They deal with minor matters, such as foul language,
drunkenness, lateness for work and some kinds of civil disputes. Use has also
been made of the 'public meeting' to denounce 'parasites', ie those living off
unearned income'. These institutions might be thought to foreshadow a time
when law and courts will have vanished and the people themselves deal with
problems as they arise. The rationale behind them is that a state advancing

20 Other forms of interpretation are: Authentic interpretation by the Praesidium, which is

authoritative (Constitution, art 49 (c)); Doctrinal interpretation 0 which is unofficial.
(1966) pp 86-go; Elivanov 'Our
i Bratus and Samoshchenko The General Theory of Sozdet Lou,
Feopl&s University of Legal Knowledge' Sovetskaia lustitsiia 1966, No 18, pi; Ryskalina
Radio Lecture Courses So,sialisticheskaia Zakonnost 1966, No 12 p73; The Theory
of the Slate
and Law (ed Makichev) 497 ci seq; loffe and Shargorodsky Soritt Law and Gorernm."tt II No
2 p 3 (who stress the importance of law 'in the field of ideological education').
2 Fundamental Principles of Criminal Legislation of the USSR and of the Union Republics
25 December ig8, No 1, item 5; Fundamental Principles of Civil Legislation of the USSR
and of the Union Republics 8 December tg6t, No 50, item 525.
3 1977 Constitution, art 161; see Feifer Justice in Moscow ch 4.
Statute on Comrades' Courts of 3JU1y ig6i and 23 October 1963 first introduced into the
Red Army by Decree 013 December 1917 (1917] * Sob Uzak RSFSR. No 5, item 87.
5 Beerman 'The Parasites Law' (i96i) 13 Soviet Studies tgt.
 1.conomzc aPproac/l 413
towards communism has to start creating institutions for keeping order
according to healthy public morality, which are not those of the state.
Despite the claim that Russia has made a revolutionary break with her
past, many aspects of the system reflect a stream of continuity'. It has been
pointed out that the Tsars had repeatedly inaugurated industrial enterprises,
which were sold or leased to individuals. Nationalisation, therefore, in effect
restored to the state what had been its property'. The diversity of ethnic and
cultural groups in Russia is connected with their age-old resistance to 'Rus-
sification'. Lenin had encouraged such resistance in order to weaken the
Tsarist régime, but later found himself forced to accept them as separate
states. Amidst these divergences the Orthodox Church used formerly to func-
tion as a unifying spiritual force, and its mantle has now descended on the
Communist Party. The fact that communism has become a substitute faith
would explain why political dissenters are visited with the same sort of
repression and ridicule as that which used to be meted out to religious
dissenters. The Tsars had inherited the Mogul tradition of absolute auto-
cracy. There never had been a 'rule of law'; there always was a tradition of
'rule by law'. The traditional identification of crime with sin made criminal
courts into courts of morals; which remains very much the case. Equality
before the law was unknown, and the tradition was continued into the
proletarian dictatorship while class distinctions remained. Even after the
disappearance of such distinctions, equality before law could not sprout like
a mushroom overnight. Offences against the state had always been specially
dealt with; and that is still so. Even the Prokura(ura is the descendant of an
institution of Peter the Great.
In the light of all this it may be asked: How far has the Soviet system
achieved justice? With regard to justice in the allocation of benefits and
burdens, there is undoubtedly a more even distribution than before, and this
might be regarded as its greatest achievement. The amounts of burdens and
benefits that have been distributed has been strictly controlled by govern-
ment policy', but the more detailed problem of evaluating different kinds of
work and needs is no easier in Russia than elsewhere. With regard to justice
in preventing the abuse of power, this has not been achieved at all. As
pointed out, the removal of Tsarist power was only succeeded by an even
more ruthless power-structure. Further, a centrally directed economy entails
a vast bureaucracy and red-tape. With regard to justice in preventing the
abuse of liberty, it is true to say that this has been achieved, but only at the
cost of allowing very few liberties. With regard to justice in deciding disputes,
it would appear from what has been said that the Soviet Union is moving
more and more towards the position in Western countries. Finally, with
regard to justice in adapting to change, there is no difference between the
Soviet Union and other countries in adapting to technological advances.
Indeed, it might even be easier in Russia where there can be no strikes
against the introduction of new methods and machinery. On the other hand,
any move which even hints of political change will receive short shrift. The
rigid orthodoxy, which the Soviet Union seeks to impose even on other

Volksetst:
6 Sec c5pccifly John.on At !,trodsflio" fa da Sotnit Legal Sjsiem ch 2. Cl Savigny's
PP 378 et seq ante.
7 See p 304 ante-
8 Eg Sialiniat policy laid emphasis on heavy industry at the expense of consumer goods.
Krushchev relaxed that somewhat, but there has been a return to heavy industry since.
416 Lga1theory

countries under her wing, makes the possibility of this kind of change within
her own territory extremely unlikely.
A word might also be said about the Soviet attitude towards international
law. The capitalist threat from abroad is not only an explanation of the
severity of the measures adopted internally, but also a clue to Russia's insist-
ence on the sovereignty of states and her policy in international affairs. There
was an initial theoretical difficulty as to how the idea of law, which was
viewed as the product of an economic structure, could apply as between
states with widely differing economic systems. This led at first to confusing
attempts to introduce the class concept into .international relations, which
were replaced by the view that international law is simply an instrument of
policy. The result has been a highly eclectic selection of principles and inter-
pretations. Thus, while Russia v.-as still militarily weak she made use of
international law for protection. To this end she put forward and persisted
in claims that were designed to make denials of them by other states appear
as aggression; she rejected the League of Nations as a tool of capitalism, but
found no difficulty in joining it in the face of the growing German threat in
1934. After the 199- war, by which time she had achieved a position of
power, the continued furtherance of her own interests led to the reversal of
attitudes previously adopted. During the Korean War in 1950, for instance,
in order to support the North Koreans it was found necessary to reject the
very definition of aggression which she herself had insisted on in 1933; nor
could she bring herself to support the International Declaration of Human
Rights. She is a party to ihe Helsinki accord, but its internal implementation
leaves much to be desired.
Two developments are worth noting. The first is that with the establish-
ment of number of communist states since the 1939-45 war there is increas-
ing talk of a new 'socialist international law"'. The economic structures of
these countries being more or less alike, the possibility of an international
law, between them at any rate, which is not simply an instrument of policy,
is now more real. The invasion of Czechoslovakia in 1968 by the Warsaw
Pact countries was prompted by Russian fears of 'deviation'. The Brezhnev
doctrine of the 'limited sovereignty' of other communist countries, which was
propounded to justify the invasion, raises questions as to what the sovereignty
of states now means in the communist world. It is an almost open avowal of
the satellite status of these other countries. \Ioreos-r, this event, even if it
stood alone, makes one wonder what is to be made of the familiar and
apparently serious charges continuing to be made of Western 'imperialism'
and 'aggression'. Secondly, even in relation to capitalist countries, the policy
of 'peaceful co-existence"°, if seriously pursued, should bring about a differ-
ent attitude towards international law, accentuated perhaps by the realisa-
don of the economic and political inter-dependence of states. Instead of two
sy stems of international law, one for socialist states and another for non-
socialist states, there may be onl y one system after all; but the ingrained
Marxist dialectic sees this as a kind of synthesis produced by the economic
and political competition between all states. Whatever the type of inter-
national law, the underlying question is: Does the Soviet Union regard it as
binding and, if so, on what basis? The answer that seems to be given is:
9 Bu-Jer "Socialist International Law" or "Socialist Principks of International Relations"
(1971) 65 AJIL 796. The 1977 Constitution has for the first time a special chapter on
Foreign Policy': see ch .
10 1977 Constitution, art 28.
 Economic approach 417

agreement This cannot stand up to analysis, but since it is part of a wider

question concerning international law in general, it will be postponed until
later".

CONCLUSION
When considering the nature of law from an economic point of view two
questions have to be distinguished. One is the extent of the economic influ-
ence on the content of the law. In so far as it has been demonstrated that a
great many rules have been shaped by economic factors, perhaps more than
had been suspected, this can be accommodated within traditional concepts
of law. The other question is what kind of a concept of law would be
appropriate for Marxism as practised in contemporary Russia. This would
have to be a functional concept, but one that would need to be sharpened
with reierence to the re-education of the people and the ushering in of a
better society. As such, it would be an instrument of executive, rather than
class, policy and would centre on the executive rather than on the courts. A
concept focused on the latter will unfold a far from satisfactory picture of
law as it operates in Russia. For the decisions of Soviet courts can never be
fully understood except in the light of the theoretical and ideological back-
ground of the principles that are being applied: all of which are dictated by
policy . However, at bottom the idea of law still remains very much the
expression of an 'ought'.
Apart from this the contribution of the economic approach is varied. The
significant point that has emerged is the indispensability of law. The Marxist
approach was a thorough-going attempt to do away with it, but the practical
experience of Russia has only demonstrated its importance. It may be that
the final stage of development , according to Marxist predictions, has not
been reached, but it is clear that even if it is reached the prescription of
behaviour and a measure of coercion will continue to exist. There is no
reason, apart from an emotional one, for refusing to call all this 'law'. The
significant difference from Western societies is that law will not serve as a
watch-dog on the government—a rule by law rather than a rule of law. How
far an effective safeguard against an abuse of governmental power will be
evolved remains to be seen.
Marx and Engels painted a confident picture of evolution, 'the' class
struggle reaching a point when conflict arises and results in the establishment
of the proletarian dictatorship 7 which in turn develops into communism.
Their followers, both in and out of the Soviet Union, have sometimes tried
to force the pace of events. These tactics have been somewhat exaggerated
by opponents of Marxism, but they do, even in themselves, reflect unfavour-
ably on the doctrines. While it is true that over-enthusiasm of disciples should
not discredit the teachings of the prophets, yet to have to force the occurrence
of events, which are supposed to follow an evolutionary plan, can only raise
doubts as to its correctness. The policy of 'peaceful co=existence', so
prominent in Soviet pronouncements in the last two decades, may well be
inspired by an appreciation that the events will nevertheless take time.
The Marxist doctrines in their practical content come to this. For reasons
good or bad, the existing structure in capitalist countries needs to be altered.

ii Sccpp.97-498P°St.
 418 Legalthecrj

In Russia it is a fact that

the structure was changed and the Russians are
seeking to improve upon it still further. This great and praiseworthy
experi-
ment is independent of any question as to the nature of law, as the Russians
are beginning to perceive. U
were u nfortunately, questions as to the nature of law
nnecessarily dragged into the social experiment at its theoretical stage
and were coloured by a strongly emotional element. This intrusion of emo-
tion is nowhere more evident than in the loading of such words as 'law',
'state', 'bourgeois' and some others
' . Although they approve of the term
science', it should be realised that there cannot be a 'scientific' discussion of
any topic until the emotional element has been expelled'2.
There is no reason to suppose that communism is the universal social
panacea. It might well prove to be the answer for some types of societies,
but not others. Two points appear to stand out in this connection. The first
was well summed up by Dr Schlesinger, who said:
'Socialism of the Russian type may be a historical expedient by which nations
held back under a capitalis t
régime may catch up with those more advanced"".
Nor is there any reason to suppose that communism will work in the same
way, or at all, in countries which have reached a high state of development
under a capitalist system. Secondly, the Russian type of communism requires
a degree of re
gimentao of the masses, the success of which inevitably
depends on the nature and temper of the people concerned: the more ignor-
ant and traditionally inclined to subservience the better the chance of success,
the more educated and independent the greater the difficulty. The Russian
Peoples throughout their history never knew emancipation in the sense that
inhabitants of Western countries have known it. Indeed the boast of the
Revolution as that it freed them from serfdom, which is true; but it is a
relative kind of freedom compared with the traditions of certain other coun-
tries, which have long been schooled in the pursuit of independence and
resistance to dictatorship. Such countries are less likely to embrace a com-
munist régime than those which have long been oppressed or have remained
largely ignorant, and they are likely to fare badly for a long time under one.
This is one reason why communism succeeds with oppressed peoples; another
is the hope which it holds out to them. Even with these an unremitting
process of education is needed; how much re-education would be needed for
some races of the West can only be guessed. The Hungarians in 1956 and
the Czechs in 1968 demonstrated to their cost the reaction of peoples to an
uncongenial régime as soon as control was slightly relaxed, while a similar
relaxation in Russia evoked no reaction.
The attack on religion and its ideals has only succeeded in substituting
one kind of religion for another. It is doubtful if Marx or Engels foresaw, or
would have welcomed, the worship they now receive. The adherence to what
one wit has described as the 'gospel according to St
Marx' has involved
Soviet jurists in some strange mental feats in trying to maintain his
as the official creed and at the same time to take account of doctrines
inconsisten t developments
with it. The official attitude seems to be that the 'truth' is in
Marx if only the right interpretation can be found; but in the very nature of
ii Itis in this respec t, if
Mz'Soz .g State comes as for
no other, that so authoritative a treatise as Vyshinsky',
a disappointmen TheLzw of'
world cannot but feel that the case is t Even those rea d it with the bt will in the
is adopted in it. hardly advanced by the vividly emotional tone which
3 Schlesinger ps6o.
 Economic approach 419

things, departures from his teachings have proved to be inevitable. As long

as these are officially countenanced, they are 'interpretations'; when they
cease to have official support, they are denounced as 'deviations'. Even from
a Soviet point of view, why should it not be admitted that the teachings of
Marx have obvious limitations and have also in some respects become out of
date? In 1956 the 'personality cult' was denounced with regard to Stalin.
Whether its rejection will extend to Marx, Engels and Lenin and, if so, to
what degree, remains to be seen. Indeed, outside religion, the adherence to
the belief in the infallibility of one man would be a mark of an immature
mentality. One explanation might be that, having erected the whole of their
structure on Marx, the Russians are afraid to risk the consequences of ad-
mitting the existence of flaws in the foundations. It is also difficult to escape
the suspicion that there is in their attitude elements of immaturity and
religious fervour, as borne out, for example, by the genuine desire to convert
the whole world, the refusal to see or believe that anyone can be right but
themselves, and the faith in the inevitability of a communist triumph. In the
face of such sturdy and militant enthusiasm it is not easy to sift what is solid
and sound from the emotional admixture of eulogy and abuse. Indeed, in
contemporary Marxism is to be seen Ihe twentieth-century version of the
Crusades.

READING UST

HJ Berman Justice in the USSR, An Interpretation of Soviet Law.

M M Bober Karl Marx's Interpretation of History (2nd edn).
E Bodenheimer 'The Impasse of Soviet Legal Plilosophy' (io-) 38 Cor-
nell Law Quarterly 51.
H Collins Marxism and Law.
R David and JEC Brierley Major Legal Systems in the World Today (2nd edn,
Part II.
A Denisov and M Kirichenko Soviet State Law,
M Djilas The Jiew Class.
F Engels The Origin of the Family, Private Property and the State.
V Gsovski Soviet Civil Law especially Part I.
J N Hazard Law and Social Change in the USSR.
J N Hazard, I Shapiro and P Maggs The Soviet Legal System, Contemporary
Documentation and Historical Commentary.
E L Johnson An Introduction to The Soviet Legal System.
H Kelsen The Communist Theory of Law.
K Marx Capital and II.
K Marx and F Engels Manifesto of the Communist Party.
KR Popper The Open Society and its Enemies (5th edn) II.
R A Poser The Economics of Justice.
R Pound Interpretations of Legal History ch 5.
K Schlesinger .oriel Legal Theory (2nd edn).
Soviet Legal Philosophy (trans H V Babb 20th Century Legal Philosophy Series
V).
 CHAPTER 20

Sociological approaches

A common feature of a number of approaches, which have gained increasing

popularity in this century, is that in one way or another they concern law in
relation to society. This outlook is the product of many factors. In the
nineteenth century the focus of attention began to swing away from indivi-
dual rights towards social duties, and carried with it an emphasis on the
function of law in communal existence. The rapid increase in population,
inequalities engendered by the industrial revolution on a scale hitherto un-
precedented, were factors which, together with others, created new problems.
The Historical School had shown an essential connection between law and
the social environment in which it develops. Prior to the nineteenth century
such matters as health, welfare, education, economics, were not the concern
of the state. Now the state came increasingly to concern itself with them.
This implied regulation through law, which cdmpelled legal theory to re-
adjust itself so as to take account of such preoccupations. Towards the latter
half of that century the shortcomings of purely formal analysis were being
felt. The increasing number of social activities with which the law had to
deal produced a host of new problems for the solution of which guidance was
needed. Traditional approaches, analytical positivism in particular , were
forced into confessions of mental bankruptcy in meeting these demands.
Finally, revolutions and social unsettlement not only upset any complacency
about social stability, but also provoked anxiety about the shortcomings of
law.
The diverse character of the various types of inquiries that are styled
'sociological' invites comment. Sociology means, broadly, the study of society
of which law is but a part. The founder of sociology, in a sense, is Comte
I798-I857), because he was the first to employ the term 'sociology' to
connote an independent discipline, and he also unified the work of earlier
men. Comte insisted that advancement of knowledge comes only through
observation and experiment and he proceeded to construct a hierarchical
classification of the sciences, from mathematics, through physics, chemistry
and biology to what he called sociology. Even though it was more difficult
to apply the scientific method to sociology, it was still, in his view, the most
fruitful. Sociology he defined as the science of social order and progress. It
includes t\o compartments social statics and social dynamics, the former
being the theory of social order and the latter the theory of social progress.
Society is a developing organism, whose progress is marked by the specialis-
ation of functions within it. Its distinctive feature is its capacity for improve-
ment and development if guided by proper scientific principles. The task of
sociology is to discover and work out these principles. Earlier Montesquieu
'1689-1755't in his L'Esprig des Lois
had endeavoured to trace the effect of
social environment on law. He busied himself with legal institutions with the
object of offering explanations for them. He stressed the influence of geo-
graphical and climatic conditions on law which, in his view, could operate
 Sociological approaches 421

only through the medium of society'. He perceived the importance of history

as a means of understanding the structure of society and also drew attention
to the part played by economit factors. In all this might be seen anticipations
of what later developed into the Historical, Economic and Sociological
Schools. In his own work, however, they appear as pointers to such studies
rather than as studies in themselves.
As a subject sociology is still young and in search of respectability'. One
step towards this would be to win for its methods the dignity of being able
to invoke the magic word 'scientific'. The- following are the main resem-
blances and differences between sociological and scientific methods'.

(t)
Sociology, like science, proceeds from observation to hypothesis, and
deductions therefrom are in turn checked back with 'reality'. In this
respect the difference between them is largely one of degree, for
sociology is still very much at the stage of observation, which indeed
is being conducted on a massive scale with all modem techniques,
but with as yet only exploratory hypotheses, classifications, models
and tentative laws of probabilities".
(2) It is theoretical and aims at synthesising other disciplines, some of
which are long established, such as history, economics, law etc.
(3) It progresses cumulatively in that new hypotheses are evolved as
much out of the correction, extension and refinement of earlier ones
as Out of new data.
It is non-ethical, ic impartial in evaluation. Just as a scientist puts
aside his own values when observing his data, so too the sociologist
excludes his own preferences and prejudices when observing his data,
which include current values and opinions. Put in another way, the
values of a sociologist qua sociologist are the same as those of a
scientist, namely neutrality and scrupi.slousness. There are, however,
two qualifications. The social observer cannot avoid being personally
involved in the society or group which he is observing, of which he
is a part and in which he has a role to play towards his data. The
scientist is not involved with his data in this way. Secondly, social
behaviour has causal as well as purposive explanations, ie the ques-
tions to be answered are not only 'How?' but also 'What for?' So-
ciological explanations are therefore sometimes termed 'structural-
functional', the structural side being explanatory and descriptive, the
functional side being both heuristic and teleological.
() It seeks to describe, explain and predict, in short to derive descriptive
laws which will predict, as opposed to prescribe, social behaviour:

Montesquieu L'Esprit&s Lois especially Books XIV et seq, and XVIII.

