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Published by Yale University Press. The Reform of Legal Procedure. By Moorfield Storey. The Judiciary and the People. By Frederick N. Concerning Justice.
By Lucilius A. By Henry St.
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George Tucker. The Nature of the Judicial Process. By Benjamin N. The present volume is the second work published under the imprint of the Yale University Press in memory of Arthur P. Throughout his career at Yale he was noted both for his scholarship and for his active interest in debating, which won for him first the presidency of the Freshman Union and subsequently the presidency of the Yale Union.
Following his graduation from the School of Law he entered upon the practice of his profession in New York City and early met with the success anticipated for him by his friends,—his firm, of which he was the senior member, being recognized at the time of his death as among the most prominent of the younger firms in the city. By his untimely death the bar of the City of New York lost a lawyer outstanding for his ability, common sense, conscientiousness, and high sense of justice; and Yale University lost an alumnus of whom she was proud, who gave freely of his time and thought to his class of , to the development of the Yale School of Law, and to the upbuilding of the Yale University Press, which he served as counsel.
A metaphysician who had written on the secret of Hegel was congratulated upon his success in keeping the secret. One who essays an introduction to the philosophy of law may easily achieve a like success. His hearers are not unlikely to find that he has presented not one subject but two, presupposing a knowledge of one and giving them but scant acquaintance with the other. If he is a philosopher, he is not unlikely to have tried a highly organized philosophical apparatus upon those fragments of law that lie upon the surface of the legal order, or upon the law as seen through the spectacles of some jurist who had interpreted it in terms of a wholly different philosophical system.
On the other hand, if he is a lawyer, he will very likely have been able to do no more than attempt none too intelligently to work with the complicated and delicate engines of others upon the toughest and most resistant of legal materials. Yet such incursions there must be. Philosophy has been a powerful instrument in the legal armory and the times are ripe for restoring it to its old place therein.
At Edition: current; Page: [ 11 ] least one may show what philosophy has done for some of the chief problems of the science of law, what stands before us to be done in some of the more conspicuous problems of that science today in which philosophy may help us, and how it is possible to look at those problems philosophically without treating them in terms of the eighteenth-century natural law or the nineteenth-century metaphysical jurisprudence which stand for philosophy in the general understanding of lawyers.
Indeed, the everyday work of the courts was never more completely shaped by abstract philosophical ideas than in the nineteenth century when lawyers affected to despise philosophy and jurists believed they had set up a self-sufficient science of law which stood in no need of any philosophical apparatus.
In all stages of what may be described fairly as legal development, philosophy has been a useful servant. But in some it has been a tyrannous servant, and in all but form a master.
It has been used to break down the authority of outworn tradition, to bend authoritatively imposed rules that admitted of no change to new uses which changed profoundly their practical effect, to bring new elements into the law from without and make new bodies of law from these new materials, to organize and systematize existing Edition: current; Page: [ 17 ] legal materials and to fortify established rules and institutions when periods of growth were succeeded by periods of stability and of merely formal reconstruction.
Such have been its actual achievements. Yet all the while its professed aim has been much more ambitious. It has sought to give us a complete and final picture of social control. It has sought to lay down a moral and legal and political chart for all time.
It has had faith that it could find the everlasting, unchangeable legal reality in which we might rest, and could enable us to establish a perfect law by which human relations might be ordered forever without uncertainty and freed from need of change.
Nor may we scoff at this ambitious aim and this lofty faith.
They have been not the least factors in the power of legal philosophy to do the less ambitious things which in their aggregate are the bone and sinew of legal achievement. For the attempt at the larger program has led philosophy of law incidentally to do the things that were immediately and practically serviceable, and the doing of these latter, as it were sub Edition: current; Page: [ 18 ] specie aeternitatis, has given enduring worth to what seemed but by-products of philosophical inquiry.
Two needs have determined philosophical thinking about law. On the one hand, the paramount social interest in the general security, which as an interest in peace and order dictated the very beginnings of law, has led men to seek some fixed basis of a certain ordering of human action which should restrain magisterial as well as individual wilfulness and assure a firm and stable social order.
