The 20th Century Legal Philosophy SeriesThe Legal Philosophies of Lask, Radbruch and Dabin-Emil Lask

THE 20TH CENTURY LEGAL PHILOSOPHY SERIES
IV
THE LEGAL PHILOSOPHIES OF
LASK, RADBRUCH, AND DABIN
LONDON : GEOFFREY CUMBERLEGE
OXFORD UNIVERSITY PRESS
20TH CENTURY LEGAL PHILOSOPHY SERIES: VOL. IV
THE LEGAL PHILOSOPHIES OF

LASK, RADBRUCH, AND DABIN
TRANSLATED BY
KURT WILK
Associate Professor of Government
Wells College
INTRODUCTION B Y
E D W I N W. P A T T E R S O N
Cardozo Professor of Jurisprudence
Columbia University
CAMBRIDGE · MASSACHUSETTS
HARVARD UNIVERSITY PRESS
1950
COPYRIGHT, I 9 S O
BY T H E PRESIDENT AND FELLOWS OF HARVARD COLLEGE
PRINTED IN T H E UNITED STATES OF AMERICA

EDITORIAL COMMITTEE
OF THE
ASSOCIATION OF AMERICAN LAW SCHOOLS
Honorary Chairman
JOHN H. WIGMORE (deceased, 1943), Northwestern University
JEROME HALL, Professor of Law, Indiana University, Chairman

EDMOND N. CAHN, Professor of Law, New York University
LON L. FULLER, Carter Professor of General Jurisprudence, Harvard
University
GEORGE W. GOBLE, Professor of Law, University of Illinois
EDWARD A. HOGAN, JR., Professor of Law, University of San Francisco
JOSEF L. KUNZ, Professor of International Law, University of Toledo
EDWIN W. PATTERSON, Cardozo Professor of Jurisprudence, Columbia
University
HAROLD G. REUSCHLEIN, Professor of Law, University of Pittsburgh
MAX RHEINSTEIN, Professor of Comparative Law, University of Chi-
cago
Unauthenticated
Download Date | 7/10/16 3:24 AM
Unauthenticated
GENERAL INTRODUCTION TO T H E SERIES
B Y T H E EDITORIAL COMMITTEE
THIS book is one of the 20TH C E N T U R Y LEGAL P H I L O S O P H Y SERIES,

published under the auspices of the Association of American Law
Schools. At its annual meeting in December, 1939, the Association
authorized the creation of a special committee "for the purpose of pre-
paring and securing the publication of translations on the same general
lines as the Modern Legal Philosophy Series, sponsored by this associa-
tion at the annual meeting thirty years ago . . . the materials to repre-
sent as nearly as possible the progress of Continental Legal thought in
all aspects of Philosophy and Jurisprudence in the last fifty years."
Whereas the earlier Series was a very daring venture, coming, as it
did, at the beginning of the century when only a few legal scholars
were much interested in legal philosophy, the present Series could be
undertaken with considerable assurance. In 1909 only a few of the
leading law schools in this country included Jurisprudence in their
curricula, and it was usually restricted to the Analytical School. By
1939 Jurisprudence was being taught in many law schools, and the
courses had been broadened to include not only Analytical Jurispru-
dence, but also the Philosophy and the Sociology of Law. The progress
in logical theory, in ethics, and in social science between 1909 and 1939
was without doubt an important factor in the expansion of Jurispru-
dence. In 1939 there was not only the successful precedent of the earlier
Series, now completely out of print, but also the known rise of a very
substantial body of interested readers, including students and practicing
lawyers as well as professional scholars. This thoroughly admirable
change, especially in the English-speaking countries, has been widely
recognized as productive of a great enrichment of Anglo-American law.
The Modern Legal Philosophy Series has been justly credited with a
major part of that influence by making readily available the Continental
jurisprudence of the last century.
The primary task of the legal philosopher is to reveal and to maintain
the dominant long-run influence of ideas over events, of the general over
the particular. In discharging this task he may help his generation to
understand the basic trends of the law from one generation to the next,
and the common cultural ties of seemingly disparate national legal
systems. He may, again, create from these common ideal goods of the
Unauthenticated
viii GENERAL INTRODUCTION TO THE SERIES
world's culture general theories, beliefs, and insights that will be ac-
cepted and used as guides by coming generations. The works of great
legal philosophers serve not only the needs of the practitioner and other
utilitarian ends; they also contribute abundantly to our theoretical
knowledge. Indeed, in a deeper sense, we have come to understand the
superficiality of setting utility against theory. The day is past when
jurisprudence can defensibly be regarded as a curious hobby or as
"merely cultural" in the sense that the fine arts contribute to the
rounded education of a gentleman at the Bar. The issues are now cor-
rectly formulated in terms of whether one wishes to be a highly com-
petent lawyer or a technician. Since the question, thus put, is obviously
rhetorical, it is but another mode of asserting the considered judgment
of those best qualified to pass on such matters, that the science and
philosophy of law deal with the chief ideas that are common to the
rules and methods of all positive law, and that a full understanding of
any legal order therefore eludes those whose confining specialties keep
them from these important disciplines.
The recent revival of interest in American history also reminds us
emphatically that the great Fathers of the Republic, many of them
lawyers, were men of universal intellectual outlook. They were as
thoroughly grounded in French thought as in English. Grotius and
Pufendorf were almost as widely read as the treatises on common law.
Indeed, Jefferson and Wilson, to select two of the many great lawyers
who come to mind, were able philosophers and social scientists. They
apparently regarded it as essential to the best conduct of their profes-
sional careers to study philosophy and, especially, jurisprudence, Jeffer-
son remarking that they are "as necessary as law to form an accom-
plished lawyer." The current movements in politics and economics have
raised innumerable problems which, just as in the formative era of the
Republic, require for their solution the sort of knowledge and skills that
transcend specialization and technical proficiency. They call for a
competence that is grounded in a wide perspective, one that represents
an integration of the practitioner's technical skills with a knowledge of
the various disciplines that bear directly on the wise solution of the
present-day problems; and these are by no means confined to public
affairs — they equally concern the daily practice of the private practi-
tioner. With many such legal problems, with methods relevant to sound
solutions, with the basic ideas and values involved, the eminent legal
philosophers whose principal works appear in this Series have been
particularly concerned. If it seems to some that the literature of juris-
prudence is rather remote from the immediate practical problems that
occupy the attention of most lawyers, it is necessary to reassert our
Unauthenticated
GENERAL INTRODUCTION TO THE SERIES ix
primary dependence for the solution of all such problems upon theory —
a truth that has been demonstrated many times in the physical sciences
but which holds, also, in the realm of social problems. The publication
of such a Series as this rests on the premise that it is possible to discover
better answers than are now given many problems, that a closer approxi-
mation to truth and a greater measure of justice are attainable by law-
yers, and that in part, at least, this can be brought about through their
greater sensitivity to the relevant ideals of justice and through a broader
vision of the jurisprudential fundamentals.
In the General Introduction to the first Series, it was noted that "The
value of the study of comparative law has only in recent years come to
be recognized by us. Our juristic methods are still primitive, in that we
seek to know only by our own experience, and pay no heed to the ex-
perience of others." As the nations are drawn closer together by forces
not wholly in human control, it is inevitable that they should come to
understand each other more fully. The legal institutions of any country
are no less significant than its language, political ideals, and social organi-
zation. The two great legal systems of the world, the civilian and the
common law, have for some years been moving toward what may become,
in various fields of law, a common ground. The civilian system has come
more and more to recognize actually, if not avowedly, the importance of
case-law, whereas the common law system has been exhibiting an increas-
ing reliance on legislation and even on codes. In a number of fields, e.g.,
commercial law, wills, and criminal law, there is such an agreement of
substantive principles as to make uniformity a very practical objective.
While economic interests will undoubtedly provide the chief stimulus to
that end, in the long-range view the possibility of focusing the energies
of leading scholars and lawyers, the whole world over, on the same
problems is the most inviting ideal of all. The problems of terminology,
legal methods, the role of precedent, statutory interpretation, underly-
ing rationale, the use of different types of authority, the efficacy of
various controls and their operation in diverse factual conditions, the
basic issues concerning the values that are implemented — these and
innumerable other fundamental problems of legal science and philosophy
may and should receive collaboration on a scale never before attainable.
The road to the attainment of these objectives is not an easy one, but if
any such avenue exists it is surely that indicated by the best literature
in jurisprudence.
These fundamentals are also invaluable aids to better understanding
of one's own law. On the side of insight into legal methods and sub-
stantive doctrines alone, the gain is immeasurably great. The common
lawyer, at least until very recent times, was wont to accept a rigorous
Unauthenticated
X G E N E R A L I N TR O D U C TI O N TO T H E S E R I E S
adherence to the rule of precedent as axiomatic in any modern system.
He was apt to regard the common law through Blackstonian eyes; and
he can hardly be said to have been even initiated into the criticism of
statutes from other perspectives than those required by an unquestioning
acceptance of the primacy of case-law. The gains should be no less great
as regards organization of the substantive law. A century and a quarter
ago John Austin remarked that the common law was a "mess." Al-
though much progress in systematization has been made since that time,
we still have a great deal to learn from our civilian friends — particu-
larly from those who have attained wide recognition for their juris-
prudential analyses of the common problems of modern legal systems.
In addition, there is that vast illumination to be had from the discovery
that other advanced legal systems, representing cultures of high achieve-
ment, sometimes apply to the solution of many problems different rules
of law and even different basic doctrines than does our own. What
better avenue to sound criticism of our legal system, what easier road to
its early enrichment than by way of intimate knowledge of the innumer-
able ideas, some identical with our own but otherwise enunciated, some
slightly divergent, others directly opposite, that are supplied so gener-
ously in the works of legal philosophers!
With the above objectives in view, the Editorial Committee, ap-
pointed early in 1940, immediately took up its task. For almost an
entire year it engaged in active correspondence with practically all the
legal philosophers in the United States, with many European, including
English, legal philosophers; and, later on, when the Committee decided
to include in the Series a volume devoted to Latin-American jurispru-
dence, there was much correspondence with legal philosophers of the
various countries of Latin America. In addition, like activities centered
on the engagement of translators qualified to translate correctly great
works of jurisprudence into readable English. Anyone who has under-
taken such translation will realize the difficulties involved, and the very
high competence that is required. The Committee was able to set very
rigorous standards in this regard because of the presence in the United
States of an exceptionally able group of European legal scholars, some
of whom had for many years been well versed in the English language.
In making its selection of works for inclusion in this Series, the Edi-
torial Committee has been guided in part by the originality and intrinsic
merit of the works chosen and in part by their being representative of
leading schools of thought. The first Series, the Modern Legal Philos-
ophy Series, had made available some of the work of nineteenth-century
European legal philosophers — including Jhering, Stammler, del Vecchio,
Korkunov, Kohler, and Geny. That Series and other publications had
Unauthenticated
GENERAL INTRODUCTION TO THE SERIES xi
brought Duguit to the English-reading public. In 1936 the Harvard
University Press published a translation of Ehrlich's Fundamental Prin-
ciples of the Sociology of Law. T h e present century has also seen the
rise of a number of brilliant legal philosophers who have attained very
wide recognition. Among those whose inclusion in this Series was
clearly called for were M a x Weber, Kelsen, Petrazycki, Radbruch, the
French Institutionalists, chiefly Hauriou and Renard, the Interests-
Jurisprudence School centering around Heck, and some others. T h e
opinion of the Committee as to these men was abundantly confirmed b y
the numerous communications received from legal philosophers of many
countries, and the chief problem was to decide which of their works
should be translated. B u t distinction in jurisprudence is not confined to
a few writers, and any choice solely on the basis of scholarly merit
would be enormously difficult, if not impossible. T h e Committee, like
its predecessors, sought " t o present to Anglo-American readers, the
views of the best modern representative writers in jurisprudence . . .
but the selection has not centered on the notion of giving equal recog-
nition to all countries. Primarily, the design has been to represent the
various schools of thought." (General Introduction to the Modern
Legal Philosophy Series.) Some schools of thought have been much
more productive than others; especially has this been true of those of
Legal Positivism and Sociology of L a w , which number many very able
representatives. Without further presentation of the numerous phases
of this problem, it may be stated that the Committee, whose members
represent various legal philosophies, has endeavored to make the best
selection possible under the conditions of its appointment, the objectives
set before it, and the rigorous restriction resulting from the size of the
Series.
T h e success of such a project as this required considerable assistance
of many kinds, and the Committee is pleased to acknowledge the
abundant aid extended to it. Our greatest debt is to the late John H .
Wigmore, whose broad experience as Chairman of the Editorial Com-
mittee of the Modern Legal Philosophy Series was placed at our dis-
posal, and who advised us frequently on many problems that arose in
the initial stages of the work. A s Honorary Chairman of this Committee
until his death on April 20, 1943, he participated in many of its confer-
ences and took an active and highly important part in launching the
project and assuring its success. It was M r . Wigmore who, in the early
uncertain days of the enterprise, interested his former student, a Trustee
of Northwestern University, M r . Bertram J. Cahn, and Mrs. C a hn to
contribute a substantial sum to defray the expenses of translation. T h e
publication of the Series involved the expenditure of a considerable sum
Unauthenticated
GENERAL INTRODUCTION TO THE SERIES
of money, and would have been impossible had not the Committee re-
ceived a very substantial subsidy from Harvard Law School. No less a
debt does the Committee acknowledge to the authors who contributed
their work and, in some instances, their close personal collaboration.
The translators have earned the Committee's admiration for their
splendid achievements in the face of serious obstacles and with very
little financial assistance to ease their task. We of the Committee wish,
also, to give our very hearty thanks to the many legal philosophers,
American, Continental, English, and Latin-American, who made many
valuable suggestions and encouraged us greatly by their interest in the
project. They are far too numerous to be named, as are those many
persons in various positions, some of them rather humble ones, who
lightened our tasks by their kindly aid. Finally the Committee ac-
knowledges the special help given by Harvard Law School, the Univer-
sity of San Francisco Law School, Columbia University Law School,
and Indiana University Law School. Each of the first two schools pro-
vided at its own cost a member of its faculty to serve as a translator, as
well as stenographic assistance, and the other schools provided consider-
able stenographic, clerical, and other help. To each of the above per-
sons and institutions the Committee gives its grateful thanks for assist-
ance, without which the publication of this Series would not have been
possible.
Unauthenticated
CONTENTS
G E N E R A L I N T R O D U C T I O N TO T H E SERIES VII
INTRODUCTION BY E D W I N W . PATTERSON XXVII
TRANSLATOR'S NOTE . . . . XLI
I. EMIL LASK: LEGAL PHILOSOPHY
INTRODUCTION 3
I. THE PHILOSOPHY OF T H E LAW 3

A . T H E METHOD 3
Reality and value, 4; Legal philosophy as theory of typical
values, 4; Formal natural law, 6; Material natural law, 7; Criti-
cal legal philosophy as a philosophy of positive law, 8; Historism,
10.
B. T H E VARIOUS TRENDS 12
The problem of the value of the social: Kant v. Hegel, 13;
Stammler as a Kantian, 14; Socialism and Kant, 14; The Social
as a specific value: Hegelianism, 15; Ramifications of Hegelian-
ism: Jhering, Gierke, 15; The specific social value of the law, 17;
Hegel, 18; Tönnies, Simmel, 20; The idea of justice, 21; Hermann
Cohen, 21; The position of the social in the system of typical
values, 22.
II. T H E M E T H O D O L O G Y OF L E G A L S C I E N C E 23
Cultural sciences: historical and systematic, 24; Scientific and
prescientific thought, 25; Legal science as a systematic cultural
science, 26; The dualism in legal science: law as cultural meaning
and as cultural reality, 27; Jurisprudence and social theory of law,
28; Relation between the Ought and the Is, 29; Legal science and
prescientific thought, 30; Legal science as a teleological science,
30; Objective law and subjective rights in legal science, 32; Legal
science and psychology, 34; Legal science and ethics, 35; The
problem of legal personality, 35; Gierke and Laband, 36; The in-
dependence of jurisprudence as a science, 37; Jurisprudence and
statutes, 38; Jurisprudence and the non-juridical scientific sys-
tems, 38; Legal history, 39; Comparative law; "General theory
of law," 39.
xiv CONTENTS
II. GUSTAV R A D B R U C H : LEGAL PHILOSOPHY
AUTHOR'S PREFACE 47
SECTION I . R E A L I T Y AND V A L U E 49
Value-blind, evaluating, value-relating, value-conquering, 49;
legal science, legal philosophy, religious philosophy of the law, 51.
SECTION 2. LEGAL PHILOSOPHY AS THE EVALUATING V I E W OF L A W 53
Methodical dualism, 53; Relativism, 55.
SECTION 3. T H E TRENDS OF LEGAL PHILOSOPHY 59
Natural law doctrine, 59; Historical school, 6 1 ; Hegel, 62;
Marx-Engels: materialistic view of history, 63; General theory
of law, 65; Jhering, 66; Stammler, 68; Relativism, 69; Cultural
philosophy, 69; Other trends in the legal philosophy of the
present, 70.
SECTION 4. T H E CONCEPT OF L A W 72
L a w : the reality directed toward the idea of law, 73; Justice
as the idea of law, 73; Equity, 75; Derivation of the concept of
law, 76; A priori legal concepts, 77.
SECTION 5. L A W AND MORALS 78
Outwardness and inwardness of the directions of interest, 78;
Outwardness and inwardness as to the subjects of purposes, 80;
Outwardness and inwardness of the modes of obligation, 81;
Norm and imperative, 82; Outwardness and inwardness of the
sources of validity, 83; Morals as the ground of the validity of
law, 84; Morals as the goal of law, 85.
SECTION 6. L A W AND C U S T O M 87
Antinomic character of custom, 88; Social function of custom,
89.
SECTION 7. T H E PURPOSE OF L A W . 90
Individual values, collective values, work values, 9 1 ; Three
alternatives of world outlook, 92; Three views of the law, 94;
Dialectic relation of the three views of the law, 95; The trans-
personal view in particular, 96.
SECTION 8. LEGAL PHILOSOPHICAL T H E O R Y OF PARTIES . . . . ^7
Significance of the party ideologies, 98; Individualism, 98; T h e
concept of the individual, 99; Liberalism and democracy, 101;
Social view of the law, and socialism, 103; Conservatism, 104;
Political Catholicism, 106.
SECTION 9. A N T I N O M I E S OF THE IDEA OF L A W 107
Justice, expediency, legal certainty, 107; Tensions between the
the three ideas of legal value, 109; Antinomic character of legal
philosophy, 1 1 1 .
CONTENTS XV
SECTION Ι Ο. T H E VALIDITY OF L A W 112
Juridical doctrine of validity, 112; Sociological doctrine of

validity, 1 1 4 ; The power theory, 114; T h e recognition theory,
1 1 5 ; Philosophical doctrine of validity, 116; Antinomies of the
doctrine of validity, 118.
SECTION I I . PHILOSOPHY OF HISTORY AND THE L A W . . . . 1 2 0

T h e law as a form of culture, 120; Form and material of the
law, 120; The realization of the idea of law, 123; Deliberate and
unconscious development of the law, 123; Theory of legitimacy
and theory of catastrophes, 124.
SECTION 1 2 . RELIGIOUS PHILOSOPHY OF THE L A W 126
Early Christianity, 126; Tolstoy, 127; Catholicism, 128; Refor-

mation: Luther, 128.
SECTION 1 3 . T H E PSYCHOLOGY OF THE M A N OF THE L A W . . . 130

Objective law as a form of life, 130; Subjective right as a form
of life, 133; Sense of law and conscience, 134.
SECTION 1 4 . AESTHETICS OF THE L A W 137
Art of the law: aesthetics of forms of legal expression, 137; The

law in the arts: law as an artistic subject, 139.
SECTION 1 5 . T H E LOGIC OF L E G A L SCIENCE 140
Legal science and sciences concerned with law, 140; Interpre-

tation, 1 4 1 ; Construction and systematization, 146; Legal con-
cepts, 148; Legal science as an understanding cultural science,
14g; "With a stroke of the legislator's pen . . . , " 1 5 0 ; Turning
to special problems, 151.
SECTION 16. PRIVATE AND P U B L I C LAW 152
A priori character of these concepts, 152; Liberal view, 153;

Conservative and social views, 154; Social law, 154.
SECTION 1 7 . T H E PERSON 156
Person as a concept of equality, 156; Teleological interpreta-

tion of the problem of the legal person, 157; Savigny, Gierke,
Brinz, 159; Individualistic fiction theory, transindividualistic
real group person, transpersonal property with a purpose, 159.
SECTION 1 8 . O W N E R S H I P 160
A priori character of the concept of ownership, 160; Theories

of occupation and of specification, 161; Individualistic theory of
ownership: Goethe, 162; Individualistic theory of ownership:
Fichte, 165; Social theory of ownership: Encyclical Quadragesimo
Anno; Constitution of Weimar, 166.
xvi CONTENTS
SECTION 1 9 . CONTRACTS 168

Statics and dynamics of life under the law, 168; The social
contract and the contracts of private law: fictitious elements of
the contract, 169; Will theory and declaration theory, 170.
SECTION 20. MARRIAGE 172

The problem: the social substratum of the law of marriage,
173; T h e transindividualistic view of marriage: the Encyclical
Casti Connubii, 175; The transindividualistic view of marriage:
the Constitution of Weimar, 175; The individualistic view of
marriage, 1 7 7 ; Soviet Russia; law of marriage and socialism, 178.
SECTION 2 1 . T H E L A W OF INHERITANCE 180

Freedom of testation, intestacy, compulsory distribution and
consolidation of estates, 180; Individualistic view, 1 8 1 ; Trans-
individualistic and transpersonal view, 182.
SECTION 22. T H E P E N A L L A W 184

The justification of punishment, 184; Theories of consent and
of retaliation, 184; The end of punishment, 185; Penal law and
justice: commutative and distributive, 186; penal law and ex-
pediency: theory of general prevention, 187; Expediency: theory
of special prevention, 188; Expediency: Fascist penal law, 188;
Expediency: Soviet penal law, 189; Penal law and legal cer-
tainty, 190.
SECTION 23. T H E D E A T H P E N A L T Y 191

Transindividualistic justification, 191; Death penalty and con-
tract theory: Beccaria, Rousseau, Kant, 1 9 1 ; Death penalty as
self-defense, 194.
SECTION 24. M E R C Y 195

Mercy as a legal institution, 196; Mercy before law, 197.
SECTION 25. PROCEDURE 198

Judicial independence, 198; The procedural legal relation, 199;
Res judicata, 200.
SECTION 26. A GOVERNMENT OF L A W S 201

Priority of the law or the state, 201; Identity of the state and
the law, 202; Self-obligation of the state by law, 204; Solu-
tion of the problem: obligation by transpositive legal rule,
205; Value of a formal government of laws, 206.
SECTION 2 7 . ECCLESIASTICAL L A W 207

Catholicism, 207; Sohm, Tolstoy, 208; Luther 209; Constitu-
tion of the Evangelical Church, 211.
C O N TE N TS xvii
SECTION 2 8 . T H E L A W OF N A TI O N S 212
The problem, 2 1 3 ; Individualism: the World State, 2 1 3 ;
Transindividualism: the dogma of sovereignty and the denial of
the law of nations, 2 1 4 ; Transpersonalism: law of nations and
League of Nations, 2 1 7 ; The reality of the law of nations, 218.
SECTION 29. WAR 219

Ethics of war, 220; Legal philosophy of war, 220; Historical
philosophy of war, 2 2 1 ; Religious philosophy of war, 223.
III. J E A N DABIN: G E N E R A L T H E O R Y OF L A W
FOREWORD 227
PART O N E . T H E CONCEPT OF L A W
INTRODUCTION 229
( 1 ) Justifying the title, 229; (2) Choosing a starting point,
230; (3) Adopting the idea of "the rule"; philological considera-
tions, 230; (4) The objective or normative, as against the sub-
jective, sense of the lawful, 2 3 1 ; (5) As usually understood,
the rule called "law" bears upon relationships between men, 233;
(6) Defining the legal rule, 234; (7) Plan of the first part of the
book, 234.
I. F O R M A L D E F I N I T I O N OF T H E L E G A L R U L E . . . . 235
SECTION I . T H E L A W AS T H E R U L E OF C I V I L SOCIETY . . . . 2 3 5
(8) Law implies societal life, 235; (9) Why societal life re-
quires law, 235; ( 1 0 ) The different kinds of societies, 237; ( 1 1 )
Each kind of society has its system of law, 237; ( 1 2 ) Distinct and
eminent place of the law of civil society, 238; ( 1 3 ) The law of the
civil society is nonetheless a societal law, 239; ( 1 4 ) The other
rules of social life (morals, manners) are not societal, 240; ( 1 5 )
Customary law has societal character, 241.
SECTION 2. POWER AS T H E SOURCE OF T H E L E G A L R U L E . . . 243

( 1 6 ) Power alone is qualified to lay down the legal rule, 243;
( 1 7 ) The courts, creating case law, constitute power, 244; ( 1 8 )
Custom needs the approval of power, 245; ( 1 9 ) Diversity and
hierarchy of the rules according to the creating organ, 247; (20)
The rules laid down by private individuals do not constitute law,
248; ( 2 1 ) Transformation of rules of private parties into law of
the state, 250.
xviii CONTENTS
SECTION 3. L A W AND P U B L I C COMPULSION 250

(22) A s regards its execution, law is guaranteed by the state,
250; (23) Law that is not obeyed does not lose its validity as
law, 251; (24) Abrogation of statute law by contrary custom,
252; ( 2 S ) Special case of desuetude, 252; (26) In general, the
law is obeyed, 253; (27) Sanction and compulsion, 254; (28)
Punishment and compulsion, 255; (29) Variety of the forms of
compulsion, 256; (30) Specific characteristics of legal compul-
sion, 257; (31 ) Special cases of legal rules without compulsion,
258; (32) Insufficiency of the formula "tendency toward com-
pulsion," 258; (33) Legal compulsion as the monopoly of the
state, 259; (34) Special cases of private compulsion, 260; (35)
Disciplinary power of private bodies, 260; (36) The rules of
public law b y which the state and authority are constituted, 261;
(37) T h e rules of public law governing the activities of those
who hold authority, 262; (38) Public international law: the lack
of compulsion, 263; (39) Public international law (continued):
absence of an international public society, 264; (40) International
custom is subordinate to the category of law, 265.
II. C H A R A C T E R I S T I C S O F T H E L E G A L R U L E 266
(41) Plan of this chapter, 266.
SECTION I . T H E L A W AS A PRECEPTIVE, CATEGORICAL R U L E OP C O N -