Law, distinguished between three stages in the sociology of law: .1
2 Sclzn '.k The Sociology of (it) evolving methods and
outlining broad strategy and perspectives and programs of attack;
techniques; 1 iii) in the fullness of 'intellectual autonomy and maturity' a return y to the
problems posed at the outset. A professor of sociology admitted that 'Sociolog is itill to a
t ill not sure
large extent in the classifying, ordering and descriptive stage, because we are s
hat is relevant and what is not. The result is that a great deal of sociologising is more like
a kind of random botanising a collecting of data, ie statistics, personal case histori and the
like, uncontrolled by the purpose of verification. This is inevitable, and certainty provides
material on which the theorist can build, but at the same time it must be admitted that.
while unbased and unverified hypotheses are empty, a mere collection of data is blind':
Sprott Sociology p39.
3 For the first four, see Johnson Sociology: A 4y5Ztnwtic Introduction p 2.
Sprott p39: teen 2 supra.
422 I4gaJtho7j

that which 'is', not that which 'ought to be'. The material out of
which such descriptive laws are derived includes (a) social morphol-
ogy: which concerns the form of social structure as affected by such
factors as the quantity and distribution of population, geography,
climate etc. (b) Social change: which may in turn inspire conscious
or unconscious efforts to resist, adapt to or alter it. So-called 'short-
term' theories of social change confine themselves to changes that
have occurred and the influences behind them without extrapolating
these into some general law of change, whereas 'long-term' theories
aim to do precisely that'. (c) Social pathology: which concerns social
disturbance and maladjustment. Criminology is a well-known aspect
of this. (d) Social controls: which include laws, morals, religion,
public opinion, fashions and so on. (e) Group behaviour: which deals
with the problems of the interaction between individuals inter se and
groups. Something more about group behaviour will be said towards
the end of this chapter, but social controls raise points which may be
dealt with immediately.
Laws are not the only instruments of control; others, such as morals,
religion etc are at least as effective, if not more so, with the result that they
all figure prominently in sociological study. No less important is the relation
between public opinion, its unifying and divisive power, and the various sorts
of issues on which opinions are held. The point is that all forms of control
are in their nature 'ought' propositions, prescriptive not descriptive. The
concern of sociology is not with prescriptions as such, but with the pheno-
menon that when such prescriptions are regularly followed, they produce
uniformities of behaviour which recur with such a degree of probability that
they may then be described in terms of the 'is', ie patterns which do occur
as a matter of observation. It might seem from this that sociologists are here
deriving 'is' from 'ought', but this is not so. The sociologist is primarily
concerned with descriptions of social behaviour and only concerned with
prrscriptions in so far as these happen io produce regularities which can be
observed. In no sense is he logically deriving the one from the other.
This reveals a crucial difference between the point of view of the sociologist
looking at law as the sum-total of legal administration and as a given phen-
omenon of society ('legal sociologist'), and that of the lawyer looking at the
operation of laws and the conceptual tools of a lawyer's equipment in their
social and functional setting ('sociological jurist'). The former regards society
as a whole, including the part played by legal administration in bringing
about observable patterns of behaviour. He is interested in the fact of the
regular application of force and the fact of the regular use of guides for
determining disputes (norms of decision), both of which help to shape pat-
terns of social behaviour (norms of conduct). Thus, his concept of law tends
to be that of an ideal type, a model of the totality of legal administration,
which can be fitted into a model of society". On the other hand, the sociol-
ogical jurist is primarily concerned with laws and the tools of a lawyer's
trade; he accepts the former as being prescriptive in their nature and con-
siders their function and functioning in society. The present chapter will be
concerned mainly with the point of view of the sociological jurist, not of the

5 Eg Hegel and Marx; contra Popper The Open Society and its Enemies especially vol II.
6 For an attempt to construct one, see King 'The Concept of a Lawyer's Jurisprudence' (1953)
it CLJ at 236, 418; The Basic Concep t of Professor Hart's Jurisprudence' [1963] CLJ 270.
 Sociological approaches 423

legal sociologist, though works of the latter type cannot be excluded alto-
gether. Needless to say, the authors, whose works will be dealt with, have
not themselves maintained any such rigid distinction and in some cases it is
arguable into which category they fall. Whether any further distinction is to
be drawn between 'sociology of law' and 'sociological jurisprudence' is doubt-
ful. If 'sociology of law' is thought to be concerned with the manner in which
laws work in society, there is, it is submitted, no difference between it and
sociological jurisprudence: if it is concerned with society and how legal ad-
ministration as a whole fits into it, then it is synonymous with legal sociologv
The social study of laws has assumed four forms (i) There are inquiries
which seek the social origins of laws and legal institutions. They are con-
cerned with the content of the 'oughts' and the factors that have and are
shaping them. (2) There are also examinations of the impact of laws on
various aspects of society. (3) There are other inquiries which deal with the
task which laws should per form in society. The results of these studies
generally take the form of prescriptions addressed to persons who make and
administer laws and not to members of society at large. Such 'prescriptions
for administration' are in a different category from the 'prescriptive oughts'
of laws themselves. Lastly (4) there is the attempt to find some social criterion
by which to test the validity of laws. So wide is the field that is covered by
these categories that it will not be possible to do more than consider the
work of some representative writer or writers.

SOCIAL ORIGINS OF LAWS AND LEGAL INSTITUTIONS

The theories which deal with origins fall into three categories. Two of these,
namely, the Historical interpretation and the gconomic interpretation, have
been considered in the last two chapters, where it was pointed out that they
are but versions of the sociological approach. Something has still to be said
of the theory of Ihering, which sought to explain the origin of laws without
resorting to a metaphysical concept like the Vol/csgeist or a single evolutionary
principle as Marx had done.

IHERING
Ihering (1818-1892) passed the early part of his juristic career as an orthodox
member of the German Historical School, during which time he intensively
studied Roman law and published four volumes of a work, The Spirit of
Roman Law. This he left unfinished, for its execution had convinced him that
thç origin of laws lay in sociological factors, a thesis which he proceeded to
he
urge for the rest of his life. In the third volume of The Spirit of Roman Law
concluded that the basis of a 'right' was an interest, which led him to consider
more closely how laws dealt with conflicting interests. His ideas came to
fruition in his major work, Der Zweck im Recht ('Purpose in Law'), which has
The dominant
been translated into English as Law as a Means to an End.
notion to be found in the exercise of human will is that of purpose. Causality
in the natural world is governed by a 'because'. A stone falls because, without
support, it must fall.

7 By Husik ,t!odern Legal Philosophy Series v.

424 Legal theory
'The stone does not fall in order to fall, but because it must fall, because its
support is taken away; whilst the man who acts does so, not buouse of anything,
but in order to attain to something. This purpose is as indispensable for the will
as cause is for the stone. As there can be no motion of the stone without a
cause, so can there be no movement of the will without a purpose".
Law is but a part of human conduct, and in the idea of purpose Ihering
found the mainspring of laws, which are only instruments for serving the
needs of society. Their purpose is to further and protect the interests of
society. Purpose should also guide juridical thinking, of which his analysis of
possession was an example".
The problem of society is to reconcile selfish with unselfish purposes, and
to suppress the former when they clash with the latter. Ihering stressed that
law does not exist for the individual as an end in himself; but serves his
interest with the good of society in view. Man, as a social animal, whether
as a member of the state, Church etc, stands on a superior plane to Man
simply as an animal". Property, for example, is both a social and individual
institution, which justifies expropriation and limitation of the individual's
tights". In order to reconcile the individual with society, it is necessary to
balance various interests, which he grouped into three categories: individual,
state and social' 2 . The social activities of people need to be encouraged, and
this is accomplished by means of the 'principle of the levers of social motion'.
There are four, the first two being the principles of Reward and Coercion.
These seek to identify the selfish interest of the individual with some larger
social interest. To give an example, since the economic wants ofMan need satis-
faction trade is instituted to fulfil this need, thus achieving a social purpose
by pandering to the selfish profit motive. This is an example of Reward
being employed. Coercion is a feature of that part of the social machinery
which is called legal administration, namely, coercion organised in a set form
by the state. By its side there is also unorganised coercion in the form of
social conventions and etiquette. In addition to these there are two altruistic
principles, Duty and Love, which also direct men towards social ends.
The point which emerges from Ihering's analysis is that laws are only one
type of means of achieving an end, namely social control. There is a distinc-
tion between society and state; laws are a feature of the latter. He insisted
that laws should be treated from the angle of purpose and convincingly
demonstrated the inadequacy of what he called the 'jurisprudence of con-
cepts', that is, mechanical deduction from given premises' 2 . He insisted also
on the interdependeice of all factors that obtain in society, which include
(a) extra-legal conditions, ie those under the control of nature, such as the
climate and the fertility of the soil; (b) mixed legal conditions, those in which
laws do not play a prominent part, such as self-preservation, reproduction,
commerce and labour and (c) purely legal eonditiorss, those interests which
are secured .solely by legal regulation, such as the raising of revenue. Finally,
he stressed the coercive character of legal regulation"'. His analysis led him
to a definition in the following terms:

8 lbenng Law asajifeoa,, End p2.

9 Set pp 276-2?? ante.
to 17seing pp 63, 68, CF his Knmpf urns Rec/,t.
Ii Thmegpi.
12 Cf Pound, PP 43 1 et seq post.
13 He parodied a heaven in which legal conceptions enjoyed a blissful existence: let Jurististhen
&gyzfchtmmel I n Sizes-c w,d Es-rut in des- Ju,-isprudenz (iith edn 1912) 245.
p
14 lhcring Low s1sa Means toanEndp,4,
 Sociological approaches 423
'Law is the sum of the conditions of social life in the widest sense of the term
as secured by the power of the State through the means of external compul-
sion'1'
In hisapproach Ihering was building upon the work of the English think-
ers, Bentham and Mill, whose utilitarianism may be said to have influenced
his theory of purpose". Ihering, however, insisted on the need to reconcile
competing social and individual interests. In this respect he merits the title
of 'father of modern sociological jurisprudence', for, as will presently be seen,
the problem of the harmonisation of interests plays a prominent part in the
theories of some modern writers. Ihering himself did not indicate how this
was to be resolved. His social utilitarianism, as it is usually called, stops short
of this question and only draws attention to it. His concern, as stated at the
beginning, was to examine the origin of laws, not their application. He was
also rightly convinced of the futility of a priori theories ofjustice; a law may
be bad today and good tomorrow if the social background has shifted in the
meantime.

IMPACT OF LAWS ON SOCIETY

EHRLICH
Ehrlich's (1862-1922) thesis" was that laws found in formal legal sources,
such as statutes and decided cases, give only an inadequate picture of what
really goes on in a community, for the norms which in fact govern life are
only imperfectly and partially reflected in them. He drew a distinction be-
tween norms of decision, which correspond to that which is traditionally
understood to be laws, and norms of conduct, which govern life in society".
There is often a considerable divergence between them. Thus, a commercial
usage may develop, but it is only after the lapseof some time that Courts will
acknowledge it and import it into contracts. Eventually it may become
embodied in a statute, but by this time modifications of it and fresh usages
may have developed. So the process goes on. There wilL-always be an mess-
table gap between the norms of formal law and of actual behaviour. The
point that Ehrlich was seeking to make was that the 'living law' of society
has to be sought outside the confines of formal legal material, in other words,
in society itself. One learns little of the living law in factories, for example,
by reading only the Factory Acts, the enactments and the common law
relating to master and servant, trade Unions etc. One needs to go into a
factory to observe how far the formal law is followed, modified, ignored and
supplemented. Only a minute fraction of social life comes before courts, and
even then it usually represents some form of breakdown of social life. The
task of formal law-makers is to keep it as nearly abreast of the living law as
possible.
The existence of a social order ante-dates formal legal provisions and,
moreover, certain facts underlie all laws. These are usage, domination, pos-
session and declaration of will. Propositions of law with reference to them
arise in three ways, by endeavouring to g ; -,e effect to the relations they
create, by controlling or invalidating them, or by attaching consequences to
15 lhe'ing p 380
i6 See pp 427-429 P-t-
17 Ehrlich Fundamental Principles of the Sociology of Lau. (trans Molt).
iB Ehrlich p 37.
 426 L€gdthto,y

them. A formal concept of law consists of the synthesis of generalisations

constructed from the various propositions of law. If it is asked how the living
law, as distinct from the formal law, is to be discovered, Ehrlicli's answer
was: from (a) judicial decisions, which are only evidentiary; (b) modern
business documents against which judicial decisions need to be checked; and
above all (c) observation of people, by living among them and noting their
behaviour.
It follows from all this that state organisation plays but a subsidiary part.
The norms emanating from the state and its organs are only one factor of
social control and should be considered in conjunction with others such as
customs, morality and the practices of groups and associations. When looked
at in the context of living law, there is no difference between formal legal
norms and those of customs etc, for it is social pressure that ensures obedience
to both types in practice. So, to Ehrlish a statute which is habitually disre-
garded is no part of the living law. Enforcement by the state is not the
distinction between formal and living law; the difference resides in social
psychology. Some types of rules evoke different feelings from others. So there
are many reasons why a person obeys even a legal rule other than fear of
state enforced sanction' 9 . The characteristic of formal rules lies in the kind
of feelings they arouse by virtue of their generalit y and social significance. It
is a fact that different societies, and even the same society at different times,
have had different feelings about what is socially important, so the line
between legal, on the one hand, and moral and social rules, on the other,
has constantly shifted. There is in all this some parallel with the views of
Savigny, but Ehrlich's approach is infinitely more practical than Savigriy's
mystical Volksgeist. Such regard for the living law requires that the scope of
jurisp-udence should be enlarged. It should concern itself with an observa-
tional study of society, since formal laws are only an adjunct of the living
law.
Ehrlich's work was a powerful influence itt inducing jurists to abandon
purely abstract preoccupations and to concern themselves with the problems
and facts of social life. While acknowledging his beneficial stimulation in this
direction, one should not overlook some drawbacks in his theory. While the
distinction between formal and living law is necessary and important, there
is some danger of a verbal discussion as to whether both should be called
'law', or only one, and if so which. He deprived formal law of any creative
activity and gave it too much the appearance of trailing in the wake of social
developments. It is true that reforming legislation is sometimes the formal
expression of a tide of public feeling, but it is also true that many norms of
behaviour have been given shape and direction by the constant enforcement
of laws. Ehrljch's distinction between norms ofdecision and norms of be-
haviour is important; but he failed to emphasise sufficiently their mutual
interaction El-irlich's contentions were also somewhat outmoded even when
he propounded them. State organisation is now, and has been for a long
time, playing an ever-increasing part in the regulation of social life. It is by
no means merely ancillary to the living law; it has come to be of transcendent
importance. The picture which Ehrlich drew was truer of the past than of
toda y
, but it was ceasing to be true even in his own day. He was ready to
admit the increasingly important part that was being played by state organ-
isation, but he failed to bsorb its implications into his theory. Finally,
'9 £'rt,ch p 2i; pp 49 ci seq ante.
 Sociological approaches 427

Ehrlich's conception of jurisprudence could make it unvieldly and amor-

phous. To urge that laws should be studied in the context of society is proper
and beneficial, but the way in which Ehrlich proposed to conduct the study
of society would all but submerge the significance of laws and might very
well lead to the death ofjunisprudenCe as a subject.

THE TASK OF LAWS IN SOCIETY

No account of the function which laws should perform in societ y would be

complete without some mention of the pioneer contribution of Bentham.

BENTHAM
Jeremy Bentham's (1748-1832) contribution to analytical jurisprudence has
already been dealt with". What will be considered now is his social phi-
losophy. He was without doubt a stout individualist who approached the
problems of society on that basis. His moral philosophy, social sense and
juristic insight cannot be separated, but if there was one theme which ran
through his many writings it was his utilitarian outlook on life. Man, in his
view, was governed by pleasure and pain'. In this one is tempted to detect
the influence of Hobbes, who based his philosophy on the innate selfishness
of men. The function of laws, according to Bentham, should be the promo-
tion of the greatest happiness of the greatest number 2 . This was only one
application of the Principle of Utility, which approves or disapproves 01
action according as it increases or diminishes happiness'. Bentham, be it
noted, did not invent the utility principle; he took it from others, notably
Hume, and developed it in the minutest detail'. It is also worth remembering
that his 'pleasure' has a somewhat large signification, including altruistic and
obligatory conduct, the 'principle of benevolence'; while his idea of interest'
was anything promoting pleasure'. The task of laws should be to bring about
the maximum happiness of each individual, for thtsappiness of each will
result in happiness for all' There is in this the age-old problem of reconciling
interests of the individual with those of the community, but it amounts
almost to a contradiction to try to harness a selfish pursuit of pleasure and
avoidance of pain to the unselfish service of the common weal. One way of
avoiding contradiction would be to suppose that individual pleasure-pain
motivations by and large would not run counter to those of the community.
Perhaps Bentham did believe this, at least when he wrote his Introduction to
the Principles of Morals and Legislation.
It has also been suggested that he may
have embraced dual standards, that of community interest in the public and
political sphere, and self-interest in private matters". However this may be,
as an unremitting reformer, he favoured legislation on a drastic scale to

20 See pp 333-343 ante.

(eds Burns and Hart) I, para
i Bentham An Introduction to the Principles of Morals and Legistation

2 Bentham A Fragment on Government (ed Harrison

of Morals and losso,e, parLt 2-3-
3 Bentham An !nirodawn Is lPosneples
4 In one place he ascribed credit to Priestley: Bentham Works (ed Bowring) X. p 142, in
another to B.eccaria: Bentham A Fragment on Government, p xx.
Bentham An Introduction to the Principles of Morals and Legtslaton pars 5
6 Bentham An Introduction to the Principles of Morals and Legzslaion para 6.
7 Lyons In tAt Interest of the Governed p20.
 428 i.(gallh(ory

remedy the evils which he saw around him, but once these had been eradi-
cated legislation should aim at providing subsistence, abundance, equality of
opportunity and security for all. His individualist leaning manifested itself in
his insistence that individual and private property were essential. This was
necessary, he argued, to ensure the fulfilment of settled expectations.
The utility principle has been subjected to searching examination. In the
first place, it is not easy to see how a subjective criterion such as pleasure
and pain can be transmuted into an objective one. Pleasure connotes an
emotional attitude of approval, pain of disapproval. To judge an action
according to the pleasure-pain criterion is to judge it subjectively. To say of
a given course of conduct 'I prefer it because it is conducive to pleasure' is
no more informative than just 'I prefer it'. For conduct is not loaded with
pleasure- or pain-giving qualities; these are dependent on individual reaction.
The problem then is: whose reaction should be the criterion? It is true that
sme t y pes of conduct are generally thought of as conducive to pleasure and
others to pain, but the problems arise with reference to conduct as to which
feelings are equivocal or divided. This leads to another objection. The con-
sequences cf pleasure or pain of an action may well be indefinite in time or
unforeseeable; it may give rise to immediate pain with a promise of pleasure
or rice lersa. These factors of time and uncertainty render assessment virtually
impossible. Nor is it easy to see how the happiness of the majority increases
the happiness of society as a whole. Much will depend on the issue, for on
some issues it might well be the case that the happiness of the majority will
embitter the minority to the point of provoking disharmony. The converse
proposition has also been advanced that by promoting the happiness of
others one promotes one's own happiness as well. As a general proposition
this, too, is in need of support. Apart from all this, the root difficulty of the
principle of ensuring the happiness of the greatest number is how this can be
used to apportion three houses, for instance, among four people. Above all,
the pleasure-pain categories are too simple in themselves. It led Bentham
into artificialities in forcing some very complex problems into these two
strait-jackets. It was also naïve to imagine that Man is motivated simply by
reaction to pleasure and pain. Bentham appeared to have assumed that there
is such a thing as an 'average man'. In truth many actions are done unthink-
ingly, or from habit; and pleasure and pain come as often as incidents to
other actions. It may be that he confused causes of action and reasons for
action'. He seems also to have assumed that laws could be made to operate
on some single principle, which, as is evident in modern times, is an un-
founded belief. Lastly, he ignored history and tradition altogether. They.
should not be exaggerated, but neither should they be excluded.
It is in the light of the limitations of the utility principle, which pervaded
his thought, that Bentham's jurisprudential contributions should be assessed.
His work in the analytical (expositary) field has been examined'. This was
preliminary to his main interest, which was reform (censorial jurisprudence),
and it is to this aspect that the following remarks refer. The utilitarian
justification for having laws at all is that they are an important means o
ensuring the happiness of the members of the community generally'°. Hence,
the sovereign power of making laws should be wielded, not to guarantee the
8 Milne Bentham' Principle of Utility and Legal Philosophy' in Bentharn and Legal Theory (ed
jam p iq.
 Sociological approaches 429

selfish desires of individuals, but consciously to secure the common good.