On the other hand, the pressure of less immediate social interests, and the need of reconciling them with the exigencies of the general security, and of making continual new compromises because of continual changes in society, has called ever for readjustment at least of the details of the social order. It has called continually for overhauling of legal precepts and for refitting of them to unexpected situations.
And this has led men to seek principles of legal development by which to escape from authoritative rules which they feared or did not know how Edition: current; Page: [ 19 ] to reject, but could no longer apply to advantage. These principles of change and growth, however, might easily prove inimical to the general security, and it was important to reconcile or unify them with the idea of a fixed basis of the legal order.
Thus the philosopher has sought to construct theories of law and theories of lawmaking and has sought to unify them by some ultimate solving idea equal to the task of yielding a perfect law which should stand fast forever.
From the time when lawgivers gave over the attempt to maintain the general security by belief that particular bodies of human law had been divinely dictated or divinely revealed or divinely sanctioned, they have had to wrestle with the problem of proving to mankind that the law was something fixed and settled, whose authority was beyond question, while at the same time enabling it to make constant readjustments and occasional radical changes under the pressure of infinite and variable human desires.
The philosopher has worked upon this problem with the materials of the actual legal systems of the time Edition: current; Page: [ 20 ] and place, or with the legal materials of the past upon which his generation had built. Hence in closer view philosophies of law have been attempts to give a rational account of the law of the time and place, or attempts to formulate a general theory of the legal order to meet the needs of some given period of legal development, or attempts to state the results of the two former attempts universally and to make them all-sufficient for law everywhere and for all time.
Historians of the philosophy of law have fixed their eyes chiefly on the third.
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But this is the least valuable part of legal philosophy. If we look at the philosophies of the past with our eyes upon the law of the time and place and the exigencies of the stage of legal development in which they were formulated, we shall be able to appreciate them more justly, and so far as the law of the time and place or the stage of legal development was similar to or different from the present to utilize them for the purposes of today.
We know Greek law from the beginnings of a Edition: current; Page: [ 21 ] legal order as pictured in the Homeric poems to the developed commercial institutions of the Hellenistic period. In its first stage the kings decide particular causes by divine inspiration. In a second stage the customary course of decision has become a tradition possessed by an oligarchy. Later, popular demand for publication results in a body of enactment.
Much more than documents.
At first enactments are no more than declaratory. But it was an easy step from publication of established custom to publication of changes as if they were established custom and thus to conscious and avowed changes and intentional new rules through legislation.
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The law of Athens in the fifth and fourth centuries bc was a codified tradition eked out by legislation and individualized in its application through administration of justice by large popular assemblies. Thus in spite of formal reduction to writing it preserved the fluidity of primitive law and was able to afford a philosophy for Roman law in its stage of equity and natural law—another period of legal fluidity.
The development of a strict law out of codified primitive Edition: current; Page: [ 22 ] materials, which in Rome happily preceded the stage of equity and natural law, did not take place in the Greek city.
Hence the rules of law were applied with an individualized equity that reminds us of the French droit coutumier —a mode of application which, with all its good points, must be preceded by a body of strict law, well worked out and well understood, if its results are to be compatible with the general security in a complex social order.
We may understand the materials upon which Greek philosophers were working if we look at an exhortation addressed by Demosthenes to an Athenian jury. Men ought to obey the law, he said, for four reasons: because laws were prescribed by God, because they were a tradition taught by wise men who knew the good old customs, Edition: current; Page: [ 23 ] because they were deductions from an eternal and immutable moral code and because they were agreements of men with each other binding them because of a moral duty to keep their promises.
It was not long since that men had thought of legal precepts as divinely revealed, nor was it long since that law had been a tradition of old customs of decision. Philosophers were seeking a better basis for them in eternal principles of right. In the meantime in political theory, at least, many of them were the agreements of Athenian citizens as to how they should conduct themselves in the inevitable clashes of interests in everyday life.
What was needed above all was some theory of the authority of law which should impose bonds of reason upon those who enacted, upon those who applied and upon those who were subject to law in such an amorphous legal order. A sure basis of authority resting upon something more stable than human will and the power of those who govern to impose their will for the time being was required also for the Edition: current; Page: [ 24 ] problem of social control in the Greek city-state.