DUCT 267
(42) The two constitutive elements of every rule: hypothesis
and solution, 267; (43) The legal solution is a norm, 268; (44)
Criticism of the contrary view (Zitelmann), 269; (45) The legal
rule is always a norm of conduct, 269; (46) Criticism of con-
trary views (Jeze, Burckhardt, R . Capitant), 270; (47) T h e
legal rule imposes a precept and not advice, 271; (48) A precept
underlies the disposing and the permissive rules, 272; (49) T h e
supplementing laws, 273; (50) T h e "directives" or "standards,"
274; ( 5 1 ) T h e imperative character of the law does not exclude
waivers, 274; (52) The legal imperative is categorical and not
conditional or technical, 275; (53) T h e sanction does not trans-
form the categorical into the hypothetical, 277; (54) T h e impera-
tive remains categorical even in "risk legislation," 278; (55) T h e
categorical imperative of the law is binding in the external and
the internal forums, 279.
SECTION 2. T H E L A W AS A GENERAL R U L E 281

(56) The thesis of the advocates of the individual legal rule,
281; (57) Criticism of the above thesis, 282; (58) T h e objection
concerning the contract with the force of law, 284.
CONTENTS xix
SECTION 3. T H E LAW AS A SYSTEMATICAL R U L E : T H E LEGAL IN-
STITUTIONS 284
(59) The rule as institution and the state as institution, 284;
(60) Definition of the legal institution, 285; (61) Hierarchical
arrangement of the rules grouped under the institution, 286; (62)
Regrouping of the institutions in higher syntheses, 287; (63) The
legal institutions and logic, 288.
III. THE SUBJECT MATTER OF THE LAW 289

(64) In general, 289.
SECTION I . EXCLUSION OF INNER ACTS: DUTIES TOWARDS GOD AND
DUTIES TOWARDS ONESELF 289
(65) The inner acts are subject to morals, 289; (66) The inner
acts are not subject to the law as a social discipline, 290; (67)
Application of this idea; the "pedagogical function" of the laws,
291; (68) In what sense the law is concerned with intentions,
292; (69) Of the prudence required in the search for intention,
2
93! (7°) The relations of man with God are as such outside the
competence of the law, 294; (71) Exceptions: incidence of the
spiritual upon the temporal, 294; (72) The law takes no cog-
nizance of the duties of man towards himself, 295; (73) Reserva-
tion of the principle of incidence "ad alterum," 296.
SECTION 2. T H E SOCIAL RELATIONS AND THE CONCEPT OF THE

LEGAL RELATIONSHIP 297
(74) The state-societal character of the legal rule recalled, 297;
(75) Universal competency of the legal rule in the field of human
relations of the temporal order, 298; (76) Exception: relations of
a spiritual nature, 298; (77) In what manner the law is concerned
with friendship, 299; (78) The need for more precise explanation
of "social relations," 301; (79) Summary of the various kinds of
social relations, 302; (80) Attempt at a classification of these
relations, 302; (81) Attitude and role of the law with regard to
voluntary social relations, 303; (82) Attitude and role of the law
with regard to other categories of relations, 305; (83) The ob-
jective and subjective interpretations of the "legal relationship,"
305; (84) Critique of the subjective interpretation, 306; (85)
The world of the law is not limited to a network of bonds between
determinate persons, 308.
SECTION 3. T H E DIFFERENT KINDS OF SOCIAL RELATIONS AND THE

CORRESPONDING BRANCHES OF LAW 308
(86) The fundamental principle of division is given by the
existence of the state, 308; (87) Public relations and public law,
309; (88) Why the expression "political" is preferable to "pub-
XX CONTENTS
lie," 309; (89) International relations and international law, 310;

(90) Penal law and adjective law are only subsidiary laws, 3 1 1 ;
( 9 1 ) Private relations and private law, 3 1 1 ; (92) Maximum im-
pact of the law upon its subject matter in the field of economic
relations, 312; (93) Far less impact in the field of personal
values, 313; (94) The same, in the field of the family, 314; (95)
Cause of the relative powerlessness of the law in the field of politi-
cal relations, 315; (96) The claim that the nation is not reducible
to the legal rule, 316; (97) The illusion of the sufficiency of the
legal order, 317.
PART T W O . T H E LEGAL METHOD
I. IS T H E L A W " G I V E N " OR " C O N S T R U E D , " T H E SUBJECT

O F A S C I E N C E OR OF A T E C H N I Q U E ? 318
SECTION I . STATE OF THE PROBLEM AND PRESENT THEORIES . . 318

(98) Explanation of the terms "given" and "construed," 318;
(99) Extent of the application of the idea of the "construed,"
319; (100) Statement of the question, 320; (101) In its histori-
cal existence, the law is "given," 320; (102) But what about law
in its essence? 321; (103) Attitude of legal positivism, and criti-
cism, 322; (104) Everybody recognizes that in some part the law
is "construed," 323; (105) The certain part of the "construed":
formal sources; machineries; differentiations by enumeration,
323; (106) Divergence of opinions as to the nature and origin
of the "given," 324; (107) The opinion of Duguit, 325; (108)
Theories searching for the "given" of the law in popular feeling,
326; (109) The "given" of the law as a product of force, 327;
(110) The "given" of the law as issuing from nature (natural law
doctrines), 328.
SECTION 2. EXAMINATION OF THE THEORIES OF THE "GIVEN"

( D U G U I T , G E N Y , ETC.) 329
( H I ) Return to the problem: is there a legal "given"? 329;
( 1 1 2 ) Critique of the doctrines of the popular "given," 330;
( 1 1 3 ) Critique of the doctrines of force, 332; ( 1 1 4 ) As for natural
law, the question arises only with regard to juridical natural law,
332; ( 1 1 5 ) Nature furnishes the jurist with no juridical "given,"
no necessary rule, 333; ( 1 1 6 ) Undue and illogical extensions of
the idea of the natural juridical "given," 335; ( 1 1 7 ) Difference
between the pretended legal "given" and the "revealed given"
of the theologians, 336; ( 1 1 8 ) Choice of concrete examples, 336;
( 1 1 9 ) Respect for ownership, 337; (120) Ownership is far from
always enjoying the protection of the law, 338; ( 1 2 1 ) Freedom
of contract, 339; (122) Reparation for injuries due to fault, 340.
CONTENTS xxi
SECTION 3. T H E L A W I S " P R U D E N C E " AND CONSEQUENTLY CON-
STRUED 341
(123) Conclusions reached concerning the legal "given," 341;
(124) The operations of the jurist belong to practical reason,
especially to prudence, 342; (125) T o say "prudent" is not to
say "arbitrary," 344; (126) The factual presuppositions of the
jurist's legal rule, 344; (127) Moral or technical precepts and
existing law as presupposed facts, 346; (128) The kinds of the
"given" enumerated by Geny, 347; (129) T h e "given" of the
method of elaboration of the law, 348; (130) The "given" of facts
and of method: the idea of the "construed," 349.
II. T H E G U I D I N G P R I N C I P L E S OF T H E E L A B O R A T I O N OF
THE LAW 350
INTRODUCTION 350
( 1 3 1 ) The end of the law and of its processes of realization,
350; (132) The instrumental character of the legal rule differ-
entiates it from the moral rule, 351; (133) The moral rule is
not concerned with processes of realization, 352.
Subdivision I. The End of the Legal Ordinance:
the Temporal Public Good
(134) "Lex est Ordinatio ad Bonum Commune," 353.
SECTION I. CONCEPT AND CHARACTERISTICS OF THE TEMPORAL

PUBLIC GOOD 354
(135) Definition of the adjective "public": that which concerns
the public, 354; (136) The public good from a formal point of
view, 355; ( 1 3 7 ) The constitutive elements of the public good:
order, coordination, aid, 355; (138) The public good covers all
human values of the temporal order, 357; (139) Domestic and
international public good, 358; (140) Political and other values
of the temporal order, 359; ( 1 4 1 ) Need for a philosophy of values
to discern the requirements of the public good, 360; (142) Our
philosophy of values, 361; (143) Primarily moral character of
the notion of the public good, 361; (144) Relativity of the
applications of the idea of the public good, 362.
SECTION 2. T H E TEMPORAL P U B L I C GOOD AS N O R M OF THE POSITIVE

CONTENT OF THE L A W 363
(145) The temporal public good differs from morals; inter-
sections, 363; (146) The norm of the public good governs all
branches of the law, 364; (147) Private law and the public good,
364; (148) The social conception of private law and the concern
with individual rights, 365; (149) The example of rent legisla-
tion, 366; (150) The objection of "legislation of circumstance,"
xxii CONTENTS
367; (151) Examples from the ordinary law of private institu-

tions: prescription, 368; (152) The same: ownership under the
Code Napoleon, 369; (153) The same: domestic relations, suc-
cession, contracts, 370; (154) In the field of evidence and pro-
cedure, 371; (155) In criminal law, 372.
SECTION 3. THE TEMPORAL PUBLIC GOOD AS NORM OF THE NEGA-
TIVE CONTENT OF THE LAW 373
(156) The public good often demands abstention of the jurist,
373; (157) The dilemma: freedom or legal rule, 374; (158)
Sometimes freedom ought to be preferred, but not without limit
or control, 375; (159) Beneficial character of freedom even in
the domain of public and administrative law, 376; (160) The
psychology of the subjects: cases where the public good is
satisfied without the intervention of a law, 376; (161) The same:
cases where the order of the public good would meet with re-
sistance, 377; (162) The intervention of the legal rule is not the
only possible solution, 379; (163) The desirable public good and
the realizable public good, 380; (164) Public good and public
opinion as factors of the elaboration of the law, 381; (165) The
"problem of interventionism" does not arise in morals, at least
not in natural morals, 382.
Subdivision II. The Means: the Technical Equipment of the Law
INTRODUCTION 383
(166) The "formal realizability" or "practicability" of the law,
383; (167) The theoretical value of the rules is distinct from
their "practicability," 383.
SECTION I. THE DEFINITION, OR LEGAL CONCEPTUALISM . . . 384
(168) Inconveniences of an insufficiently defined law, 384;
(169) Lack of definition on the part of the formal sources of
the law, 385; (170) Indeterminacy of the applicability of the
law in time or space, 386; (171) The lack of precision of the
law in its formal content, 387; (172) Examples: the injustice
of usury or illicit speculation, 388; (173) Examples (continued):
grave insult as a cause for divorce, 389; (174) Examples (con-
tinued): the aggressor in public international law, 390; (17S)
Special difficulty of definition of qualitative values, 391; (176) The
system of broad definitions: advantages and inconveniences, 392;
(177) Examples: public policy; article 1382 of the Code Napoleon,
393; (178) Examples in the field of public and administrative
law, 394; (179) But not all matters lend themselves equally to
broad definitions: the penal law, 394; (180) The jurist does not
cease to search for the strict definition, 395; (181) Cases where
CONTENTS xxiii
the law is obliged to renounce all definition, 396; ( 1 8 2 ) Sum-
mary of the technical processes of definition: simplification,
397; (183) Some artifices of simplification, 399.
SECTION 2. THE APTNESS FOR PROOF OF THE FACTS THAT ARE SUB-
JECT TO A RULE 400
( 1 8 4 ) T h e social necessity of proof, 400; ( 1 8 5 ) T h e diffi-
culties inherent in proof, 4 0 1 ; ( 1 8 6 ) Sometimes these difficul-
ties m a y lead to total abstention by the law, 402; ( 1 8 7 ) T h e law
eliminates the element resisting proof, 403.
SECTION 3. THE CONCENTRATION OF LEGAL MATTER . . . . 404

(188) Reduction of the mass of rules through classification,
404; ( 1 8 9 ) T h e process of "legal constructions," 405; (190)
Preserving a just measure in evaluating "practicability," 406.
Conclusions on the Legal Method and Corollaries

SECTION I. DUAL ASPECT OF TECHNIQUE IN THE LAW . . . . 407
( i g i ) A s to substance, a social and political technique; as to
form, a logical technique, 407; ( 1 9 2 ) I t is a mistake t o reduce
technique in the law to the sole idea of practicability, 407; ( 1 9 3 )
T h e law is not solely social science, 409; ( 1 9 4 ) T h e jurist know-
ingly deforms the real through his technique, 410.
SECTION 2. RELATIVE CERTAINTY AND VARIABILITY OF THE LAW . 411

( 1 9 5 ) A s products of prudence legal solutions have only rela-
tive certainty, 4 1 1 ; ( 1 9 6 ) T h e different causes of variation of the
law, 4 1 2 ; ( 1 9 7 ) T h e so-called "conservative f u n c t i o n " of the law,
4 1 3 ; ( 1 9 8 ) Necessity of prudence in change, 414.
PART THREE.
NATURAL LAW, JUSTICE, AND THE LEGAL RULE
INTRODUCTION 416
( 1 9 9 ) Statement of the problem, 4 1 6 ; (200) Objectiv e value of
the ideas of natural law and justice, 416.
I. T H E CONCEPT OF N A T U R A L L A W 417
SECTION I. THE TRADITIONAL CONCEPTION 417

(201) Natural law as a norm of human conduct, 4 1 7 ; (202)
"Jus naturale" and "lex naturalis" are synonymous terms, 418;
(203) Characteristics of natural l a w : a norm that issues from
nature, universal and immutable, 4 1 9 ; (204) First principles and
secondary precepts, 420; (205) S u b j e ct matter of natural l a w :
the totality of the duties of man, 4 2 1 ; (206) T e n d e n c y to empha-
size the duties "ad alterum," 421.
xxiv CONTENTS
SECTION 2. I s T H E R E A JURIDICAL N A T U R A L L A W ? 422

(207) The ambiguity of the concept of natural law, 422; (208)
Historically, natural law provides principles of moral conduct,
423; (209) Natural law and special morals, 424; (210) Relation-
ships between the natural moral rule and the legal rule, 424;
( 2 1 1 ) But these relationships entail no confusion of the disci-
plines, 425; (212) Extension of the concept of natural law:
"natural jurisprudence," 426; (213) But this extension contra-
dicts the original concept of natural law, 428; (214) The exten-
sion contradicts the concept of the legal rule, 429; ( 2 1 5 ) Moral
and political but no juridical natural law, 430; (216) T h e dual-
ism of "natural law — positive law" replaced by "morals — law,"
431·
II. T H E C O N C E P T O F J U S T I C E 431
SECTION I. THE EXISTING CONCEPTIONS; ESPECIALLY, ON THE

CONCEPTION OF ARISTOTLE AND S T . T H O M A S AQUINAS . . . 431
(217) The modern conception of justice as a specifically social
and juridical value, 431; (218) According to tradition, justice is
primarily a moral virtue, 433; (219) Justice in the broad sense
of the good and the just, 434; (220) Justice in the strict sense
of the virtue attributing to everyone his right, 435; (221) The
wide interpretation of the debt of justice (the Stoics, Cicero),
436; (222) Distinction between the principal virtue (justice in
the narrow sense) and the annexed virtues (Aristotle, St. Thomas
Aquinas), 437; (223) Annexed virtues which fall short of justice
on the score of equality, 437; (224) Annexed virtues which fall
short on the score of the debt (moral, not legal debt), 439;
(225) Justice in the strict sense must be defined by "aequalitas"
rather than by the "aequum," 440; (226) In the case of justice,
the "just mean" constitutive of all virtue is real or objective, 441;
(227) Confusion to be avoided in interpreting the concept of the
"real mean," 442.
SECTION 2. T H E T H R E E K I N D S OF JUSTICE 443

(228) Enumeration and classification, 443; (229) Commutative
justice; its possible subjects: physical or moral persons, 443;
(230) The object of commutative justice: the "suum" in its
diverse forms, 444; (231) In commutative justice, equality is
determined as of thing to thing, 445; (232) With distributive
justice the societal plane is reached, 446; (233) The subject
matter of distributive justice: the various kinds of distributions,
447; (234) Difference between distributive justice and commuta-
tive justice, 447; (235) Legal justice: its general concept, 448;
(236) What the citizen owes the state as organization, 449; (237)
CONTENTS xxv
What the individual owes the community organized in the state:
"generality" of legal justice, 449; (238) In what legal or general
justice remains special, 451; (239) Meaning of the adjective
"legal" in the expression "legal justice," 452.
SECTION 3. T H E N A T U R A L J U ST AND THE POSITIVE JUS T . . . 452

(240) The right of another is sometimes natural and sometimes
positive, 452; (241) T h e distinction recurs in all the kinds of
justice, 453; (242) Positive determination is not, however,
arbitrary, 454; (243) The margin of indeterminacy in justice,
455-
I I I . T H E " G I V E N " O F N A T U R A L L A W A N D OF J U S T I C E IN
THE ELABORATION OF T H E L A W 4SS
(244) Restatement of the problem, 455.
SECTION I . MORALITY AND THE TEMPORAL P U B L I C GOOD . . . 456
(245) There could be no public good against morals, 456; (246)
Examples and cases of application, 457; (247) Confusions to be
avoided in appraising the immoral character of laws, 458; (248)
The law is not bound to consecrate every rule of morals, 459;
(249) T h e "discipline of the laws" and virtue, 459; (250) The
law and the ideal type of the family, 461; (251) The capacity
of morals for "ordination to the public good," 461.
SECTION 2. JUSTICE AS THE NORMAL MATTER OF THE LEGAL R U L E 462

(252) The moral precepts susceptible of consecration by the
law, 462; (253) Justice as the precept most obviously fit for
consecration, 463; (254) Exceptional rectification of the two
particular justices on the ground of legal justice, 464; (255)
Special structural adaptability of justice for the legal rule, 464;
(256) Like the legal duty, the duty of justice is capable of ex-
action, 465; (257) T h e law and the annexed virtues of justice,
especially faith in promises, 466; (258) T h e law and the constit-
uent principles of the family, 467; (259) Y e t the normal order
of consecration is subject to derogation, 468; (260) Cases where
the law abstains from consecrating justice, 468; (261) Cases
where the law goes beyond the framework of justice, 469; (262)
"Just laws" and laws consecrating justice are not synonymous,
470.
INTRODUCTION
B Y E D W I N W . PATTERSON *
THE SIGNIFICANT contributions to the general theory of law which are

translated in this volume have, along with their many differences and
conflicts, a common theme and a common level of discussion. The com-
mon theme may be stated as the relation of values to positive law. The
common level is the plane on which the jurist's judgments of value
eventuate in law-making, in the implementation of values by legis-
lation or case law. Each of these three writers tries to place law in the
context of some more general and abstract philosophy. Here they part
company. For Emil Lask and Gustav Radbruch the starting point of
legal philosophy is to be found in the work of Immanuel Kant. For
Jean Dabin the basic context is the philosophy of St. Thomas Aquinas.
All three of them seek to relate the values of positive law to a world
outlook.
The common theme above stated signifies another point on which
they generally agree, the maintenance of the distinction between the
" I s " and the "Ought." This distinction is here twofold. The " I s " of
postive law, the law of the state, is distinguished from the values
(justice, the common good, expediency, certainty, etc.) which that law
ought to embody and implement, but which it may, on the other hand,
limit or partly reject. This distinction is well brought out in Dabin's
treatment of what he calls "legal method." On the other hand, the " I s "
of societal facts, of sociology, economics, psychology, and even pre-
vailing social morality, presents the materials, raw or partly prefabri-
cated, of evaluations, judgments of Oughtness, which in turn may or
may not be given effect through positive law. In Lask and Radbruch
this distinction appears in the opposition between "reality" and "value"
and in the concept of "transempirical value." In Dabin it appears in the
opposition between the "given" and the "construed," which is, roughly,
that between the materials of law-making and the law-maker's tech-
nique. All three emphasize the difference between the role of the ethical
philosopher and that of the practical law-maker. None is prepared to
justify a law on merely traditional or historical grounds.
Y e t the " I s " and the "Ought" are not divorced in these philosophies
of law. No claim is made, as in Kelsen's pure theory of law, 1 that a
* Cardozo Professor of Jurisprudence, Columbia University.
1See KELSEN, GENERAL THEORY OF LAW AND STATE (1945), in this Series.
Brought to you by | Stockholms Universitet

Authenticated
Download Date | 11/9/15 3:49 PM
xxviii INTRODUCTION
general theory of law can or should be developed by excluding values
and societal facts as extraneous elements. Lask tries to place legal
science among the cultural sciences, and in so doing to determine the
meaning of cultural science. Radbruch and Dabin discuss the purpose
and justification of such legal conceptions and rules as those relating
to property, contract, and penalty. Aided by the excellent supplemental
notes provided by the translator, Professor Kurt Wilk, the reader
who is familiar with Anglo-American law will, I believe, find these
discussions the most interesting parts of the book.
The common level of discussion in Radbruch and Dabin is that of
law-making and systematic interpretation rather than that of the
judicial process, the application of law to individual cases. Lask, a
philosopher who abandoned the study of law, is frequently on a higher
level of abstraction. Perhaps all three were somewhat influenced by the
Free Law movement 2 or by the Jurisprudence of Interests 3 of the early
twentieth century; if so, none of them touches upon those movements.
In another view, the level of discussion is more abstract and remote
from law at the beginning and at the end. Lask is the most abstract and
difficult to grasp. Radbruch begins with the more abstract part of his
discussion, and ends his volume with delightful comments on particu-
lar topics. Dabin begins with the more concrete parts of this theme·—
the concept of law, legal method — and ends with natural law and
justice. Between the poles of neo-Kantianism and neo-scholasticism they
meet on a common ground, the meanings and evaluations of legal
doctrines and institutions. N o one of these men has, I think, founded
a new and original philosophy of law; yet each has added something
to the philosophical system from which he started by adapting it to
twentieth-century culture. Each in his own way illustrates the familiar
dictum that the most enduring aspect of philosophy is not its solutions
but its problems.
LASK
Emil Lask's Habilitationsschrift* submitted to the faculty of phi-

losophy of the University of Heidelberg in 1905, was his only published
work in the field of legal philosophy. He had previously given up the
study of law for the study of philosophy, in which he was deeply
influenced by the German philosopher, Rickert. Y e t Lask's single work
2 See essays in SCIENCE OF LEGAL METHOD (Modern Legal Philosophy Series,
vol. I X ; Boston, 1917).

3 THE JURISPRUDENCE OF INTERESTS (trans. Schoch), vol. II in the present
Series.
' T h a t is, his thesis submitted for admission to the academic profession.

Authenticated
INTRODUCTION xxix
on legal philosophy, here translated, had a considerable influence upon
German jurists, among them Gustav Radbruch, who became an instruc-
tor {Privatdozent) at Heidelberg shortly before L a sk did. L a s k ' s essay
thus provides the general philosophical background for Radbruch's
treatise.
Lask's general objective, as he tells us at the close of his essay, is to
explore the "methodology" of legal philosophy and legal science. B y
this he means not the methods of the legislative process or the judicial
process — subjects which he scarcely touches upon — but rather the
place of legal philosophy and legal science in the general scheme of
cultural sciences. T h e latter are sciences of value; they deal with culture
in its relation to values. W h a t is a value? L a s k nowhere defines the
term. H e uses it as elemental, basic and therefore undefinable, just as
Bentham used the term "interest." L a s k does, however, give a contextual
meaning to " v a l u e " b y the w a y in which he uses the term. T h e "critical
theory of values" regards empirical reality as the only kind of reality.
Values are "trans-empirical," that is, they are not inherent in or
logically deducible from empirical reality, but are derived b y a mental
operation upon reality. Since the mind can operate only b y the use
of categories or types, " t y p i c a l values," that is, types of value, are the
subject matter of legal philosophy. Y e t L a s k assigns a somewhat
equivocal status to "individual values." A t one point he says that
individual value is an inexplicable idea, since value implies a standard
of appraisal. Y e t a little further on he defends the conception on the
ground that there is no reason w h y the "universality " of a value "should
be bound to the logical structure of a general concept and w h y it
is not as compatible with the logical structure of incomparable single-
ness and individuality." 5 T h i s passage seems difficult to reconcile with
the K a n t i a n theory of cognition b y means of universals. K a n t did,
indeed, hold that the ultimate test of morality was to be found in the
individual conscience; but he placed the individual under a duty to
make an evaluation of his proposed act b y constructing a general prin-
ciple in accordance with the categorical imperative: " A c t according to
a maxim which can be adopted at the same time as a universal l a w . " 6
L a s k ' s "individual v a l u e " is the value of a concrete, individual case
rather than of an individual person.
L a s k , like Radbruch, introduces a theory of meaning which is not

explicitly formulated but which seems to have been derived from the
German philosopher, Heinrich Rickert. L a s k brings in the conception
of levels of meaning, a common device in twentieth-century philosophy,
5Infra, p. 5.
" KANT, THE PHILOSOPHY o r LAW ( t r a n s . H a s t i e , 1 8 8 7 ) 34.