'The public good' said Bentham 'ought to be the object of the legislator;
general utility ought to be the foundation of his reasoning". In order to do
this there has o be a balancing of individual interests with communal we!-
fare; he- called this the 'felicific calculus"'. This idea of the balancing of
interests was destined to play an important part in more modern theories13.
Bentham himself did not solve satisfactorily the problem of how such bal-
ancing can be achieved. The pleasure-pain motivation, as has been pointed
out, is too simple to explain conduct; so any attempt to work out a calculus
of interests on that basis was doomed. The 'weight' accorded to interests
differs according to the values of different individuals, and the policies of
different countries will yield different results, eg Soviet Russia. Another con-
tribution was his insistence on law-making to achieve social ends. The con-
science of the people has to be trained so that they learn to find pleasure in
ways that are not anti-social. To this end laws should be made which would
make anti-social behaviour unprofitable, in other words, a source of pain to
the doer rather than pleasure. On this basis he proceeded to consider pun-
ishment, and his views are still of absorbing interest". It will be noted that
Bentham, although he would not have gone as far as the Soviet Communist
Party in mass re-education, seems to have leaned in that direction. lastly,
he preached that laws should be judged by their consequences. For all these
reasons it is clear that this aspect of his work entitles him to rank as a pioneer
of functional jurisprudence in addition to his many other pioneering contri-
butions. A very great deal of what has been done since is only development
along his lines.

THE TUBINGEN SCHOOL

It was mentioned earlier in this chapter that Ihe ieing had detected the origins
of laws in purpose, namely, the resolution of conflicting social and individual
interests. He stopped short of the point of suggesting how such reconciliation
is to be effected. Bentham, as just indicated, had previously advanced a
pleasure-pain criterion and his views had been introduced into Germany by
Edward Beneke, though they only came to be well known through Ihering'1.
A number of practitioners, known as the Tubingen School, attempted to
evolve a 'jurisprudence of interests' on the line suggested by Ihetitig, but
siopped short of Bentham's principle of the greatest happiness of the greatest
number"'. Instead, they were content to say simply that laws protect some,
but not all, interests. A legal rule is, therefore, in a sense a decision on a
prospective dispute and, as such, contains in itself a balance between com-
peting interests. To understand a rule one has to see which social interests
gave rise to it and how they were adjusted by the rule. Its interpretation and

i; Bentham An Introduction to the Principles of Morals and

it Bentham Principles of Legislation I, p
Legislation 1.para7.
I, paraS 4, 5-
12 Bentham An Introduction to the Principles of MoraLs and Legislation
13 Eg his influence on lhcring: see425 ante.
Eg his PanopticOn' scheme for prison reform; and the recent publication of his views an
s. Benth.am and Legal Thesrj (ed jamca)
torture: %V L and P E Twining 'Bentham on Torture' in
P 39.
15 For the influence of Bentham on Beneke, see Coing '&nthams Influence on the Develop-
ment of InIrressjurisprudenz and General Jurisprudence' (1967)2 IrJur (NS) 336.
(trans Schoch, 20th Century
16 A convenient selection of writings is The Jurispiuderre of Interests
Legal Philosophy Series vol II).
 430 Legaltheor)

application should seek to ensure that those interests, which the law-maker,
preferred, shall prevail. A number of rules may be unified into a concept and
concepts and rules into a system of law. Concepts so unified are useful for
the purpose of systematic exposition, but for the purpose of applying and
interpreting laws other and different concepts are required. These are 'con-
cepts of guidance' for those who have to administer laws. Unhappily, these
functional concepts were never evolved. The reason for this lay in the lack
of interest on the part of the Tübingen School in the goal which laws should
seek to achieve; for the wa y in which interests are viewed and assessed is
dependent on the end to be achieved. Here Bentham might have given them
a lead. Despite the disappointing nature of their work, the problem which
they failed to resolve is worthy of mention if only as a prelude to the contri-
bution of Roscoe Pound, the American.

ROSCOF. POUND

Nowhere has the study of laws in society been taken up with such industry
and enthusiasm as in America. Here, the law school and the jurist enjoy a
Status akin to that of jurists on the Continent and superior to that of their
counterparts in Great Britain. These factors have combined to produce an
American movement in sociological jurisprudence of great importance which
draws its exponents both from the faculty and the bench. Outstanding among
these was Pound (I8o-I964), of the Harvard Law School. As with Bentham,
his theme was a constant one, maintained in his extensive writings through-
out a long period"'.
Sociological jurisprudence, according to Pound, should ensure that the
making, interpretation and application of laws take account of social facts.
Towards achieving this end there should be (a) a factual study of the social
effects of legal administration, (b) social investigations as preliminaries to
legislation, (c) a constant study of the means for making laws more -effective,
which involves, (d) the study, both psychological and philosophical, of the
judicial method, (e) a sociological study of legal history, (f) allowance for
the possibility of a just and reasonable solution of individual cases, (g) a
ministry ofjustice in English-speaking countries, and (h) the achievement of
the purposes of the various laws. This comprehensive programme covers, as
is e vident, every aspect of the social study of laws. It is not possible to follow
Pound's elaboration of each of these aspects, and all that can be done here
is to outline his thought.
The common law, he said, still bears the impress of individual rights. So,
in order to achieve the purposes of the legal order there has to be (a) a
recognition of certain interests, individual, public and social' 8, (b) a defini-
ti
on of the limits within which such interests will be legally recognised and
ghen effect to, and (c) the securing of those interests within the limits as
defined. When determining the scope and subject-matter of the system the
fol lowing five things require to be done: (i) preparation of an inventory of
interests, classifying them; (ii) selection of the interests which should be
legally recognised; (iii) demarcation of the limits of securing the interests so
selected; (iv) consideration of the means whereby laws might secure the

i; Perhaps the most convenient references are Pound A Survey of

Harvard LR z, and Juthpr,,deaé HI. Social Interests' (1943-44)
iI Cf Ihering,p 4 ante. -
 Sociological approaches 4 31

interests when these have been acknowledged and delimited; and (v) evolu-
tion of the principles of valuation of the interests.
Pound likened the task of the lawyer to engineering, an analogy which he
used repeatedly. The aim of social engineering is to build as efficient a
structure of society as possible, which requires the satisfaction of the maxi-
mum of wants with the minimum of friction and waste' s . It involves the
balancing of competing interests. For this purpose interests were defined as
'claims or wants or desires (or, I would like to say, expectations) which men
about which the law must do something if organised societies
assert do facto,
are to endure"'. It is the task of the jurist to assist the courts by classifying
and expatiating on the interests protected by law. Pound's arrangement of
these, elaborated in detail, was as follows:
These are claims or demands or desires involved in
A. INDIVIDUAL INTERESTS.
and looked at from the standpoint of the individual life. They concern

(i) Personality. This includes interests in (a) the physical person, (b)
freedom of will, (c) honour and reputation, (d) privacy, and (e)
belief and opinion.
It is important to distinguish between the
(2) Domestic relations.
interest of individuals in domestic relationships and that of society in
such institutions as family and marriage. Individual interests include
those of (a) parents, (b) children, (c) husbands. and (d) wives.
() Interest of substance. This includes interesL of (a) property, 'b
freedom of industry and contract, (c) promised advantages, (d) ad-
vantageous relations with others, (e) freedom of association, and f)
continuity of employment.

B PUBLIC INTERESTS
These are claims or d4nands or desires asserted by
individuals involved in or looked at from the standpoint of political life.
'The claims asserted in title of a politically organised society; as one might say
for convenience, the claims of the state, the political organization of society".

There are two of them:

(t) Interests of the state as aju.ristic person. These, as pointed out
earlier, are not applicable in this country where the position of the
Crown has obviated the need for the personification of the state.
They include (a) the integrity, freedom of action and honour of the
state's personality, and (b) claims of the politically organised society
as a corporation to property acquired and held for corporate pur-
poses. This
(2)
Interests of the state as guardian of social interests.
seems to overlap with the next major category.

C.sociAL INTERESTS. These are claims or demands or desires, even some

of the foregoing in other aspects, thought of in terms of social life and
Is 156; Pound Social Cosiro! Through Law p 6s-
19 Pound JnoeipretadOris ojLqai Hiso 'rj
20 Pound Junopsadenc' Ill, p 15. Cl
the earlier definition: . 'claims or demands or desires which
human beings, either individually or in groups or associationshuman or relations, seek to satisfy, of
relations and ordering of behaviour through the
which, therefore, the adjustment of 'A Survey of Social Interests'
force of a politically organised society must take account':
Harvard LR'.
Pound Jaupnrde'tce Ill, pp 235-236.
 432 Lgdtheory

generalised as claims of the social group. This is much the most important
category, since most, if not all, the interests in category A would be statable
here from a social, rather than an individual, point of view. Social interests
are said to include
(i) Social interest in the general security.
'The claim or want or demand, asserted in tide of social life in civilised
society and through the social group, to be secure against those forms
of action and courses of conduct which threaten its existence".
This embraces those branches of the law which relate to (a) general
safety, (b) general health, (c) peace and order, (d) security of acqui-
sitions, and (e) security of transactions.
(2) Social interest in the security of social institutions
'The claim or want or demand involved in life in civilised society that
its fundamental institutions be secure from those forms of action and
courses of conduct which threaten their existence or impair their effi-
cient functioning'3.
This comprises (a) domestic institutions, (b) religious institutions, (c)
political institutions, and (d) economic institutions. Divorce legisla-
tion might be adduced as an example of the conflict between the
social interest in the security of the institution of marriage and the
individual interests of the unhappy spouses. Pound pointed out that
the law has at times attached disabilities to the children of illegiti-
mate and adulterous unions with the object of preserving the sanctity
of marriage. The example is not altogether fortunate, since the extent
to which such vicarious suffering has deterred would-be offenders is
minimal. Then again, there is tension between the individual interest
in religious freedom and the social interest, at any rate in some
countries, in preserving the dominance of an established church.
(3) Social interest in general morals.
'The claim or want or demand involved in social life in civilised society
to be secured against acts or courses of conduct offensive to the moral
sentiments of the general body of individuals therein for the time
being"'.
This covers a variety of laws, for example, those dealing with pros-
titution, drunkenness and gambling.
() Social interest in the Conservation of social resources.
'The claim or want or demand involved in social life in civilised society
that the goods of existence shall not be wasted; that where all human
wants may not be satisfied, in view of infinite individual desires and
limited natural means of satisfying them, the latter be made to go as
far as possible; and, to that end, the acts or courses of conduct which
tend needlessly to impair these goods shall be restrained".
Thus this social interest clashes to some extent with the individual
interest in dealing with one's own property as one pleases. It covers
2 PowidlIlpgr.
3 Poixdlilpsg6.
4 PrzdlIIpo.
5 Poad III p 305.
 Sociological aMToaches 433
(a; conservation of natural resources, and (b) protection and training
of dependants and defectives, ie conservation of human resources.

(.) Social interest in general progress.

'The claim or want or demand involved in social life in civilised
society, that the development of human powers and of human control
over nature for the satisfaction of human wants go forward; the de-
mand that social engineering be increasingly and continuall y im-
proved; as it were, the self-assertion of the social group towards higher
and more complete development of human powers".
This has three aspects. (a) Economic progress, which covers (i) free-
dom of use and sale of property, (ii) free trade, (iii) free industry,
and (iv) encouragement of invention by the grant of patents. Now,
(i) and (iii) are less marked today than they used to be. Indeed, it
might even be said that progress has been achieved by a reversal of
them. The policy of free trade, which has as its corollary the disap-
proval of monopolies, might appear to have been indorsed by legis-
lation against restrictive practices. While this is true of private mon-
opolies, it should be noted that there is an ever-growing demand for
monopolies in the state or .state-controlled institutions. The encour-
agement of invention by the grant of patents, too, is somewhat sus-
pect, for it opens the possibility of acquiring patents in order to
suppress inventions. On the whole, therefore, item (a) is the least
happy.
The interest in general progress also includes (b) political progress,
which covers (i) free speech, and 'ii) free association; and (c) cultural
progress, which covers (i) free science, (ii) free letters, (iii) free arts,
(iv) promotion of education and learning, and (v) aesthetics.
(6) Social interest in individual life.
'The claim or want or demand involved in social life in civilised society
that each individual be able to live a human life therein according to
the standards of the society".
It involves (a) self-assertion, (b opportunity, and (c) conditions of
life.

Having listed the interests recognised by law, Pound considered the means
by which they are secured. These Consist of the device of legal person and
the attribution of claims, duties, liberties, powers and immunities. There is
also the remedial machinery behind them, which aims sometimes at punish-
ment, sometimes at redress and sometimes at prevention. He also addressed
himself to the question of how in any given case the interests involved are to
be balanced or weighed. Interests, he insisted, should be weighed 'on the
same plane', as it were. One cannot balance an individual interest against a
social interest, since that very way of stating them may reflect a decision
already made. One should transfer the interests involved on to the same
'plane', preferably in most cases to that of the social plane, which is the most
general. Thus, freedom of the person might be regarded as an individual
interest, but it is translatable as an interest of the society that its members

6 Pound lIIp3Il.
7 Pound1I1p3l6.
434 Lgdth€oiy

should be free. But, assuming that a choice has been made, the extent to
which it can be given effect in any given case depends on the texture of the
legal institutions that are involved. Some are more flexible than others and
permit a freer play for the balancing process. Elsewhere Pound classified the
institutions of the law as follows. There are, first, rules, which are precepts
attaching definite consequences to definite factual situations. Secondly, there
are principles, which are authoritative points of departure for legal reasoning
in cases not covered by rules. Thirdly, there are conceptions, which are
categories to which types or classes of transactions and situations can be
referred and on the basis of which a set of rules, principles or standards
becomes applicable. Fourthly, there are doctrines, which are the union of
rules, principles and conceptions with regard to particular situations or types
of cases in logically interdependent schemes so that reasoning may proceed
on the basis of the scheme and its logical implications. Finally, there are
standards prescribing the limits of permissible conduct, which are to be
applied according to the circumstances of each case.
Such, then, is the substance of Pound's theory. That his contribution is
considerable goes without saying. He more than anyone helped to bring
home the vital connection between laws, their administration and the life of
society. His work also set the seal on prior demonstrations of the responsible
and creative task of lawyers, especially the judges. In so far as his theory laid
such heavy emphasis on the existence of varied and competing interests and
the need for adjustment between them, it will have enduring value. There
are, however, some other respects in which his views are less happy.
In the first place, Pound's engineering analogy is apt to mislead. What,
for instance, is the 'waste and friction' in relation to the conflict of interests?
Further, the construction, for example of bridge, is guided by a plan of the
finished product, and the stresses and strains to be allowed to each part are
worked out with a view to producing the best bridge of that kind in that
place. With laws there can be no plan, worked out in detail, of any finished
product, for society is constantly developing and changing, and the pressures
behind interests are changing too. Therefore, the value or importance to be
allotted to each interest cannot be predetermined.
Pound assumed that defaclo claims pre-exist laws, which are required to
'do something' about them. Some claims, however, are consequent on law,
eg those that have resulted from welfare legislation'. Besides, what does 'do
something' about theni mean? It is not enough to say that law has to select
those that are to be recognised. 'Recognition' has many gradations, which
makes it necessary to specify in what sense an interest is recognised as such.
Thus, the cult of Scientology is not outlawed, but it has been officially
condemned, which makes it difficult to say in what sense the law recognises
or does not recognise it9.
It is not interests as such, but the yardsticks with reference to which they
are measured that matter. It may happen that some interest is treated as an
ideal in itself, in which case it is not the interest as an interest, but as an
ideal that will determine the relative importance between it and other inter-
ests. Thus, whether the proprietary right of a slave-owner is to be upheld or
not depends upon whether sanctity of property or sanctity of the person is
8 Seep 67 ante.
9 For the attitude of a British and the European Court, see Schmidt v Secretary of Stale for
Home
.4fairs [1969] 2 Ch 1 49. [1969] 1 All ER go; Van Duy,, v Home Office (
NO 2) 41/74 [1975]
Ch 358, [1975] 3 All ER igo, [tg] ECR 337 (European Court).
1
 Soao1ogi1 approakcs
435
adopted as the ideal. The choice of an ideal, or even a choice between
competing ideals, is a matter of decision, not of balancing; and it is with the
choice made by judges and the ideals which they adopt that lawyers are
concerned.
The balancing metaphor is also misleading. If two interests are to be
balanced, that presupposes some 'scale' or 'yardstick' with reference to which
they are measured. One does not weigh interests against one another, even
'on the same plane'. Only with reference to some ideal is it possible to say
that the upholding of one interest is more consonant with, or more likely to
achieve it than another which means that with reference to that given ideal
the one interest is entitled to preference over the other. This leads to another
consideration. The 'weight' to be attached to an interest will vary according
to the ideal that is used. For example, with reference to the ideal of freedom
of the individual all interests pertaining to individual self-assertion will carry
more weight than social interest; but with reference to the ideal of the welfare
of society the reverse might be true The point is that the whole idea of
balancing is subordinate to the ideal that is in view. The march of society is
gauged by changes in its ideals and standards for measuring interests.
In any case, all questions of interests and ideals should be considered in the
context of particular issues as and when these come up for decision. An
interest is not presented to a judge preclassifled as part of an overall scheme,
but in relation to one or more other interests in a given situation. Each
situation has a pattern of its own, and the different types of interests and
activities that might be involved are infinitely various. It is for the judge to
translate the activity involved in the case before him in terms of an interest
and to select the ideal with reference to which the competing interests are to
be measured. Therefore, the listing of interests is not as important as the
views which particular judges take of given activities and the criteria by
which they evaluate them. -
How does one know when interests exist, how are they made articulate?
The answer is: when presented in litigation. Lists of interests can be drawn
up, not in advance of, but after the various interests have been contended
for in successive cases.
The recognition of a new interest is a matter of policy. The mere presence
of a list of interests is, therefore, of limited assistance in helping to decide a
given dispute. What this and the last paragraph suggest is that interests need
only be considered as and when they arise in disputes; the matter that is of
importance is the way in which they are viewed and evaluated by the
particular judge.
In any case, lists of interests are only the products of personal opinion.
Different writers have presented them differently. With reference to Pound's
own elaborate scheme, it is to be observed that his distinction between
categories B and C, Public and Social interests, is doubtful 50, Even the dis-
tinction between A and C, Individual and Social interests, is of minor sig-
nificance. As Pound himself says, in most cases it is preferable to transfer
individual interests on to the plane of social interests when considering them.
On the suggestion previously made, it is the ideal with reference to which
any interest is considered that matters, not so much the interest itself, still
less the category in which it is placed. None of these remarks is intended to

to Pound's disciple, Julius Stone, has abandoned it: Stone Social Dimensions of Law and Justice
PP 171-175.
4 36 Legal theory

detract from the value of Pound's analysis of the interests themselves. All
that is urged is that as a guide to the administration of laws the listing of
interests is unhelpful.
It is difficult to see how the balancing of interests will produce a cohesive
society where there are minorities whose interests are irreconcilable with
those of the majority. How does one 'balance' such interests? Whichever
interest is favoured, the decision will be resented by those espousing the
other; a compromise will most likely be resented by both. There is a different
problem where a substantial proportion of the populace is parochially
minded and have little or no sense of nationhood. The prime task in such
countries is the creation of interests and the emphasis is, once more, on the
need for ideals". Pound's theory cannot be accepted too generally.
It is worth while repeating that the criticism here is not that Pound
ignored ideals of guidance, but that he seems to have devoted too little
attention to them. His awareness of them is evident, for example, in his own
distinction between 'natural natural law' and 'positive natural law'. The
former, according to him, is 'a rationally conceived picture of justice as an
ideal relation among men, of the legal order as a rationally conceived means
of promoting and maintaining that relation, and of legal precepts as ration-
ally conceived ideal instruments of making the legal order effective for its
ideal end'. The latter is 'a system of logically derived universal legal precepts
shaped to the experience of the past, postulated as capable of formulation to
the exigencies of universal problems and so taken to give legal precepts of
universal validity"'. As early as tyig Pound did offer a set of postulates as
underlying contemporar y societ y , but these are far from sufficient today and
they have, both in Great Britain and America, been outmoded by the march
of events". It is submitted with respect that it would have been preferable
had he enlarged on the criteria of evaluating interests instead of developing
particular interests. It is possible that his work has not -had the practical
imact that it ought to have had because of this somewhat sterile preoccu-
pation with interests and too little attention to the criteria of evaluation.