In order to maintain the general security and the security of social institutions amid a strife of factions in a society organized on the basis of kinship and against the wilfulness of masterful individuals boasting descent from gods, in order to persuade or coerce both the aristocracy and the mass of the low born to maintain in orderly fashion the social status quo, it would not do to tell them that law was a gift of God, nor that what offended the aristocrat as a radical bit of popular legislation enacted at the instance of a demagogue was yet to be obeyed because it had been so taught by wise men who knew the good old customs, nor that Demos chafing under some item of a class-possessed tradition was bound by it as something to which all citizens had agreed.
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It is significant that Greek thinkers always couple custom and enactment; things which today we contrast. These were the formal bases of legal authority. So Aristotle considers, not natural law and positive law, but what is just in itself—just by nature or just in its idea—and what derives its sole title to be just from convention or enactment.
The latter, he says, can be just only with respect to those things which by nature are indifferent. Thus when a newly reconstituted city took a living Spartan general for its eponymus, no one was bound by nature to sacrifice to Brasidas as to an ancestor, but he was bound by enactment and after all the matter was one of convention, which, in a society framed on the model of an organized kindred, required that the citizens have a common heroic ancestor, and was morally indifferent.
The distinction was handed down to modern legal science by Thomas Edition: current; Page: [ 26 ] Aquinas, was embodied in Anglo-American legal thought by Blackstone, and has become staple. But it is quite out of its setting as a doctrine of mala prohibita and mala in se.
An example of the distinction between law and rules of law has become the basis of an arbitrary line between the traditionally anti-social, penalized by the common law, and recently penalized infringements of newly or partially recognized social interests.
Although the discrimination between what is just and right by nature and what is just because of custom or enactment has had a long and fruitful history in philosophical jurisprudence and is still a force in the administration of justice, I suspect that the permanent contribution of Greek philosophy of law is to be found rather in the distinction between law and rules of law, which lies behind it and has significance for all stages of legal development.
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Roman lawyers came in contact with philosophy in the transition from the strict law to the stage of equity and natural law, and the contact had much to do with enabling them to make the Edition: current; Page: [ 27 ] transition. From a purely legal standpoint Greek law was in the stage of primitive law. Law and morals were still largely undifferentiated. Hence Greek philosophical thinking of a stage of undifferentiated law and morals lent itself to the identification of the legal and the moral in juristic thinking which was characteristic of the classical Roman law.
But the strict law obviously was indifferent to morals and in many vital points was quite at variance with the moral ideas of the time. The Greek distinction of just by nature and just by convention or enactment was suggested at once by such a situation.
Moreover the forms of law at the end of the Republic and at the beginning of the Empire invited a theory of law as something composite, made up of more than one type of precept and resting immediately on more than one basis of authority. Cicero enumerates seven forms of law.
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Three of these are not heard of thereafter in Roman juristic writing. The four Edition: current; Page: [ 28 ] remaining, namely, statutes, resolutions of the senate, edicts of the magistrates, and the authority of those learned in the law, come to three—legislation, administrative edicts, and juristic reasoning on the basis of the legal tradition. And these correspond to the three elements which made up the law.
First, there was the ius ciuile: the Twelve Tables, subsequent legislation, interpretation of both, and the traditional law of the city. Second, there was the mass of rules, in form largely procedural, which was contained in the edicts. The growing point of the law had been here and to some extent growth was still going on through this means.
Indeed this part of the law reached its final form under Hadrian. Third, there were the writings of the jurisconsults.
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The growing point of the law had begun to be here and this was the most important form of law in the classical period from Augustus to the third century. This part of the law got its final form in the Digest of Justinian. Of the three elements, the first was thought of originally as declared and published custom.
Later it was thought of as Edition: current; Page: [ 29 ] resting on the authority of the state. It was obviously local and peculiar to Rome. In form it rested on the legislative power of the Roman people, supplemented by a mere interpretation of the legislative command with only the authority of customary acceptance.
In Greek phrase it rested on convention and enactment. The second purported to be the rules observed by civilized peoples, and on points of commercial law may well have been an approximation thereto.