Authenticated
XXX INTRODUCTION
when he says that reality is a "substratum" of typical values. The
"social value," which is one kind of typical value, is intermediate
between the empirical substratum and the individual value. The indi-
vidual evaluation is to be made by applying social standards to the
empirical facts.
Lask's essay shows the struggle of Kant's followers, who were (and
probably are) numerous in Germany, to convert Kant's eighteenth-
century rational individualism into a twentieth-century social phi-
losophy of law. Rudolf Stammler, at the beginning of the present
century, 7 tried to do this by making the end of the legal order a social
ideal which was ultimately dependent on individual ethics: A com-
munity of men willing freely. In such an ideal community life, says Lask,
the ultimate ends of the community would have to be recognized in-
tuitively by each individual and fulfilled spontaneously. But this is
merely an ideal. Order in the community requires formal prescriptions
which, Lask says, take no account of the moral complications of in-
dividual cases. The new world outlook proclaims "transpersonal values,"
objective typical values. Lask does not quite decide whether law is
merely a means to the attainment of individual values or, as an embodi-
ment of social values, has a separate purpose. He does not say, as
Jhering did, that the social values of community life are essential to
the realization of individual values, that man lives alone and also in
society. 8
At all events, legal philosophy, as a theory of typical values, permits
two types of operations on the "formal" value: ( i ) Absolute mean-
ings may be systematized, remaining within the realm of value. (2)
Particular realizations of a value may be considered, as in politics.
Radbruch's book partly fulfills the former task, by developing a clas-
sification of values into individual, transindividual, and transpersonal,
and it brilliantly fulfills the latter by showing the realizations of value
in significant concepts and doctrines of modern law. Besides legal phi-
losophy, says Lask, there is legal science, a subordinate discipline, which
is a cultural science because (following Rickert) it is a product of the
theoretical relation of immediate reality to cultural meanings. This
does not mean that law is a "social science" as that term is used by
American sociologists. The German "cultural science" 9 is a broader
term than social science.
'STAMMLER, THE THEORY OF JUSTICE (trans. Husik, 1925), Modern Legal

Philosophy Series, vol. VIII.
8 See JHERING, THE LAW AS A MEANS TO AN END (trans. Husik, 1924), espe-
cially pp. 344-345-

8 See Translator's note (a) to Lask's Introduction.

Authenticated
INTRODUCTION xxxi
Legal science, in the broad sense, may look at law in two distinct
ways: One, as a "vital social process," a cultural factor; the other, as
a complex of normative meanings, of dogmatical contents. The former
leads to a social theory of law; the latter to jurisprudence, of the
analytical type but still pursuing its task of relating the contents of
legal norms to cultural meanings. Lask's twofold division may be com-
pared with that between the sociology of law and sociological juris-
prudence, which it substantially though superficially resembles. Lask's
social theory of law is basically different from the sociology of law,
which is regarded by most of its adherents as an empirical or natural
science. For Lask the difference between natural science and cultural
science is as profound as that between reality and value.
On one point Lask differs with Kant, namely, on the "externality"
of law. Kant distinguished morals from law in that the latter deals
only with external conduct. Lask points out that Kant did not adhere
consistently to this distinction since, in his philosophy of law, he tried
to reduce all legal relations to relations of the human will. Thus a
contract is a union of the wills of the parties and the law gives effect
to their individual wills. Lask remarks that Kant overshot his mark in
this respect but he does not indicate how much of the Kantian will
theory he would retain. Legal science, as a study of normative mean-
ings, includes not only the systematic connections between the contents
of legal norms (as in a standard legal treatise, for instance) but also
the ideal (theoretical) comparison of juridical meanings with the pre-
juridical substratum of the law, that is, the concrete and abstract
realities of culture and of ordinary life. Law should be given a social
interpretation. The individual will is no longer the key to unlock all
doors.
Lask seems to see around a good many corners which he does not
purport to explore. His sense of wholeness, his endeavor to relate law
to a world outlook, and his failure to use illustrations drawn from
legal doctrines, together with the lack of a clear structural organization
in the presentation of his ideas, will doubtless make his essay difficult
for some readers to understand. The foregoing commentary is intended
for such readers. If it does not suffice, they may do well to pass over
Lask until after they have read Radbruch.
RADBRUCH
Gustav Radbruch is distinguished as lawyer, political leader, jurist,

and legal philosopher. He takes from German idealism, especially from
Lask, as much as he needs of general philosophy in order to develop a
critique of the values involved in the important legal doctrines, institu-

Authenticated
xxxii INTRODUCTION
tions, and problems of his time. His service as Reich Minister of Justice
of the German republic under the ill-starred Weimar Constitution gave
him experience with the practical workings of politics, law, and govern-
ment. Because of his political views he was removed during the Hitler
regime from his academic post as professor of law at Heidelberg; he
was restored to it after the cessation of World War II.
Radbruch's book, like the German Civil Code, is divided into a
general part and a special part. The general part (Sections 1 - 1 5 ) pre-
sents the foundations of his legal philosophy and some of the broadest
value-relating aspects of law. The special part (Sections 16-29) dis-
cusses such familiar subjects as legal personality, ownership, contract,
marriage, penal law, and international law. His concluding topic,
prophetically, is war.
Radbruch's first assumption is that legal philosophy is a part of
general philosophy, hence the legal philosopher must begin by demon-
strating the assumptions of general philosophy. The first of these is
the distinction between reality and value. In our immediate experience
this distinction is blurred. The primitive man sees in the thunder-
storm a warning from the gods; the modern man sees in it an inter-
ference with his plans for golf or a picnic. Events come to us colofTr?
with our personal evaluations. Only by an effort of the mind can we
separate reality from value. The meteorologist does this when he con-
siders the thunderstorm as a consequence of the meeting of air currents
under certain conditions of temperature, barometric pressure, and vapor
density. Such is the "value-blind" attitude of the scientist toward
reality. The scientist, however, does not discover reality; he creates it.
Here Radbruch follows the Kantian theory of cognition in its re-
formulation by post-Kantian German philosophers. The mind in sepa-
rating reality from value creates both. While I may remark in passing
that this seems to push a good idea too far, it is a basic epistemological
assumption which affects Radbruch's analysis and terminology through-
out most of his book.
In contrast with the value-blind attitude of science is the deliberately
evaluating attitude which characterizes logic, ethics, and aesthetics.
That ethics and aesthetics are evaluating disciplines one would have
no doubt; it may seem somewhat unusual to classify logic as an
evaluating science. Symbolic logicians would be rather surprised,
though John Dewey's instrumental logic is avowedly normative, that
is, it purports to tell men how they ought to think in order to get the
best results. At any rate, Radbruch's inclusion of logic among the
evaluating disciplines gives us a clue to his conception of value.
In addition to these two attitudes toward value, Radbruch finds

Authenticated
INTRODUCTION xxxiii
two others: The value-relating attitude and the value-conquering
attitude. The former is the methodical attitude of the "cultural"
sciences, which include the humanities, history, and the social sciences.
The value-conquering attitude belongs to religion, which calls for love
or mercy regardless of the worth or worthlessness of the individual.
To these four attitudes toward value correspond four realms of what
is given: Existence (value-blind), value (evaluating), meaning (value-
relating), and essence (value-conquering). The philosophy of law is
chiefly concerned with value and the science of law with meaning.
The relation between these last two is expressed in another way. Law
is a cultural phenomenon, a fact related to value. The "concept" of law
(which is distinguished from its validity) can be determined only as
something which "means" to be just, however short of that end it may
fall. Legal science deals with law as a cultural fact; legal philosophy,
as a cultural value.
Radbruch's philosophy of law is "relativist." Two main assumptions
underlie his relativism: T h a t value judgments, conclusions of value,
cannot be logically derived from facts; and that legal philosophy can
clarify the end by considering the means. It may arrive at a single world
iook of the ultimate end of law, or it may try to develop all possible
outlooks as starting points of legal evaluation. It may thus present
the antinomies of conflicting values implicit in a legal situation, and
leave it to the individual to draw his decision from the depths of his
own personality, his conscience. Here Radbruch, like a good German,
falls back upon a passage from Goethe. This attitude of "antinomism,"
of the presentation of antinomies to be resolved by the individual con-
science, exemplified throughout the book, is characteristic of Radbruch's
critical discernment and his tolerance.
While Radbruch regards all law as oriented toward justice, he recog-
nizes that justice alone does not explain the content of all legal norms.
A second element of the idea of law is expediency, suitability to a
purpose. Questions of expediency cannot be answered absolutely but
only relativistically, in relation to one's views of the law and the state.
A third element of the idea of law is legal certainty. The law, as an
ordering of society, must be one order over all members of society; it
must prevail over their various disagreements. To do this it must be
laid down by an agency able to carry through what it pronounces; it
must be positive. Thus legal certainty requires positive law. At this
point one may wonder why certainty was not included under expe-
diency; legal certainty is expedient for many branches of the law, such
as property, contracts, and criminal law. T h e reason, I think, is that
Radbruch conceives of legal certainty primarily as peace and order,

Authenticated
xxxiv INTRODUCTION
as putting an end to the babble of conflicting views or the war of all

against all. T h u s he says that the existence of a legal order is more
important than its expediency or even its justice. Y e t the conflicts
between them do not end with the establishment of law. His discussion
of the "tensions" between these three elements of the idea of law is the
core of his antinomic philosophy of law.
When he comes to discuss the " v a l i d i t y " of law (Section 10), Rad-
bruch seems to blur the distinction between reality and value which
he took to be fundamental. H e outlines three doctrines of the validity
of law: T h e juridical, the sociological, and the philosophical. The
first is that of the judge and the lawyer who trace the validity of all
legal norms to the constitution; but they have no w a y of testing the
validity of the constitution unless they resort to an extra-juridical (or,
to use Kelsen's term, a meta-juridical) test. Here the sociological doc-
trine purports to provide an answer, but Radbruch rejects it as merely
descriptive and not a justification of the legal order. It is hard to see
why he feels it necessary to reject the juridical-sociological explanation
of the validity of law. His conclusion is that law is valid if it can be
carried through effectively because that is the only way to provide legal
certainty, peace and order.
Radbruch leaves no doubt of his rejection of K a n t ' s attempt to state
all legal relations in terms of the individual will. For instance, in his
discussion of contracts (Section 19) Radbruch rejects the idea that the
courts, in enforcing a contract, merely give effect to the will of the
obligor. Agreeing with Jhering, he says that the "obliging" will is the
will of yesterday, while the "obliged" will is the will of today and
tomorrow. H o w far ought the law to prescribe that the obligation of a
contract be governed by the will of the obligor, and how far b y his
declaration? Here the interests of private autonomy are opposed
b y those of the security of trade and commerce, the individualistic
b y the social view of law. This is substantially the opposition be-
tween the subjective and objective theories of contract in Anglo-
American law.
Radbruch's book is written in an urbane and gracious style, rich
in classical and historical allusions. Its fundamental starting points are
those of nineteenth-century German idealism, which it tries to adapt
to the movement for the socialization of law of the early twentieth
century. There is evidence that, in its three editions, it won a high
prestige among the German intellectuals of the 1920's and 1930's.
Ironically enough, the third edition appeared in 1932, shortly before
the accession to power of Adolf Hitler. T h e N a z i regime engulfed its
tolerant rationalism and led the German people down the path of war,

Authenticated
INTRODUCTION xxxv
which to Radbruch is the negation of law and reason. The reader may
ponder for himself why this happened.
DABIN
Jean Dabin has devoted his career to law teaching and productive
legal scholarship. Since 1922 he has been a member of the faculty of
law at Louvain in Belgium. His works cover a wide range of law and
legal philosophy, and have been honored both in his own country and
abroad.
Dabin's work is of interest to American readers for several reasons.
First, he builds his General Theory of Law (the work here translated)
upon one of the major philosophies of western civilization, the scholas-
ticism of St. Thomas Aquinas (1225-1274). Secondly, he adapts the
principles of Thomism to modern social conditions and modern systems
of thought, even departing in detail from some of the pronouncements
of the Doctor Angelicus. Thirdly, he displays the same tactful tol-
erance that the Doctor did toward rival systems of thought, not
denouncing or berating them as heresies but trying to persuade the
reader by reason to take a different view. In this respect he differs from
some American scholastic writers. Fourthly, and not least important,
Dabin is chiefly interested in the philosophy of positive law, the reasons
of policy and expediency which serve to explain the systems of legal norms
of modern states. His level of discussion, as was said above, is that of
law-making and interpretation; he does not view the arena of litigation,
where the law is confronted with a complex situation of fact. Hence some
of his "solutions" will seem to the American case lawyer a bit over-
simplified. Dabin stops short of what, since Cardozo's memorable
work, 10 has been known in this country as "the judicial process."
As some readers may be unfamiliar with scholasticism, it seems well
to give a brief though inadequate outline of the legal philosophy of
St. Thomas Aquinas. The three main topics, which the reader will
encounter throughout Dabin's book, are natural law, justice, and the
common good. Governing the universe, both animate and inanimate, is
God's Eternal Law. Natural law as a principle or principles of human
conduct is so much of the Eternal law as man can perceive by the use
of his reason. Natural law, when rightly discovered by reason, is
universal, absolute, eternal, immutable. Justice has to do with man's
duties toward others. Here St. Thomas followed Aristotle in distinguish-
ing between commutative justice, the "man-to-man" justice of civil
litigation, and distributive justice, the distribution of the good of the
community among its members according to their personal merit. "Legal
10 CARDOZO, T H E NATURE OF THE JUDICIAL PROCESS (192I).

Authenticated
xxxvi INTRODUCTION
justice," a third kind discussed by Dabin, has to do with the duties
of the subject to the political community. The "common good" takes
its meaning from Aquinas' definition of human law as "an ordinance
of reason for the common good, made by him who has care of the commu-
nity and promulgated." 1 1 The common good of the community is the
end or purpose of human enactments. Dabin takes the common good to
include the fitness or expediency of law for a particular community
and for the limitations and needs of the legal order which is to fulfill it.
Since he is concerned chiefly with the jurist's art or technique of
making and interpreting law in a modern state, he gives the common
good greater prominence in his discussion (though not greater sig-
nificance in his theory) than the other two concepts.
This emphasis appears in the basic organization of Dabin's book into
three parts: The "concept" of law, legal method, and a third part on
natural law and justice. Instead of beginning with an exposition of
natural law and justice as the logical fundamentals of positive law,
he begins with the conception of law as he finds it in modern states.
At many points throughout the first two parts he speaks of natural
law and justice in relation to the jurist's work but refers the reader to
his later discussion of those topics. Even one who does not follow his
views of natural law and justice will be enlightened by his scholarly,
prudent, and illuminating interpretation of the values implicit in
modern law.
At the outset Dabin envisages the law of a state, as expressed in its
statutes, juridical customs, and the precedents of its tribunals (case
law), as the "realities" on which his conception of law is based. Other
realities, the state, the conduct of officials, the societal facts of a given
community, are related to law. He finds the expression, "positive law,"
unsatisfactory to express the "concept" of law, because the adjective
"positive" traditionally means something that is accidental, arbi-
trary, or capricious. These are qualities which Dabin is unwilling to in-
clude in his concept of law. At this point one may compare Dabin's
conception of law with Holland's definition (derived from Austin) of a
law as " a general rule of external human action enforced by a sovereign
political authority." One can find in Dabin all of the characteristics
that Holland ascribes to a law. A law is a general rule. Its subject
matter is external human conduct rather than conscience or belief.
It has the authority and sanction of the state. Dabin substitutes for
"enforced" the lesser requirement that there be obedience to the law
of a state in general, in the great majority of instances to which it might
11 8 ST. T H O M A S AQUINAS, T H E SUMMA THEOLOGICA (Dominican Friars trans.,

L o n d o n , 1 9 2 7 ) , 8 (la llae, qu. 90, art. 4 ) .

Authenticated
INTRODUCTION xxxvii
be applied. H e has some difficulty with the Continental doctrine that a
law can be abrogated by desuetude, especially because Aquinas in one
passage intimated that a law can be set aside by a conflicting usage;
yet Dabin eventually rejects this doctrine. Likewise, a law does not
cease to be a law even though public officials in the exercise of their
discretion choose not to enforce it. T h u s Dabin's conception of the
validity of law resembles that of the English analytical jurists, from
Austin to Holland.
Dabin even finds the same trouble spots in the imperative (positive)
conception of law that other writers have found. D o the parties to a
contract create individual legal norms for themselves? Disagreeing with
Kelsen, D a b in says not, because law must have the character of gen-
erality (No. 5 7 ) . Are constitutional provisions which grant certain
powers to and impose certain duties upon the three major branches of
the government, but which cannot be enforced by any recognized kind
of legal sanction, really laws? T h e highest court under the guise of
interpretation m a y negate a provision of the constitution. Or the
highest legislative body may neglect to do something (e.g., reapportion
legislative representatives to districts on the basis of population as
determined b y the latest census) in direct contravention of a constitu-
tional requirement. Dabin, refusing to regard such constitutional clauses
as merely hortatory political principles, calls them "imperfect l a w s "
{leges imperjectae). International law, for the same reason, is imperfect
law.
B u t Dabin's "concept of l a w " includes more than Holland's definition
of law because D a b i n is not satisfied to determine the validity of law;
he seeks to determine also its end or objective. T h i s he finds in the
common good. T h e primary end of the state is to provide order in
society; the law is a necessary means to that end. Ubi societas, ibi jus.
This relation gives the state its rightful claim to sovereignty over all
other social groups and the law of the state, inasmuch as it is supreme,
is the only true law ( N o . 1 2 ) . Here Radbruch and Dabin are moving
on nearly parallel tracks.
D a b i n means b y "legal method" something a good deal different from
the method of the Jurisprudence of Interests 1 2 and from the methods
represented by books on that title published in the United States. 1 3
T h e latter are concerned with the judicial process, the interpretation
of statutes, the application of the formal sources of the law. Dabin dis-
cusses the questions, how and from what materials is law constructed?
T h e end of the law is to promote the temporal common good; the means
22 Supra, note 3.
" F o r example, supra, note 2.

Authenticated
xxxviii I N TR O D U C TI O N
to this end is legal technique. Because law is "instrumental" in character
it differs fundamentally from morals (No. 1 3 2 ) ; morality is an end in
itself, not a means even to beatitude. Dabin's definition of the temporal
public good (No. 136) resembles the interpretation which two American
pragmatists, Professors John Dewey and James H. Tufts, have given
to Jeremy Bentham's utilitarian end of law, "the greatest happiness of
the greatest number." They defined it: "Social conditions should be such
that all individuals can exercise their initiative in a social medium which
will develop their personal capacities and reward their efforts." 1 4 Al-
though there are differences, in each case the end is that of a social
philosophy of law.
Dabin devotes a good deal of space — too much, for American
readers — to refuting the positions taken by two distinguished French
legal philosophers of the early part of this century. Frangois Geny's
thesis was that the law is partly "given" and partly "construed";
partly "science" and partly "technique." Dabin tries to show that the
law is wholly "construed," that it is a creation of jurists guided by
prudence toward a temporal end, the common good. He likewise rejects
the social-psychological conception of Leon Duguit, another French
legal philosopher. The jurist (by which Dabin means the prudent law-
constructor) does indeed obtain the raw materials of his art from
morals, from customs, and other conditions in society; but he transforms
them into something new, to his own end and with his own technique. For
example, the jurist has to draw firm lines where life knows only gradual
shadings; he must consider the requirement of proof, since it is futile to
enact a law in such terms that no one can produce proof of the facts nec-
essary to invoke its application. The jurist has to consider the practical
convenience and enforceability of his law. Dabin's illustrations of "tech-
nique" seem a good deal like Radbruch's examples of the work of "legal
science." However, the difference in terminology signifies a difference in
fundamentals and some differences in treatment.
Dabin's exposition of natural law follows, as far as I can tell, the
orthodox scholastic tradition. Natural law is a rule of human conduct
deduced from the nature of man as revealed in the basic inclinations
of that nature under the control of reason. Since human nature is iden-
tical in all men and invariant in all times and places, the precepts of
natural law are universal, immutable, certain, admit of no doubt or
discussion (No. 203). He recognizes, however, a difference of opinion
as to whether the secondary principles of natural law have these qual-
ities ; the present trend is to recognize that only the "primary principles"
are so endowed. The primary principle of natural law is: Seek the good
14
DEWEY AND T U F T S , ETHICS (1932) 276.

Authenticated
INTRODUCTION xxxix
and avoid evil. H e recognizes a familial natural law and a political
natural law, having for their subject matter, respectively, duties of
members of the family toward each other and duties of subjects and
officials to each other. H e denies, consistently with his conception of
(positive) law, that there is a "juridical natural l a w " ; juridical law must
always be conditioned by the circumstances in which it is to operate.
Y e t civil laws that are contrary to natural law are bad laws, and " d o
not answer to the concept of l a w " (No. 210). God and the Church lay
down positive moral rules which complete and render more precise the
" g i v e n " of the moral natural law. A legal rule positively contrary to
morals must be condemned as contrary to the public good. As examples,
"historic or imaginable," he mentions laws ordering apostasy, dueling,
abortion, euthanasia, and laws prohibiting gifts, testamentary or inter
vivos. Moreover, a legal rule which tends to discourage virtuous acts or
to encourage vicious ones is contrary to morals (No. 246). Still, the
civil law need not sanction every command or prohibition of morals, for
morality imposed under the threat of coercion ceases to be morality
(No. 248). On the whole, Dabin's treatment of "natural l a w " charac-
terizes it as ethics rather than law.
Professor K u r t Wilk's knowledge and understanding of European

legal systems, philosophies, and literatures has greatly enriched this
translation. Wherever an author's allusion would be unfamiliar to
most American readers, he has inserted a translator's footnote (lettered
and indicated as such) to explain it. On the assumption that most Amer-
ican readers will not readily understand Latin expressions, these have
been translated except where they have become common terms of Amer-
ican law. Professor Wilk' s training in American law (as well as in
German law) has enabled him to use the closest American analogue to
some of the legal concepts and doctrines discussed b y Radbruch and
Dabin. T o him is due the credit for a clear and accurate translation.
Y e t it is only fair to say that the present writer has suggested some
idiomatic and stylistic changes which were designed to make the trans-
lation smoother reading. T h e final product is, in minor part, a result of
collaboration. Our purpose has been to make the volume as easy to read
as would be compatible with the nature of the subject matter and
fidelity to the author's ideas.
COLUMBIA UNIVERSITY,
NEW YORK
December, 1949.

Authenticated
Authenticated
TRANSLATOR'S N O T E
BY KURT WILK *
IN PRESENTING to American readers contributions to general legal

philosophy by scholars of other countries, the translator's task must be
to make each author's thought as fully accessible as possible without
violating or altering it.
In the following translations of works by Emil Lask, Gustav Rad-
bruch, and Jean Dabin, an effort has therefore been made to present
the three writers in readable English and in terms familiar to an Amer-
ican lawyer, yet to preserve, as much as rendition in another language
will permit, the cast of each writer's reasoning, the significance and
uniformity of his terminology, the shadings of meanings in his argu-
ments, and something at least of the flavor of his personal style.
Different problems have been presented by the style and terminology
of each of the three authors, differing as they do in their national
and personal backgrounds in law, philosophy, and civilization. Each one
draws his material and illustrations of course largely from the institu-
tions of his part of the world and from conceptions developed in the
juristic and philosophic literature in his own language. Wherever
possible, equivalent English terms have been chosen for such materials
or concepts. In the choice of equivalent English terms, Anglo-American
legal, political, and social institutions and ideas have been freely
resorted to where their general significance and their meaning in the
context sufficiently resemble those of their Continental counterparts.
Only where the distinctive meaning of the Continental term is involved
has it been retained, if necessary with an appropriate brief explanation.
Only in such passages, to give one example, has the term "causa" been
used rather than "consideration." The translator has preferred to re-
produce the author's thoughts, and the terms his language offered him
or imposed upon him, in equivalent and readily understandable English
rather than simply transcribing and then explaining them. Where inser-
tion of explanatory matter in text passages or footnotes could not be
avoided, all additions made by the translator have been enclosed in
brackets or otherwise indicated.
Apart from the material which each author has drawn from the law
and life familiar to him, the style of each reflects his grounding in a
distinctive philosophical tradition — that of Kant and Hegel in the
Germans, and that of St. Thomas in the Belgian — and the individual
* Associate Professor of Government, Wells College.
Unauthenticated
xlii TRANSLATOR'S NOTE
way in which he has projected and developed it for the problems of his
time and environment. Lask's highly abstract, conceptually and ter-
minologically precise yet complex and original reasoning proceeds in the
self-assured, severe and pregnant sentences of technical philosophical
German of the turn of the century. While built on these foundations,
Radbruch's thoughts reflect the broad understanding humanism and the
practical concerns of the legal scholar and statesman of the Weimar
Republic, which are expressed in the mellower phrases of his polished
German with its wealth of literary and cultural connotations. The
fixed scholastic categories and rubrics of Dabin's exposition are set
forth in careful didactic French with occasional academic rhetoric that
shows but rarely the stress of contemporary Nazi-Fascist pressure on
the landmarks of established and reinterpreted Thomistic doctrine. Each
of these styles of writing offers a different kind of challenge to reproduc-
tion in English that the American student may find clear and readable.
The texts of the three works included in this volume, Lask's Rechts-
philosophie, Radbruch's Rechtsphilosophie (third edition), and Dabin's
Theorie generale du droit, have been translated in full. The authors'
annotations have also been translated in full except for certain omissions
in the voluminous footnotes to Professor Dabin's work. These omissions
include many of the sometimes lengthy Latin passages quoted and some
of the detailed polemics, quotations from and modifications in the
thoughts of other writers not familiar to American readers. In all cases,
the complete references have been preserved in the footnotes in order
that the interested reader may pursue them if he wishes to. All omissions
are indicated by three periods.
In all three works, the original divisions and their headings have been
preserved. Subheads have been added by the translator in the essay
by Lask and have been taken from the table of contents and from page
headings in the book by Radbruch and, with some abridgements, from
the analytical table of contents of the book by Dabin. The authors' foot-
notes have been numbered consecutively for each chapter or section;
footnotes added by the translator have been indicated by similarly con-
secutive letters and enclosed in brackets. Where the author uses terms
or passages in a language foreign to him, or words in his own tongue
for purposes of etymological discussion, these have been retained in
their original language, with translations added where necessary. Cita-
tions have been preserved as given by the authors though adapted in
form to American legal usage as far as practicable; in a few cases,
references to editions in English of works cited have been added, such
as to volumes published in this Series and in the first Modern Legal
Philosophy Series.
Unauthenticated
TRANSLATOR'S NOTE xliii
The translator has been fortunate in the close contact he had through-
out his work with Professor Edwin W. Patterson, of the School of Law
of Columbia University. Professor Patterson read the entire manuscripts
of the three translations and contributed numerous valuable comments
and detailed recommendations for improvements, without ever fettering
the translator's freedom of judgment. His suggestions have resulted in
a clearer and smoother text in too many places to indicate them in
detail; and the exchange of views with him has guided and aided the
translator in his endeavor to produce English editions that would be
both accurate and readable presentations of the ideas of the three
writers.
W E L L S COLLEGE K. W.
AURORA-ON-CAYUGA, NEW YORK
Unauthenticated
Unauthenticated
I
LEGAL PHILOSOPHY
BY EMIL LASK
1905

Authenticated
Emil Lask was born on September 25, 1875. He passed his youth in
Falkenberg in the province of Brandenburg, Germany, and he began the study
of law at the University of Freiburg (in Baden) but soon changed to philos-
ophy under the influence of Professor Heinrich Rickert. He continued his
studies at the University of Strassburg, where Wilhelm Windelband and Paul
Hensel were then professors of philosophy. His dissertation for the degree of
Doctor of Philosophy, which he received from Strassburg, was "Fichte's
Idealismus und die Geschichte" (1902). His second work, the one here trans-
lated, entitled RECHTSPHILOSOPHIE, was a contribution to the Festschrift for
Kuno Fischer, a collection of essays by various authors published under the
t i t l e , D I E P H I L O S O P H I E I M B E G I N N DES 20. J A H R H U N D E R T S ( i s t e d . 1 9 0 5 ; 2d
ed. 1907). It was also published separately in pamphlet form (Heidelberg,
1905). He became Privatdozent at Heidelberg University in January 1905,
and later Professor Extraordinarius at the same university. He never re-
turned to legal philosophy. His later works were in general philosophy; among
t h e m w e r e D I E L O G I K DER P H I L O S O P H I E U N D DIE K A T E G O R I E N L E H R E (191 I),
and DIE LEHRE VOM URTEIL ( 1 9 1 2 ) . He died on M a y 26, 1915, as a sergeant
in the German army in World War I. His collected works were published in
three volumes, 1923-24, under the editorship of his pupil, Eugen Herrigel.