SOCIAL CRITERION OF THE VALIDITY OF LAW

DUGUIT -
Duguit (1859-!923) was a professor of Constitutional Law in the University
of Bordeaux. He attacked traditional conceptions of state, sovereignty and
ii Stone 'The Golden Age of Pound' (1962) 4 Sydncy Law Review i Harvey 'A Value
Analysis of Ghanaian Legal Development since Independence' (1964) i CGLJ 4, points out
that in Ghana the need to promote a sense of nationhood has played a paramount role.
12 Pound 'Natural Natural Law and Positive Law' (1952) 68 LQR 330, (1960) Nat LF 70.
13 Men should be able to assume (i) that others will not commit intentional aggrcssion upon
them; (a) that the y may control for beneficial purposes what they have discovered, appro-
priated to their own use, created and acquired; (3) that those with whom they deal will act
in good faith, ie carry out promises, carr y out undertakings according to the expectations
which the moral sentiment of the community attaches thereto, and restore un j ust enrich-
ment; (4) that others will act with due care and not create unre.sonable risk of injury; and
( that others will keep under proper control property that is likely to inflict damage if It
escapes: Pound !nsroductzon to American Law (1919) reproduced in Outlines oj'yurisPrudmce
(1943). Pound subsequently foreshadowed the emergence of three other principles: (a) as-
surance of security of employment to employees, (b) responsibility of industrial concerns to
make compensation for human wear and tear, and (c) the shouldering of responsibility to
compensate misfortune to individuals by society as a whole: Social Control Through Lou. But
the admission of these three will involve important modifications of the previous five.
 Sociological apprc.acAcs 4 37

law and sought to fashion a new approach to these matters from the angle
of society.
Social life should be viewed, he insisted, as it is lived, so as to be able to
extract the most accurate generalisations. The outstanding fact of society is
the interdependence of men. This has always existed and becomes more and
more widespread as life grows more complex and as Man's mastery of the
world increases. People have common needs, which require concerted effort;
they have also dissimilar needs, which require mutual adjustment and ac-
commodation. No one can live at the present time without depending on a
far-reaching seb of services provided by his fellow-men. Water, food, hous-
ing, clothing, recreation, entertainment and so on are dependent on other
people. This social interdependence is not a conjecture, but an inescapable
fact of human existence. All organisation, therefore, should be directed to-
wards smoother and fuller co-operation between people. This Duguit called
the principle of social solidarity".
From this platform he launched his assault on traditional conceptions of
the state, sovereignty and law. All institutions are to be judged according to
how they contribute towards social solidarity. The state can therefore claim
no special position or privilege. It is not some mystical entity, but an organ-
isation of men, which can only be justified so far as it furthers social solidar-
ity. When it ceases to do this there is a duty to revolt against it. It is worth
pointing out that at no stage did Duguit deny the existence of an organised
unity known as the state. This is very much a fact and to deny it would be
unreal. What he said was that it is not essential nor entitled to special
reverence.
The doctrine of sovereignty has likewise become meaningless. It used to
be the persond attribute of a monarch, so such ideas as 'sovereignty of the
people' and the like are inappropriate and empty. The idea is, moreover,
inadequate for composite and heterogeneous unities such as federal states or
the British Commonwealth. Decentralisation makes it difficult to locate sov-
ereignty. The use of the notion of delegation does not alter the fact that parts
of sovereignty have been ceded. Nor can sovereignty be reconciled with the
increasing responsibilities attaching to the state. For these reasons sovereignty
fails to explain the kind of authority that governors now wield over the
governed. A better way of looking at it is that all power and organisation
are subject to the test of social solidarity. Their existence is functional and
does not extend beyond the functions they perform in society. At this point,
however, it might be noted that sovereignty is a term with many meanings,
and cannot be wholly expelled in this way . There has to be some ultimate
source ofauthoiity, especially law-making authority, in every society.
In Duguit's view, with the disappearance of sovereignty there disappears
also the authority traditionally ascribed to laws, for the basis on which these
were thought to rest is then sapped of vitality. If sovereignty is mythical, so
too are the notions that a law is (a) the command of a sovereign, single and
indivisible, (b) unchallengeable, and (c) the product of a single creative act.
Such is the core of Dugi.iit's thesis. It contains some interesting implica-
tions. The first and most obvious is that the state is not indispensable. He
drew particular attention to the move towards decentralisation - and away
from a central machinery of authority in view of the increasingly complex

4 Cf Ma!inowski's doctrine of reciprocity among primitive peoples:

p 391 ante.
4 38 Legal theory
structure of modern society. A vague parallel might here be detected with
the Marxist conception of the 'withering away of the state', though Duguit's
approach was different. Against this, it can be argued that totalitarian states
of recent times have shown how power can be vested in decentralised groups
in such a way as to enhance the power of the central authority.
The state is a useful, though not an essential, organisation, but its power
is restricted by social solidarity. Whether such a state of affairs is achieved
through a constitution or a judiciary, it is akin to the advocacy of a rule of
law. The objection is simply that this is far from being the state of affairs in
all countries. It will be remembered that Duguit's own initial contention was
that life in society should be viewed as it actually is, so it would seem that
his argument is only a plea for what it ought to be. Duguit proceeded to
assert that when the state ceased to promote social solidarity there is a duty
to revolt against it. Apart from the unreality of basing so drastic an action
on a matter of personal evaluation, the point at which disobedience becomes
justified is by no means as simple as this".
The interdependence of men is a fact, but 'social solidarity' is an ideal.
For, in the first place, in practice it becomes a matter of personal evaluation
when the question to be decided is whether a given course of conduct is
conducive to social solidarity or not. Does a law imposing or forbidding
racial segregation promote social solidarity? It is difficult to see how this can
be answered objectively and otherwise than in the light of political religious
and moral evaluations. Secondly, whose evaluation of social solidarity is to
prevail? There is evidence that the forces of social disruption are as potent as
those of solidarity. It would appear that Duguit has unfortunately fallen into
the error of enlarging a limited truth into an absolute.
t feature is the way in which Duguit used social soli-
The most significan
darity as a criterion of the validity of laws. He asserted that a precept which
does not further social solidarity is not law, and denied that statutes and
decisions make law in themselves. There are three formative laws, namely,
respect for property, freedom of contract, and liability only for fault. The
precepts of positive law should conform to these formative laws and they
only achieve validity when received and approved by the mass of public
opinion. 'A rule of law exists whenever the mass of individuals composing
the group understands and admits that a reaction against the violation of
the rule can be socially organised"'. Public opinion is thus the expression of
the social solidarity principle, by which the validity of laws should be judged.
This is open to objection. What is this mass opinion? Its vagueness and
unsatisfactory nature are obvious. By what means is it discoverable? Situa-
tions frequently arise with regard to which no particular feeling exists and
others with regard to which opinion is divided. It is unrealistic to suggest
that a Court will, or will be allowed to, decline to receive an enactment as
'la',' because it can be shown that public opinion does not subscribe to it.
Once more, it is clear that this is no more than what, in Duguit's opinion,
should be the position.
Duguit avoided all imagery of the state as a person with organs and will
of its own. The state is nothing more than an organisation of individuals and
it is they who issue commands and carry out decisions. He likewise denied
the personality of corporations and similar groups. The coherence of all such
olidarity. It is
associations lies, not in some mystic personality, but in social S
See pp3I31qtc
15 RCiCW 22.
(1921) 21 Columbia Law
16 Dugul Objective Law'
 .SoacIogiaI approaches 439

ironic that Duguit, who foresaw how personification of the state could lead
to totalitarianism, which he abhorred, should have had his own theory used
for that very end. Thus, national socialist jurists seized on his minimisation
of conflict within society as a justification for the suppression of trade unions
and strikes. Employers and workers were pictured as comrades united in
their own particular factory or local organisation, which in turn was ab-
sorbed in the unity of the state. This created a romantic bond of loyalty to
the state and any act against it was treachery. Such a perversion of his
doctrines to support the aggrandisement of the state would have horrified
Duguit.
His view of the function of government led Duguit to deny the distinction
between public and private law. All laws are only means of serving the end
of social solidarity and should be judged by that criterion. In the distinction
between public and private law Duguit suspected a method of elevating the
state above the rest of society and he would have none of it.
Duguit also denied the existence of rights: 'Natural rights' he treated as
myths, since modern research has shown that Man has always lived in society
and was never entirely independent. The core of the law lies in duty, which
is the means of securing that each one fulfils his part in the furtherance of
social solidarity. 'The only right which any man can possess, he said, 'is the
right always to do his duty'. What are commonly called 'rights' are only
incidental to the relations with other people which arise in the course of
performing one's social duty. The reality is thus not the right, but the duty.
This aspect of Duguit's theory is not only unnecessary, but also verbalistic.
He admits, as indeed he could hardly avoid doing, that relationships do arise
between individuals. These are commonly described in the language of duties
as well as of rights. His objection is merely to the use of the word 'right'.
Finally, Duguit would banish the ethical element from law. All he did,
however, was to substitute one ideal in place of others.
Duguit's views have had considerable influence: Their adaptation by Nazi
and Fascist jurists has been alluded to. Soviet jurists, too, found parts of his
work congenial. His functional approach to laws, his denial of the distinction
between public and private law and his advocacy of form of the 'withering
away' of centralised authority and its replacement by a decentralised 'ad-
ministration of things' had some attraction to Marxist interpreters. His work
had influence in another direction as well. The emphasis that he placed on
the importance of the group, coupled with advances in later sociological
thought, shifted the focus of attention to group behaviour, about which
something must now be said.

GROUPS AND INS1TFUTIONS

Modern society presents a confusing pattern of different values, which exert

different pressures of greater or lesser intensity and of varying application
and concern. It is relevant in this connection to have some idea of the
influence of groups, roles and institutions.
All groups have some unity. For a start, attention should be paid to the
phenomenon known as stratification, which refers to the divisions and cross-
divisions of people into degrees of compactness, fluidity, distinctness and
separability. They may be temporary or permanent, closed or open (depend-
ing upon the ease with which people can pass in and Out), occupational
44o Legal theory
(eg teachers, miners), functional (eg income groups), feature (eg racial,
religious, caste), and so forth. Stratification influences the social set-up, as
where status differences structured feudal society, and racial, religious, or
functional differences shape modern societies. It also facilitates social control,
as when classifications according to income, race, religion or caste become
decisive in the moulding and application of certain types of laws. Other kinds
of groups result from co-operative effort on the part of a number of persons
to achieve a common purpose, coupled with a sense of belonging to that
group. These range fiom giant, permanent organisations to ad hoc and local-
ised bodies, such as a union of residents in a town to oppose a threatened
curtailment of some amenity.

Groups and values

A point of jurisprudential interest lies in the intimate connection between
group phenomena and values and moral pressures. The values of society are
closely connected with power-groups. The aims and ideals of such a group
are in the first instance matters of evaluation by its members, but the degree
of pressure brought to bear behind the aims and ideals depends on the
strength of the group. The stronger the group, the more likely is it that what
it stands for will in time begin to prevail outside itself. Powerful economic
groups, for instance, have had decisive influence throughout the whole of
society, as Marx demonstrated. Once the aims and ideals of a group have
become socially accepted in due course of time they cease to be dependent
on power, and acquire a life of their own. They in their turn become supports
for power and factors sine quibus non in the continuance of power or the
establishment of new power. Governments, for instance, are generally
anxious to associate themselves with accepted values of certain groups, espe-
cially those of religion, because they transcend the present power-wielders;
which is why the régime in South Africa is anxious to justify apartheid by
pointing to the support of the influential Dutch Reformed Church. The close
association between power-structures and values is also seen in the fact that
rebellion against one is often rebellion against the other. Another point is
that values evolve slowly and are changed as slowly. In this way they serve
as a brake on the exercise of power. This may be illustrated once more with
reference to South Africa where the government has found that convictions
about apartheid now run so deep that they hamper the introduction of any
policy which smacks of liberalism.
The pressure on an individual to submit to a group derives, among other
things, from his knowledge that others also submit. This generates the feeling
of being bound, which the individual either accepts or rejects. Among those
who accept, there is the further feeling that there has to be some measure of
discipline to preserve the group; while even among those who glory in re-
jecting it, there is the feeling that non-conformity is rebellion.

Roles
Whenever a person's conduct towards others has some measure of perman-
ence his behaviour becomes, as it were, institutionalised, ie a 'role'. Roles
evolve as solutions to problems of interaction between individuals and groups
and have been described as 'recognised and established usages governing the
 Sociological opproachts 441

relations between individuals and groups"'. What becomes institutionalised

is a way of going about things and it is, thus, ail idea. Not only human
beings, but ideas also Count, said Renard". The institution may take the
form of a role, such as that of chairman, which results from the fact that
every group has to have someone to control proceedings; or even a place
occupied by a person, such as 'father's place' at table, which may simply be
the most convenient place to seat him so that he will not be in the way of
those set-\ jog the meal. These are very simple examples, but what is common
to all forms of institutionalised behaviour is that there has to be general and
continuous acceptance of a way of doing things, which comes to serve as a
standard of behaviour. This is because roles exert pressure to act in certain
ways and carry directions for behaviour. A role may involve a number of
relationships ('role-set'), and different roles may overlap. Both social roles
and strata tend to have built-in values, so that they are more than just
factual situations. Hume illustrated this with an example of the difference
between a sapling, which destroys the parent tree, and parricide. In both
situations, he said, the factual position is the same, namely, destruction of
the parent by its offspring. The difference lies in the disapproval attaching
to the one and not to the other, and this comes through regarding the human
relationship as a role". Roles exert pressure on performers in various
ways. One is the pressure to conform to the traditions and standards of the
given role, eg of judge or legal adviser. Likewise certain types of strata
influence people to live up to the values, which are part of them, in order to
win acceptance or retain acceptability and prestige in them.
While it is true that an 'ought' cannot be derived from an 'is',
behaviour-patterns do become so interlocked and inter-dependent that ifoi,c
person fails to conform, he disrupts the whole to a greater or lesser extent.
The structure of society consists of interrelationships between numberless
roles and groupings, which are often more durable than human beings. The
'ought' behind 'you ought to conform' to these roles does not express an
emotional attitude towards the conduct in question, so much as a condition
sine qua non of social existence; things being as they are, conformity is the
effective way of carrying on together". At this point language takes a hand.
Conformity tends to be labelled 'right', 'proper', or 'correct' because it fulfils
expectations and is convenient; non-conformity tends to be labelled 'wrong',
'improper', or 'incorrect' because iE frustrates other people's expectations and
is inconvenient. These words already have powerful moral connotations, and
so it comes about that through language there occurs a shift in the meaning
from 'right' or 'wrong' behaviour in the sense of being effective or ineffective
in achieving an end to such behaviour being thought to be 'morally right' or
'morally wrong'. It should not be forgotten that it is through language that
people learn huge numbers of values, which are inherited and propagated
by means of verbal s y mbols. To take ail in the present social
structure in southern Africa apartheid, in the opinion of the white races, is the
'right' (ie the only effective) way to preserve stability, since integration with
Africans is likely to prove very unsettling; but this has generated
i the convic-
tion that it must also ificarl that apaitheid is 'morally r ght'. in prumttsve

1 7 Ginsberg Sociology p42.

iS Renard Thioriede l'lnsiitution pg.
ug Hume Treatne on Human Nature 111, 1.1. Sec also Melden Rights and Rig/it Conduct, Emmet
442 Legal theory

societies the roles performed in religious ritual patterned social structure. The
effective way of achieving certain ends (inducing intervention or non-inter-
vention of the gods) was by performing certain ritual actions. So, as Hocart
taught, society was organised on the basis of ritual', and the various roles
were assigned to different individuals, usually heads of important families.
Here, too, the 'ought' behind conformity was that this was a condition sine
qua non of achieving the desired ends rather than that of obligation. The
latter evolved out of the former.

Groups as institutions
Society abounds in institutions of many kinds. An important distinction is
that between organised institutions, groupings of people, eg Church, family
etc, and conceptual institutions, eg property, ownership etc. Institutions,
such as Courts, police and the like, perform legal functions, but they consist
of persons. Group institutions evolve slowly, for however they come into
being, perhaps even by force initially, it takes time for them to become
accepted. Such evolution is a social, not a juridical, phenomenon. A socio-
logical theory of institutions is one which explains such data as found in
society and is, in effect, an analysis of society; a sociological theory of the
law of institutions is concerned with the manner in which laws take account
of them. -
The pioneer institutionalist was Hauriou (1856-1929), who spoke of an
institution as 'an idea of an undertaking which is realised and which persists
in a social en v ironment". To achieve this an authority with organs is called
irrto being; and manifestations of a communion among the members of the
social group, who are interested in realising the idea, are directed by the
organs and regulated by procedures. Hauriou distinguished between
ins titution.s-personnes, groups of human beings, and institutions-chases,
'institution-things' (eg rules of law, marriage); but the latter he largely
ignored. One feature about his theory is that he only took account of those
ideas which are innate in men as social animals and in the very nature of
social life, ie principles of constitution and regulation without which no kind
of group activity would be possible. He further limited his treatment to
groups which have achieved a certain degree of development. These features,
coupled with . an avowed Catholic orientation, gave his theory a natural law
tinge, which has been noted by several writers. An Italian, Romano,
adopted a more positivist approach and paid attention to 'institution-
things". There are, he said, many more defacto institutions in society than
enter into Hauriou's analysis. In so far as he tried in this way to take account
of all institutions as facts found in any given society, his theory may be said,
to be empirical and more truly sociological than Hauriou's.
Hauriou's theory is not a theory of group personality, but rather a theory
of groups, Ic of their social reality; and it is also to be noticed that institu-
tionalism does require the subordination of the individual, to some extent at
least, to the institution. There is in this a danger that such a theory may

I See pp 392 -393 ante.

2 H.iuriou 'La throne de I ' institutj On cc de La fondanon' in La ciii modmte ci Its iranfarmations du
dealt p to.
Renard La Tlziorie de I7rutiiuii 0,,- Jennings 'The Institutional Theory' in Masters Thzorie-s of
Lav (ed Jennings) p68; Stone Social Dimen.sions of Law and Justice p 519.
4 Romano Ord,namenio.
 Sociological approaches

easily be utilised so as to demand unquestioning obedience to a totalitarian

régime in the same way as Duguit's theory was used.

Conceptual institut-ions

Interest has recently grown in legal concepts and even law itself as institu-
tions. Professor MacCormick has drawn attention to the distinction between
an 'institution of law', eg contract, and a particular contract, which is an
instance of it. An 'institution of law', according to him, depends on whether
there is (a) a set ofiristituti'e rules, namely, those specifying what constitutes,
eg a contract. Such rules include, but are not co-extenj'e with, power-
conferring rules, since an event may bring a conceptual institution into play.
(b) Consequential rules, which specify that when a particular institution
exists, then certain jural relations follow in consequence (c) Terminative
rules, which specify how institutions shall end. These, too, include, but are
not co-extensive with, power-conferring rules. The important point about
institutive rules is that they only indicate the conditions which are 'ordinarily
necessary and presumptively sufficient' for the existence or creation of a
particular instance of the institution. The qualification leaves flexibility and
room for value considerations to play their part. In this way it would seem
that there is a return to a study of legal concepts via the treatment of them
as institutions.
The institutional nature of laws has been approached by Professor Honoré
through the group s . To say that something is law is to strike an attitude
towards disobedience, and a theory of law is, among other things, a theory
about such attitudes. To understand laws one has to begin with a group,
since every law is a law of some group, and 'law' is a group structure
designed to secure obedience to certain group prescriptions. A 'group' is 'a
collection of individuals who share a definite understanding of what is to be
done by one or more of themselves in given circumstances, or how the
question what is to be done in those circumstances is to be decided". The
'shared understanding' requires communication of prescriptions, no professed
rejection of them, and the prescriptions have to curtail liberty. Further, the
prescriptions need to be effectie, which requires the interlocking of different
ty pes: (i) initial and remedial prescriptions ('Everyone is to do X'—initial;
if not, Y is to happen'— remedial) (ii) genetic and derivative prescriptions
('Do what X says'—genetic; X says 'All sharpen their knives'—derivative).
Such prescriptions need to be institutionalised in the sense that they apply to
all members of the group, or in specified circumstances, and there must be
group understanding about a rule determining how the group officers are to
be appointed and how they function. Nothing is to Lount as a law which is
not an interlocking prescription, or derived from interlocking prescriptions.
When, therefore, 'we find prescriptions which are reinforced by genetic or
remedial rules of an institutional character (ie supported by group under-
standings as to the jurisdiction and appointment of the relevant officials) we
can speak of the p rescriptions and rules that support them as laws55.
The above description would fit the arrangements of different kinds of
5 MacCormick 'Law as Institutional Fact' (1974) go LQR 102.
6 Honor-6 Groups, Laws and Obedience' in Oxford Essays in Jzninprude
Simpson) ch Y. *rc (second series) (ed
7 Honor/ pp 3, 4.
8 Honor/p 18.


Legal theory
groups, eg Church, clubs etc. Professor Honoré finds the special status enjoyed
by the laws of territorial groups, such as the state, to derive from the fact
that such groups are able to institutionalise to a greater extent than other
groups the use of force in remedial situations9.
A different analysis of a legal system as an institution comes from Dr
Raz'°. According to him, the distinctive feature lies in the working of courts.
Their decisions are binding even when wrong; but they themselves are bound
to apply certain norms prescribing the behaviour of individuals when giving
decisions as to whether actual behaviour complies with those norms. So far,
the description would fit the institution of a private club as well as the legal
system of a state. The distinctive features of the latter are that it is compre-
hensive, in that it claims authority to regulate every type of behaviour; it is
supreme in that it claims authority over all other institutions and organisa-
tions; and it is 'open' in that it provides binditg- force to certain xorm which
are not part of it, eg private agreements or foreign laws.

CONCLUSION
Summing up, one might say that the greatest practical contribution of vari-
ous sociological approaches has been field-work in examining the interaction
In this respect the position in Great Britain
between law and its social milieu.
still lags behind that in other countries, but a good deal is now being done'.
Another outcome is likely to be a pointer to the evolution of ideals on an
empirical basis. It has been abundantly demonstrated that laws play a sig-
nificant and creative role in society, and such a dynamic function presup-
poses the existence of ideals, even unavowed, to provide directing force. The
idealism of the past suffered a blow at the hands of positivism
t ranscendenta l
from which it could never hope to recover; positivism in turn faltered in the
face of the problems that confronted it. The rise of sociological study has
made possible a synthesis between the two by restoring ideals in a way that
could satisfy and give life to the exacting positivist discipline. It is no Coinci-
dence that the functional approach has heralded the-revival of natural law
in this century; it was, indeed, a necessary precursor.
What is it that lawyers, who engage in a social study of their subject, seek
to accomplish? To answer this the previous distinction between sociological to
urists and legal sociologists is relevant. The former term is convenient
jdescribe those concerned with laws in their social context. They inquire (a)
into the circumstances in which laws arise and become differentiated from
morality and the like; (b) how the administration of laws is related to justice;
(c) what influences are mutually exerted by laws and other types of social
phenomena and changes in them. The first of these is essentially a historLal
type of inquiry and nothing need be added to what has previously been said.
The emphasis is very much on the prescriptive content of law. The second
question (b), has two aspects. There is, on the one hand, the question of the
criteria which should govern the application of laws. What is needed is a
theory for the guidance of administrators. Laws are means for achieving

Honor! p 20.
,o Ra t The Iiitutional Nature of Law* (1973) 38 MLR 489. on which se cmmCflt by Reid
and Sch(1976 ) 39 MLR ziB. ience at Cambridge since 1941, which was absorbed
t he Department of Criminal Sc
ii Eg in
into the Institule of Criminotogv in i g6i. -
 Sociological afbroad€5 445

certain ends, and there are thus two sets of 'oughts': those of laws themselves
which prescribe the conduct of people in society and by which their actions
are judged, and a functional set which prescribes how judges and other
administrators should apply the general prescriptive norms so as to achieve
certain ends, whatever these might be. In addition to this, there is the
question of the social criteria which are thought to govern the very validity
of the general prescriptive norms. In connection with the third question, (c),
Ehrlich's distinction between norms of decision, which correspond to pre-
scriptive rules by which conduct is judged, and norms of conduct according
to which people actually behave, is of signal importance. The latter are
shaped by the gradual acceptance of the former, but there is also the reverse
process whereby the behaviour of people brings about changes in prescripti\e
rules.
In contrast to all this, the term 'legal sociologist' has been used to refer to
those whose main interest is the analysis of society and who seek to fit legal
administration as a whole into a concept of society. In this enterprise the
differentiation of legal administration from the operation of other forms of
social control becomes necessary. It brings in at once the distinctive character
of legal enforcement, namely the machinery of sanction, as an important
social fact. A Caution which must be uttered is that no inferences should he
drawn from any such concept of law outside its frame of reference. In brief,
one should be wary of deducing from it the nature of laws and legal concepts.
It has been pointed Out, for example, that the provision of sanctions is part
of a concept of 'law in society', but that a misleading picture is presented
when inferences are drawn from this as to the nature of the concept of legal
dut y ". The sociologist is concerned with what 'is', ie the totality of legal
administration as an observable social phenomenon; but from such an 'is'
cannot be derived assertions about the prescriptive 'oughts' behind laws, for
the two spheres of discourse are distinct. It would he as erroneous as trying
to deduce propositions about actual social behaviour from the prescriptive
content of laws. These points may seem obvious enough, but there is a
tendency to overlook them.

2 See pp 245-246 ante.

446 Legal theory

READING LIST
An Introduction to the Principles of Morals and Legislation (eds J
H
J Bentham
Burns and H LA Hart).
(ed C K Ogden).
J Bentham The Theory of Legislation
(trans F and H Laski). See also HJ Laski's
L Duguit Law in the Modern State
'Introduction'; pp xvi-xxxiv. 'N L Molt) espe-
(trans
E Ehrlich Fundamental Principles of the Sociology of Law
cially
PP 489-306.
G Gurvitch Sociology of Law.
AM Honoré 'Groups, Laws and Obedience' in Oxford Essays in Jurisprudence
(second series) (ed A \V B Simpson) ch i. The Modern Legal
R von Ihering Law as a Means to an End (trans I Husik
Philosophy series V).
Hi Laski 'M Duguit's Conception of the State' in Modern Theories of Law
(ed WI Jennings) 52.
D MacCormick 'Law as Institutional Fact' (1974) 90 Law Quarterly Re-
View 102.
Interpretations of Modern
E Patterson 'Pound's Theory of Social Interests' in
Legal Philosophies (ed P Sayre) ch 26. i)
R Pound 'The Scope and Purpose of Sociological Jurisprudence' (19 10- 1
24
Harvard Law Review 591; (1911-12) 25 Harvard Law Review i 40,
489.
R Pound 'A Survey of Social Interests' (1943-44) 57 Harvard Law Review
R Pound 'Sociology of Law and Sociological Jurisprudence' (1943-44)
University of Toronto LawJournal i.
79 et seq; i86 et seq; 272 et seq.
R Pound Jurisprudence!, ch 6; III, pp
Raz 'The Institutional Nature of Law' (1975) 38 Modern Law Review
J
489.
A Ross On Law and Justice chs 12, 17. Modern Law Review
D Schiff 'NS Timasheff's Sociology of Law' (19 81 ) 44
422.
Stone 'The Golden Age of Pound' (1962) 4 Sydney Law Review 1.
J
J Stone Social Dimensions of Law and Justice.
N S Timasheff An introduction to the Sociology of Law.
CHAPTER 2!

Modern realism

The two movements in thought dealt with in this chapter are of American
and Scandinavian origin respectively. They share the desire to introduce a
commonsense approach to problems of and about law, and with that end in
view concentrate on 'facts'. Unlike Kelsen, they do nct eschew sociology and
psychology. On the contrary, these play a prominent part in their interpre-
tations. Not only are they positivist, but also some, at any rate, appear to
carry their devotion to facts, and nothing but facts, to extremes. Nevertheless,
realism cannot be left out of account; it is a Procrustean term covering
various kinds of inquiry which have provided interesting, novel and vigorous
stimuli in contemporary legal thought.

AMERICAN REALISTS

A warning is needed against imagining that there is anything like a 'school'

of American Realists. The difficulty in the way of a coherent presentation of
their views is that there are varying versions of realism as well as changes of
front; positions formerly defended have since been forgotten or abandoned.
Although the descriptions 'realism' and 'legal realists' are commonly used,
this terminology is abandoned in more recent writings. Judge Jerome Frank
(1889-1957), a leading exponent, preferred the phrases 'experimentalists' or
'constructive skeptics', and has described his own attitude as one of 'construc-
tive skepticism'. He repudiated the charge that 'the 'realist school' embraced
fantastically inconsistent ideas' by pointing out that 'actually no such 'school'
existed'. The common bond is, in his words,
'skepticism as to some of the conventional legal theories, a skepticism stimulated
by a zeal to reform, in the interests ofjustice, some courthouse wa5's".
It is this lack of homogeneity that makes presentation difficult. All that will
be attempted in these pages is to outline some of the assertions made at
various times under the realist label with reference to a few outstanding
jurists.
American Realism is a combination of the analytical positivist and socio-
logical approaches. It is positivist in that it first considers the law as it is.
Reform is the ultimate aim, but a prerequisite to reform is, in positivist
thinking, an understanding of law as it is. On the other hand, the law as it
stands is the product of many factors. Inasmuch as the realists are interested
in sociological and other factors that in fl uence the law, their approach may
also be described as being in part sociological. Their concern, however, is
with law rather than with society. They share with sociologists an interest in
i Frank Law and iii€ Modem Mind (first English edn ig) Preface ppvii-viii. It has been
pointed out that since the so-called realist split' in 1928 'the realist movemet lost such
coherence as it ever had': Twining Karl Llewelljn and thz Realist Moneinersi p67, ch3 -4..
448 Legal lhesry
the effects of social conditions on law as well as the effect of law on society,
but they emphasise the need for a prior revelation of the actual behaviour of
lawyers. Julius Stone calls the realist movement a 'gloss' on the sociological
approach 2 . It is part of that aspect of sociology, dealt with in the last chapter,
which treats law as a given social phenomenon. Its distinctive feature is the
stress that it lays on studies of the behaviour ofjudges3.
'Theory' is a means towards understanding, and the test of scientific theory
lies in predictability. To understand what 'law' is, one should be able to
predict how judges decide cases. Many factors contributed to this spot-light-
ing of the American judiciary. One is the check imposed upon legislative
power by the American Constitution. The judges interpret the Constitution
and have power to quash legislation in conflict with it. It is also true that
American judges have not enjoyed quite that degree of trust and confideuce
as their British counterparts. A possible reason is that judges in the lower
courts are elected, which opens the door to political influence'. Again, Amer-
ican legal institutions are young compared with those in Great Britain. The
days when judges were consciously building up the law are still fresh in the
minds of American jurists. It is therefore less easy for them than for British
jurists to think of the judicial function as being a mechanical application of
rules. Also, the divergent and separate common law systems in the different
states are evidence of the creative function of the judges. How could these
systems have developed along different lines from a common starting point
were it not for the creative faculties ofjudges°?
At one time there was a tendency to regard the movement as a
thorough-going attempt to dispense with the 'oughts' of the law. Only the
'reality' of law matters in fact, and 'reality' is what actually happens and no
more. Ideas of 'ought' and such like were not allowed to distort the percep-
tion of clear, simple fact.
The realist approach is highly empirical. La3v, ie the decisions of judges,
is the product of ascertainable factors. Included among these are their per-
sonalities, their social environment, the economic conditions in which they
have been brought up, business interests, trends and movements of thought,
emotions, psychology and so forth. The importance of the personal element
was not new', and attention has previously been drawn to the part played
by value factors underlying the application of law. Ihering's conversion from
his unfinished Geist to interests was the truly radical reaction in this direction;
and the same might even be said of Pound. The realists gave these, especially
the personal element, decisive significance.
Among the techniques, which opened up a new vista in the study of law,
the following are the most important. (a) The realists introduced studies of
case law from a point of view which distinguished between rationalisation
by a judge in conventional legal terminology of a decision already reached,
and the motivations behind the decision itself. Unfortunately, the way in
which in their early writings they expressed their interest in what judges

2 Stone Social D,sms,on of Law and Jo!ice p62.

Jurisprudence Through
For the difference in emphasis, see Radbruch 'Anglo-American
Continental E yes (1936) 52 LQR 530 at 541-542.
a Pressing Problem'
See Dienstein 4 ' e You Guilty?, and Vanderbilt CJ Court System Reform:
Time FcbtaTY 2 t 1955 of La-' in
For an account of these factors, see Goodhart 'Some American in t erpretations
Modeni Theories of Late t.
p221 rt seq ante. -
6 Sec eg Gray The ,Vat'e and Sources of the Law p226. and
 Modtrn realism 449

actually do (decisions), rather than in what they say they do (reasoning),

did create the impression that they were stressing the latter to the exclusion
of the former. (b) The inquiry into the motivation behind decisions opened
up further lines of investigation. So, the study of the personalities, upbringing
and psychology of judges and jurymen assumed significance. (c) The realists
also study the different results reached by courts within the framework of the
same rule or concept in relation to variations in the facts of the cases, and
the extent to which courts are influenced in their application of rules by the
procedural machinery which exists for the administration of the law.

'Paper rules' do not produce certainty

This assertion was hardly new, but the way in which it was presented in the
early days created an impression that realists were seeking to expel rules
altogether.
The seeds were sown in a paper by Mr Justice Holmes (1841-1935) in
1897, in which he put forward a novel way of looking at law. If one wishes
to know what law is, he said, one should view it through the eyes of a bad
man, who is only concerned with what will happen to him if he does certain
things. The traditional description of law is that it consists of rules from
which deductions are made.
'But if we take the view of our friend, the bad man, we shall find that he does
not care two straws for the action or deduction, but that he does want to know
what Massachusetts or English courts are likely to do in fact. I am much of his
mind. The prophecies of what the courts will do in fact and nothing more
pretentious are what I mean by the law".
Mr Justice Holmes was in no sense purporting to give a final definition of
law, or do more than give a description suitable for the context irs which he
was writing. The statement that law is only what courts do is iconoclastic,
and suggests that ethics, ideals and even rules should be put on one side.
Holmes himself had no such iniention, for in the same paper he proceeded
to insist on the need to restrict the area of uncertainty and on the need for
more theory. We have too little theory in the law' he said 'rather than too
much". Nor did he, at the time when he wrote, have any suspicion that he
would be hailed as the prophet of a new faith. Yet such was his fate. Another
pioneer of the new fashion in thinking was Gray (1839-1915), who drew a
distinction between law and source of law. The former is what the judges
decide. Everything else, including statute, are only sources of law until in-
terpreted by a court'. Pushed to its logical conclusion, the obvious implica-
tion of this is that even a judicial decision is 'law' only for the parties in the
instant dispute and thereafter becomes a 'source of law', since everything
will depend on the interpretation that is put upon it in a later decision.
Frank's Law and the Modern Mind (1930)'° is perhaps as typical of early

7 Holmes 'The Path of the Law' in C&lle&d Legal Papers at p 173-

8 Holmes at p 198.
g He dehned 'the law' as follows: The law of she state or of any organised body of mcrs is
composed of the rules which the courts, that is, the judicial organs of that body lay down for
the determination of legal rights and duties': Gray The Xature and Sources of the Law pB.ç. He
said of statute that 'the courts put life into the dead words of the statute': pis. Other
sources' include expert opinion, customs and public policy.
to By the time of the British edition in 1949 his view' had undergone some modification.
Accordingly, while leaving the original test intact, he included a lengthy Preface indicating
his revised opinions.
 450 Legal theory

realism as any other work of that period. His main attack was originally
directed at the myth of achieving certainty through legal rules. The tradi-
tional picture of a legal order is that rules impart to it at least some measure
of certainty and uniformity. There is a difference, pointed out by Beale, a
great American jurist, between rules and judicial decisions. The 'law' consists
of rules; ajudicial decision is in no sense the only law, because it is given by
virtue of a rule. Frank was vehement in attacking this notion. In the first
place, if judgments were so easy to forecast, no one but litigious maniacs
would ever go to court. It is quite untrue to suggest that uncertainty stems
from uncertainty in rules. In the majority of cases, even where there is some
rule which can be applied, two opposite conclusions are perfectly possible.
He gave two examples to contradict Beale's thesis that law is distinct from
judicial decisions". The Supreme Court in 1917 was equally divided on the
question of the validity of a certain statute. In 1923 the Court by a majority
declared it to be invalid. In the meantime the personnel of the Court had
varied several times, and had the matter come up between Novemi::r 1921
and June 1922 the decision would have gone the other way. What, then, was
the law during the period from 1917 to 1923? The answer would surely have
varied according to the date when the question was asked, and according to
guesses as to the personnel of the Supreme Court. His other example was
where the Kentucky State Court took one view of the law of Kentucky on
a particular point, while the Supreme Court took a different view of the law
of Kentucky on the same point. The question What was the law? depended
on whether it was asked of the Supreme Court or the Court of Kentucky.
Law, therefore, cannot be divorced from judicial decisions; it is nor, in the
words of Holmes, 'a brooding omnipresence in the sky'. Frank rejected such
objectifications of the law, which he despised as 'Bealism"2.
Frank suggested that this craving for certainty and guidance, which men
seek in rules, may stem, in part at any rate, from the yearning for security
and safety which is an inescapable legacy of childhood. The child puts his
trust in the power and wisdom of his father to provide an atmosphere of
security. In the adult the counterpart of this feeling is the trust reposed in
the stability and immutability of human institutions. Frank suggested that
the quest for certainty in law is in effect a search for a 'Father-symbol' to
provide an aura of security, and although he attributed great prominence to
this factor, he'offered it only as a 'partial explanation' of what he called the
'basic myth', and listed fourteen other explanations as well". He called on
lawyers to outgrow these childish longings for a 'father controlled world',
and to follow the example of MrJustice Holmes, the 'completely adult jurist'.
Rules, then, 4re merely word-formulae. If they are to have any meaning
at all, such meaning has to be sought in the facts of real life to which they
correspond. Frank adopted a quotation from Holmes:
'We must think things not words, or at least, we must constantly translate our
words into the facts for which they stand if we are to keep to the real and the
true'.