Authenticated
LEGAL PHILOSOPHY 3
INTRODUCTION
O URS is A TIME engrossed with the problems of social life. Y e t true

speculation in the field of legal and social philosophy at present
shows but little independence; it still leans heavily upon the great sys-
tems created b y German idealistic philosophy. This m a y justify our
frequent references to K a n t and Hegel in presenting those modern
theories of legal philosophy which have retained some contact with the
ultimate questions of world outlook (Chapter I ) . However, the position
of legal philosophy at the beginning of the twentieth century is not
hopeless, despite its lack of originality as to the fundamental problems.
For the methodological trend, most promising after its lively beginnings
in very recent times (Chapter I I ) , will force legal philosophy to recog-
nize anew that any controversy about the method of empirical cultural
sciences b leads beyond mere methodology and finds its definitive solu-
tion only in a system of transempirical values.
CHAPTER I
THE PHILOSOPHY OF THE LAW
A. THE METHOD
Only in the nineteenth century has legal science achieved its full
independence and apparently final deliverance from metaphysical spec-
ulation. Between the "philosophical" and "historical" schools there has
* T h e following is a translation of RECHTSPHILOSOPHIE b y D r . Emil L a s k

(HABILITATIONSSCHRIFT DER HOHEN PHILOSOPHISCHEN FAKULTÄT DER RUPRECHT-
KARLS-UNIVERSITÄT z u HEIDELBERG ZUR ERLANGUNG DER VENIA LEGENDI VORGELEGT
Heidelberg, 1905. Car l Winter's Universitätsbuchhandlung). T h e footnotes, the sub-
headings a n d textual matter enclosed in brackets [ ] are b y the Translator. T h e
original — except for the list of "References" at the end — has no footnotes.
b T h is is a literal translation of the German term. Sciences ( W i s s e n s c h a f t e n )
in G e r m an terminology include not only the natural scicnces but also w h a t some
G e r m a n philosophers call spiritual sciences (Getsteswissenschaften) and L a s k and
other German philosophers call cultural sciences ( K u l t u r w i s s e n s c h a f t e n ) , namely,
the humanities, history, and social sciences. T h e G e r m a n term for culture ( K u l t u r )
embraces all creations of the human mind as distinct f r o m purely natural phe-
n o m e n a ; it thus includes all aspects of civilization as well as .of culture in the
narrowest sense of the w o r d , often with emphasis on the spiritual rather than on
the technological aspects.

Authenticated
4 EMIL LASK
since existed a clear distinction, but also a mutual distrust that is still
strong. Those who are not content with a "general theory of law" or
other generalizing sublimations of the results of empirical science but
dare, even today, to challenge legal philosophy to fathom the law's
absolute significance and its relation to other absolute values, from the
outset incur the grave suspicion of the "heresy of natural law." Indeed,
the vital question of modern legal philosophy has always been this, must
any nonempiristic philosophy of the law coincide with the old meta-
physics of the law which has been discredited by the splendid develop-
ment of positive science?
Natural law inquired into the absolute meaning of law and justice.
Thereby it established a principle in the world history of ideas which
cannot be substantially dimmed in its imperishable significance by any
corrections, indispensable as these may be from the methodical point of
view. Its absolute, transcendental philosophical tendency is shared by
any conceivable speculation on values, no matter how "critical."
Reality and Value. But the metaphysics of natural law and the criti-
cal philosophy of law differ fundamentally in determining the relation-
ship between value and reality. This difference bears directly upon life;
yet it is grounded in deep contradistinctions of theoretical philosophy.
It opens the way to a clear demarcation between natural law and a
legal philosophy free of metaphysics. The critical theory of values dif-
fers from any Platonistic two-worlds theory in that it regards empirical
reality as the only kind of reality, but at the same time as the scene or
the substratum of transempirical values or meanings of general validity.
It therefore admits only a one-world theory of law, recognizing but a
single kind of law: empirical legal reality. But the necessary distinction
between value and its empirical substratum entails a basically two-
dimensional approach; this is the dualism of philosophical and empiri-
cal methods. Philosophy regards reality from the viewpoint of its con-
tent of absolute values, while empirics regards it from the viewpoint of
its factual contents. In this view, the philosophy of the law must be con-
cerned with legal values while empirical legal science must be concerned
with legal reality.
Legal Philosophy as Theory of Typical Values. However, the funda-

mental character of the philosophy of the law needs to be clarified fur-
ther by some general remarks on the modes or forms in which values
appear to us. From the standpoint of a critical dualism of value and
reality, a formal logical distinction may easily be made between what
may be called two coinages of value, or two states of value. A value may

Authenticated
LEGAL PHILOSOPHY 5
either be individual, that is, as unique as the infinitely manifold empiri-
cal substratum of reality to which it is attached; or else it may be
common, that is, belonging to a plurality of distinct contents of reality.
Almost all philosophy is concerned with the latter kind of values, that
is, common or typical values. Its task is quite properly to reveal the
systematic articulation of the ideal universe, the realm of super- and
subordinated formal meanings of this kind, such as theoretical, ethical,
aesthetical ones. But that typical values should be the only logical form
of values is a mere prejudice, though one dignified by its age. There is
absolutely no reason, and no one has ever attempted to show, why the
absolute validity, the universality of a value, should be bound to the
logical structure of a general concept and why it is not as compatible
with the logical structure of incomparable singleness and individuality.
The sublimity of a value is in no way affected by this second possibility.
The individual value may have meaning in a sphere as high above all
empirical reality, and hovering over it at the same altitude, as the
typical value. The individual value shares, as a formal logical attribute,
the singleness but not the infinite variety of empirical reality. Only a
most imperfect analogy, at best a sort of parallel structure, would in
this case exist between value and reality. Even the individual value, say,
an individual value chain composed of individual value links, must, no
matter how it may rank teleologically in its relation to the formal
values, leave behind any specific definiteness of the several typical mean-
ings of values (theoretical, ethical, etc.). Any isolation, particularity,
and, as it were, indigence of contents must be transformed into concrete
wholeness, complete penetration and homogeneity.
This is sufficient to show that legal philosophy, as the theory of the
specific value of the law, can, like logic, aesthetics, philosophy of reli-
gion, and the other branches of philosophy, be only a theory of typical
values. We do not at this point ask whether there is a peculiar value
of the law, susceptible of coordination with other values, or what else
may be the relationship of the value of law to other values. For the
time being, we merely stress the methodical relation of the typical value
to empirics. As indicated above, even the individual value falls short of
the infinite variety of the fullness of empirical content. The typical
value is still further removed from that which is concretely given, since
it embodies the absolute standard of an unlimited number of instances
of its realization. Thus it acquires the character of a value formula, in
contradistinction to the single value, which is not repeatable. Just as the
theory of logical judgments fathoms the universal formula of meaning
which any judgment must contain in conformity with its absolute pur-
pose of attaining truth, so the philosophy of law searches for the uni-

Authenticated
6 E M I L LASK
versal formula of legal value. I t searches for the formal absolute ob-
jective of any historically given law, the systematically articulated
complex of postulates applicable to any empirical legal reality, or in
Stammler's words, the law of the law, the right law. The philosophy of
law looks for the transcendental locus or typical value-relation of the
law; it inquires into the law's position in the context of a world outlook. 3
It is therefore too broad and ambiguous to define the philosophy of
law as the theory of the "concept of law." The formation of concepts is
always the product of a certain method. Thus, a "concept" of law is
formed not only in philosophy but also in the various distinct sciences
dealing with laws. There are a philosophical, a juridical, and a social
concept of law.
Formal Natural Law. So far, the most general criteria of speculation

about values have been elaborated only to the extent indispensable for
a clear contrast with the metaphysical trend of natural law. Rational
metaphysics is opposed to the critical distinction between value and
reality, and to the doctrine that historical facts are not to be derived
from any abstract value formula. For it is directed at a hypostasis of
transempirical values as real independent vital forces, thus combining
and confounding value and reality.
In this sense, any natural law is metaphysical rationalism; it hypos-
tatizes legal values as legal realities. Yet for a firm grasp of that core
of all natural law, agreement must first be reached as to what "empirical
reality" as contrasted with mere value may mean in the field of law.
To answer this question, we need not enter into an investigation of the
concept of reality in the cultural sciences. We may provisionally confine
ourselves to dividing the complex concept of legal reality into formal
positiveness and material positiveness — following the discussions of
Bergbohm and his predecessors such as Hegel, Stahl, and Bruns. Cor-
responding to that division, natural law may in turn be divided into a
formal and a material confusion of value and reality.
The formal positiveness of the law is nothing but a kind of validity.
In this case, then, a kind of validity appears as "empirical reality" and,
consequently, as a product of the reification common in natural law.
The hypostasis in this case transfers one kind of validity into another,
absolute normativeness into empirical normativeness; in short, it trans-
forms the reasonableness of the law into the external obligation of the
law. For its external absolute obligation upon the organs and the mem-
* This is the literal translation of the German term Weltanschauung, which Lask
uses to denote the basic theory of the world as a whole that underlies a particular
philosophy.

Authenticated
LEGAL PHILOSOPHY 7
bers of the community is essential to the positive legal norm. Hence the
thesis of formal legal positivism that the only reason why that positive
normativeness is binding is the authority of a human community. This
connection between community authority and obligation represents the
formal criterion of the law which is broken down by natural law. For
natural law assumes that the external obligation upon the members of
the community issues directly from the absolute significance of a legal
postulate, that is, from its purely ideal dignity. Natural law thus is
emanatist. b It eliminates the criterion of the community authority and
replaces it with reason as a higher formal source of law, from which
"law" emanates without and against any human enactment, so that law
conflicting with reason becomes formally void.
It is Bergbohm's merit to have traced this formal natural law, and
to point out even suspicious tendencies toward a belief in natural law
in modern jurisprudence. However, an explicit profession of natural law
is confined today almost entirely to Catholic legal philosophy, repre-
sented by von Cathrein, von Hertling, Gutberlet, and others.
Material Natural Law. But there have also been theories of past and
present legal philosophy which may be properly characterized as natural
law, although they expressly deny the metaphysical doctrine of the
sources of law. Unless any belief in absolute standards of law, any kind
of speculation about values, is to be confounded with natural law,
natural law must be understood as material as well as formal, as op-
posed in both respects to critical speculation about values. Just as
formal natural law beclouds the form of legal reality, namely, the spe-
cific normative character of law, so natural law in a material sense must
be fatal to the material element of the positive in law, or to the empiri-
cal content of the law. In this case, the reality that is subjected to a
metaphysical hypostasis can consist only in the fullness of individual
content and the concrete historical conditions of the positive legal rules,
in the very element that in the critical view constitutes the transcen-
dental prerogative of empirical reality. The exponent of natural law
believes that out of a system of abstract values he can deduce a stock
of legal norms, the contents of which need not be individualized any
further and are suitable for introduction as law anywhere, regardless of
concrete historical connections. He may quite possibly regard such a
complex of proposed rules as complete and exhaustive only as to its
contents, at the same time believing that it acquires the formal quality
of law only through its enactment by positive legislation. This would
amount to an exclusively material natural law, whereas natural law in
b
That is, it assumes that law flows from a higher essence.

Authenticated
8 EMIL LASK
a formal sense is likely always to involve the material element too. This
material element is usually in the minds of those who blame natural law
for proposing an ideal code valid for all times and peoples.
Natural law is unhistorical rationalism and metaphysics; yet it need
by no means coincide with naturalistic metaphysics. The naturalistic
undercurrent which so often appears in the history of natural law
theories must rather be understood as a mere variety of the material
doctrine of natural law. Indeed, the immutable value of reason may
serve as the speculative principle to get and isolate abstract partial con-
tents out of the concrete fullness of what is given; but so may unchang-
ing "nature." Abstract formulae of natural law, and not value formulae,
are thus precipitated as independent realities. Indeed, the term "natural
law" contains several meanings of "nature," which are rarely distin-
guished sufficiently. First — and especially in the formal version of
natural law — "nature" implies universal validity or the absolute, as
contrasted with the mere relative validity of human enactment. Secondly,
it implies the generality of contents, either of reason or of nature, as
contrasted with individual particularity.
It is necessary to narrow the meaning of natural law down to a
hypostatizing metaphysics as distinct from a theory of absolute values
in general. Only from this point of view may the unanimous opposition
of positive science to natural law be justified on the most general
epistemological grounds. To be sure, all polemics against the unhistori-
cal character of natural law suffer from an insufficient distinction
between the formal and material aspects, as Bergbohm, again, has re-
cently shown. Bergbohm himself wants to test the historical method
exclusively by the criterion of a formal-positivistic theory of the sources
of the law. But this theory is at best connected with the historical prin-
ciple loosely, namely, to the extent that the concept of the positive
source of law involves the assumption of a law-forming process that is
"perceptible externally" and "demonstrable historically." Otherwise,
the predominant interest of the entire opposition to natural law is for-
malistic and is directed toward purifying the concept of law, however
empiristic that concept may be. On the whole, therefore, this interest
may be termed empiristic or positivistic rather than historical.
Critical Legal Philosophy as a Philosophy of Positive Law. Nearly

all adherents of absolute value principles in the legal philosophy of the
nineteenth century — such as Stahl, Trendelenburg, and Lasson — were
affected by empiricism, the empirical approach. At least they have tried
to reconcile speculation with positive legal science. Most recently,
Stammler both put law into the context of absolute purposes and took

Authenticated
LEGAL PHILOSOPHY 9
"formal regularity" or "objective Tightness" f o r . a mere standard or
absolute postulate of law, an aim for the legislator and not a norm
externally obligatory upon the social life of men. Critical speculation
about values which thus complies with Bergbohm's requirement is a
philosophy of positive law.
At present, the distinction between concern with value and with
reality, emphasized especially by Windelband as the fundamental prin-
ciple of all philosophical reflection, gains increasing recognition among
legal and social philosophers. This above all is bringing about a firmer
grasp of the aims of legal philosophical research. Almost the entire pre-
Kantian natural law, unable to get away from typically naturalistic
vagueness, stealthily substituted a value significance for the general
laws of nature. The necessarily resulting lack of orientation and the
arbitrariness of the naturalistic principles of selection were castigated
by Hegel and many after him, like Stahl and Lasson. Most recently,
Marxist naturalism provoked a methodical "return to Kant" in the field
of social philosophy. This "neo-Kantian movement," to use Vorländer's
term, is led by Cohen, Natorp, Stammler, and Staudinger. It now begins
to spread also within socialism, including among its adherents Marxists
such as Struve and Woltmann. It fights against the absolute rule of a
"genetic" explanation, which it wants to supplement rather than sup-
plant with a systematic consideration of how absolutely to justify causal
events. In the group of neo-Kantians, there appears a strong intellec-
tualism in posing philosophical questions. It tends toward taking all
problems of value for purely epistemocritical or methodological ones.
In the discussion regarding the "regularity" and supreme "unity" of
the social, frequently the meanings of social philosophical method, of the
absolute significance of the social itself, and of the methodical form of
empirical social science shade imperceptibly into one another. But the
borderline between philosophy and empirics is always strictly observed.
Closely connected methodically with the conception of critical legal
philosophy is another problem, which has also been suggested anew by
Stammler. This is how to justify a theory of politics governed by abso-
lute standards, as distinct from the empiristic discipline carrying the
same name [i.e., politics]. Legal philosophy, as a theory of typical
values, belongs to the systematic sciences of values. Therefore, the con-
text of meanings into which it inquires is disparate from any context
of reality quite apart from the general disparity between value and
reality. It also lacks that partial parallelism of structure which exists
between individual values and empirical reality. Nevertheless, even the
typical value is in one way, as it were, turned toward reality; for reality
may be considered as at least the substratum of the typical value. Con-

Authenticated
10 EMIL LASK
sequently, any theory of typical values permits two possible operations
upon the formal value. On the one hand, the absolute meanings may be
systematized among one another, thus remaining within the realm of the
values themselves. On the other hand, the particular realizations of a
value may be considered. This explains the relation of legal politics,
which alone in the last analysis interests Stammler, to purely systemati-
cal legal philosophy. In politics, the value is considered from the view-
point of its particular realization; the value turns into a norm or postu-
late. The value-concept actually precedes the norm-concept. However, in
any legal philosophical thought there is immanent the idea of introduc-
ing values into life as something to be realized through the human will.
It is therefore not surprising that in this field the normative background
of the value concept is immediately at home. Politics, then, differs from
pure systematization in that it confronts the individual case with the
formal value and examines whether what is individually given conforms
with the formal ultimate purpose.
Historism. By comparing legal philosophy and legal metaphysics we

have seen that empiricism is by no means rejected but rather confirmed
and established by critical speculation about values. But we must as
strongly emphasize the reverse: speculation must at once turn against
the same empiricism, and especially historical empiricism, when the
latter presumes to pose as philosophy. Indeed, there is at present a
widespread delusion that out of the basic ideas of the "historical school"
a world outlook may be gained, especially in the field of social and legal
philosophy.
At first sight, the separation between the evaluating and the non-
evaluating approach seems in fact to be obliterated by the existence of
the historical cultural sciences, if one reflects that these disciplines
operate upon reality with regard to objective cultural meanings. Yet, as
Rickert has pointed out, their complex empiristic character must be
most strongly emphasized. For their regard to cultural meanings must
be taken not in the sense of a direct value judgment, but rather in that
of a purely theoretical value relation, serving as a means of mere trans-
formation of reality. The task of the cultural sciences does not consist
in establishing the absolute validity of cultural meanings. Rather does
it consist in working out the mere empirical and temporal factuality of
the appearance of cultural meanings. This, to be sure, is already a
product of methodological selection, compared with the original mate-
rials of reality. He who would draw standards of value from history
would, to be consistent, have to take everything as valuable that the
historian as a scholar deems significant for the presentation of historical

Authenticated
LEGAL PHILOSOPHY II
connections. In more methodological terms, he would simply have to
take for absolute the product of an empiristic trend. As a matter of fact,
historism is nothing but an empirical scientific method posing as a world
outlook; it is an inconsistent, uncontrolled, dogmatic way of evaluation.
In this it exactly resembles naturalism. 0
However, it may seem that historism is wronged by such a charac-
terization. Does not the concept of individual values mean that his-
torically concrete individuality has invaded the very realm of values,
thus establishing historical evaluation? This assumption, however, would
rest on a gross delusion. To be sure, a parallelism of structure, a certain
formal logical analogy, which exists between individual values and
empirical reality, also exists between individual values and historical
factuality. In both, what is individual appears to be isolated and ele-
vated because of its significance. But such similarity is by no means
identity. If one were to call individual values historical, he should as
well take the entire systematic philosophy, logic, ethics, aesthetics, philo-
sophy of religion, for a part of the natural sciences; for undoubtedly a
certain formal logical analogy also exists between the typical value and
the generality of the laws of nature. He who confounds individuality of
values and historical factuality overlooks the immense gap which sepa-
rates meaning and being. The unique development of culture, as a mere
product of historical conception-building, is interconnected temporally,
causally, factually. Consequently, it does not suppress the element of
temporality and the brutal fortuity of empirical events. In the region
of value connections, on the contrary, there can be no question of time
relations. In this respect, individuality of values does not differ from
the system of typical values. Indeed, all attacks by evaluative Platon-
ism against the possibility of individual values originate in the belief
that individuality of value could not but result in taking for absolute
what is merely given in time.
Historical factuality, then, remains the same everywhere in its merely
temporal structure. So it does not afford a criterion to isolate the abso-
lute value, but merely offers the value a scene of action. It need not be
denied that historical factuality may well serve as a means of orienta-
tion in the search for the absolute value. But this is acceptable only in
the sense in which empirical reality generally serves as the substratum
of all contemplation of values, including systematic contemplation. Even
the individual value is produced, and the unique chain of such values
is construed, by a creative process, by viewing the value apart from
* That is, it resembles a variety of what Lask calls the material doctrine of
natural law, in which the value character of law is reduced to terms of natural
phenomena by "materialistic metaphysics"; cf. supra p. 8.

Authenticated
12 EMIL LASK
temporality. It follows that even the concrete or individual value cannot
be simply taken from historical reality as such. Only this basic and
formal methodical relation matters here. In a popular and inexact way,
one may speak of absolute historical values. But it is the philosopher's
duty to look through the quaternio terminorum d contained in such ex-
pressions. By these formal distinctions, the substantial significance of
historical scholarship is not depreciated by a hair's breadth. Indeed, in
denying historism it may be conceded that even empirical history-writ-
ing is ultimately regulated by the belief in absolute individual values.
But this would only confirm, not that a world outlook may be gathered
from history, but rather that history may be gathered from a world
outlook.
Historism is the exact counterpart of natural law, and this consti-
tutes its significance in principle. Natural law wants to conjure the em-
pirical substratum out of the absoluteness of value; historism wants to
conjure the absoluteness of value out of the empirical substratum. It is
true that natural law by its hypostatization of values destroys the inde-
pendence of the empirical. But its basic belief in transhistorical, time-
less values has not been an error, refutable by the historical enlighten-
ment of the present, as many think; rather has it been its immortal
merit. Historism, on the other hand — not by any means history itself
nor the historical view of the law — destroys any philosophy, any
world outlook. It is the most modern, most widespread and most danger-
ous form of relativism, the levelling of all values. Natural law and his-
torism are the two rocks of which legal philosophy has to steer clear.
B . T H E VARIOUS TRENDS
The starting point of all recent legal philosophical speculation is a

definition which has been adhered to by Kant. According to it, law is
the external regulation of human conduct for the attainment of condi-
tions that are inherently valuable. On this common ground, two possi-
bilities of fitting law into contexts of values have emerged. Either the
ultimate purpose of law was traced exclusively to the perfection of the
individual ethical personality, and the meaning of the life of the com-
munity was measured solely by the fulfillment of this ideal; or else the
view prevailed that the order and institutions of the common existence
of humanity contained their own inherent values which need not in any
way be derived from individual ethics. The importance for legal philos-
ophy of this contrast in world outlook is manifest. Law, in its empirical
position, doubtless belongs in the realm of the "social" institutions. This
d
L i t e r a l l y : Quaternion of terms; i.e., a fourfold or multiple ambiguity of terms.

Authenticated
LEGAL P H I L O S O P H Y 13
unquestioned empirical-social significance of law may be correlated to
an absolute value only if there is a typical value peculiarly "social"
along with the typical value of individual ethics. Otherwise, law is just
mechanically related to a typical value of individual ethics that is
foreign to the law's own social structure. But in so far as a peculiar
value corresponds to the sphere of social ends of the law, the law itself
may finally be taken for more than a means, namely, as an element in
the articulated structure of the "objective spirit." e Even in this view,
however, the law need not at all be taken for an absolute ultimate end.
The Problem of the Value of the Social: Kant v. Hegel. Those who
have speculated from and beyond the individualism of Kant and the
eighteenth century may be called legal-philosophical Hegelians. They
have proposed to characterize ethical individualism as social philosophi-
cal atomism. For according to Kant, value, notwithstanding its trans-
individual validity, is exclusively attached to the individual personality.
This being so, all superstructures which may possibly be built upon and
connect the isolated value centers are excluded from the region of abso-
lute value. In contrast with such a purely personalistic system of values,
the new world outlook first of all proclaimed transpersonal values. It
confronts the personal typical value with what may be called an objec-
tive typical value. Going back to Plato, the absolute ethical demand is
directed not toward the will and deed of the person, but toward the
objective order of the "moral world" itself. The perfection of this order,
and not that of the individual human being, is the ultimate end of social
existence. Hegel has attempted to combine this "substantial morality"
idea of antiquity with the individualism of Christianity and of modern
times in a supreme synthesis. He recognizes the right of individual free-
dom but only as one of the fused "elements," a link necessarily joined
in the structure of the whole. The entire legal philosophy of the nine-
teenth century has exerted itself to maintain a distinct absolute mean-
ing of social relations without having to give up the recognition of the
individual as an absolute end in himself, which had been fought for and
won by the eighteenth century. At present, this philosophical struggle
has not been brought one step nearer to its conclusion. In particular,
there remain unsolved all questions as to whether the transpersonal value
of social life is to be treated as a subspecies of ethical value, or to be
coordinated with other values, or to be classified as a distinct group of
"cultural values." All discussions of individual and social ethics, of
social questions, of the state and the law, of nationalism and cosmo-
" A Hegelian term meaning the realm of the spirit as objectified, collective and
developing.

Authenticated
14 EMIL LASK
politanism, and all beginnings of cultural philosophy, have fundamen-
tally turned on whether the typical value of the social is to be assigned
an independent position in a comprehensive system of values.
Stammler as a Kantian. At present, Stammler may be regarded as

representative of legal philosophical Kantianism. To be sure, he empha-
sizes that the social coexistence of men must be viewed as the peculiar
subject matter of specifically social scientific knowledge, constituted by
special methodological categories. Nevertheless, in Stammler's view, the
social ideal and the absolute task of the legal order are to be exclusively
subservient to the norm of individual ethics. In his writings we meet the
decisive argument of Kantianism: man's absolute law being his free
will, motivated solely by the sense of duty, the ultimate end of social
life can only consist in uniting the duty-bound wills of all in the "com-
munity of men of free will." The absolute in all social institutions thus
is found in the "community" in the sense of a mere coexistence of indi-
vidual morality, a fusion of what may be deemed universally valid in
the endeavors of the members of the community. This is precisely the
view which has led individualistic legal philosophy at all times to elevate
the contract, as an agreement between the wills of ethically autonomous
beings, to the single principle justifying social institutions. Although in
the interest of methodology Stammler has emphasized the peculiar em-
pirical structure of the social, to it there corresponds no peculiar value
structure.
Socialism and Kant. This distinction between the empirical structure

of society and the value-structure of the social sheds light on the recent
attempts to connect socialism with the "community idea" of Kantian
ethics. They could succeed only because what was presented as socialis-
tic world outlook in no way transcends the scope of individualistic ideas.
"Humanity" in Kant's view does not mean the concrete community of
men but the abstract value of man. Kantian ethics requires that we
esteem all fellow-men not as members but rather as representatives of
humanity. It involves no other "idea of community" than that of
Stammler. By the same token, the whole controversy about individu-
alistic, as opposed to socialistic, economic organization may be carried
on as an internal affair within a purely individualistic world outlook.
To be sure, there are socialist systems in which a centralized economic
organization is demanded as the necessary consequence of a world out-
look which is "social" in the sense of value. Lassalle and Rodbertus, as
followers of Fichte and Hegel, argue for the intervention of the state
in business on the ground that humankind as a whole is to fulfill its

Authenticated
LEGAL PHILOSOPHY
tasks, which can be realized only by the race and not by the individual.
Here there is a belief in an independent basic type of community
life, a longing for a peculiar glory and perfection of human collective
existence.
The Social as a Specific Value: Hegelianism. Hegelianism, by ren-

dering the system of ultimate social ends far more concrete, has become
especially significant for a renovation of legal philosophy. As Schelling,
Hegel, Schleiermacher, Stahl, Trendelenburg, and the school of Krause
have constantly emphasized, there have now been discovered an abun-
dance of specific ends and models, a new world of life purposes and
destinations, which do not belong to the isolated individual but are
peculiar to the living conditions of the human community as such. The
legal order is to be closely adapted to the rich articulation of these ends
and "goods" and to the "world economic ideas" expressed therein. In
itself, accordingly, it is to be integrated into an "organic whole" or an
"organism." The destination (re'Xos) immanent in particular relation-
ships of life, such as property, family, rank, class, or state, is to provide
the "objective and real principle of legal philosophy."
This view has been combined with arguments against deriving the
social universe exclusively from the concept of will and personality, yet
these arguments are by no means directed against Kantian ethics itself.
Not only are the Kantian and Hegelian ways of evaluation co-predic-
able, and in need of complementing each other, but also, in the view of
Hegelian legal philosophy, the idea of the personality as the supreme
purpose (re'Aos) of the legal order must be included in the stock of com-
mon ethical ideas.
Ramifications of Hegelianism: Jhering, Gierke. It is interesting to

note a parallel to the reaction against the philosophical reduction of all
legal institutions to collective communities based on the will and on
freedom. This parallel is the attack of positive [legal] science, led
especially by Jhering in the middle of the nineteenth century, upon the
formalistic legal concept of the will. Jhering himself mentioned Krause's
philosophical school as a predecessor, though one without much in-
fluence, in the struggle against the so-called will theory. Of greater
influence on positive science, however, were the speculations of Schelling,
Hegel, and also, according to Ahrens, of Stahl. They, together with
the predominant influence of the historical school, contributed to a more
vital conception and a more concrete treatment of the law. On the other
hand, the profound effect of the abstract view of Rousseau, Kant, and
Hegel on positive legal science is also universally recognized.