.it Frank Law ondthModeni Mindpp5o,51.

12 Frank p55.
13 F.aak Preface ppxxi-xxii, Part I, ch 2, and Appendix I, P263. The other explanations are:
the religious impulse, the aesthetic impulse, professional habits, protection of vested interests,
instinct to seek security and ce rtainty interest in peace and quiet, imitation, devotion to
*
custom, inertia, laziness. StUpid1ty, mental Structure, language and word-magic, the Barry.
Watson theory.
 Modern realism
If the 'facts' in the world which correspond to talk about law are actual
decisions this yields a simple picture of law. Frank's original view was that
'law on any point is either (a) actual law, ic a specific past decision as to
that situation, or (b) probable law, ie a guess as to a specific future de-
cision". Later he showed a reluctance to use the word 'law'.
'Instead', he said, 1 would state directly—withou t an intervening definition of
that term—what I was writing about, namely (i) specific court decisions, (2)
how little they are predictable and uniform, () the process by which they are
made, and (.) how far, in the interest of justice to citizens that process can
and should be improved".
The above passage, taken from the Preface added nineteen years after the
original version, represents a modification of Frank's position, or, alterna-
tively, an attempt to dispel misconceptions about it. Shortly after the first
publication, however, statements such as the distinction between 'actual' and
'probable' law not unnaturally created a certain impression, which touched
off controversy. In reply to Roscoe Pound's attack Llewellyn protested that
his criticism was beside the point as it was not founded on what the realists
had actually said, but on what they were supposed to have saidme. The
realists were at least guilty of over-statement; and whether misconceived or
not, the polemic is a fact of history, which had the merit of inducing some
healthy re-thinking and clarification by both tides. Much of the heaviest fire
as brought to bear in defence of rules against a real or imagined onslaught
on their existence.
Did the early realists reject rules? It is not clear how many did, if any".
The importance of rules may be questioned, but that is a ma'er of degree.
To assert that a judge's 'hunch' determines the way in which he manipulates
'paper rules' and guides the logic of justifying it is unexceptionable; but to
assert or imply that 'paper rules' are illusory and that the hunch' reigns
supreme, is too strong a statement. Judges are largely bound by rules and
have little choice, whatever their sympathies; and even when they circum-
vent rules, they do so in a manner which conceals the fact that they are
doing so. In other words, the 'hunch' only operates.-within the framework of
the rules. In another sense, the assertion that the 'hunch' is supreme goes
scarcely far enough, for the 'hunch' is itself the product of standards, patterns
of behaviour, concepts and rules. Suppose that X rides off on the first bicycle
which he finds parked in the street, and which Y had placed there a short
while before. There can be no doubt that in an action by Y against X the
'hunch' would come down in favour of Y, because it is born of ideas about
ownership, rights of possession and so on. The importance of rules can be
demonstrated in another way by asking, How does one know who is a
'judge'? The point is that the position of a judge and, indeed, of every other
official is drfirsed by rules. The realists properly drew attention to many
factors that influence the judges apart from rules. They rightly indicated that
it is fallacious to regard what the judges say as an infallible guide to what
14 Frank p46.
,' Frank Preface p vi. -
16 Pound 'The Call for a Realist jurisprudence' (ti) Harv LR 697, answered by L1csellvn
Some Realism about Realism: Responding to Dean Pound' (1931) Harv LR 1222
"reprinted in Jurisprudence Realism in Theory and Practice ch 2). Ucwcllyn charged Pound with
failing to identify the individuals who held the views that he attacked.
17 Llewellyn did not, even in the early days. This is now clear from his later
Tradition, and an unfinished book, The Theory of Rules. See The Common Law
Twining App B p488.
452 Legal theory
never
they do. Yet, it is equally fallacious to assert thai what judges say can
be a guide to what they do; they sometimes say that they are bound by rules
because their decisions have in fact been so governed. The point is that the
reasons which particular judges give for doing certain things are very much
a part of what they do. To be realist in the full sense of the word would
require that allowance be made for the way in which non-realist judges
behave, which includes their adherence to rules. So, if anyone were to reject
rules, he would be more unrealistic than 'traditionalists'. Much of the trouble
seems to stem from misleading impressions created by the way in which some
realists .xpressed themselves, especially in their earlier works. Perhaps, what
they were doing was to illustrate the tension between what judges do (pro-
nounce decisions) and who they are (people with human responses).
Preoccupation with the hunches of individual judges tended to obscure the
fact that judges do agree by and large on certain yardsticks of evaluation,
and also the fact that they consciously strivC to put aside personal considera-
tions. Shared values produce an extensive and impersonal background
against which instances of personal prediliction are few. Again, a quirk may
manifest itself on some occasions and not others and it would be misleading
to exaggerate its significance. The point is that rules do act as a brake on
caprice. The realists succeeded in filling a minute fraction of the picture of
judicial action by looking only at personal and environmental factors; the
pressure of rules and other impersonal factors also play a decisive partS.
A rule is more abstract than a judicial decision and to that extent ma be
thought to be farther from 'reality'; but both are the concern of lawyers. In
cases which never come before the courts they have to advise their clients as
to the law. It is true that here, too, much of what is stated to be law has
been the subject of previous judicial decisions; but immediately after a new
statute comes into force, and before it comes before the courts, it would be
possible for a lawyer to advise his client that a new rule of law has superseded
the old rule. To argue that it is only a statement as to 'probable law' is
unrealistic. A great many daily transactions go forward and are governed by
what everyone takes to be 'law' even though few of them ever reach the
tribunals.
The contention that 'laws' are only what judges and officials do is a
somewhat unusual meaning of the word. Statutes and precedents are
followed because they are 'laws' already. When it is stated that statutes are
accepted by the courts as capable of imparting to propositions the quality of
'law', this implies that a statutory rule will be accepted by them as 'law'.
Gray and Frank appeared to say that the stamp of 'law' is only applicable
after the judge has actually, decided; which is not the accepted usage. The
fact that judges interpret statutes and precedents and keep shaping and
reshaping their contents does not mean that they are not laws' until inter-
preted. Clay is clay before, during and after it has been moulded. Moreover,
why is it 'realistic' to apply the word 'law' at the point of interpretation and
no other? A decision is no more 'real' itt providing the damages, property, or
whatever else is sought, than a rule. For the decision has still to be carried
out and the officials charged with that task may be bribed, the defendant
may be bankrupt etc. Another difficulty is that it may be abundantly clear
in advance that because of the insufficiency of evidence the court is certain
to acquit, for example a thief, and in fact does acquit him. If law is what a

t 8 See pp2IJ 2I5.22I-2.t2fltc.

 tlodcrn T(u!,nn 453

court does, or prediction of what it will do in fact, would it be said in a case

such as this that there is no law forbidding theft? If it is said that a court
might have convicted had there been sufficient evidence, that immediately
implies the presence of some rule, independent of the decision, on the basis
of which a conviction could have been obtained. To say that the actual
decision alone becomes 'law' necessarily means that it forthwith ceases to be
'law' for the future, since it will in its turn be subjected to interpretation and
be embodied in another decision. 'Law' then, in the words of one Critic,
'never is, but is always about to be. It is realised only when embodied in a
judgment, and in being realised expires"'.
Any interpretation based only on things which have come before tribunals
overlooks the point that law is very much concerned with regulating future
behaviour. Such regulation is guided by policies formulated in prescriptive
propositions, accepted as 'laws' by courts. This being the case, the :xpulsion
of the 'ought' from a concept of law is impassible. As pointed out, ev,rI the
idea of law as what judges do should include the reasons for their actions,
which would bring in their acceptance of prescriptive rules. It may be that
some realists, at any rate, were seeking to derive descriptive rules of judicial
behaviour, in which case they and the 'traditionalists' were talking about
different things.
Whatever merit there was in Frank's assertion that devotion to rules is a
manifestation of a childish craving for certainty and fixity, it would seem
that it was only he who craved for a 'Father-symbol' in wanting to pin the
word 'law' to something definite and fixed, namely, actual decisions. Few, if
any, 'traditionalists' asserted that rules can guarantee certainty; on the con-
trary, they avow the unavoidability and indeed necessity fuf some measure
of flexibility and discretion. To say that law should aspire towards economy
of thought and precision is one thing; to say that nothing is law which is not
fixed and precise has no basis whatever. A denial that certainty in law can
he achieved through rules is no reason why these may not be called 'law'.
The point would not he worth mentioning were it not for another misleading
mpression. Frank's statement, quoted earlier and echoing Gray, that until
a court has pronounced on a matter there is only 'probable law', suggested
that even a statutory rule is not 'actual law' until it has been the subject of
a judicial decision. To change the accepted meaning of the word 'law' in this
way would involve rewriting textbooks and reports to no purpose. For rules
would still remain, though not called 'law'. In one place Frank was driven
to admit the existence of rules, though he deemed it a mistake to call them
'law' 20, thereby reducing the matter to a verbal level. In fairness to Frank,
it must be pointed out that this was, at worst, a misleading way of expressing
himself. In his later thoughts he forcibly reaffirmed the importance of rules,
and in his own words, 'backed out of that silly word battle" which is an
admission that he had created a misleading impression.
To look at law solely from the point of view of one who is concerned with
predicting judicial reactions is too narrow. If, eg one were to regard law as
a judge, it would be futile to say that it consists of predictions as to how he
himself will decide and, moreover, his own past decisions and thoseof other
judges would only comprise a fraction of the law in his view. From the point
ofview of a legislator law will appear, not so much as what judges do, but
19 Cardozo The .\atwe offile Judicial Process p 126.
20 Frank pp 130-131.
i Frank Preface pp 'i and xxiv.
454 Legal £Aeoiy

what they are made to do. Further, the realist viewpoint is helpful in a
system which leaves considerable independence to the judiciary. In a system
in which judges are strictly controlled and in which their discretion is greatly
reduced, the focus of attention will inevitably shift away from the judges to
those who do wield power and discretion.
From all this it should be clear that up to this point the realists said
nothing about law which would be denied by 'traditionalists'. That might
have been the case had they been able to expel the 'ought' or rules from the
law, but they did not succeed in doing either. They denied that certainty
can ever be completely achieved through rules, which no 'traditionalist' will
controvert.
Once the rule controversy is put on one side, there is a better chance of
assessing the solid contribution of the realists, which was to furnish a valuable
extension to the work of sociologists. They were seeking the factual bases of
decisions with a view to sociological description, which investigates the values
and forces that provide the motive power for the working of rules as instru-
ments of social regulation. A study of values alone will not explain the view
which particular judges are likely to take of them, nor the degree of impor-
tance they may individually attach to one value or another. It is here that
the realists were able to uncover innumerable personal and other factors that
on occasions determine judicial choice and gave them prominence. In the
end, however, the 'is' and the 'ought', the open texture of rules, values,
morality, sociology and psychology have all become part of the realist cos-
mos. As someone remarked, 'We're all realists now'. It is not that all these
other aspects have quietly been crowding in under the realist umbrella, but
that the realists have been enlarging their umbrella to cover them.
No account of realism can be complete without some mention of Karl N
Llewellyn (1893-1962), whose work spanned the movement from its begin-
nings in the 1930s until his death in 1962. Some of his early writings, too,
lent themselvei to misinterpretation, but these should be viewed as part of
the whole development of his thought". He outlined the principal features of
the realist approach as follows'.
(t) There has to be a conception of law in flux and of the judicial
creation of law.
(2) Law is a means to social ends; and every part of it has constantly to
be examined for its purpose and effect, and to be judged in the light
of both and their relation to each other.
(3) Society changes faster than law, and so there is a constant need to
examine how law meets contemporary social problems.
() There has to be a temporary divorce of 'is' and 'ought' for purposes
of study. This is necessary in order to clarify the level of discourse
and to show how each figures in the judicial process and, indeed, to
show ultimately how pervasive is the role of the 'ought'. Perhaps,
Llewellyn was also reacting against the belief in a transcendent mor-
ality inherent in law. Ideas of justice and teleology are not expelled
altogether, but should be put on one side while investigating what
the law is and how it works. By this divorce both processes will be

z On this see Twining Two Works of Karl Llewellyn' (1967) 30 MLR 14; (1968) 31 MLR
165, and in more detail in Karl t.iewellye and the Rezlijt .'.fozemnt.
Llewellyn 'Some Realism About Realism—Responding to Dean Pound' (1930.31) 44 Har-
vard LR 1222. reprinted i n .7s üprude,wech 2.
 Modern realism 45

improved. The realists are interested in the aims and ends of the law,
and it was precisely a desire to improve the law that brought the
movement into being. Adequate reform, however, has to be preceded
by an examination of how the law in fact operates. Such an investi-
gation will be imperfect and clouded if done with 'an intrusion of
Ought-spectacles during the investigation of the facts'.
(f,) The realists distrust the sufficiency of legal rules and concepts as
descriptive of what Courts do. This was always a cardinal point in
their approach to law.
(6) Coupled with this is a distrust of the traditional theory that rules of
law are the principal factors in deciding cases. The realists have
drawn attention to many other influences which, in their view, play
a decisive part. To define law solely in terms of legal rules is therefore
absurd.
The realists believe in studying the law in narrower categories than
(7) has been the practice in the past. Different results can be reached
within the framework of the same rule or concept in different
branches. They feel that part of the distortion produced by viewing
the law in terms of legal rules is that rules cover hosts of dissimilar
situations, where in practice utterly different considerations apply.
So, in the law of contract, topics such as mistake and frustration
must be studied in small fields according to their application in
different types of transactions. Possession would be another good
example'.
(8) They also insist on the 'evaluation of an,,. part of the law in terms of
its effects' and on 'the worthwhileness of trying to find these effects'.
Finally, there must be a sustained and programmatic attack on the
(9)
problems of the law along the lines indicated above.

As Liewellyn admitted, these points were not new. The first three furnished
an obvious foundation for any sociological approach to juriprudence. Per-
haps, the main characteristics of realism lay first, in the prominence ascribed
to the fourth, fifth, sixth, seventh and eighth points; and, secondly, in the
arnalgathation of all nine points into a working programme and the actual
carrying Out of research along these lines.

Improving fact-finding processes in trial courts

Frank urged that too much attention has traditionally been devoted to the
processes in appellate courts to the neglect of lower courts. Accordingly, some
realists have urged that research be broadened so as to include the activities
of lower courts and the relation between their work and those of upper
courts. Knowledge of what goes on in the lower courts is needed in order to
know what law 'means to persons in the lower income brackets'. Frank
thought that there is as much of a Contrast between the picture of the law
that one gets by studying the work of appellate courts to the exclusion of a
study of trial courts as there is between an account of manners in Buck-
ingham Palace and in a New York subway. His comment on Cardozo's
account of the nature of the judicial process is:

See C h 13 3fl1e.
456 Ligdtheoiy

'Cardozo, most of his days an appellate Court lawyer or appellate court judge,
suffered from a sort of occupational disease, appellate-court-itis".
Frank accordingly divided realists into two camps, described as 'rule skep-
tics' and 'fact skeptics'. The 'rule skeptics' rejected legal rules as providing
uniformity in law, and tried instead to find uniformity in rules evolved Out
of psychology, anthropology, sociology, economics, politics etc'. Kelsen, it
will be remembered, maintained that it is not possible to derive an 'ought'
from an 'is'. The 'rule skeptics' avoided that criticism by saying that they
were not deriving purposive 'oughts', but only predictions of judicial be-
haviour analogous to the laws of science. Frank called this brand of realism
the left-wing adherents of a right-wing tradition, namely, the tradition of
trying to find uniformity in rules. They, too, had to account for uncertainty
in the law on the basis of rule-uncertainty. The 'fact skeptics', among them
Frank, rejected even this aspiration towards uniformity. It savoured of 'Beal-
ism'. So he abandoned all attempts to seek rule-certainty and pointed to the
uncerta i nty of establishing even the facts in trial courts. These have to be
established largely by witnesses, who are fallible and who may be lying. It
is impossible to predict with any degree of certainty how fallible a particular
witness is likely to be, or how persuasively he will lie. All persons, judges and
jurymen alike, form different impressions of the dramas unfolded before
them; an inflexion or a cough may awaken subconscious predilictions, varied
idios yncrasies and prejudices. Eternal verities are not to be erected on such
a basis. Frank alleged that all those who write on legal certainty, not ex-
cepting the 'rule skeptics', overlook these difficulties.
'They often call their writings 'jurisprudence'; but, as they almost never con-
sider juries and jury trials, one might chide them for forgetting 'juriesprud-
ence' '.
Frank, in his later writings, notably Courts on Trial, summed up his objec-
tive as being the demonstration, not of the nature of law, but of the difficul-
ties and problems that beset trial rather than appellate judges, and of the
inadequacy of existing methods of trial s . Not only have the realists given an
insight into the judicial process, but they have encouraged and enlisted the
aid of statistical inquiries. By all means let the illusion, if indeed it persists,
that rules can secure certainty be dispelled, and let daylight be shed on those
factors that make for flexibility and variation with a view o the removal of
caprice and prejudice; but nothing in all this impairs the prestige of rules or
the prescriptive function of law.

Realism as a technology
A decisive stage in the development of Llewellyn's thought came with
his notab l e anthropological investigation in collaboration with Hoebel
into the 'law-ways' of the Cheyenne Indians', which broke fresh ground in
5 Frank Law and she Modern Mind Preface p xxvi. He would have levelled a similar charge
against Ueweliyn, another realist, who in The Common Law Tradition. Deciding Appeals, con-
centrated exclusively on appellate courts.
6 Twining speaks of a distinction between 'textbook formulations of legal rules and scepticism
about the very existence of any rules or principles', and that Frank's phrase 'rule-skepticism'
obscures this: pp 32, 408,
7 Frank Preface p xi.
8 Frank Preface pxxv, and Courts an Trial- The Sacco-Vanzeui affair 1921-1927, provided an
early and powerful stimulus to inquiries into the fairness of trial processes.
9 UelIyn, Hoebd The Cheyenne Wa3 ('94').
 Modern realism

anthropology by introducing the case-method of approach. The direction of

field-work for this undertaking grew out of his early realism, while his later
realism was much influenced by the conclusions that were reached. In par-
ticular, the 'law-jobs' theory was evolved side by side with this project' 5. It
can be explained as follows. Certain needs have to be met if a group is to
survive and achieve its purpose, namely (a) adjustment of trouble-cases,
which gives off new material for doing other law jobs. This job is comparable
to running 'garage-repair' work. (b) Preventive channelling of conduct and
expectations so as to avoid trouble. (c) Preventive rechannelling of conduct
and expectations so as to adjust to change. The importance of both these is
to be seen in the resistance to certain types of new legislation, eg racial
integration. Such legislation introduces 'law' by which trouble-cases are to
be decided, but it may fail to channel conduct in advance in accordance
with it and so prevent future trouble-cases. (d) Allocation of authority and
arranging procedures, ie arranging the 'say' and the manner of its saying
(authorities and procedures for decision-making)- (e) Providing incentive
and direction within the group, ie the 'whither' of the group as a whole. (f)
Ways of handling legal tools in these various law-jobs and their upkeep and
improvement—the job ofjuristic method". There can never be one hundred
per cent fulfilment of each job, so one difficulty is in knowing at what point
shortcoming amounts to failure. Does 'groupness' cease if there is failure in
any one or more of the jobs, and, if not, at what point does it cease? Llewellyn
became increasingly preoccupied with the problem of method and never
ceased to reiterate that realism was not a 'philosophy' but a 'technology';
see it fresh. See it as it works'.
He stressed the concept of 'institution', which is 'in the first- instance an
organised activity built around the doing of a job, or cluster of jobs".
Law-jobs are done by institutions. This makes behaviour the focal point of
his jurisprudence, and he probably meant no more than this when he said
early on:
'This doing of something about disputes, this doing of it reasonably, is the
business of law. And the people who have the doing in charge, whether they
be judges or sheriffs or clerks or jailers or lawyers, are officials of the law. What
these officials do about disputes is, to my mind, the law itself"3.

This was not offered as a credo and was no more than a reaction against
what went before. An institution always has a job to do and to do it well.
There is, he says, a leeway, to be wrong or right, but a leeway to do nght is
never a leeway to do wrong. Performance of law-jobs is one aspect of the task
of law-government in society. There must then be some distinction between
Jaw and other social institutions. This lies in the fact that law requires
specialists and procedure, supremacy within the group, effectiveness and
regularity".

to Liewellyn 'The Normative, the Legal and the Law-jobs: the Problem of Juristic Method
(1939-40 9 'Sale LJ 1355; Law 'flour Sot 'ety
Llewell',n SC: this to verse: Jurisprudence p 214.
i a Llewellyn Law in our Society p 2
13 Llewellyn The fjra,,thte Bush (1930) P3 . He later modined this saying that this was 'a
'Ct)
partial statement of the whole truth': 2nd rein p g . For the continuity of his thought from
The Bramble Bush to his final position see Llewellyn The Common Law Tradition. Deciding
Appeals Appendix B.
14 Lieweltyn 'The Normative, the Legal and the Law-jobs' (1939-40) 4 Yale LJ 1355 at 1364:
Law in our Society psi.
458 Legal theory

Predicting judicial decisions

Towards the end Llewellyn was concerned with what he saw as a growing
loss of confidence in appellate courts because of the unpredictability of their
decisions. This, he thought, was unjustified, so in The Common Law Tradition.
Deciding Appeals, he sought to restore confidence by showing that there is a
'reckonable'.quality about appellate court work. He agreed with Frank to
the extent of distinguishing between work in trial courts and appellate courts,
but whereas Frank scorned the latter, he concentrated on them. Craftsman-
ship, he maintained, is possible in litigation. 'A craft is a minor institution.
A major institution differs in that its job-cluster is fundamental to the Contin-
uance of the society (or group) with typical resulting complexities"'. Crafts
evolve around such major institutions. Craftsmanship in law includes not
only the various skills of lawyers, but also tradition, ethos, training etc; and
the way in which legal craftsmen use their skills determines their 'style'.
There are various ways of dealing with precedents, such as following, distin-
guishing, expanding and re-directing". A judge's handling of them is not
capricious or arbitrary, but is guided by his 'situation-sense', which is a
key-concept as well as being the most obscure. It is more than just 'the view
taken of the facts'. It seems to include stating the facts in categories which
are as close to the actual facts giving rise to the dispute, together with an
understanding of the whole background, ie the trade, standard practices etc,
and the prevailing opinions and values"'. The doubt about this is that,
whatever it means, a situation-sense may be forthcoming in some types of
disputes, but not in others. Apart from situation-sense, a check on arbitrari-
ness and caprice is also maintained by fourteen steadying factors, relating to
the whole ethos of the procession, tradition, training and techniques"'. 'Reck-
onability' is said to depend on three laws, of which the first is the 'Law of
Compatibility, where the application of an appropriate rule is compatible
with sense. This increases 'reckonability' of the decision and the direction of
its ratio. Secondly, there is the 'Law of Incompatibility', where the above
does not obtain and where the ground of decision lies outside the rule.
Thirdly, there is the 'Law of Singing Reason', where-there is a rule with a
right 'situation-sense' and clear scope and thus gives maximum 'reckonahil-
ity'. The judicial craft which results from a right situation-sense, reason and
justice is called the 'Grand Style', which is overtly functional and purpose
orientated, as opposed to 'Formal Style', which is overtly concerned only
with the logical application of 'paper' rules. The 'Grand Style' is one of the
fourteen major steadying factors alluded to above, and Llewellyn relied heav-
ily on it to produce 'reckonability'.
From all this it will be evident that Ltewellyn's position was far removed
from that of Frank. It has been doubted whether there was in fact a crisis
of confidence and, if so, whether he succeeded in restoring confidence by

15 Llewellvri Law in our Society 21.

p
it Lle'elln gave sixteen distinguishing techniques and sixteen for providing 'a fresh start';
and thirty-two techniques of following and applying: The Common Law Tradition
18 Tzoiningpp 226-227. pp 77-91.
1 La w-conditioned officials, (s) legal doctrine, () known doctrinal techniques, (4) re-
')

sponsibility for justice, (5) one single right answer, (6) an opinion of the court, () a frozen
recot-d from below, (8) issues limited, sharpened and phrased in advance, (9) adversary
argument by counsel, (to) group decision, (ii)judicial security and honesty, (12) a known
Bench, 13) the general period-style and its promise,
(14) professional judicial office: The
Common Law Tradition pp 19 c seq.
 Modern real urn 459

re-establishing the 'reckonability' of appellate decisions. The case law

material used in the book consists of a small percentage of appeals. It has
been estimated that 70-90 per cent of appeals are 'foredoomed' and 'not
worth appeaiing'. This fact alone, it has been pointed out, 'would have
disposed more satisfactorily of the alleged crisis of confidence than his
attempts to show that the Grand Style promotes reckonability" 9 . Further,
the 'situation-sense', which appears to be basic to this thesis, is too vague,
being in every case the product of a shifting balance. Be that as it may, long
before the publication of this work, Llewellyn had given practical demon-
stration of his jurisprudence in the great and successful Uniform Commercial
Code of which he was one of the chief architects from 5937 to 1952. His
biographer points out that in it may be seen how 'Grand Style' thinking can
be utilised, not only in judicial opinions, but also in legislation". Perhaps,
one may best sum up by saying that The Common Law Tradition is Liewellyn's
magnum opus, but that the Uniform Commercial Code is his monument.

Mech a n i cal prediction: jurimetrics

In recent years attempts to predict judicial behaviour have taken a mech-
anical turn for which the term 'jurimetrics' has been invented'. It takes the
form of different kinds of investigations into legal phenomena by using sym-
bolic logic, behavioural models and mechanical aids'. Boolean algebra is
used to analyse complex sets of facts, prediction of behaviour has moved
away from that of the individual to that of groups, and the use of computers
is being explored increasingly. These new directions are not necessarily de-
pendent on realism, but may be regarded as developments along its line.

THE GROUP APPROACH 3 . A group, eg the American Supreme Court, has group
reactions. It is difficult to predict the behaviour of an individual, but that of
a mass of people is easier. Student groups have been used as models of actual
social groups. It is not enough merely to take account of the way in which
the members of a group vote; it is necessary to consider the influence of
personalities and of reasoned argument. In this connection two t ypes of
leadership are thought to be significant: task-leadership, which is directed
towards solving a given problem efficiently, and social-leadership, which
provides a friendly atmosphere conducive to solving it.
This kind of inquiry can only work so long as there is a constant member-
ship within the group. If this varies, as with the Court of Appeal or House
of Lords, and there is no knowledge in advance of the precise composition of
the group in a given case, there is no basis for prediction. There is also the
difficulty of obtaining adequate information about the inner workings of a
group. What is available tends to be fragmentary at most, eg memoirs and
biographies, and these, in any case, are not available until after death. Even
if it can be discovered who is the task- or-social-leader, it is not clear how
19 Twuthgpso.
20 Tw4nthtgch l2 and p31o.
i By Loevinger 'Jurimcuics—the Next Step Forward' (ig) 33 Minn LR 435.
2 Kayton 'Can jurimetrics be of Value to jurisprudence?' (1964 -65) 33 Ceo \Vash LR 28;;
Meyer ICtIICs the Scientific Method in Legal Research' (1966) 44 Can BR x; Beutel
£rprLme'thl! Jriprdence: Juiimtfr'$ (ed Baadc).
Murphy 'Courts a Small Groups' (1965-66) 79 Harv LR 1565; Synder The Supreme
3 (1966) Ceo
Court as a Small Group' (1938)36 Social Forces 232; Schubert judicial Beha,or
Wash LR 593.
460 Lega1tho!y

one could tell whether these tasks have in fact been performed as well as they
should, or performed at all. The use of models could be misleading. When
using scientific models, which are simplified abstractions of fixed phenomena,
the corrections that have to be made are fixed too. Where, however, the
phenomena fluctuate, as with human beings and social phenomena
generally, it is impossible to know what corrections need to be made. For
this purpose models are useless.

COMPUTER PREDICTION. It has also been suggested that in so far as there is

consistency in decision and attitude, the prediction of judicial opinions by
computers becomes possible. Computer techniques in this connection have
been of fact studies (correlation between the circumstances in particular cases
and decisions given in them) and attitude studies (correlation between per-
sonal attitudes to policies and decisions given). With regard to the former, it
is said that the acceptance of a fact by an appellate court rests on identifiable
conditions surrounding the way in which it was presented to the trial court.
Further, if the accepted facts are combined in certain ways, the decisions will
go one wa y . Personal attitudes are also said to be capable of being scaled by
means of scalogram anal y sis'. The basis of this is that a person who reacts
positively to a weak stimulus will react similarly to any stronger stimulus,
while a person who reacts negatively to a strong stimulus will react similarly
to any weaker stimulus. If a line of cases can be made to scale in this way,
this would show that a set of values is shared by members of that court. The
future behaviour of that court then becomes predictable, as well as the
probable effects of a change in composition.
It is submitted that such attempts at prediction seem destined to fail. The
personal element just cannot be eliminated from judicial decisions. (a) Every-
thing depends on how facts are viewed and stated. The same set of facts can
be stated in different combinations and at different levels of generality. No
mechanical aid can predict which combination or level is likely to be chosen.
'b) Different raliones can be extracted from a decision depending on whether
the later court wishes to see resemblances or differences. If it is known which
way a judge is going to regard a rule, a computer is not needed; if it is not
known, a computer is useless. Another consideration is that the predictabil-
ity of judicial decisions depends upon consistency in judges' attitudes to
values; but people's attitudes change with age and experience'. Moreover,
computer prediction can only work on the basis of reported decisions, the
majority of which, especially those of lower courts, are unreported. This
means that the bulk of a judge's early decisions are unlikely to be available,
so the basis for predicting his reactions is woefully inadequate. Prediction
also requires constant working material; it cannot operate when new matter

Kort 'Quantitative Analysis of Fact-patterns in Cases and their Impact on Judicial Decision'
(196-66) 79 Hat-v LR 1595; Nagel Predicting Court Cases Quantitatively' (196) 63 Mich
LR 1 4 1 1; Schubert Quantitative Anaij su of Judicial Belzariour; Judicial Decision-making (ed
Schubert): Becker Political Be/saz'iouraftsm and Modem Juriprudeiwe.
5 Tannenha The Cumulative Scaling ofJudicial Decisions' (1965-66) 79 Hat-v LR 1583.
6 'It is the judge's view of the past and the needs of the present which determine his decision,
and neither a study of broad attitudes derived from his decision pattern by external obser-
vers, nor a characterisation of 'facts' projected into the decision by o.mervees can hope to
correspond closely enough either with his view of the past, or still less with his view of the
needs of the future': Tapper Computers and at Law P 251.
7 Schmidhauser 'The Justices of the Supreme Court: a Collective Portrait' (igg) 3 Midwest
J ofPol Sci.
 Modern real zsnt 461

is being introduced, whether by legislation or creative decisions. Computers

are of no help here. Finally, even if computer prediction were possible, a
by-product may well be what is known as the 'Heisenburg feed-back effect".
Where computer analysis has indicated that a judge's decision will be such
and such in a particular case, or type of case, that very fact could induce
him either to decide accordingly as if in submission to fate, or else to decide
the opposite deliberately so as not to be dictated to by a machine. lo
produce either reaction detracts from the judicial function.
Even the possibility of trial by computer has been canvassed, the choice
being given to the defendant'. All that needs to be said on this is that the
data programmed into a computer will reflect the personal quirks of the
programmer, which will be substituted for the quirks of the judge. At least,
the judge works in the open, whereas the programmer works behind the
scenes.

SCANDINAVIAN REALISTS

The American Realists were practising lawyers or law teachers, who sought
to approximate legal theory to legal practice. In Scandinavia the group of
jurists known as realists approached their tasks on a more abstract plane and
with the training of philosophers.

HAGERSTROM
Hagerström (1868-1939', who may be regarded as the founder of the move-
ment in Sweden", has written at length, especially on Roman law, but
much of his work is not available in English tt . His basic position was as
follows. He denied the existence of objective values. There are no such things
as 'goodness' and 'badness' in the world. The words represent simply emo-
tional attitudes of approval and disapproval respectively towards certain
facts and situations. It is only language form that has erected them into
absolutes and has created an illusion of objectivity. So, too, the word duty'
only expresses an idea, the association of a feeling of compulsion with regard
to a desired course of conduct. Language form again gives objectivity. eg 'it

O' !.aw ned Justice

8 Heisenberg Physics and Philosophy PP47 et seq. and on the same line Ross
P47-
g Lawlor ( 1 9 6 ) 13, Practical Lawyer 3, 10.
to For possible earlier origin. see Ilium 'Some Reflections on the Method of Legal Science and
(referring to the influence of
on Legal Reasoning' (1968) 12 Scand Studies in Law 51, 57
ørstrd (t 778- 186o)). The work of Petrazhitsky anticipated to a remarkable degree the
approach of the Scandinavians, but there is no evidence that the latter were influenced by,
or were originall y aware of his work. This makes the correspondence of their views all the
(trans Babb in 20th Century
more striking. For his work, see Petrazhitsky Law and Moralt(y
pat;
Legal Philosophy Series vii); Meycndorff 'Leo Petrazhitsky' in %fodern Thearies of Law
lnielpreiattorsS of .,fodern Legal Philosophies
Timasheff 'Pctrazhitsky's Philosophy of Law' in
Sorokin 'The Organised Group (Institution) and Law Norms', at p&68. and L.aserson
P 736 '
"Positive' and 'Natural' Law and their Correlation' at p434; Northrop 'Petrazhitsky'3
Psychological Jurisprudence: its Originality and Importance (1955-36) 104 Unisers;ii of
Pennsylvania Law Review 6i. For a short critique from a Marxist point of view, see
(trans
Golunskii and Strogovitch 'The Theory of the State and Law' in Soria Legal p4dosoph7
Babb in aoth Century Legal Philosophy Series v) PP 415-419-
ii A selection of his writings has now been translated into English by Professor Broad and
edited by Professor Olivecrona: Hsgerström lnqwries 1510 the .Vatsre f Law and ."dorals.
 462 L(gGJthtoiy

is my duty to do so and so'. Similarly, the idea of

'right' has no factual basis,
but derives from a feeling of power associated with it, which has a psycho-
logical explanation". This led Hägerstrom to deny the possibility of any science
of the 'ought'. All questions ofjustice, aims and purposes of law are matters
of personal evaluation and not susceptible to any scientific process of exam-
ination. In this way many of the traditional problems of legal philosophy
become illusory, and must be replaced by an examination of the actual use
of legal terms and a psychological analysis of the mental attitudes involved.
Hagerstrom applied this technique to the study of Roman law' 3 . He exam-
ined the concepts of Classical Roman law -ind set forth the thesis that they
were rooted in magical beliefs, ie that they were developments of the primi-
tive belief in the power of words to affect happenings in the world of fact.
The conception of obligalio was, he said, a magical bond, the 'vincu/umjiiris',
giving power to the creditor over the debtor. This power could only be
created in special ways, by the use of magic recitations, such as s/ipulatio, and
the debtor ei,kI free himself from it by performance or by uttering with the
creditor's consent another magic formula. Power over property, dorainium or
ownership, was also a magic power. The archaic mode of conve yance, man-
cipatlo, with its formal acts and formula asserting title before its acquisition
was a ceremony based on magic. Law starts in religion, eg Mosaic Law, and
the monopoly enjoyed by the priestly class, the pontiffs, in early law is also
evidence of this idea that law is based on magic.
It is possible that HägerstrOm was making too much of a point which has
some substance. It is probably true that adherence to form and ritual is
rooted in word-magic, but how far Roman law in the Classical period should
be interpreted along such lines is a matter on which opinion should be
reserved. Adherence to ritual was not peculiar to Roman law; it is true that
in Classical Roman law some of the early forms of law survived, but whatever
their origin, the interpretation of Classical law on the basis purely of word-
magic is questionable 14 . Professor Olivecrona, a follower ofHagerstrom, accepts
his leader's explanations of Roman law, but he does say a propos of modern
law generally that people still retain the outer form of word-magic although
the inner belief in it disappeared long ago". That remark might well be
applied to Classical Roman law.
As with the American Realists, there is hardly a 'school' of Scandinavian
realism. Individuals, who are thought to belong to the group, exhibit impor-
tant differences among themselves. Notwithstanding these, however, they
would in the main agree in denying the possibilit y of a science of Justice or
values. To them, these are purely subjective reactions, or else reflective of
class or political ideology, and it is not possible to construct a science on such
a basis.