Authenticated
ιό EMIL LASK
The ramifications of speculations concerning the structure of the
social world, extending from the pure theory of values to the methodo-
logical problems of the formation of concepts, may also be shown in
the development of the idea of the corporation. Gierke well demon-
strated that the atomizing individualistic spirit of the Enlightenment f
has proved its worth in the field of jurisprudence by smashing the con-
cepts of all associative legal institutions. Conversely, legal science, and
especially public law doctrine, has often resorted to the world outlook
of Hegelianism to establish its opposition to the exclusive rule of indi-
vidualistic legal principles. As far as the methodological problems can
be traced at all to the ultimate issues of world outlook, the legal con-
cept of the association, as represented by Gierke, may indeed find its
only speculative foundation in the idea of a specifically social typical
value and not in individualistic ethics. For only on the assumption of
a specifically social system of ends is it ultimately possible to construe
independent totalities of values that differ from the sum of individual
value structures.
However, the deep-rooted connection between methodological and
pure problems of values must not lead us to overlook the formal dis-
crepancy which always exists between empirical and philosophical for-
mations of concepts, by virtue of their basically different objectives.
Consequently, a clear-cut distinction must be made between the more
concrete theory of ends, which was initiated by Stahl and others, and the
empirical-teleological doctrine, now generally accepted, of the social
function of the law and its dependence on the interests of society.. In-
deed, these empirical relations are not denied even by the ethical indi-
vidualist. He only denies that any absolute relations of value correspond
to them. He will either insist that no such relations could extend into
the region of values; or he will admit such a relation only between law
and the value of the individual personality. In either case, he will reject
the opposite view as taking for absolute mere empirical phenomena
having only relative validity. Yet this objection need not deter legal
philosophical Hegelianism as such. As a matter of formal method, the
objection affects one sphere of values no less than the other. For funda-
mentally, the dualism of philosophic and empirical approaches applies
to the totality of possible subjects of experience; even the processes of
the will which are the material of individualistic ethics present an em-
pirical aspect. Now a line must be drawn unequivocally between those
elements of empirical reality which are solely empirical and those in
which some value element may be found. But where to draw that line
1
Aufklärung, the Age of Reason, the eighteenth century.

Authenticated
LEGAL PHILOSOPHY 17
is among the axiomatic and incontrovertible choices of any consistent
world outlook.
Hegelianism eliminates, along with the philosophical dogma of the
will, another consequence of Kantian legal philosophy. In the individual-
istic view, the law, as to its social structure, must be entirely outside
the sphere of values. Strictly speaking, it can then be understood only
as a mechanism which, while empirical in itself, serves to maintain
transempirical ends of [individual] freedom. If it is to be characterized in
transcendental terms at all, it can be expressed only by negative pred-
icates, all of which are derived merely from its contrast with morals.
To be sure, the Kantian school has never been content in strict con-
sistency to define the substantial essence of the law as merely contrary
to ethical inwardness, as mere outwardness and enforceability. It has
always been governed also by the conviction that the law itself par-
takes of the sanctity of the ends it serves. This may quite distinctly be
traced in Kant himself. His analysis of all empirical legal relations and
institutions into so many plainly intelligible relations of freedom can
hardly be harmonized with his insistence on the outwardness of the law.
As against Kant's vacillation, Fichte's much stricter deduction of the
concept of law from a logical analysis of the "material rational being,"
the "definite material ego," doubtless has the advantage of consistency.
The empirical coloring of some legal concepts, which Fichte was the first
to deduce transcendentally, especially of the concept of personality,
may be found also in Hegel and Stahl. At the present time, a meta-
juridical a priori basis of the law, consonant with Fichte's immanent
idealism, has especially been sought by Schuppe. In his view, the legal
approach stops at affirming the individual "concretion of consciousness
in space and time," without proceeding to the ethical evaluation of what
is good in itself, or of consciousness as such. In his fundamental legal-
philosophical constructions, Schuppe never departs from the character-
istic scheme of Kantianism, namely, the opposition between abstract
value-generalizations and individual empirical-concrete instances, and
the exclusive explanation of law by a comparison with ethics.
The Specific Social Value 0) the Law. Only with the introduction of
a typical value that is specifically social is the law itself as a social
phenomenon established in the sphere of values. Therewith it may
aquire some, if possibly small, positive significance even in transcen-
dental terms; there may be found in it valuable articulations of com-
mon human life albeit in primitive and externalized form. In this sense
— though in a more empirical-sociological context — Jellinek charac-
terized the law as the "ethical minimum." He expressly noted that such

Authenticated
ι8 E M I L LASK
an evaluation of law is necessarily outside the scheme of individual
ethics. Similarly, Hegelians such as Lasson depicted law as the human
spirit still submerged in naturalness, as the first stage of reason and
morality. This view was represented splendidly by Stahl, who is still
influential.
In order to show the necessity of a legal regulation of the life of the
community, one may resort in the first place to the fiction of the com-
plete interpenetration of individual moral action and the objective sys-
tem of ethical ideas. In the ideal state of a perfect equilibrium of human
community life, the ultimate ends of the community would at any
moment have to be recognized intuitively by the individuals and ful-
filled by them in dutiful spontaneity. A corresponding fiction has been
set forth by intuitive reason in the critical thought of theoretical philos-
ophy. This fiction serves to put into especially clear relief the only way
in which we may attain the theoretical aim, that is, by splitting cogni-
tion into general conceptions and concrete perceptions. Analogously,
the practical ideal may remind us that any order of the community that
we may experience can be maintained only by establishing formal pre-
scriptions that take no account of the moral complications of the indi-
vidual case. In addition, the maintenance of the moral world requires
the enforceability and external prevalence of legal imperatives. These
features, together with the abstract nature of the law, establish its rigid
traditional character, as an organization of life outlasting the successive
generations and the historical changes of a people. I t also follows from
its abstract nature that the legal order is able to express the ideas con-
tained in the common ethos not in full concrete substance but only in
the barest of outlines.
Once we assume the law to represent at least a minimum of the com-
mon ethical ideas, even if it be the most abstract and formal structure
within the social typical value, the decisive step is taken beyond its
merely negative characterization in Kantian legal philosophy.
Hegel. Determination of the transcendental place of the law in a

system of social typical values was first attempted in the philosophy of
Hegel. That attempt dominated nineteenth-century thought in so far
as it was susceptible to influence by such speculations. In Hegel's view,
the legal order appears as a well-defined link in the chain of progres-
sively concrete objective cultural purposes and represents a peculiar
stage of the development of the "spirit." In this view, the most concrete
"law," the law of the universal spirit, prevails as absolutely sovereign
over all more abstract rules and rights. Yet Hegel, idolizing as he did
objective transpersonal institutions, was far from taking for absolute

Authenticated
LEGAL PHILOSOPHY 19
those forms of cultural life which are merely legal. Rather he might be
charged with an unjustified aversion to all abstract and "formal" legis-
lation, which led him to regard what is systematic and typical in values
as a mere first step, imperfect and in need of supplementation to attain
the absolutely saturated totality and homogeneity of value. This is shown
by his view that the "person" in the legal sense was the abstract per-
sonality or legal capacity, absolutely identical in all men, as distinguished
from living human individualities. He always characterized the person
as an atom torn out of the substance of its spiritual contexts. For he
was unable ever to regard the abstract otherwise than as something
alienated from true concrete endlessness — as something empty, and
thus somehow negative. He compared the viewpoint of the law with the
world outlook of late Hellenism, when the vain and rigid self, the self-
satisfied individuality, proudly defiant, stepped out of the life of sub-
stantial morality. What in Stoicism was the "in itself" of mere reflection
has become reality in the law. The mission of Romanism in world his-
tory was to bend the concrete individuality under the power of abstract
freedom and the abstract state, and at the same time to incorporate the
concrete images of the individual peoples in the abstract concept of the
state and to "crush" them under this universality, thus gathering all
gods and all spirits into the pantheon of world dominion.
At this point it may be anticipated that Hegel's theory is also the
root of the methodological version of legal formalism which is found
frequently in nineteenth-century jurisprudence. This, however, will be
discussed in the following chapter.
Those thinkers, then, who postulate a concrete prototype of social
life, have always tended to believe-that the legal order, being merely
regulatory and organizing, is but a surrogate for the social ideal. How
often has been cited Plato's statement that the abstract law, which is
the same throughout, is inadequate to govern justly the inequality and
unending restlessness of human affairs. A defense of all revolutions and
coups d'etat has been attempted with Fichte's argument that the forms
of social order which admit of rational systematization, the goods in
the possession of which the ages "faithfully continue on the road on
which they have set out," are only means, conditions, and scaffolding
of "what patriotism really desires, the flowering of the eternal and
divine in the world." Lagarde, often agreeing with Fichte, saw the doom
of the present era in the impersonal constraint of laws which paralyze
the creative energy of men and of nations, in the rule of the state's insti-
tutions and constitutions, in the "caput mortuum * of mankind."
* Dead head, i.e., the head that rules us from the grave.

Authenticated
20 EMIL LASK
Tönnies, Simmel. In our time, Tönnies has discussed the abstract

character of law as no mere methodological problem and has tried to
fit the law into a total picture of the social universe. His picture of the
late Rome resembles Hegel's: Rule over the world assimilates all cities
to the one city, polishes off all jarring differences and inequalities
against one another, gives everybody the same attitudes, the same
money, education, and avarice. T h e law creates the concept of the legal
"personality," a fiction and construction of scholarly thought; this
"mechanical u n i t y " does not underlie concrete multiplicity, as the unity
of organic essence; it rather stays above it, as a conceptual generic
unity, a universitas post rem and extra res.h More and more in the last
few centuries the law has been stripped of its organic character; more
and more it has been serving the principle of "society," that is, a con-
dition in which the individuals are removed from all primitive and
natural combinations and enter into mutual relations only through ab-
stract rational considerations of profit and reward. B y this construc-
tion of social rationalism, the idea of society, as conceived by classical
economic theory and as given philosophical influence by Hegel's specu-
lative appraisal, is carried to its most extreme philosophical formula-
tion. T h e system of social abstractions is contrasted by Tönnies with
the " c o m m u n i t y " as the organic type of the social. T h e latter is struc-
turally analogous to Hegel's conceptions of the substantial spirit and
the moral totality. But it differs from Hegel's purely cultural philosophi-
cal tendency by its much more naturalistic color, its emphasis on the
natural and original. While all community life rests upon the univer-
sality and unbroken unity of vital interests, the law creates the techni-
cal forms for isolating and separately pursuing specialized purposes. I t
is only for such purposes, as for instance the purely economic ones, that
capricious individual wills, with their essentially separate spheres hav-
ing only that single point in common, m a y cooperate. Within Christian
civilization, too, according to Tönnies, the law, and especially Roman
law, has been the ready instrument for the emancipation of individuals
from all original community ties; and this universal disintegrating and
leveling process has culminated in the modern state, which has turned
from a true community of living into a societal-capitalistic union.
Simmel's view of the law, though expressed only occasionally, re-

sembles that of Tönnies. T h e law is considered to be a symptom of the
growing rationalization of life which is especially marked in the present
age. It is deemed comparable to intellectualism, on the one hand, and
to money, on the other, in that it is indifferent toward individual
h Universality after the thing and outside of things.

Authenticated
LEGAL P H I L O S O P HY 21
peculiarities and draws an abstract, general factor out of the concrete
totality of experiences. However, Simmel believes that the modern proc-
ess of depersonalization affects only the external aspects of life. He
believes that the personality, while permitting certain particles of its
being to be more and more subordinated to impersonal organizations,
retains an unassailable nucleus, and that nucleus is sharply distinct
from any fractions that may be splintered off from it and is not to be
reduced to a mere object.
The Idea of Justice. Along with such tendencies to view the law as
embodying a formalism hostile to any originality of individuals and of
civilization, there has always survived the speculative recognition of a
specific positive value-significance of the law. This has at all times found
its most universal expression in the idea of justice. But it would be
futile to attempt a uniform definition of justice. For that term simply
is intended to state what is absolute and a priori in the law, and so it
covers whatever any world outlook may require of the law.
In a narrower sense, the concept of justice has come to be used in
theories of the criminal law. The idea, once influential, that the punish-
ment of the offender restores the majesty of the law, goes back to Kant
and Hegel. For such "absolute theories of criminal law" can never be
substituted the "relative" ones. In criminal law, too, the questions of
the ultimate meaning and of the empirical "purpose" of an institution
may well be kept apart.
If justice is really to express a specific and intrinsically valuable
idea, any resort to it as a concept implies a fundamental departure from
ascribing value exclusively to the individual personality, a departure
toward an idealizing view of community life. Even a legal philosophy of
Kantianism—-indeed, that of Kant himself — thus contains the start-
ing point of a trend beyond social-philosophical individualism.
Hermann Cohen. This becomes apparent in the philosophy of the
Kantian Cohen. In his view, law is to provide the methodical orienta-
tion for ethics, whereas ethics provides the substantive foundation of
law. Legal science and political science furnish the "methodical model"
for the ethical concepts of the unity of pure values, the unity of action
and personality, the "true unity of the will." For, compared with the
individual person, the "legal person" is less liable to be confused with
its material substratum, which in this case consists of a plurality of
individuals. Therefore, the "legal person" may serve as a model of
purely ideal "universality," which as a distinct unit stands out from
the material details of its underlying discrete and divisible reality.
Quite in accord with Hegel, the particularities of races and classes are

Authenticated
22 EMIL LASK
deemed to represent only societal "plurality" or collectivity and ulti-
mately to constitute elements of mere nature, which are to be subjected
to the "compelling unity of the state." Indeed, Cohen goes so far as to
construe the fundamental concepts of ethics "with exclusive regard to
the law and the state." The ethical acts of the state itself are the laws,
which in their sanctity and their unqualified universality must be taken
to be the indispensable guides for the self-reflection of the pure will.
In Cohen's view, the formalism of the law becomes a symptom of its
absoluteness as value, its purity, and its a priori character. Law and
justice are the true realm of transempirical purposes. They deliver the
will from its discordance and incalculability, from the limits of caprice
and selfishness. The law and the state are creations of the mind, they
are ethical cultural concepts. The people, on the other hand, is a product
of nature; thus, even patriotism retains the naturalistic flavor of a
"widening the circle of one's affections," despite the sublimity of the
cultural concept of the fatherland. The purely cultural Hegelian con-
cept of the people is rejected by Cohen. In his view, the formal idea
of justice triumphs over any more concrete evaluation.
The Position oj the Social in the System of Typical Values. So at

present the views as to the absolute significance of the law are still far
apart; and the fitting of law into a system of cultural values remains
a task for the philosophy of the future. Only the definition of legal
philosophy as a theory of typical values has proved true in the various
trends of this discipline. However, it is necessary to point out that the
Hegelian concept of the social world, no matter how "concrete" are its
terms, is in two respects purely formal. First, the value connotation of
the "objective spirit" must be kept apart from the empirically concrete.
The term "concrete," when applied to a value, is but a symbol to indi-
cate a certain coloration of the value. Consequently, even the concrete
value cannot be construed rationalistically as an empirical particularity.
Secondly, the social is distinct from any individual values. Its character
is that of a typical value, since it comprises ideal postulates for which
validity is claimed in any conceivable community life, in any social
reality whatever.
Thus, the social is formal as against the empirical substratum of
values and formal also as against the individual value. It occupies a
peculiar intermediary position in the realm of values. It seems a concrete
world of new transpersonal values when it is compared with the ex-
clusive uniformity of the individual personality type; and it appears
abstract or formal as a generality of values that admits of repetition
when it is compared with the totality of a unique value. A conclusion

Authenticated
from this intermediary position has been drawn by Windelband. As he
has pointed out, the social values seem substantive from the viewpoint
of the duty of the individual; but they seem formal as against any
individual total definition of society itself. The outstanding historical
example of the same relationship is offered by the social ethics of Plato.
It is a model of the concrete view of the state. Yet it remains within
the limitations of Grecianism, without advancing to the principle of the
unique chain of values, which Schelling has been first to call specific to
Christian speculation.
The "concrete" character of the social typical value again raises the
same complication as the confusion of the unique character of values
with historism. It is now understandable why historism, which lives on
confounding the empirically concrete with the concrete value, has become
so seductive especially in the field of legal and social philosophy. What
historism implies in an unreflecting way of evaluation was made explicit
and dogmatized in the philosophy of the restoration.' In that philosophy,
the forms of state organization which have empirically grown and be-
come legitimate provide the unchangeable bars at which any criticism
that measures by standards of absolute value must stand silent. The
sharpest contrast with any such acceptance of given political facts as
absolute may be found in the theory of Hegel, with its inexorable attack
upon the vacuity of mere finiteness, upon the unreason of the single em-
pirical "this." Never, therefore, should we forget Kuno Fisher's words
at the end of his work on Hegel, where he shows that throughout the
nineteenth century nothing has been more profoundly opposed to the
political tendencies of the restoration than the philosophy of Hegel, the
evolution of the universal spirit in its conscious, logically developed
form.
CHAPTER II
T H E M E T H O D O L O G Y O F LEGAL SCIENCE
In the first chapter we have dealt with the formation of legal phil-
osophical concepts and with the concept of law itself as value. In order
to throw light on the philosophical "method" by contrasting it with the
empirical method, we had to compare philosophy and empirics. To this
end, we had to establish their common denominator, approaching both
from the viewpoint of contemplation, theory, knowledge, or science. The
methodology of philosophy deals with the question of the value of philos-
1
Restauration, i.e., the restoration of the Bourbons and other royal families
after the fall of Napoleon I.

Authenticated
24 EMIL LASK
ophy as a science. Thus, the theory of the form of philosophical science
may be compared to the theory of the special forms of empirical science,
that is, to methodology in its narrower sense.
From a strictly methodical point of view, the methodology of empirical
legal science belongs not to the philosophy of law but to the philosophy
of science. For the type of value with which it is directly concerned is
not that of the law but that of science. It need not be pointed out how
well nevertheless this section of the special theory of science in sub-
stance fits into the frame of "legal philosophy." Indeed, the logic of
science is at present the most cultivated field of legal philosophy; and
positive legal science has rendered important contributions to it.
Thus the entire subject-matter of legal philosophy may be subordi-
nated to the uniform concept of philosophy as the critical theory of
values. It may be divided into the theory of the value of legal philosophy
as science (Chapter I, a), the theory of the value of law itself (Chapter
I, b), and finally the theory of the value of legal empirics as science
(Chapter I I ) .
Cultural Sciences: Historical and Systematic. Legal science is a branch

of the empirical "cultural sciences." Therefore, recent inquiries in this
group of sciences may serve as the most general foundation for a method-
ological critique of legal science. In the first chapter, we have touched
upon the view of Rickert that the world contemplated in the cultural sci-
ences is the product of a purely theoretical relation of immediate reality
to cultural meanings. In order to clarify for our orientation the communi-
cating lines between the logic of legal science and the basic concepts of
the cultural sciences, we have first of all to distinguish between a
historical and a systematical tendency within the cultural sciences. From
the complexity of given facts, typical cultural elements are selected by
the systematic disciplines. In history, those typical cultural elements are
submerged in individual events of unique and indivisible significance.
In the systematic disciplines, on the contrary, they remain explicitly
isolated in their formal structure and are elevated to become guiding
concepts of the several disciplines. To avoid misunderstanding, it may
be added that these sciences of general concepts are sufficiently distin-
guished from the natural sciences by the complete disregard of cultural
meanings in the abstractive and systematizing principle of the natural
sciences.
We have repeatedly mentioned the parallelism of methodological and
pure value-problems; it may be found between the unique character of
value and the historical method, and it may also be found, analogously,
between the systematic theories of philosophy and of the empirical-

Authenticated
cultural sciences. Insight into this parallelism may again save us from
confounding the empirical cultural concept, which serves as the selective
principle of a particular science, with that concept of culture which
represents absolute value and world outlook. We have found the affirma-
tion of a peculiar structure of the social sciences compatible with the
denial of an independent structure of social values, as for instance in
Stammler's view. Generally speaking, it is at least conceivable thus to
segregate the group of cultural sciences for purely methodological pur-
poses without at the same time admitting absolute cultural values.
Therefore, we must distinguish between the methodological-empiristic
"cultural meaning" and the absolute "cultural value," at least as a
matter of formal method. This is necessary even though the cultural
value may serve as a regulative principle of all empirical cultural sciences
in the same sense as we admitted the unique character of value as a
regulative principle of empirical historiography.
Scientific and Prescientific Thought. From the epistemological point

of view, reality appears as a product of syntheses of categories. Method-
ology transfers that Copernican standpoint to the selective creations of
the several sciences. For instance, it regards the atoms and laws of
nature as products of conceptions formed by the natural sciences; and
it regards the events of world history or phenomena of law, politics, and
economics as products of conceptions formed by the cultural sciences.
It is not easy for the untrained eye always to adhere strictly to the basic
Copernican idea. The objection seems so easy that after all the great
historical events are not allotted their world historical role merely by
the historian, and the several types of cultural significance, such as
economics, law, language, etc., are not set off, one from the other, merely
by the scholar. Indeed, even the methodologist cannot but acknowledge
that the primitive disciplining of the materials which he encounters at
the start represents, so to speak, work preparatory to the activity of
the scholar. But no matter how far in a particular case such "prescientific
conceptions," to use Rickert's term, may be advanced, they must always
lack the truly conceptual exactitude and scientific strictness. In any
case, therefore, there will always remain the task for the scholar to
develop indefinite beginnings into precise, conceptually fixed results, for
instance, to separate exactly the different cultural types and to evolve
their refined systematic ramifications in the several disciplines. Granted,
then, that the elaboration of a specifically cultural scientific world in
part goes back to prescientific thinking, this can but limit and disguise
the Copernican mission of science without ever really calling it in
question.

Authenticated
26 EMIL LASK
The fact of prescientific elaboration prevents our directly taking, as
the material of the cultural sciences, the immediately given reality.
Between it and the ultimate aim of a science there enters a world already
related to cultural meanings, comparable to a half-product; and this
complex cultural reality, and not the original reality which is free of any
kind of value relation, becomes the material of the cultural sciences
proper. However, the boundary lines between prescientific and scientific
elaboration are blurred. Also, very often the work broken off by the
prescientific mind is resumed in the same direction, albeit rectified and
perfected, by science. For this reason, the viewpoints of methodological
critique may be transferred from the scientific to the prescientific func-
tion. Thus, from a one-sided methodological standpoint not only the
cultural sciences but also the several cultural fields themselves may be
regarded as coagulations of theoretical reason, which embody "concep-
tions," though prescientific ones. As a result, methodology may possibly
take for the subject of its investigation something other than forms of
science. It may be directed not only at the cultural sciences but, at
times, straight at "cultural reality"; not only at the social sciences but
at the social itself and, accordingly, at the law, etc. This result is odd
and may seem contradictory. Nevertheless, even such methodological
investigation as is directed at the cultural forces themselves must of
course not be confused with the several sciences dealing with the same
subject. For methodology is distinguished by its peculiar intention, with
all the questions it raises being turned into problems of the formation
of concepts. It will later be shown that the methodology of prescientific
and that of scientific concepts of law in particular must not be basically
separated.
Legal Science as a Systematic Cultural Science. As regards the classi-

fication of the systematic cultural sciences, we confine ourselves here to a
general suggestion that the various cultural types which constitute the
guiding concepts of the several disciplines may be not merely coordinate
but possibly also super- and subordinate. Thus, for instance, all cultural
types may well involve the element of the social, which in its complete
isolation and unadulterated purity could be grasped only by an ultimate,
most abstract analysis. That analysis would then be the "sociology"
postulated by Simmel, which would start from the final results of the
other disciplines and constitute their "general part." a
The idea of the formalistic cultural discipline discloses in dim outline
a
That is, it would contain the general concepts common to all of them. A
"general part" often precedes the part or parts dealing with special topics in Ger-
man legal codes and treatises.

Authenticated
L E G A L PHILOSOPHY 27
the methodological structure of any kind of legal science. Cutting homo-
geneous sections out of the complex cultural material in which they are
embedded in concrete connections constitutes the most general scheme
of the kind of science to which legal science, among others, belongs. The
isolation of the field of law and its hypostasis as a vital force of separate
reality is a product of the prescientific mind. Here again, it is the task
of science to give conceptual sharpness to the prescientific process of
selection. It is the task of methodology to meet the hypostasis with the
Copernican point of view, to realize that the demarcation of a specific
field of law is a transformation — partly prescientific and partly scien-
tific— of epistemological "reality" into an abstract world related to
particular cultural meanings.
The Dualism in Legal Science: Law as Cultural Meaning and as

Cultural Reality. Now we cannot advance a step in the methodology of
legal science without first noting the methodical dualism which pervades
all inquiry into law and which may justly be called the A B C of juridical
methodology. At the present time, a distinction between jurisprudence
and social theory of law has been urged especially by Jellinek. He has
been followed by Kistiakowski, Hold von Ferneck, and others. In pre-
ceding authors, e.g., Knapp, Jhering, and the Russian jurist Pachman,
we find but few suggestions of this fruitful contradistinction. Kistia-
kowski aided the fight against methodological syncretism by logical
theories of the concept of judgment and viewed the social scientific con-
cepts as precipitates of different purposes of knowledge.
The basis of the methodical dualism of legal science is this, that the
law may be either regarded as a real cultural factor, a vital social
process, or examined as a complex of meanings, more exactly of norma-
tive meanings, with regard to its "dogmatical contents." To be sure, even
the social theory of the law, like all formalistic cultural sciences, isolated
something abstract out of the concrete social totality, though that ab-
straction does not in reality exist in any way separate from the extralegal
environment. Yet despite that clear recognition of its abstract character,
we project the law as conceived by the social sciences on the screen of
reality, as it were, just as we project on it all "real" cultural phenomena.
We argue that the law need only be combined with certain other partial
realities in order to appear at once as the full living reality. In the same
way, as soon as we start thinking about it methodologically, we see
across the distance that separates even the complex and allegedly con-
crete cultural reality from the concretissimum of epistemological reality.
Nevertheless we do not cease to regard this methodically prepared cul-
tural world as reality, although it is diminished in substantiality and

Authenticated
28 E M I L LASK
disfigured, as it were, by its relation to cultural meanings. Probably
everybody will admit this without hesitation as regards the concrete
historical realities.
But we do not hesitate to call "realities" even the subject matters of
the several formalistic cultural disciplines, which are infinitely farther
and more artificially removed from what, in the epistemological sense, is
the original substratum of reality. We form the peculiar concept of a
cultural reality, in this case abstract partial reality, which we contrast
with the concrete cultural realities of history. At this point, the logic of
the formalistic cultural disciplines is confronted with one of its most
difficult tasks. For it must throughout face the question how far the
work of the cultural sciences penetrates only to the "realities" which are
related to cultural meanings, and how far it aims ultimately at the
realm of pure isolated meanings themselves. The contrast of reality and
meaning, which Lotze believes may be traced as far back as Plato, must
here be made fruitful for methodology in a quite limited empiristic sense.
Jurisprudence and Social Theory of Law. In one field, this has already
been accomplished with the greatest success, namely, for legal science,
by the separation of social theory and jurisprudence. The law in the
social sense is deemed a "real" cultural factor; the law in the juridical
sense is deemed a complex of mere meanings of thought. Consequently,
the abstract character of the juridical world must be assumed in a more
complicated sense than that of the subjects of social theory. The social
theorist or the legal historian draws a "real" borderline between the law
and the customs, habits, and other expressions of the life of a people.
But there is absolutely no sense in thinking that a norm — which
possesses mere validity — could complement other aspects of cultural
life so as to form an independent reality. To the lawyer, therefore, the
drawing of the borderlines in sociology and legal history is, as a matter
of concepts, a mere presupposition and preparatory work — even though,
as a matter of scientific technique, he may collaborate in it himself. For
his only concern is to connect systematically the conceptual contents of
those norms which have been, by a process of social theory, recognized
as "law." The thesis of juridical "legal formalism," therefore, can refer
only to an ideal comparison of juridical meanings with the prejuridical
"substratum" of the law, which must always consist in the concrete and
abstract realities of culture and of ordinary "life." So the isolating and
systematizing tendency of jurisprudence is different from the typological
method of most other social sciences. It will be more fully characterized
hereafter.
Among the best known theories of law in terms of social science is the

Authenticated
LEGAL PHILOSOPHY 29
doctrine of Marxism. Recently, the Marxist Karner has stated that the
only worth-while undertaking of legal science is to fit the law into the
causal connection of all non-legal phenomena, to examine its "social
efficacy," as against any mere dogmatic-technical treatment of juridical
materials. In the second half of the nineteenth century, a universal
revolt, supported by economists, arose against the absolute rule of what
was thought to be a "dogmatism" that disregarded the real vital rela-
tionships. This lively movement in legal science is clearly reflected in the
gradual development of Jhering's writings. However, the methodology of
the sociological legal theories is part of the general logic of the cultural
disciplines of the social sciences, so it cannot be further considered in
this essay which is confined to the methodology of jurisprudence.
Relation Between the Ought and the Is. In contrasting inquiries

into reality with those into meanings, we face the most confusing aspect
of the parallelism of philosophical and empiristic scientific tendencies.
The idea seems only too obvious that there is an ultimate speculative
opposition between the Ought and the Is, between norms and laws of
nature, between normative and genetic viewpoints. Indeed, this univer-
sal methodical dualism has frequently been used to characterize juris-
prudence — e.g., by Jellinek, Kistiakowski, Kohlrausch, and Eltzbacher.
Yet methodological boundary lines could not be blurred more fatally
than by opposing jurisprudence as a "normative science" to the purely
empirical disciplines. To such an opposition we would be imperceptibly
led if the indubitable analogies and parallels caused us to overlook the
ambiguity of the concept of the norm, the cleavage between its philo-
sophical and its empirical significance. To be sure, the subject matter of
jurisprudence, as of philosophy, is not what exists but what signifies,
not what is but what ought to be, what commands obeisance. But in
philosophy the character of the Ought is grounded in absolute values for
which there is no empirical authority. In jurisprudence, on the con-
trary, its formal ground is its positive establishment by the will of the
community. In this connection, Stammler and Eltzbacher have justly
emphasized the element of factual existence, of what is empirically
given. This element is relevant not only in the theory of the social Is of
the law — as it occasionally appears in Jellinek and Kistiakowski —
but also and especially in the theory of the juridical Ought of the law.
Only the formal theory of natural law, which derives the juridical Ought
directly from the absolute value, could have cause to align jurisprudence
with the "normative sciences" of logic and ethics. In our view, however,
jurisprudence can only present the unique method of purely empiristic
operation upon an imagined world of meanings.

Authenticated
30 EMIL LASK
Legal Science and Prescientific Thought. Turning to a closer view of
the juridical method, we must first observe that nowhere does the pre-
scientific formation of concepts play so great a part as in the legal field.
Apart from science itself, there is no cultural phenomenon which could
be remotely compared to the law as a formative factor of concepts. The
law itself establishes far-reaching distinctions between itself and extra-
legal reality. It forms concepts of so high a technical perfection that
they can often be distinguished only by degrees from scientific concepts.
As a result, nothing more is left to scientific elaboration, in some in-
stances, than the mere continuation of the formative process begun by
the statute. Conversely, scientific conclusions have in all epochs been
embodied in legal codifications. All attempts at a theory of juridical
method so far, from Jhering to the present, have recognized this con-
cept-forming spirit inherent in the law. So they have frequently made
no distinction, not even in terminology, between a logic of law and a
logic of legal science.
Legal Science as a Teleological Science. Juridical methodology in the

broader sense, as a critique of the formation of concepts by both law
and legal science, has two principal subjects. In the first place, it ex-
amines the peculiar and uniform attitude of law and jurisprudence to
the prelegal substratum of life and culture, and the transformation of
the prelegal material into legal concepts. In the second place, it examines
the systematic connection of the juridical concepts themselves, or the
form of the system of jurisprudence.
The principal success of the modern beginnings of a logic of legal
science has been to render conscious and explicit, in methodological
thought, the teleological principle which jurisprudence has always ap-
plied. Jellinek, in particular, has tried to utilize Sigwart's discussion of
teleological unifying principles for a "critique of juristic judgment."
Indeed, even the substratum of the law hardly ever coincides with what
is originally given psychophysical^. Since it belongs in the field of
practical life, of the social and economic and higher cooperative forma-
tions, it is interspersed throughout with teleological elements. Rickert,
applying Jhering's ideas, has characterized the purpose of law as the
principle determining the legally "relevant" conceptual elements. G.
Rümelin and Zitelmann have pointed out that here as always it is the
task of science to overcome the indefinite generality of prescientific
thought. Methodology is still to fathom how jurisprudence, praised for
its conceptual exactness, arrives at such precision within the value-
bound limits of its teleological method. This much, however, has been
recognized by most lawyers and legal philosophers since Savigny,

Authenticated
LEGAL PHILOSOPHY 31
Puchta, and Stahl: that a distinction must be made between the con-
cepts taken over unchanged by the law, those modified by the law, and
those newly created by the law, and that everything embraced by the
law loses its naturalistic freedom from value relationships. Even physi-
cal objects are embraced by the law not in their total qualities, but only
by the sum total of those aspects of theirs which are subject to the
dominion of the will. This was most strongly emphasized by Gierke
when he compared Roman and Germanic legal concepts. "Property" no
more coincides with the physical thing than the "person" does with the
human being. In the same way, all the subjects accessible to the law
are covered, as it were, with a teleological web, which cannot be more
fully discussed here. Its methodological significance is this: the juridi-
cal pattern of the world makes possible wholly different articulations,
which are unheard of in the epistemological and naturalistic views and
often even in the common-sense view of life; it offers new syntheses,
new principles of unification and individualization. What is continuous
in the naturalistic view may be discrete in the juridicial view; what
is but a collective plurality, naturalistically speaking, may legally be
a unit distinct from any mere sum. The indispensable prerequisite
for an understanding of the legal principles of unification is an in-
quiry into the conceptions of things and collectivities in the social
sciences. This has been quite neglected until not long ago and a new
stage has been reached only with recent enlightening investigations by
Kistiakowski.
The specifically juridical attitude toward reality is made up of two
mutually pervading elements. The real substratum is transformed into
a spiritual world of pure meanings, under the guidance of teleological
relationships; at the same time, the totality of what may be experienced
is unraveled into mere partial contents. This decomposing function of
law and legal science has been brilliantly described by Jhering. His
Spirit of the Roman Law, a work justly renowned as the first compre-
hensive investigation of legal formalism, may be regarded as mediating
between some elements of the legal philosophical speculation of Hegel
and the positive science of the nineteenth century. A first attempt —
though one overreaching its aim — to determine the peculiar character
of juridical abstraction and isolation may be found in Kant's and Hegel's
reduction of all legal relations to relations of the human will. The gen-
erally accepted dogma of the discovery of the abstract personality by
the Romans, which Lassalle elaborated, has been mentioned in the first
chapter. But in other connections, too, Hegel throughout recognized the
formalism and "practicability" (Jhering) of the law and its technical
fitness to be realized easily and uniformly. Like Hegel, Jhering depicted

Authenticated
32 EMIL LASK
the position of Rome in world history, the conflict between the principle
of nationality and the principle of the abstract state and law, through
which the peoples of that period were "crushed and pulverized." Jher-
ing supplemented the excellent concise statements of Puchta by a minute
description of the generalizing and equalizing tendency of the law, and
of its splitting up of the immediately given total sensations, with which
the law's certainty, its uniformity, and its elevation above the mere
emotional standpoint, are closely connected.
Objective Law and Subjective Rights in Legal Science. Our discussion

so far might perhaps create the impression that methodology is con-
cerned with the law only in its complete, concise, codifiable form, as a
complex of norms or as what is "law" in an objective sense. It might
seem as if law and prelegal reality confronted each other as spheres that
are nowhere contiguous and only comparable in the abstract by the
logical relations of their contents. For we have not yet pointed out that
the variety and individuality of real life also comprehend the legal
"right" in the subjective sense,b namely, the law in the form of "indi-
vidual, concrete" legal relations and other subjective legal situations.
This aspect of the relationship between law and reality, too, must be
illuminated by methodological critique. Thus there arises the new prob-
lem of the entanglement of legal significance and real substratum in the
individual case. The law in this individualized and concretized, tem-
porary state, too, must be conceived of as a realm of pure meanings and
must be separated from the concrete bearers of these meanings, to whom
it usually adheres. This endeavor is faced with a general phenomenon
the exact structure of which is still little investigated and is accessible
only to the decomposing approach of the methodologist: abstract con-
tents are entwined with their concrete bearers, which creates the decep-
tive appearance of a real existence of the former by themselves and
thus always causes their hypostasis in the naive mind. Such a deceptive
appearance of independent existence recurs in all spheres of knowledge:
in the "concrete" cultural reality as against reality in the epistemological
sense; in the abstract partial realities as against the complex cultural
realities; and again in meanings — e.g., legal meanings — as against
the psychophysical realities of culture and life which serve as their sub-
stratum. In this connection, Marx discussed the shibbolethic character of
the commodity; and Simmel has dealt in detail with the "real abstrac-
b
The distinction referred to in this passage is that between "law" and "legal
right" or "legal relation." German legal terminology distinguishes law as "objective"
from legal rights as "subjective," since both "law" and "right" are expressed by the
same German term Recht.

Authenticated
tions," the symbolizing, as it were, of abstract social functions in objec-
tive institutions. In the field of the natural sciences, analogous crystalli-
zations of mere quantitative relationships into concrete structures may
be found, for instance, in astronomical objects, and similar relations
exist between pictures of geometrical figures and the purely mathe-
matical relationships which they express. The latter example may serve
especially well to illustrate our juridical problem. In the real material
individuality of, say, a circle we must first disregard the empirical in-
strumentalities of the picture, such as paper and ink, blackboard and
chalk, etc., in order to arrive at the mathematical individuality of this
figure. In the same way, we must first deduct from the real complex of,
say, an individual sale the physical events, the accompanying mental
occurrences, the particularities, of the historical situation, etc., in order
to penetrate to the juridical individuality of this contract. Brodmann
has well stated the complex character of the juridical facts of the case,
the constant interplay of living reality and legal meaning that always
occurs in legal transactions and their legal consequences, exercises of
rights or violations of rights, etc. — all of which are but seemingly con-
crete. Schlossmann, Thon, Zitelmann, and others also have noticed this
peculiar commingling of the worlds of the Is and the Ought and their
interplay, which very nearly recalls the metaphysics of occasionalism;
and they have endeavored to grasp the conceptual forms of origination,
disappearance, involution, in short, of connection in the "legal world."
Zitelmann maintains that there is a causal connection of legal phe-
nomena, but, as he himself adds, it is a "peculiar juridical" causality
which is merely analogous to "natural" causality and coincides with
"no other formation of the causal theorem." Schuppe, on the contrary,
wants to apply the categories of thing and causality to the psycho-
physical and legal worlds without any distinction; for in his logic all
that matters is the possibility of connecting mental contents uniformly,
in whatever manner it may be. So, too, in the field of criminal law, a
methodological revision has now begun of what constitutes the facts of
the case. Kohlrausch and Hold von Ferneck argue against confusing the
factual occurrence as the "real substratum" with its "juridical aspect,"
which, as Hold von Ferneck well puts it, never loses its abstract char-
acter "despite its concretion."
The entanglement of the concretized world of the law with living
reality is of concern directly to juridical decisions and indirectly to legal
science. Emphasis on this entanglement should above all prevent one
from misunderstanding that the sharp contrast between the worlds of
existence and validity may be confined one-sidedly to law in the objec-
tive sense, law identical with the meanings of norms, or that, on the

Authenticated
34 EMIL LASK
other hand, it may be based on a "general theory of law" concerning the
relation between law and legal rights.
Legal Science and Psychology. The teleological tinge of all legal con-
cepts may best be studied in the alterations and introjections, unjusti-
fied from a mere naturalistic and psychological standpoint, to which
mental realities are necessarily subject in the legal order. In the juridical
view, mental existence, just like the corporeal world, serves as mere
material to be worked upon for projection into the practical world of
action. Jurisprudence thus serves especially well to prove that the disci-
plines which are misleadingly called "spiritual sciences" c by no means
consist of an analysis of mental phenomena. Jellinek has pointed out
that to determine the basic juridical concepts it is indispensable to
examine the use which the legal order may make of the volitional acts
of individuals. Indeed, there is hardly a single juridical problem where
the methodological approach has not labored under an insufficient dis-
tinction between the purely psychological concept and the very variable
juridical concept of the will.
Here, a wide field is open to the methodology of the future. There has
been as yet no attempt at separating the truly psychological-naturalistic
and the teleological elements in the juridical elaboration of psycho-
logical concepts. To be sure, such an undertaking could hardly be
expected of jurisprudence since neither the logic of psychology nor psy-
chology itself has as yet arrived at generally recognized conclusions.
Perhaps such a distinction between psychological and teleological ele-
ments may aid both sciences to gain a fuller methodological knowledge
of themselves. For the practical element which is fused with the psychi-
cal concepts and which naturalistic psychology has to disregard, attains
its highest possible degree of precision in jurisprudence.
It may be suggested in passing that the controversy between the doc-
trines of will and of purpose can be settled only by close attention to
the teleological formation of concepts, which is equally relevant here.
This controversy, made famous by Jhering, has become immeasurably
worse confounded because a clear answer has never yet been given, de-
spite all attempts, to this question: whether purpose lies "beyond" the
dogmatic legal concepts and therefore belongs only in the field of social
theory, as Laband insists, or whether it involves metajuridical social
factors overlapping into the juridical formation of concepts.
Recently, fortunate indications of the beginnings of a gradually per-
vading insight into the inadequacy of methodological psychologism
have appeared in the field of criminal law. Liepmann has expressed the
0 See Translator's note b, Introduction.

Authenticated
view that the solution of the problem of causation in criminal law
depends on the recognition of specifically juridical selective principles.
Kohlrausch has sought to utilize the principle of teleological formation
of concepts, which Jellinek postulated, especially as applied to the con-
cept of the consequences of a criminal act, as a "segment of the series
of empirical consequences under a juridically relevant viewpoint." All
this inaugurates the correct view that the legally relevant "adequacy"
of causation can be determined only by practical criteria which rest on
considerations of expediency and justice; for instance, by the "fore-
seeability" or "calculability" of a result which must be ascertained by
"objective prognosis after the event," as pointed out frequently in the
literature of civil and criminal law. The much disputed question whether
the "philosophical" concept of causation is applicable to jurisprudence
may perhaps be solved by recognizing that a precise epistemological
concept of causation may serve as the point of departure but not as the
goal of inquiries in criminal law. Most vigorously Μ. E. Mayer has
turned against the absolute rule of naturalism in criminal law. Adopting
Windelband's and Rickert's classifications of sciences, he regards juris-
prudence as a kind of cultural science of value relations, though he
seeks to approximate some elements of systematic criminal jurisprudence
to the "ideographical" method.
Legal Science and Ethics. Finally, the relation between ethics and
jurisprudence also is subject to a methodological critique. We need only
recall concepts like willful violation of duty, intent, responsibility, or
freedom of the will. In this case, the "prejuridical" would belong in the
realm of values. The methodological delimitation here would turn on
comparing philosophical and empiristic concepts.
The Problem of Legal Personality. Connected with the problems of

teleological psychology is the old problem of the legal person and of the
relation between individual and collective personalities. Here, Jellinek's
solution may well promise to clarify the issue. According to him, the
substratum of both the individual and the collective personalities ap-
pears in the naturalistic view as an aggregate or swarm of unconnected
realities, while in the prejuridical-teleological view each appears as an
independent unit, coherent in our thought because of its purpose rela-
tionships, namely, a unified individual and a unified association. These
teleological formations of prelegal realities are properly adopted by the
law, which in the same sense, in the realm of legal meanings, coins the
concepts of individual and of collective personality. "Person" in neither
case is a fiction, but in either case is a scientific abstraction. In law,

Authenticated
36 EMIL LASK
there are only "legal" persons. Instead of contrasting "physical" with
"legal persons," which involves a µ,ΐτάβασπ el<s άλλο ye'vo«,d we must
contrast the legal individual personality with the legal collective per-
sonality. If, at the same time, the concept of teleological unity of the
will is utilized for the personality problem, the teleologically unified will
of a collective person, distinct from the sum of its members, will no
longer seem to be a mythological personification.
Gierke and Laband. In our context, the controversies of positive

science serve only as illustrations of very general methodological views.
Therefore, on the subject of the legal person, we may also refer to the
controversy between Gierke and Laband. From a purely methodological
point of view, the investigations of Gierke are especially significant
because they expressly recognize the abstract character of the legal
world and yet deliberately pose the problem of the degree of legal for-
malism, that is to say, the difficult question of the adhesion of legal
concepts to the prelegal substratum. The legal order, while modifying
and leveling the articulation of the prelegal world, is able to transfer
the latter's particularities and distinctions to a certain degree into the
sphere of juridical meaning. Such an adhesion of the law to its sub-
stratum may be traced in two directions. First, the law may retain a
certain nucleus of what is psychophysical^ given; for instance, natural
distinctions between things or between mental phenomena may some-
how effectively reach into the world of legal thought. Or, secondly, the
law may adapt itself to the teleologically shaped realities of life and
culture. Here it is important that the relationships of life present ma-
terial which has already been formed typically and thus prepared for
legal regulation, as has been noted by Jhering, Jellinek, and Lasson. As
examples of the different degrees of intensity in the adaptation of the
law to the variety of the forms of life, we may mention the contrasts
between principles of generalization in Romanistic and Germanistic, or
in civil and public, law. Rosin and Stoerk measure the degree of formal-
ism by the greater or lesser homogeneity and uniformity of purposes.
Likewise the controversy between Laband and Gierke is marked by
the contrast of Romanistic and Germanistic tendencies. Gierke objects
— sometimes, indeed, in metaphysical terms -— to Romanistic jurispru-
dence on the ground that it proceeds as if there were no other sub-
stratum of the concept of personality than the unconnected and merely
coordinated individuals, and that it entirely neglects in any way to indi-
cate in the legal sphere the prelegal social interdependence of individuals
in associations. Laband has replied that the peculiar relationship be-
" Transition into another kind.

Authenticated
LEGAL PHILOSOPHY 37
tween individuals as members of associations is one of the very elements
which belong to life exclusively and can have no corresponding expres-
sion in the juridical concept of personality. However, one cannot under-
stand why the structures of social substratum and legal personality
should be wholly disparate just in the matter of interdependent mem-
bership, why there should be no legal doctrine of those personal rela-
tions between the collective person and the individual persons which
differ from the legal relations possible between unassociated individuals.
Gierke demands a finer adaptability of juridical doctrine and thus keeps
an opening for the influx of new ideas into the formation of law. Yet he
does not thereby seek to bridge the gap between law and reality. Indeed,
he expressly distinguished the social centers of life which form "the
factual basis of legal personality" from their appearance as "associa-
tion-persons" in "the field of law."
Again, a more uniform approach to the question how far juridical
formalism is to be extended without harm may result only from con-
stant close contact of methodology with epistemology. Such contact
may fix an epistemological concept of reality as the point from which
to ascertain clearly the different distances between the several layers of
the formation of concepts and their common foundation of reality, on
which they are, as it were, superimposed. Only then may the structure
of the dovetailing scientific syntheses, and especially their "objectivity"
and "subjectivity," be clarified.
The Independence of Jurisprudence as a Science. While a certain

agreement exists on the relation of the world of legal concepts to the
prelegal substratum, views about the formal character of jurisprudence
as a science and a system still differ widely. This cannot be regarded as
exclusively peculiar to legal science, since the "technique" of the law
itself elaborates the juridical material in highly systematic perfection.
So it is not surprising that doubts have long been raised as to the
character of jurisprudence as a science.
No matter how this question may be answered by a uniformly fixed
concept of cognition in the cultural sciences, this much may be taken
for granted, that jurisprudence in one essential respect at any rate is
more independent than any other technology. In every other technology,
the purely theoretical knowledge that is utilized for its practical pur-
poses is derived elsewhere, to wit, from the natural sciences. Jurispru-
dence, on the contrary, creates everything necessary to fulfill its prac-
tical task in a peculiar world of concepts all its own, which it is well
worth while to illumine methodologically. To be sure, methodology will
always be forced to recognize the practical mission of law in life as a

Authenticated
38 EMIL LASK
system-forming factor. It must never go so far as to view the logical in
the law otherwise than as interwoven with the practical. The demand
for an exact investigation of the logical structure of legal science is by
no means a plea for a "jurisprudence of concepts," which is justly
derided.
Jurisprudence and Statutes. An independent significance may first be

ascribed to jurisprudence in a formal sense, that is, independence from
the law, and more especially from statute law. The statute points the
direction which legal science is to follow; but in a way it merely claims
the position of material that is subject to interpretation and to an exam-
ination of its reliability. Law [as the body of legal norms] and statute
are disparate. Not the statute but the law is the subject matter of legal
science. The statute, like the customary law, the judicial application of
the statute, and other clues, is only one of the indicia from which juris-
prudence must ascertain the underlying system of legal norms truly
"valid" at a certain time and in a certain community, "intended by the
legislature" and so indeed "positive." This work of jurisprudence is in
part creative. To give even an approximate picture of all present dis-
cussions of statutory interpretation, use of analogies, lacunae in the law,
statute and customary law, statute and the judiciary, etc., would go
beyond the scope of this sketch.
Jurisprudence and the Ν on-juridical Scientific Systems. The material

independence of jurisprudence consists in the peculiarity of the contents
of specifically juridical forms of systematization, as distinct from the
systematic forms of other sciences. The methodology of the present
proves least fruitful when it is expected to explain this material inde-
pendence of jurisprudence. Jhering's discussion of the "precipitation of
legal rules into legal concepts" may still be counted among the most
successful characterizations of the juridical way of thought, despite all
the justified objections that have been raised against its flowery natural-
science terminology. There are a number of thoughtful investigations of
the transformation of the original imperative form into the form of the
scientific judgment and conception, the dissection of the composite into
its simplest elements, the juridical "construction," etc. Nevertheless, it
seems as if the real secret of the form of the juridical system has not yet
been objectivated in a logical expression, though it has been felt im-
mediately by the specialist to whom it has become familiar by profes-
sional scholarly practice. Again, there have been discussions of the very
general logical schemes common to all sciences, such as deduction, re-
duction, induction, classification, as applied to jurisprudence, e.g., by

Authenticated
LEGAL PHILOSOPHY 39
G. Rümelin, Wundt, and especially recently Radbruch. Such attempts
at a first logical mastery of the legal material are doubtless instructive.
However, they have not always sufficiently clearly characterized the
individual juridical shadings of those formal logical principles. Here,
too, the one-sided orientation so far of logic toward the natural sciences
has been very harmful to methodology. Frequently, it is overlooked that
the basic teleological character of the law, which governs the function
of juridical elaboration applied to the prelegal substratum, similarly, if
in a more complex way, also governs the operations that develop the
juridically fashioned material into higher systematic formations.
Legal History. A complex methodological position is occupied by legal

history. To determine it exactly we must construct the concept of the
historical cultural discipline with relatively systematical elements. This
would be analogous to the concept of a historical science with relatively
natural-science elements, which has been examined by Rickert. Special
additional difficulties arise from the fact that legal history as a discipline
may be regarded as the history either of social legal reality or of jurid-
ical legal reality, and then again as a history of doctrines, which would
constitute a branch of the history of sciences. It has been frequently
noted, e.g., by Jhering and Arnold, that legal history, unless exclusively
concerned with doctrine, must tend to take juridical abstractions in con-
nection with the totality of life.
Comparative Law; "General Theory of Law." Finally, the logic of

jurisprudence has also methodologically to analyze the present demand
for a "general theory of law," that is, for a "general doctrine" applicable
to legal science in its entirety. In this connection, it is erroneous to
assume that empirical research may be suddenly transformed into
"philosophy" by merely increasing and generalizing the process of sys-
tematization. This frequent error has already been attacked by Stamm-
ler and must be opposed.
The dualism of the social science approach and the juridical approach
also prevails in the highest concepts of the theory of legal scientific
principles. It creates a split between a general social theory of the law
and a general jurisprudence, both of which are now still undivided and
confounded with a lot of other fragments of sciences in the "general
theory of law." General jurisprudence may command two complemen-
tary instruments: the comparative treatment of doctrines, which covers
all historical legal systems, and the elaboration of the fundamental
juridical concepts out of the analysis of the more special concepts. How-
ever, comparative law may be treated from the viewpoint not only of

Authenticated
40 EMIL LASK
juridical doctrine but also of ethnology and sociology; and these con-
trasts cut across the distinctions between systematic and historical
methods. Furthermore, comparative legal science m a y connect the
"rationally cognate," which is quite different from research directed
toward actual connections at a definite time between different legal sys-
tems, that is, toward the exclusively historically cognate, e.g., the "his-
tory of A r y a n tribal laws," as has been well stated by Leist.
T h e general theory of law is dealt with here as a mere subject of
methodological examination. It follows that not only the approach of
social science and cultural history to the living connections of the law
with other vital forces is put outside of philosophy, but also the most
general juridical problems concerning the relation of law and the state,
law and compulsion, objective law and subjective right, etc., are left to
empirical science.
N o t those problems but only the purely methodological attempts of
jurisprudence at understanding its own essence were to be dealt with in
the preceding pages. So far, the methodology of legal science consists
only in a number of scattered remarks. B u t the expectation that they
will in future be joined in a coherent whole is justified by the trend
toward logical self-reflection which just at present is becoming strongly
apparent in jurisprudence.
R E F E R E N C E S
CHAPTER I : THE PHILOSOPHY OF T H E LAW
A H R E N S , Η . , N A T U R R E C H T ODER PHILOSOPHI E DES R E C H T S UND DES STAATES.