LUNDSTEDT
Vilhelm Lundstedt (1882-1955) might be regarded as the most extreme of
the Scandinavians. Law is simply the fact of social existence in organised
groups and the conditions which make possible the co-existence of masses of
12 HagerSttOlflp5.
13 Hacrstrom Der rômische Ob1tgatio,ut egrtf im Lithie da ailgemei '
14 MacCo,-mack 'Haegerstrocm's Magical Interpretation of Roman wn rS'nisc/len Rec/ttsanichauwtg.
Law' (1969) 4 IrJur (NS)
153.
13 See P 50 ante.
 Modern rca/urn 463
people. He attacked metaphysical ideas-in every form. Nothing exists which
cannot be proved as fact, and he was particularly ruthless in dismissing
traditional concepts as being emotive responses or mirages of language. To
that he ought to
say that a person is under a duty 'is only a feeling or sentiment
conduct himself in a certain manner, consequently something quite subjective.
This subjective element legal writers have been forced to turn into the exact
say that a
opposite, into the monstrous contradiction: an objective duy!". To
person has broken a duty is a farrago of words for the plain fact that he is
likely to be punished, or made to pay a sum of money". Similarly, a 'right'
is a term for the favourable position enjoyed by a person in consequence of
the functioning of legal machinery. Law simply consists of rules about the
application of organised force.
The idea of law as a means of achieving justice is chimerical. It is not
founded on justice, but on social needs and pressures. Indeed, 'the feelings of
justice are guided and directed by the laws as enforced, ie as maintained"8.
In place of justice Lundstedt substituted the method of 'social welfare', which
is 'a guiding motive for legal activities', namely. 'the encouragement in the
best possible way of that ... which people in general actually strive to
attain"'. Judges should think in terms of social aims, not 'rights" 2 . He in-
sisted that these are not aims for which people ought to strive, but those
which they are observed to be seeking. They include decent food, clothing,
shelter, security of life, limb and property, freedom of action and protection
of spiritual interests. The method of social welfare strives to attain the best
balance between these and other competing interests without the intrusion
of values.
Lundstedt's iconoclasm is extreme. However true it may be that concepts
such as duty and right have no verifiable content, they are convenient tools
of thought and are used in deciding cases. The wholesale rejection of them,
as he advocated, would cnly distort what actually goes on. Thus, an answer
to his view that a right is only a word for the favourable position enjoyed by
a person in consequence of the functioning of legal machinery is that every-
thing depends on why a court viewed his position favourably. This is because
success in the action depended on the idea of a right'. It happens, too, that
v en though it
a person may, enjoy a favourable position by virtue of a right e
is socially undesirable that he should do so2.
If, as he so vehemently insisted, all conceptual thought is nonsensical, the
same must apply to his own concept of 'social welfare'. Howeer, leaving
that aside, it is not clear how far the method of social welfare represents the
observable pattern of administration and how far it is what Lundstedt himself
would have liked to see. Nor does this method seem very different from what
other writers have said. In any case, as has been pointed Out, balancing
interests is just not possible except with reference to yardsticks of evaluation'.

16 Lurtdstedt Legal Thinking Recised p62.

17 Lund-sLedS pp 34. 38.
18 Lund.sfrd p 1 44
t Lundstedtpp 1 4 0 et seq.
Roiionatij in Action fur Pe.xce.' p riB.
20 Lundstedt Superstition of 83-86. For a different objection, see ppgl-93; and 'Law
t Oiiscoisa L— 4-Faa (9) pp
as Fact' in Interpretations of Mo&r Legal Pb.itasopkies (ed Sabre) ch 25.
(r895] AC 587. For a criticism of Lundstedt which scents to miss
2 Eg Bradford Corpu v Pickles
4 6 62 LQR398.
the point, see C L Williams 'Languagean d the Law' (r
3 See p ante Cf Lundstedt's own allusion to useful arrangements 'actually evaluated as a
Legal Thinking Remscd p 137.
social interest' within a given society at a given time:
464 LAgOJth(o7J

The very concept of soda] welfare is a product of political or socio-moral

evaluation. If the actual interests of people are allowed to proliferate to the
point of complete social fragmentation and anarchy, that would spell the
end of legal activity and, indeed, of social welfare. If this is not to be allowed,
then the point at which legal activity has to step in is a matter for decision
as to where the line should be drawn, not of observation. Moreover, is a
small, but enlightened minority, agitating for reform, to remain outside the
endeavour of the social welfare method until, presumably, it attains large
enough proportions?
Other Scandinavians have not gone as far as Lundstedt. Even Professor
Olivecrona, who perhaps came nearest to his views, does not do so. Indeed,
some have reacted sharply against his uncompromising condemnation of any
appeal to justice and morality'.

OLIVECRONA
A less extreme and more acceptable form of scepticism comes from Professor
Olivecrona (b. 1897). He expressly refrains from defining law. 'I do not
regard it as necessary to formulate a definition of law', he says'. 'A descrip-
tion and an analysis of the facts is allthat will be attempted'. If one seeks to
investigate the nature of law, it begs the question to begin by assuming what
it is, and he insists that the facts must be examined first. The method of
identifying these 'will be simply to take up such facts as are covered by the
expression rules of law".
The question of the validity of law is a matter of much concern to the
Scandinavians. Olivecrona approaches it from the angle of bindingness'. Law
has 'binding force' in so far as it is valid; an invalid law is not binding. This
question of the binding force behind law has been a perennial puzzle and is,
expressly or impliedlv, the foundation of many theories. There is no such
thing, says he, as 'the' binding force behind law. Many attempts have been
made to find where it resides. Natural lawyers have asserted that it lies in
natural law; but if asked why natural law is binding, the answer is a confes-
sion of faith. Natural law, whether conceived as an expression of the will of
God or as a set of principles based on reason, is said to be binding per se.
Morality cannot be substituted in place of natural law, for law is treated as
binding whether or not it is consistent with morality.
Others have tried to discover the binding force of law in the consent of
the governed. This is not wholly true because at no time are the subjects of
a system of law asked whether they consent to be bound. Also, it would
follow that once consent is withdrawn law ceases to bind, which is not the
case.
Another attempt to unravel the binding force is to attribute it to the 'will
of the state'. This, too, is imaginary since the 'will of the state' as distinct
from the wills of individuals is a myth. The question is whether any indivi-
dual, or group of individuals, is discoverable in whose will the binding force
of law may be said to reside. The answer must be in the negative because,

4 He and Hãgerstrom are the only twojurists who escaped 1.trndstedt's censure.
Vinding Kruse The Foundations of Hw,w.n Thosçghl Castberg
Problems of Legal Philosophy pp iso
Cl seq. -
6 Olivecrona Law as Faa (1939) p 26.
7 OlweasapS5, and (andccjn '97 I )pp3-5 and pp 11-lsante.
O/ivecroa.a (1939) Introduction.
 Modern realism 465

in the first place, there never has been and never will be any person or group
of persons who can be regarded as having 'willed' the whole law, let alone
its binding force. Secondly, it is equally fictitious to imagine that the binding
force rests in the wills of legislators or citizens collectively. Such persons have
other matters to think of than willing laws or their binding force'.
It is not meaningful to say that the binding force of law is derived from
unpleasant consequences that ensue if law is broken. For unpleasant conse-
quences ensue in a host of situations which have nothing to do with law. A
person gets burnt if he puts his hands in the fire, but this does not lead to a
binding rule that he should not put his hands in the fire. Conversely, there
are occasions when law is treated as binding although unpleasant conse
quences do not ensue. A person may commit a breach of the law and go
undetected, but no one would say that the law is therefore not binding on
him. Nor is it satisfactory to say that the binding force is derived from the
unpleasant consequences that ought to ensue, for, as Kelsen has shown, the
reality of 'ought to ensue' consists of the operation of other rules of law and
the binding force of these will in turn have to be sought.
Professor Olivecrona accordingly rejects the idea of 'the' binding force of
law as illusory and meaningless. It is not an observable fact in the milieu of
society. 'The' binding force of law is a mirage of language; it 'exists' only as
an idea in individual minds' 0 . Laws, too, 'exist' in the form of printed or
written words or else in memory. Their importance lies, not in where or how
they are stored, but in the fact that they produce behaviour. This results
from the fact that most people have a feeling of being bound by law, which
is quite different from saying that theic is some impalpable binding force
existing somewhere outside the mind. It is this feeling of being bound that
has to be explained.
Olivecrona accordingly approaches his inquiry by examining the idea of
duty, which has been dealt with and need not be repeated". His conclusion,
in substance, is that duty involves the idea of action and an imperative mode
of expres'ion, and that the feeling of being bound stems from the psycho-
logical associations connected with this mode of expression by certain agen-
cies. The picture of law which emerges is of patterns of conduct in imperative
form, which are distinguishable 'from other imperatives by virtue of the
nature of the feeling of being bound that is associated with them. This feeling
is not the same with regard to any other kind of imperative, eg that one
must wear black at funeral-. The feeling of being bound by 'law' is psycho-
logically associated with certain agencies when they follow certain proce-
dures, together with the publication of law-texts through certain media,
which are assumed to give a true account 8f them". Law, therefore, is a set
of 'independent imperatives' prescribed by these agencies. It is thought,
however, that Olivecrona would admit that law prescribes models of con-
duct. He would, therefore, not deny that it consists of 'ought' propositions.
Nor does he dismiss the idea of rights altogether. He emphasises that it
does not correspond with an ascertainable 'thing', that it is, in short, a
'hollow' word". A court could ornnounCe on a factual situation without
teq; (tgi' pp 73 ti seq. The most powerful attack on 'will theories'
9 Otiein'i (1939' pp '­ C ,
was by Hdgersiom pp 1-55. 74I26.
to Olttecrsna (1939' p IT
ii Sec p 248 ante.
is Sc pp 37 et seq ante. in Honor of Roscoe Pow'4
13 Ohvccrona 'Legal Language and Reality' in Essays in Ju-tspru&nce
(ed Nesnar,. p t.
 466 LgaItheo,y

calling 'right' in aid. Thus, proof of a right is accomplished by proving

certain facts or events whose effects are determined by law. These facts are
called 'title'. In a court nothing stands between proof of the facts and judg-
ment; the one is the direct cause of the other. Even in matters which never
come before courts, as soon as the facts constituting the title are in existence,
the person concerned may do certain things and other persons must not and
cannot do certain other things with regard to him. Yet, between the facts
and the judgment and between the facts and the behaviour the idea of a
'right' is invariably interposed, and it is said that the favourable decision or
the behaviour proceedsfrom the right, which has been crialed by the title. In
truth, the idea of a 'right' connotes a multitude of other ideas relating to
behaviour patterns, not only for the 'possessor of the right',but also of other
persons. It implies directives as to how the right-bearer and others can and
should act, it informs people about legal situations, it is purposive in achiev-
ing or maintaining a State of affairs, and it is a means of harnessing the force
of the state. This analysis, together with that of duty and the feeling of being
bound, leads him to conclude that 'law is nothing but a set of social facts""
based on the application of organised force.
By way of a general observation, it might be remarked that some people
are left with a feeling of dissatisfaction after reading Olivecrona's exposition.
Its very simplicity raises a doubt as to whether he may have overlooked some
deeper truth. It is submitted, however, that the common sense which he
brings to bear in his discussions is the best feature of his work. Obscurity has
passed for profundity too often. It is a useful working rule that clarity of
expression is an index to clarity of thought. Obscurantist jargon earns much
unmerited respect from those who hesitate to condemn as nonsense. that
which they cannot understand. The clear pages of Olivecrona's presentation
are preferable to the turgid complexities of many another. Apart from that,
however, one who searches his book for guidance in the solution of legal
problems will search in vain. Nowhere is there a hint of values or other such
considerations from which the law draws its vitality. It would be unfair to
level this as a criticism, for a person should not be criticised for not having
said something which he never set out to say and which, in any case, he
would not have denied. Olivecrona's object, like Kelsen's, was limited to a
formal analysis of law as it is. The picture of law which emerges is that it
consists largely of propositions phrased in an imperative form and emanating
from certain agencies. It might be said that there is nothing very new in that.
Finally, although he repeatedly insists that law is nothing but a set of social
facts, nowhere in his book does he explain what he means by 'fact'. Law
also provides a model of behaviour which, too, presumably is a social fact.
Perhaps, an explanation of the crucial term 'fact' would have been instructive.
The chief merit of his work may perhaps be summed up as follows. He
destroyed many traditional myths concerning law, eg 'binding force' and
command. He has given a moderate, sane and commonsense approach to
some highly abstract problems of legal philosophy. His approach should not
be regarded as self-sufficien t , but it is an invaluable corrective to some others.

ROSS

The Danish jurist, Alf Ross (b. 1899), also admits the normative character of
law (as did Kelsen by whom he was influenced). He distinguished between
14 Otivccroa Law asFI(ig3g) p 's.
 - Modern realism 467

laws, which are normative, and statements about laws in books, which are
descriptive. Unlike Kelsen, he confines his attention to particular legal
orders. Like Olivecroria, he maintains that laws need to be interpreted in the
light of social facts and he, too, is concerned with the problem of validity.
Like the American Realists he tends to highlight the position of courts.
a directive which stands in a relation of correspondence to
'A norm ' says Ross 'is
To say that a norm exists means that a certain social fact exists;
socialfacls" 5 .
and this in turn means that the directive is followed in the majority of cases
by people who feel bound to do so". The principal feature of legal norms is
that they are directives addressed to courts. A norm may derive from a past
decision, but it follows from this view that all norms, including those of
legislation, should be viewed as directives to courts"'. The judgment or order
of the court then forms the basis for action by the state, which is a 'monopoly
of the exercise of force"'. It follows from this point of view that norms
directed at individuals with regard to behaviour are only 'derived and figur-
ative"'. In his later work, however, he concedes that 'from a psychological
point of view' there is another set of norms directed to individuals, which
are followed by them and felt to be binding". Strictly speaking, he adds,
there is no need for the latter: to know the former 'is to know everything
about the existence and content of the law". Norms of the law may be
further divided into 'norms of conduct', which deal with behaviour, and
'norms of competence or procedure', which direct that norms brought into
existence according to a declared mode of procedure shall be regarded as
norms of conduct. Thus, norms of competence are indirectly expressed norms
of conduct'.
The crucial concept is 'valid law". Ross approaches this from the point of
view of an observer, ie validity as a describable phenomenon. It can be
established in terms of social facts by employing empirical methods of obser-
vation and verification. Observation has to show that a rule is effectively
followed, and that rule has also to be felt to be binding by those who follow
it, just as the validity of the rules of chess is established by showing that they
are adhered to by players, who feel bound to do so". Legal norms consist of
past decisions and other normative propositions followed by courts and by
bound. The test of their validity is the predictability of
which they.
decisions.
'Valid law', he says 'means the abstract set of normative ideas which serve
as a scheme of interpretation for the phenomena of law in action, which again
means that these norms are effectively followed, and followed because they are
experienced and felt to be socially binding by the judge and other legal auth-
orities applying the law ... The test of validity is that on this hypothesis—that

,, Ross Direct:es and Norms p 82.

16 Ross p83. difficult to see
17 Ross prefers 'directive' to Olivecrona's 'independent imperative', since it is
command, can command a judge, also there
how an imperative, which is independent of
are mans legal directives which are not imperative: Ross p37
tO Ross On Law and J ustice p34.
to Rsssp3S.
20Ross Directives and Norms p92.
p 360 ante.
i Ross p 91 This is reminiscent of Ketsen's view: see
2 Ross On Law as'.dJastce p32.
of what is in Danish 'existing law', or
3 Ross protested against the translation into 'valid law'
'law in force': Review in (1961) Yale LJ ig6s.
Ross On Law and Jastce pp 14-15.
4€8 Legal th€toy

is, accepting the system of norms as a scheme of interpretation —we can com-
prehend the actions of the judge (the decisions of the courts) as meaningful
responses to given conditions and within certain limits predict them".
Norms are thus operative 'because they are felt by (the judge) to be socially
binding and therefore obeyed'. A norm, then, is 'valid' if a prediction can
be made that a court will apply it". At this point Ross puts forward an
interesting contention. Validity is not an 'all or nothing' concept as it is with
other writers; the degree of predictability that a norm will be applied deter-
mines the degree of its validity. 'This degree of probability depends on the
material of experience on which the prediction is built (sources of law)".
Where the probability is high because the basis is a statute or an established
precedent, the degree of validity of a rule is high; %%-here the probability is
low because there is no decisive authority, the degree of validity is low.
The Criticism originally levelled at Ross that he ignored the regulative
function of norms by saying that they are only addressed to courts was
partially met by his later modification that, from a psychological point of
view, norms are also addressed to individuals. However, his continued insist-
ence that only the former matter still underplays the regulative function. On
the other hand, to admit, as he now does, that norms directed at individuals
also exist, thereby implying that they, too, are social facts, loosens the foun-
dation of his structure. The thesis that there can be degrees of validity follows
from an identification of validity with eventuality, what actually happens. Is
this legitimate? The closely related point is his adoption of an exclusively
descriptive point of view. As pointed out in connection with American
Realism, however, the resulting picture is unsuited to the point of view of a
leg'alator or judge. What does validity signify to them? A judge, for instance,
can hardly be predicting his own feelings or behaviour, but it would be quite
unrealistic to suggest that validity has no significance for him.
5 Russ pp . t8, . Cf the American Realist position.
6 Ross p35. Cf Hart's 'internal aspect' of rules. Hart points out that his 'internal aspect' is not
a matter of 'feelings', but the acceptance of
the norm as a standard: 'Scandinavian Realism'
igg] CLJ at 237-238; and pp8 Ct seq ante.
7 Ross p 49.
8 Ru.cs p
 Modern realism 469

READING LIST

A d'Ameto 'The Limits of Legal Realism' ('gm) 87 Yale Law Journal 468.
J N Frank Courts on Trial.
J N Frank Law and the Modern Mind.
L L Fuller Law in Quest of Itself.
EN Garlan Legal Realism and Justice.
A Hagerström Inquiries into th€ Salure of Law and Morals (trans CD Broad, ed K
Olivecrona).
CG Haines 'General Observations on the Effects of Personal, Political, and
Economic Influences on the Decisions of the Judges' (1922) 17 Illinois
Law Review 96.
0 W Holmes Collected Legal Papers p 167.
J C Hutcheson 'The Judgment Intuitive: the Function of the 'Hunch' in
Judicial Decisions' (1929) 14 Cornell Law Quarterly 274.
j Hutcheson 'Lawyers' Law, and the Little Small Dice' (1932-33) 7 Tu-
lane Law Review 1.
H Kantorowicz 'Some Rationalism about Realism' (1934) 43 Yale Law
Journal, 1240.
• N Llewellyn The Common Law Tradition. Deciding Appeals.
• N Llewellyn Jurisprudence chs 1-3, 5, 7-8.
AV Lundstedt Legal Thinking Revised.
P Mechem 'The jurisprudence of Despair' (1935-36) 21 Iowa Law Review
669.
MS McDougal 'Fuller vs the American Realists: an Intervention' (1940-41)
o Yale LawJournal 827.
KOlivecrona Law as Fact (1939); 2nd edn (1971).
R Pound 'Law in Books and Law in Action' (1910) 44 American Law
Review 12.
R Pound 'The Call for a Realist Jurisprudence' ( igo - i ) 44 Harvard Law
Review 697.
A Ross Directives and Norms.
A Ross On Law and Justice.
\V E Rumble American Legal Realism. Skepticism, Reform and the Judicial Process.
T Schroeder 'The Psychologic Study ofJudicial Opinions' (1918) 6 Califor-
nia Law Review 89.
W Twining Karl Llewellyn and the Realist Movement.
J N Ulman A Judge Takes the Stand.