6. Aufl. 2 Bde. (1870.)
BERGBOHM, C . , JURISPRUDENZ UND R E C H T S P H I L O S O P H I E. (1892.)
CATHREIN, V., MORALPHILOSOPHIE. 4. Aufl. 2 Bde. (1904.)
COHEN, H . , E T H I K DES REINEN W I L L E N S . (1904.)
GIERKE, 0., JOHANNES A L T H U S I U S . 2. Ausg. 1902.

J E L L I N E K , G . , D I E SOZIALETHISCHE B E D E U T U N G VON R E C H T , U N R E C H T UND
STRAFE. (1878.)
LASSON, Α . , S Y S T E M DER R E C H T S P H I L O S O P H I E . (1882.)
S C H U P P E , W . , GRUNDZÜGE DER E T H I K U N D R E C H T S P H I L O S O P H I E . (1882.)
S I M M E L , G . , PHILOSOPHIE DES GELDES. (1900.)
S T A H L , FR. J., PHILOSOPHI E DES R E C H T S . 4. Aufl. 3 Bde. (1870.)
STAMMLER, R., WIRTSCHAFT UND RECHT NACH DER MATERIALISTISCHEN
GESCHICHTSAUFFASSUNG. (1896.)
D I E L E H R E VON DEM RICHTIGEN R E C H T E . (1902.)

Authenticated
LEGAL PHILOSOPHY 41
TÖNNIES, F . , G EM EIN SCHAFT UND GESELLSCHAFT. (1887.)

TRENDELENBURG, . , NATURRECHT AUF DEM GRUNDE DER E T H I K . 2. A u f l .
(1868.)
CHAPTER I I : O N T H E G E N E R A L M E T H O D O L O G Y OF
THE CULTURAL SCIENCES
D I L T H E Y , W . , E IN L E ITUN G IN DIE GEISTESWISSEN SCHAFTEN , I. B d . (1883.)

MÜNSTERBERG, . , GRUNDZÜGE DER PHILOSOPHIE, I . B d . ( 1 9 0 0 . )
RICK ERT, . , D E R GEGENSTAND DER E R K E N N T N I S . 2. A u f l . ( 1 9 0 4 . )
DIE GRENZEN DER NATURWISSENSCHAFTLICHEN BEGRIFFSBILDUNG.
(1896/1902.)
K ULTURWISSEN SCHAFT UND NATURWISSENSCHAFT. (1899.)
S IM M E L , G., DAS PROBLEM DER SOZIOLOGIE. SCHMOLLERS JAHR BUCH FÜR
GESETZG. VER W. UND VOLKSW. B d . 1 8 . ( 1 8 9 4 . )
D I E PROBLEME DER GESCHICHTSPHILOSOPHIE. (1892.)
WEBER, M . , D I E " O B J E K T I V I T Ä T " SOZIALWISSENSCHAFTLICHER UND SOZIAL-
POLITISCHER ERKENNTNIS. ARCH. F. SOZIALW. U. SOZIALPOL. Bd. 1.
(1904.)
WINDELBAND, W . , G E S C H IC H TE UND NATURWISSENSCHAFT. 3 . A u f l . ( 1 9 0 4 . )

1
On the Methodology of Jurisprudence
ARNOLD, W . , K U L T U R UND R E C H TS L E B E N . (1865.)

BIERLING, . R . , JURISTISCHE PRINZIPIENLEHRE. 2 B d e . ( 1 8 9 4 . 1898.)
BRODMANN, . , VOM STOFFE DES R E C H T S UND SEINER STRUKTUR. (1897.)
ELTZBACHER, P., ÜBER RECHTSBEGRIFFE. (1900.)
D I E HANDLUNGSFÄHIGKEIT, I . B d . ( 1 9 0 3 . )
GIERK E, ., D A S DEUTSCHE GENOSSENSCHAFTSRECHT. 3 B d e . (1868-1881.)
D I E GENOSSENSCHAFTSTHEORIE UND DIE DEUTSCHE RECHTSPRECHUNG.
(1887.)
D E U T S C H E S PRIVATRECHT, I . B d . (1895.)
LABANDS STAATSRECHT UND DIE DEUTSCHE R ECHTSWISSEN SCHAFT.
SCHMOLLERS JAHRB. FÜR GESETZG., V E R W. U. VOLKSW. B d . 7. ( 1 8 8 3 . )
HOLD VON FER N ECK , . , D I E RECHTSWIDRIGKEIT. (1903.)
J E L L I N E K , G . , D I E RECHTLICHE N ATUR DER STAATENVERTRÄGE. ( 1 8 8 0 . )
GESETZ UND VERORDNUNG. 1 8 8 7 .
S Y S T E M DER SUBJEK TIVEN ÖFFENTLICHEN R E C H T E . (1892.)
A L L G E M E IN E STAATSLEHRE. 1 9 0 0 .
JHERING, R . , GEIST DES RÖMISCHEN R E C H T S . 4 . u. 5. A u f l . 3 T i e . (1881-1891.)
1
T h e f o l l o w i n g w ri t i n g s h a v e been selected solely because of their m e t h o d o l o g i -
cal elements. [ A u t h o r ' s f o o t n o t e . ]

Authenticated
42 E M I L L A S K
D E R Z W E C K I M R E C H T . 2. Aufl. 2 Bde. (1884/1886.)

UNSERE AUFGABE. JAHRBÜCHER FÜR DOGM ATIK DES HEUTIGEN
RÖMISCHEN UND DEUTSCHEN PRIVATRECHTS. I . B d .
KARNER, ]., D I E SOZIALE F U N K T I O N DER R E C H T S I N S T I T U T E . (1904.) (Marx-
Studien hrsg. v. Adler und Hilferding.)
KISTIAKOWSKI, . , G E S E L L S C H A F T UND E I N Z E L W E S E N . (1899.)
K N A P P , L . , S Y S T E M DER R E C H T S P H I L O S O P H I E . (1857.)
K O H L R A U S C H , E . , I R R T U M UND SCHULDBEGRIFF I M STRAFRECHT, I . T l . ( 1 9 0 3 . )
LABAND, P., B E I TR Ä G E ZUR DOGM ATIK DER HANDELSGESELLSCHAFTEN. Zeitschr.
f. d. ges. Handelsrecht. Bd. 3 0 . ( 1 8 8 5 . )
L E I S T , B . W . , A L TA R I S C H E S J U S GENTIUM . (1889.)
L I E P M A N N , M . , E I N L E I T U N G IN DAS STRAFRECHT. (1900.)
MAYER, . E . , D I E SCHULDHAFTE HANDLUNG. (1901.)
R E C H T S N O R M E N UND K U L T U R N O R M E N . (1903.)
MEUMANN, G. . , PROLEGOMENA ZU E I N E M S Y S T E M DES VERM ÖGENSRECHTS.
(1903·)
PACHMANN, S., ÜBER DIE GEGENWÄRTIGE BEWEGUNG IN DER RECHTSWIS-
SENSCHAFT. (AUS dem Russischen übersetzt.) ( 1 8 8 2 . )
PUCHTA, G . F . , CURSUS DER I N S TI TU TI O N E N , I . Bd. 1 0 . Aufl. ( 1 8 9 3 . )
RADBRUCH, G., DER HANDLUNGSBEGRIFF IN SEINER B E D E U TU N G FÜR DAS
S TR A F R E C H TS S Y S TE M . (1904.)
RICKERT, . , Z U R L E H R E VON DER D E F I N I T I O N . (1888.)
ROSIN, . , SOUVERÄNETÄT, STAAT, G E M E I N D E , SELBSTVERWALTUNG. Annalen
des Deutschen Reiches. (1883.)
R Ü M E L I N , G . , JURISTISCHE BEGRIFFSBILDUNG. (1878.)
SCHUPPE, W., DER BEGRIFF DES RECHTS. GRÜNHUTS Z E I TS C H R . F. D.
PRIVAT- U. ÖFFENTL. R E C H T D. G E G E N W . B d . 1 0 . (1883.)
STOERK, F . , Z U R M E T H O D I K DES ÖFFENTLICHEN R E C H T S . (1885.)
THON, . , R E C H T S N O R M UND S U B J E K T I V E S R E C H T . (1878.)
W U N D T , W . , L O G I K . 2. Bd. 2. Abt. 2 Aufl. (1895.)
Z I T E L M A N N , E . , I R R T U M UND R E C H T S G E S C H Ä F T . (1879.)

Authenticated
II
LEGAL PHILOSOPHY
BY GUSTAV RADBRUCH
1932

Authenticated
Gustav Radbruch was born in 1878 at Lübeck, Germany. In 1904 he became
a Privatdozent at the University of Heidelberg; in 1914 he transferred to the
University of Königsberg in Prussia (where Immanuel K a n t had lived and
taught more than a century before), as Professor. In 1919 he transferred to the
University of Kiel, and in 1926 to Heidelberg. He was a member of the
Reichstag under the Weimar Constitution from 1920 to 1924, and during this
period was Minister of Justice of the German Reich in the cabinets of Chan-
cellors Wirth and Stresemann, as a Social Democrat. On political grounds he
was dismissed from his academic post at Heidelberg in 1933. In 1945 he again
became Professor of Criminal L a w and Legal Philosophy at Heidelberg. H e
is the author of the following works: EINFÜHRUNG IN DIE RECHTSWISSEN-
SCHAFT (7th and 8th ed. 1928); RECHTSPHILOSOPHIE (3d ed. 1932), the work
here translated in full; KULTURLEHRE DES SOZIALISMUS (2d ed. 1 9 2 7 ) ; PAUL
JOHANN A N S E L M FEURBACH, EIN JURISTENLEBEN (1934); GESTALTEN UND
GEDANKEN, eight e s s a y s (1945); D E R G E I S T DES ENGLISCHEN R E C H T S (2d
ed. 1947). A valuable commentary on English jurisprudence — Bentham,
Austin, and Maine — is found in Radbruch, Anglo-American Jurisprudence
through Continental Eyes (1936) 52 L . Q. REV. 530. H e is now (August
1949) living at Heidelberg.

Authenticated
To
HERMANN KANTOROWICZ
Veterrima quaeque, ut ea vina, quae vetustatem ferunt,

esse debent suavissima verumque illud est, quod dicitur,
multos modios salis simul edendos esse, ut amicitiae munus
expletum sit. — CICERO, De Amicitia
[What is oldest, as with those wines which show their

age, must be sweetest; and it is true what people say, that
many measures of salt must be eaten together to make good
the gift of friendship.]

Authenticated
Authenticated
AUTHOR'S PREFACE a
E v e r y writer at some time reaches the point when he feels he ought to

clean up and close up and make the remaining time of his life available
for other tasks. This book is to bring to a close this author's legal
philosophical works.
It is called a third edition of the OUTLINES OF LEGAL PHILOSOPHY.1*
T h e second edition was published in 1922 as a mere reprint of the first
edition; it was dated back to the year of the first edition, 1914. A new
edition was necessary and a revision impossible at that time, when the
need for a thorough transformation after the upheavals of war and
revolution was already recognized. Dating the reprint back was to
express that the book in that form did not pretend to set forth the state
of the author's thought at the time of its publication.
T h e revision now submitted is based on a rewriting of the entire book.
It is a new book rather than a new edition. Some sections of the General
Part (§ § 1 1 - 1 4 ) and the entire Special Part (§§ 16-20)° have been
added. In this Special Part the author proposes not to exhaust the topics
in all their aspects but only to approach them from the viewpoints set
forth in the General Part and thus to test the General Part. However,
political philosophy, to the extent that it can be separated from legal
philosophy, has been eliminated. T h e portions dealt with in the old book
also have undergone manifold changes. M a n y corrections have been
made; for example, justice has been conceded a greater significance, as
opposed to the expediency of the law. Elsewhere there have been omis-
sions, such as the discussion of the problem of freedom of the will, not
because they appeared incorrect, but because they seemed to the author
dispensable in this context. M u c h that once needed detailed discussion
could be cut down. M a n y a passage, possibly the whole accent of the
book, has changed, because after nearly twenty years what sounded
natural from the young man's lips would have sounded false to him from
his lips after growing older. M a y b e some will like the old book better
' T h e numbered footnotes are those of the a u t h o r ; the lettered footnotes have
been added by the translator, w h o has also in some instances added to the author's
text or footnotes explanatory matter enclosed in brackets [ ]. In the original w o r k
(RECHTSPHILOSOPHIE. DRITTE, GANZ NEU BEARBEITETE UND STARK VERMEHRTE
AUFLAGE, 1932) the author's footnotes began w i t h number 1 on each page. It w a s
impractical to preserve this numbering, hence in this translation the footnotes are
numbered or lettered consecutively within each section.
B [GRUNDZÜGE DER RECHTSPHILOSOPHIE.]
c [Sic in the G e r m a n text. Actually , the Special P a r t embraces sees. 16-29.]

Authenticated
48 GUSTAV RADBRUCH
than the new one. But the old book is not out of the world either, and
it is to be supplemented and not supplanted by the new book.
Now as before, however, the author professes the same way of
thought: that rationalism which "intends to remain in the night that
people call enlightenment" (Larenz), and that relativism which "can
be disposed of as plainly unscientific" (Sauer). He does not follow the
irrationalist fashion of the times. B y rationalism as represented in this
book he does not mean, to be sure, that the world divided by reason
leaves no remainder. But he sees his task in rationally revealing ultimate
conflicts and not in irrationally befogging them. To relativism the author
attributes even greater significance at present than at the time this book
was first published. For relativism is the conceptual presuppositon of
democracy. Democracy refuses to identify itself with a definite political
view; rather it is ready to leave leadership in the state to any political
view that was able to obtain a majority, because it does not know of
any unequivocal criterion for the correctness of political views nor does
it acknowledge the possibility of a standpoint above the parties. Rela-
tivism, which teaches that no political view is demonstrable — and
none refutable — is apt to counteract that self-righteousness which is
usual in our political controversies: if no partisan view is demonstrable,
each view is to be fought from the standpoint of an opposite view; yet
if none is refutable either, each is to be respected even from the stand-
point of the adverse view. Thus relativism teaches both determination
in one's own attitude and justice toward that of another.
This legal philosophy as a modest contribution in 1 9 1 4 belonged to
those works which set legal philosophical efforts going again after
decades of standstill, during which Rudolf Stammler alone held the
banner of legal philosophy aloft. Since then an immense literature has
sprung up. The author declares himself unable to discuss that literature
in this book. He also deems it superfluous to quote it exhaustively, in
view of the wealth of bibliographical references in other treatises
(Stammler, Sauer).
He wants to suggest to students the How rather than the What of
legal philosophy, less to tie them down to conclusions than to guide
them to legal philosophical thinking. But to those who strive with him,
and especially to the friend whom he best liked to think of as his
reader, he addresses that verse of Horace:
Vive, vale. Si quid novisti rectius istis,
Candidus imperti; si non, his utere mecumA
RADBRUCH
d
[ L i v e and be strong! If y o u k n o w w h a t is more correct than these presents,
candidly then impart i t ; if not, mak e use of this with me.]

Authenticated
LEGAL PHILOSOPHY
SECTION
R E A L I T Y AND V A L U E
When we think about the world, it tumbles,

Breaking into wild and rugged parts.
But we join them to a bridge of beauty
Quietly again within our hearts. — Richard Dehmel
L EGAL philosophy is a part of philosophy. Therefore it is indispen-

sable first to demonstrate the general philosophical assumptions of
legal philosophy.1
In what is given, the unformed raw material of our experience, reality
and value are drastically commingled. We experience men and things
affected with value, that is, with worth and worthlessness, without
reflecting that such worth and worthlessness originate from ourselves,
the spectators, and not from those very men and things. The nobility of
a man lights his face up like a halo. The rustling boughs of old oaks give
us a thrill of the sacred. We think we observe the poison in the poisonous
plant and scorn it as a moral malignancy.2
Value-Blind, Evaluating, Value-Relating, Value-Conquering. The first

achievement of the mind consists in the ego withdrawing from and con-
fronting what is given, and thus distinguishing reality from value. The
mind learns how its evaluating consciousness may be sometimes screened
off and sometimes deliberately put in. Thus, on the one hand, by a
value-blind attitude of ours, the realm of nature is created out of the
chaos of what is given; for nature is nothing but that which is given, as
it presents itself when cleared of falsifying evaluations. Contrariwise, in
a deliberately evaluating attitude, the mind becomes conscious of the
standards of such evaluation, viz., the norms, and of their interconnec-
tion, which makes up the realm of values that confront nature. The
value-blind attitude, applied methodically, is the essence of natural
' T h e background of the following discussion is formed b y the philosophical doc-
trines of Windelband, Rickert, and L as k . In particular, LASK'S RECHTSPHILOSOPHIE
(reprinted in his G E S A M M E L T E S C H R I F T E N (1923) 275 et seq.) [translated in the
present volume] has guided this discussion and the present book.
2
C f . EDUARD S P R A N G E R , L E B E N S F O R M E N (5th ed. 1 9 2 s ) 37.

Authenticated
50 GUSTAV RADBRUCH
scientific thought; the evaluating attitude, carried through systemati-

cally, characterizes the philosophy of values and its three branches:
logic, ethics, and aesthetics.
There are, however, two more attitudes, which are complementary to
and in different ways intermediary between the value-blind and the
evaluating attitude. These are the attitude that relates values and the
attitude that conquers values. First, the value-relating attitude may be
illustrated by some concepts resulting from it.
T h e concept of science a is not identical with the concept of truth;
the science of an age embraces not only its scientific achievements, but
also its scientific errors. B u t the reason w h y we use the concept of science
to include its labors regardless of their failure or success is that they all
at least aimed and claimed to be truth: science is anything given that,
whether attaining or missing the truth, still has the significance, the
meaning, to serve the truth. In the same w a y art, in the sense in which
it is the subject-matter of the history of arts, is not sheer beauty, but a
mixture of style and tastelessness, joined in a unified concept only b y
the quest for beauty that is common to all its creations. Morals, in the
sense in which it is dealt with, say, in anthropology, includes also the
errors of conscience, but only because these, too, meant to strive for the
good which they actually missed. All those and many other concepts are
included in the concept of culture. T h i s concept therefore has the same
structure as those component concepts. As described b y the historian,
culture is b y no means pure value, but rather a mixture of humanity
and barbarism, taste and tastelessness, truth and error; but in all its
phenomena, whether hampering or promoting values, whether missing or
realizing values, it is never thought of without relation to value. Culture
is not realization of value, y e t it is whatever has significance or meaning
for the realization of values; or, in Stammler's words, it is "striving for
the r i g h t . " 3 T h u s it appears that the value-relating attitude is the
methodical attitude of the cultural sciences.
Lastly, the value-blind, evaluating, and value-relating attitudes are
complemented by the religious attitude which conquers values. Religion
is ultimate affirmation of whatever exists, smiling positivism that pro-
nounces its " Y e a " and " A m e n " over all things, love without regard to the
worth or worthlessness of what is loved, beatitude beyond happiness or
unhappiness, mercy beyond guilt and innocence, peace higher than
reason and its problems, the " g a y metaphysical light-mindedness"
* [On the meaning of science ( W i s s e n s c h a f t ) and culture ( K u l t u r ) in G e r m a n

terminology, see translator's note to LASK, LEGAL PHILOSOPHY, supra, Introd., n.
( 6 ) , p. 3·]
" L E H R B U C H DER RECHTSPHILOSOPHIE (2d ed. 1923) sec. 29, η. ι.

Authenticated
LEGAL PHILOSOPHY
(Scheler) of the children of God whom "everything must serve to the

good." T h i s passage from the N e w Testament is in harmony with the
conclusion of the story of creation: " A n d God saw everything H e had
made, and lo, it was very good." 4
Religion means conquest of worthlessness, and therewith necessarily
also conquest of the value, which is conceivable only as worth opposed to
worthlessness: worth and worthlessness become no longer of different
validity and are, therefore, «'«different. " H e who would treasure every-
thing alike, in this his life attains the state of everlasting bliss" (Angelus
Silesius). But with the contrast between value and worthlessness can-
celled, there is also cancelled the contrast between value and reality.
W h a t is adverse to value is either still valuable in some ultimate sense or
else altogether unessential. For we speak of the essence of a thing 5
when we think of value as the principle of its being.
In conquering the contrast between value and worthlessness, however,
religion presupposes that very contrast. Otherwise its lovely indulgence
would in no w a y differ from the dull indifference of the attitude that is
blind to values. A subject of religious affirmation is only what first, as
worth or worthlessness, has passed through the realm of values: nature
lies on this side, religion lies on the other side of the realm of values.
Religion springs from the unbearableness of the contrast between value
and reality — and it must spring from that unbearable contrast anew
at any instant and never become a permanent state lest its conquest of
values sink down to blindness toward values. It is not like a monastery
which one enters never to emerge from again, but rather like a wayside
chapel where one leans the wandering stick against the wall for brief
meditation and prayer.
Thus, to these four attitudes there corresponds a fourfold formulation
of what is given: existence, value, meaning, and essence. T h e relation of
these four realms may also be expressed in these terms: Nature and
ideal, and two connections across the gap between them, the never-to-be-
completed bridge of culture and the ever instantaneously accomplished
flight of religion: W o r k and faith.
W e now have to fit the law to these four viewpoints.
Legal Science, Legal Philosophy, Religious Philosophy of the Law.

L a w is a creation of man, and like any human creation it can be under-
stood only by its idea. Just try to define a human creation as simple as,
say, a table, otherwise than by reference to its purpose! For instance:
4 On this passage, cf. MAX BROD, I HEIDENTUM:, CHRISTENTUM, JUDENTUM 64
et seq.
SLASK, LOGIK DER PHILOSOPHIE ( 1 9 1 1 ) 7: "Superexistence."

Authenticated
52 GUSTAV RADBRUCH
a table is a top plate with four legs. Against such a definition, it would
at once be objected that there are tables with three legs or with one leg
and even folding tables without legs so that only the top is essential to a
table. But the top of the table is nothing but boards joined together,
differing from other such boards by absolutely nothing else than their
purpose; which results in a definition of a table as, say, a contrivance on
which to put something for those sitting at it. Thus a view of human
creations that is blind to purposes, that is, to values, is impossible; so,
then, is a value-blind view of the law or of any single legal phenomenon.
A natural science of crime, as striven for by criminal anthropology,
would be possible only if first a natural concept of crime could be sub-
stituted for the concept of crime that is related to a legal value. It would
be a miracle beyond all miracles if a concept formed by relation to
values, such as that of law or that of crime, could be made to coincide
with a natural concept arrived at by a value-blind approach.
Law can be understood only within the framework of the value-
relating attitude. Law is a cultural phenomenon, that is, a fact related
to value. The concept of law can be determined only as something given,
the meaning of which is to realize the idea of law. Law may be unjust
(summum jus — summa injuria b ) ; but it is law only because its mean-
ing is to be just.
The very idea of law, however, which is the constituent principle of,
and also the standard of evaluation for, legal reality, belongs to the
evaluating attitude.
But even this evaluating attitude does not have the last word that
may be spoken about law. There remains the possibility of declaring the
law valuable and yet ultimately, "before God," utterly unessential, as
in the Sermon on the Mount; and, conversely, there remains the pos-
sibility of anchoring the law not only in the realm of values but in the
most absolute essence of things, as in classical antiquity. These attitudes,
however, belong to the value-conquering view.
There emerge, then, three possible views of the law: the value-
relating view, the view of law as a cultural fact, which marks the essence
of legal science; the evaluating view, the view of law as a cultural value,
which characterizes legal philosophy; and the value-conquering view of
the law, the view of its essence or its nonessentiality, which is the task
of a religious philosophy of law.
b
[The utmost law is the utmost wrong.]

Authenticated
LEGAL PHILOSOPHY 53
SECTION 2
L E G A L PHILOSOPHY AS THE E V A L U A T I N G V I E W OF L A W
Man is not born to solve the problems of the world, but rather to search where
the problem begins and then to keep within the limit of what can be understood.
— Goethe to Eckermann
Legal philosophy, then, is the evaluating view of the law, the "theory
of the right l a w " (Stammler). T h e method of this, our evaluating view
of law, is characterized b y two features: methodical dualism and rela-
tivism.
Methodical Dualism. 1. Kantia n philosophy has taught lis that it is

impossible from what is to derive what is valuable, what is right, what
ought to be. Never is anything right merely because it is or because it
was — or even because it will be. T h i s disposes of positivism, which
derives what ought to be from what is; of historism, which derives it
from what was; and even of evolutionism, which derives it from what
is about to be. 1 E v e n if we recognize a certain trend of development w e
do not thereby demonstrate that its goal is right and that "swimming
against the current" is wrong; D o n Quixote was a fool, but a noble fool.
" I love men wanting the impossible!" Statements concerning the Ought,
evaluations, judgments, may not be based inductively on statements
concerning existence, but may only be based deductively on statements
of the same kind. T h e view of values and the view of existence lie side by
side, like distinct closed circles. This is the essence of methodical
dualism. 2
T o be sure, it is just in the field of legal science that the claim is being
made, the right rule should be derived from the "nature of things." T h i s
claim may indeed be supported on certain grounds. T h e legal ideal is an
ideal for the law and, more especially, for the law of a certain time, a
certain people, and certain sociological and historical conditions. T h e
idea applies to a certain material, is oriented toward that material, and
1 T h i s e v o l u t i o n a r y p o i n t of v i e w w a s a d v o c a t e d f o r p u r p o s e s of l e g a l p o l i c y b y
F r a n z v o n L i s z t i n a n article in ( 1 9 0 6 ) 26 ZEITSCHRIFT FÜR DIE GESAMTE STRAF-

RECHTSWISSENSCHAFT 553 et seq., w h i c h w a s m u c h discussed a t t h e t i m e ; f o r a
s u m m a r y of discussions t h e r e o f , see R a d b r u c h in 27 ZEITSCHRIFT FÜR DIE GESAMTE
STRAFRECIITS WISSENSCHAFT 246, 742, and Kantorowicz in 4 ASCHAFFENBURGS
MONATSSCHRIFT FÜR KRIMINAL-PSYCHOLOGIE 7 8 et seq.
" T h e t e r m " m e t h o d i c a l d u a l i s m " as here used is o p p o s e d o n l y to m e t h o d i c a l
m o n i s m ; it includes m e t h o d i c a l t r i a d i s m , w h i c h w i l l be discussed b e l o w , sec. 3
s u b d i v . 9.

Authenticated
54 GUSTAV RADBRUCH
thus it is in turn partly determined by the material which it is to govern.
Just as the artistic idea accommodates itself to the material, differing
according to whether it is to be embodied in bronze or in marble, so
adjustment to the material is innate in any idea. W e call this relation
the "material qualification of the idea," deliberately adopting the double
meaning of the term: qualified by the matter because qualifying for the
matter. 3 T h e material qualification of the idea has been illustrated with
regard to the legal idea by Eugen Huber in his theory of the "realities
of legislation" and also by Frangois Geny in his theory of the given
factors (donnes). 4 N o w one is tempted to identify this material qualifica-
tion of the idea with a preformation of the idea in the material. Indeed,
it is psychologically possible to visualize the idea both in and out of the
material. Thus, Michelangelo may have seen, vision-like, the figure of
D a v i d in mat rough-hewn marble block out of which he delivered it.
T h e same applies where the jurist decides according to the "nature of
the thing." 5 But thus to visualize the idea in the material which it is
intended to form is a lucky case of intuition and not a method of cogni-
tion. For methodical knowledge it remains true that statements concern-
ing the Ought can only be derived deductively from other statements
concerning the Ought and cannot be based inductively on facts of
existence.
However, this nonderivability of the value from reality indicates only
a logical, and b y no means a causal, relationship. (So, incidentally, does
the material qualification of the idea.) Methodical dualism is not in-
tended to imply that evaluations or judgments are not influenced by
existing facts. Doubtless acts of evaluation are the causal result, the
ideological superstructure, of existing facts, for instance, of the social
environment of those who do the evaluating. T h e sociology of knowledge
has taught us how ideologies are determined by their social settings. 6 W e
are here concerned not with the causal relation between existing facts
and value judgments, but rather with the logical relation of existence
and value. W e state, not that evaluations may not be caused by existing
3 C f . L a s k ' s theory of the differentiation of meanings, LOGIK DER PHILOSOPHIE
( 1 9 1 1 ) 57 et seq., 169 et seq., and also R a d b r u c h , Rechtsidee und Recktsstoff (1923-

24) 17 A R C H I V FÜR R E C H T S - U N D WIRTSCHAFTSPHILOSOPHIE 3 4 3 et seq.
' E u g e n H u b e r in ( 1 9 1 4 ) 1 ZEITSCHRIFT FÜR RECHTSPHILOSOPHIE 39 et seq.,
and RECHT TJND RECHTSVERWIRKLICHUNG ( 1 9 2 1 ) 281 et seq.; Frarôis G e n y ,
1 SCIENCE ET TECHNIQUE E N DROIT PRTVE POSITIF ( 1 9 2 2 ) 9 6 et seq., 2 id. (1915) 370
etseq.
5 On the history of the concept of " n a t u r e of the thing," see ISAY, RECHTSNORM
UND ENTSCHEIDUNG (1929) 78 et seq.

" Cf. MANNHEIM, IDEOLOGIE UND UTOPIE (1929); and Wissenssoziologie, in
HANDWÖRTERBUCH DER SOZIOLOGIE (1931).

Authenticated
LEGAL PHILOSOPHY SS
facts, but rather that they may not be logically grounded upon them.
A n entire structure of ethical ideas may have originated from the class
resentment of its founder; yet within the system of his ethics that
resentment has no place, and the systematic reasoning of that ethics is
not refuted merely by unmasking its origin in causes not consistent with
its reasoning. In discussing a theory, the psychological causes of its
origin must not be introduced unless the purpose be to terminate the
discussion, to demonstrate that further discussion is futile because
thoughts are shown to be so tenaciously tied to existence as to preclude
any understanding.
It may be objected that such a view, confined to the ideal content
of evaluations and disregarding their existential basis, is concerned with
the unessential, with "mere ideologies" and not with real and effective
forces; that legal philosophy is but the struggle of political parties,
which is ultimately the struggle of economic interests raised to the level
of the spirit; and that it is therefore a mirage, without essence of reality.
But — as will be shown later in analyzing the Marxian view of history —
if legal philosophy is spiritualized politics, and politics is a spiritualized
class struggle, such spiritualization unchains an autonomy of the spirit
and thus enables the spirit to react upon the forces that are spiritualized.
T h e ideas do not fight the struggle of the interests all over again in the
clouds like the Valkyries above the battlefield; rather, like the Homeric
gods, they descend to the battlefield and fight, powerful forces them-
selves, side by side with the other forces. Granted that, on the one hand,
legal philosophy is the struggle of political parties transferred into the
realm of the spirit; on the other hand, the struggle of political parties in
turn represents a grandiose legal philosophical discussion. All great
political changes were prepared or accompanied b y legal philosophy. In
the beginning there was legal philosophy; at the end, there was revo-
lution.
Relativism. 2. Statements concerning the Ought may be established

or proved only by other statements concerning the Ought. For this very
reason, the ultimate statements concerning the Ought are incapable of
proof, axiomatic. T h e y may not be discerned but only professed. So in
an argument between opposite affirmations of ultimate statements con-
cerning the Ought, between opposite views of values and the world,
there can be no decision of scientific unequivocality. It has been said
that the scientific view of values may indeed teach what one is able to
do and willing to do, but not what one ought to do. More precisely,
science in the field of the Ought can achieve three things:
First, it may establish the means necessary to realize the end that

Authenticated
56 GUSTAV RADBRUCH
ought to be attained. To be sure, we call guidance in the choice of the
right means for a legal end not legal philosophy but legal policy. But
consideration of means as conditioned by a legal end may involve a view
not only from the end toward the means, as in legal policy, but also
conversely from the means back toward the end. That is to say, the
import of the end may be fully clarified only by showing the means
indispensable for its attainment and the incidental effects which they
inevitably entail. Such consideration of the means with a view to clarify-
ing the legal end they are to realize is legal philosophy.
Secondly, it is the task of legal philosophy not only to think a legal
value judgment through down to the remotest means for its realization,
but also to clarify it up to its ultimate presuppositions of world outlook.
Legal philosophy raises the Kantian question: how is this particular
value judgment possible, that is to say, what presuppositions must be
recognized in order consistently to permit this value judgment? Just as
the paleontologist aims to reconstruct the entire skeleton of an ancient
animal out of some bone remains, so the legal philosopher is to develop,
out of a single legal evaluation, the entire system of values implied
therein. However, as the first-mentioned consideration is not one for
the sake of the means, so the present consideration is not one for the
sake of the presuppositions, but rather for the sake of the legal evalua-
tion which they involve. He who evaluates is to be made conscious that in
approving a particular end of the legal Ought he must accept not only
the means connected therewith by causal necessity but also the more
general evaluations involved therein by logical necessity. In both direc-
tions, he is to be given full insight into the bearing of that end.
Thereby, thirdly, it becomes possible systematically to develop the
conceivable ultimate presuppositions and, consequently, all starting
points of legal evaluation. This permits an exhaustive presentation of
the systems of legal evaluation as contrasted and related with one an-
other, and a topical arrangement of the possible legal views within the
framework of a topical arrangement of conceivably possible ways of
world outlook. Thus we may establish, not indeed the system of legal
philosophy, but the complete systematization of its possible systems.
It does not avail to call this method a purely empirical and therefore
not a philosophical procedure. Our method does not stop at the mere
happening of factual legal philosophical evaluations. Rather it examines
their meaning, and not only their subjective, actually intended meaning,
but their objective, signifying meaning. What the evaluating individual
intended by his evaluation is but the starting point of this method. The
aim of its thought is what according to that starting point he should
have intended in causal and logical consistency. Its task is not to register

Authenticated
LEGAL PHILOSOPHY 57
thoughts about legal ends, but to clarify and possibly thereby to correct
them. B y making the individual conscious of the objective meaning of
what he desires, it will either confirm him in his value judgment b y more
profound supporting argument or else conversely shake him by insight
into the distance between the intended and the true meaning. In either
case, it will serve life by knowledge.
T o be sure, relativistic legal philosophy cannot relieve the individual
of choosing between the legal views developed systematically out of the
opposing ultimate presuppositions. It is limited to presenting to him
exhaustively the possibilities of decision, but it leaves his decision itself
to the resoluton he draws from the depth of his personality — b y no
means, then, to his pleasure, but rather to his conscience. It limits itself
in this w a y because in its view the response to the ultimate value
judgments must be ignorabimus,a Even if the response were to be a mere
ignoramus,b it would persist in its method, trusting to have done at least
useful spade work, by its systematic development of the possibilities of
world outlook, preparing the w a y for the genius who one day might be
able to decide between them with scientific exactitude.
T h e method which is here presented is called relativism, 7 because its
task is to determine only whether any value judgment is right in rela-
tion to a particular supreme value judgment, within the framework of
a particular outlook on values and the world, but not whether that value
judgment and that outlook on values and the world are right in and of
themselves. 8 Relativism, however, belongs to theoretical and not to
a [ " W e shall not k n o w . " ]
b [ " W e do not k n o w . " ]
' Or "problematicism," as in WINDELBAND, EINLEITUN G IN DIE P H I L O S O P H IE
(1914) 219.
8 The outstanding representatives of relativism are GEORG JELLINEK, ALLGE-
MEINE STAATSLEHRE (3d ed., 5th printing, 1929); MAX WEBER, GESAMMELTE
AUFSÄTZE ZUR WISSENSCHAFTSLEHRE (1922; cf. MARIANNE WEBER, MAX WEBER
(1926) 328 et seq.); and HANS KELSEN, ALLGEMEINE STAATSLEHRE (1925), 38
et seq., 369 et seq. T h e present a u t h o r has e v o l v e d this f u n d a m e n t a l v i e w of his in
exchanging v i e w s w i t h the m a n to w h o m this b o o k is dedicated [ H e r m a n n
K a n t o r o w i c z ] ; besides m a n y other of his utterances, see KANTOROWICZ, ZUR LEHRE
VOM RICHTIGEN RECHT ( 1 9 0 9 ) . A b o u t , and m o s t l y against, the ideas a d v o c a t e d here,
cf. EMGE, ÜBER DIE GRUNDLAGEN DES RECHTSPHILOSOPHISCHEN RELATIVISMUS
(1916); LEONARD N E L S O N, DIE RECHTSWISSENSCHAFT OHNE RECHT (1917) 123
et seq.; M A X SALOMON, GRUNDLEGUNG DER RECHTSPHILOSOPHIE (2d ed. 1925) 53;
LEONH. COHN, D A S OBJEKTIV RICHTIGE (1919) 96 et seq.; Münch in 1 BEITRÄGE
ZUR PHILOSOPHIE DES DEUTSCHEN IDEALISMUS (ed. b y H o f f m a n n and Engert, 1919)
13S et seq.; Μ. E. MAYER, RECHTSPHILOSOPHIE (1922) 21 et seq., 67 et seq.;
BINDER, P H I L O S O P H IE DES RECHTS (1925) 112 et seq.; LARENZ, RECHTS- UND
STAATSPHILOSOPHIE DER GEGENWART ( 1 9 3 1 ) 66 et seq.; E r n s t v o n H i p p el in 12
ARCHIV DES ÖFFENTLICHEN R E C H T S ( N E U E FOLGE) 408 et seq.; HERRFAHRDT, R E V O -

Authenticated
58 GUSTAV RADBRUCH
practical reason. I t implies a renunciation of the scientific establishment

of ultimate decisions and not a renunciation of the decision itself. 9 Our
relativism is not cognate to Pilate of the Gospel, in whom practical as
well as theoretical reason becomes mute: " W h a t is truth?" It is cognate
rather to Lessing's Nathan, to whom the silence of theoretical reason is
the strongest appeal to practical reason: " M a y each of you vie with the
other then in bringing out the power of the gem in his own ring." For
relativism may be based on different foundations of world outlook. T h e
relativist may forego a decision of his own in presenting ultimate evalu-
ative decisions because he doubts the Tightness of all of them a l i k e - —
that is the skepticism of Pilate. Or he may do so because he firmly
believes in the Tightness of one of them but is unable to demonstrate it
— that is the agnosticism of Nathan. 1 0 Still a third view is possible,
which resembles the agnosticism of N a t h a n in combining relativism
with activism. T h e relativist may also forego his own decision between
conflicting evaluations because he accords equal right to all of them;
that is, to each of them in its exclusive character as a duty of its repre-
sentative; because he believes that what is mutually exclusive to our
minds is compatible, indeed requisite, to a higher mind. This is antinom-
ism, which has once been illustrated in a beautiful statement by Walter
Rathenau: " W e are not composers but musicians. So everyone may play
LUTION UND RECHTSWISSENSCHAFT (1930) 24 et seq.·, MEZGER, SEIN UND SOLLEN IM

RECHT (1920) 4 et seq.; SILBERSCHMIDT in ( 1 9 3 0 - 3 1 ) INTERNATIONALE ZEITSCHRIFT
FÜR THEORIE DES RECHTS 142 et seq.; MANIGK in (1930) JURISTISCHE WOCHEN-
SCHRIFT 236 et seq. ( " t o l e r a b le only as something p r o v i s i o n a l " ) ; G r a f D o h n a in 31
KANTSTUDIEN 8 et seq. ( " t h a t the paths of this relativism . . . never cross those
of the critical t h e o r y of l a w , so t h a t t h e y m a y w e l l run side b y side, as t w o entirely
different v i e w s " ) ; RIEZLER, DAS RECHTSGEFÜHL ( 1 9 2 1 ) 79 ( " I n m y opinion, the
v i e w of the relativity of v a l u e j u d g m e n t s . . . can be effectively f o u g h t only b y
d e m o n s t r a t i n g the v a l i d i t y of a n absolute s t a n d a r d of v a l u e and thus raising a n
absolute legal ideal. Indeed, such a t t e m p t s h a v e been f r e q u e n t l y made, thoug h t h e y
h a v e not s u c c e e d e d " ) ; RÜMELIN, DIE GERECHTIGKEIT (1920) 56, η. 2 ( " T h i s s t a r t -
ing p o i n t of relativism m a y be h a r d l y r e f u t a b l e " ) ; S t a m m l e r , Rechtsphilosophie, in
DAS GESAMTE DEUTSCHE RECHT 19 et seq. ( " T h i s is basically a feeble and miserable
p h i l o s o p h y " ) . — - T h e most illuminating discussion of the p r o b l e m is to be f o u n d in
EDUARD SPRANGER, DER SINN DER VORAUSSETZUNGSLOSIGKEIT IN DEN GEISTESWIS-
SENSCHAFTEN ( 1 9 2 9 ) .
" T h e best proof is the great ethical personality of M a x W e b e r . W h e n M a x
W e b e r rejects, as a gross misunderstanding, the interpretation of his standpoin t as
relativism (MARIANNE WEBER, [ M A X WEBER] 3 3 9 ) , he thinks of t h a t relativism
w h i c h denies not only the possibility of a cognition of values b u t also the belief
in values.
10 Suc h a " m o d e r a t e " relativism is a d v o c a t e d b y ANRATHS, DAS WESEN DER
SOG. FREIEN WISSENSCHAFTLICHEN BERUFE (1930) 200 et seq., w i t h v a l u a b l e conclu -
sions on the professional w o r k of the l a w y e r ; cf. R a d b r u c h in 7 JUSTIZ 52 et seq.

Authenticated
LEGAL PHILOSOPHY 59
his instrument as beautifully as he is able to; he is even permitted varia-
tions, if only all chords sound. All instruments are equally necessary.
None need worry about harmony: that is created by another one." But
relativism may also invoke the great name of Goethe. On January 22,
1811, he wrote to Reinhard, after having read a "comparative history of
the philosophical systems": "In reading this work, I understood again
what is also very explicitly stated by the author: that the different
ways of thought are founded upon the difference of men, and that for
this very reason a general uniform conviction is impossible. Now if one
knows on what side he stands, he has done enough; he then is calm
toward himself and fair toward others." That Goethe's relativism re-
sembles not the skepticism of Pilate but the agnosticism of Nathan is
testified by his beautiful "Gentle Xenion":
If only I could k n o w it, f o r s o o t h!
I ' d gladly w a l k the w a y of the L o r d .
If I were led to the house of truth,
I'd stay there of m y own accord.
SECTION 3
T H E T R E N D S OF L E G A L PHILOSOPHY
Where many contradictions whir,

There I should like it best.
How funny! Each one will contest
The other's right to err. — Goethe
The legal philosophy which rests on methodical dualism and relativ-

ism will now be shown to result from the legal philosophical develop-
ment of the past century. The legal philosophical trends will accordingly
be characterized not by their objective positions but only by their meth-
odological peculiarities.
Natural Law Doctrine. 1. All legal philosophy from its inception to

the beginning of the nineteenth century was a doctrine of natural law.
T o be sure, the term "natural law" embraces fundamentally different
phenomena. The natural law of classical antiquity hinged upon the op-
position of nature and enactment, that of the Middle Ages upon the
opposition of divine and human law, and that of modern times upon the
opposition of legal compulsion and individual reason. Sometimes
natural law serves more profoundly to confirm enacted law; sometimes,
conversely, it aids the fight against enacted law. But in all its forms it is

Authenticated
6o GUSTAV RADBRUCH
marked by four essential characteristics, though these are differently
emphasized at different times: It provides legal value judgments that
are definite in content. These value judgments, according to their source
— nature, revelation, or reason — are of universal validity and un-
changeable. They are susceptible of cognition. Once known, they pre-
vail over conflicting enacted law: natural law is superior to positive law.
The claim of natural law to deduce legal rules of universal validity,
unchangeable and definite in content, cannot be deemed refuted purely
empirically, by the usual reference to the colorful variety of the legal
views of different ages and nations. The theorist of natural law would
justly reject any conclusion as to what ought to be that is drawn from
what is, that "vulgar appeal to ostensibly conflicting experience"
(Kant). In the variety of legal views he would find only the variety of
error as against the single truth of natural law: error multiplex, Veritas
una* The decisive blow against natural law has been struck not by legal
history and comparative law but by epistemology; not by the historical
school, but by critical philosophy; not by Savigny but by Kant. Kant's
critique of reason has shown that reason is not an arsenal of finished
theoretical cognitions, of ethical and aesthetical norms ready to be ap-
plied, but rather the mere power to arrive at such cognitions and norms;
that it is not a complex of answers, but rather one of questions, of points
of view from which what is given is to be approached; of forms which
need to be filled with a given substance, of categories which need to be
applied to a given material, in order to yield statements or judgments
of definite content. Those cognitions or evaluations which are definite
in content are never produced by "pure" reason, but always only by its
application to something definitely given. Therefore, they are never
universally valid but always are valid only for these given data. Conse-
quently, we may indeed grant that there is universal validity in the
question concerning the "natural," that is, the right law; but to any
of the answers to it we may concede validity only for a given state of
society, for a definite time and a definite people. Only the category of
right, just law, but none of its applications, is universally valid. If it is
desired to retain the name, "natural law," for the "right law" that is
characterized only by the unity of the categorial form, it must be con-
trasted with the old-style unchangeable natural law as a "natural law
with changing content" (following Stammler) or, as it has been called,
a "cultural law."
Now if, contrary to the relativistic view, right law were unequivocally
cognizable, whether it be old-style natural law or natural law with
• ["Error is manifold, truth is one."]

Authenticated
LEGAL PHILOSOPHY 6ι
changing content, the conclusion would be inevitable that where it con-
fronts conflicting enactments these must fade away like the exposed
error that is confronted with revealed truth. However much it has been
attempted, no sound reason can be conceived why an enacted law should
retain its validity after being found indubitably unjust. It will be shown
below that the validity of enacted law can be founded only upon the
indiscernibility of the right law. Contrariwise, a representative of the
view that there is an unequivocally cognizable natural law must, to be
consistent, deny the two-dimensionality of the legal world; he must
identify "material" and "formal natural law" (to use Lask's terms), or
the Tightness and the validity of law. He is unable to concede to enacted
law any independent reason for existence besides natural law; he arrives
at a complete absorption of enacted law by the right law, of legal reality
by legal value, of legal science by legal philosophy.
Historical School. 2. The historical school proposes the extreme oppo-

site to the natural law doctrine: the absorption of the right law by
enacted law, of the legal value by legal reality, of legal philosophy by
legal science. This at least is the first impression of the program of the
historical school; it seems as if it rejected all legal evaluation, all legal
philosophy, along with that of natural law, as if it wanted science to
confine itself positivistically to purely empirical examination of histori-
cal legal reality. In fact, it later worked out in this sense. Yet always,
driven by an ineradicable philosophical need, it stealthily readmitted the
evaluating view even where it ostensibly banished it. A more attentive
second glance shows that even the historical school denies, not all evalua-
tion of the law, but only the differentiating evaluation of the several
historical legal phenomena; that it values them all equally highly be-
cause in its view the necessary product of history and of the spirit of
the people appears upon that very ground to be right. Its basic feature
is reverence for all that is and has grown, but also for all that is growing,
piety in respect of all reality. Not unjustly has it been characterized,
not only as quietism, but also as pietism, as a "pietistic trend"
(Thibaut). This would show that the background of the historical
school is a religious philosophy of the law, rather than a value philos-
ophy of the law. But even the differentiating evaluation of the several
legal phenomena could not be avoided permanently by the historical
school. Consistently, it should pronounce all positive law equally right,
since none can be conceived that is not the necessary product of its
historical and national environment — including even the legislative
products of the natural law period. Yet the historical school is led by its
struggle against natural law to pass very definite judgments of worth-

Authenticated
62 GUSTAV RADBRUCH
lessness on natural law, enlightenment, revolution, and the "arbitrari-

ness of the legislator," and equally definite judgments of positive value
on an organic formation of law by the "internal, quietly working
forces," the "national spirit." " H e who is thoroughly convinced of the
organic view of the law and the state will only too easily and gladly
forget that hurricanes and earthquakes are no less part of the regular
course of nature than is the quiet growth of animals or plants." 1 T h e
legal positivism which is blind to values, and the value-conquering reli-
gious philosophy of the law, thus turn imperceptibly into a legal philos-
ophy of romantic color and even a legal policy of conservative direc-
tion. 2 Indeed, Friedrich Julius Stahl, the theorist of conservatism, found
the nucleus of historism not in its "vie w of the factual, how law origi-
nates, but in its view of the ethical, how it ought to originate and what
its contents ought to b e " ; accordingly, he called his own doctrine a
"philosophy of the law from the historic point of view." 3
A s a matter of fact, the gradualness of historical development with-
out any leaps or bounds is a need a priori of historical cognition. A his-
torical event is historically perceived only if it has been demonstrated as
a continuation and not as an interruption of the historical process. N o
matter how defiantly a historical deed may break a w a y from all tradi-
tion in the minds of the doers, as a deed that is done it becomes irrev-
ocably subject to that necessary form of historical scientific thought,
that category of gradualness without breaks. In the subsequent histori-
cal view, even the most arbitrary Will is inevitably revealed as a M u s t ,
that necessarily originated in long ripened conditions, just as the boldest
conquest of gravity, the proudest triumph of the pilot, still remains in-
escapably enclosed in this world with its gravity. Y e t the historical
view may claim to be applied only to the subsequent consideration of
the deed that is done; applied as a norm to an active human being, the
demand that one regard oneself in creative politics as being bound b y
history brings history itself to a standstill. T h e error of all historism,
then, rests on elevating a category of historical cognition to a norm of
political action.
Hegel. 3. A t first glance, a close relation seems to exist between the

methodical monism of the historical school, which claims to know reality
1 ANTON MENOER, D A S BÜRGERLICHE R E C H T UND DIE BESITZLOSEN VOLKSKLASSE N

(4th ed. 1903) 13.
2 Cf. ROTHACKER , E I N L E I T U NG IN DIE GEISTESWISSENSCHAFTEN (2d ed. 1930)
6 0 et seq.·, Z W I L G M E Y E R , D I E RECHTSLEHRE SAVIGNYS ( 1 9 2 9 ) 3 2 et seq.
3 L a t e writings most characteristic of the p r o g r a m of the historical school are
J . J . BACHOFEN, SELBSTBIOGRAPHIE a n d ANTRITTSREDE ( r e p r i n t , 1927).

Authenticated
LEGAL PHILOSOPHY 63
alone, and the Hegelian philosophy of law with its famous motto of all
philosophy of identity: " A l l that is rational is real; and all that is real
is rational." In fact, Hegel shares the historical school's antagonism to
natural law. Unlike the doctrine of natural law, his philosophy does not
oppose individual legal reason to legal reality, but rather finds rational
law in historical legal reality. 4 " A l l that is rational is real." Despite this
common antagonism, however, his profound opposition to the historical
school is unmistakable. Whereas the historical school bases the identifi-
cation of reality and value on the belief in God's inscrutable counsels
which pervade history, Hegel rests it on the dialectical construction that
traces reason unfolding itself in the historical process: " A l l that is real
is rational." Reason stands against the national spirit, rationalism
against irrational romanticism. This objective opposition was reflected
in sharp personal arguments between the Hegelians and the historical
school. Hegel called Savigny's hostility to codification "one of the great-
est insults that could be offered to a nation or to that profession" (viz.,
the legal profession). From the opposite side, Hegel's theory was called
the "hostile power" (Stahl), nay, a "frivolous philosophy" ( P u c h t a ) .
There, the potentialities of radical developments inherent in Hegelianism
were clearly felt. 5
Marx-Engels: Materialistic View of History. 4. Those developments

were of greatest consequence in the "materialistic view of history,"
which was established by K a r l M a r x and Friedrich Engels. 6 Hegel iden-
tified Is and Ought, but in regarding reality as reason unfolding itself
he regarded the Ought as the determining and the Is as the determined
aspects of that unity. Historical materialism, on the other hand, re-
tained the identification of Ought and Is but regarded the Ought, or
what K a r l M a r x calls consciousness, as determined by existence.
" T h e r e b y , Hegelian dialectic was turned upside down or rather, since
it stood on its head, downside down, and on its feet" (Friedrich Engels).
4 In this sense, LASSALLE, I SYSTEM DER ERWORBENEN RECHTE ( 1 8 6 1) 70, says:
" N a t u r a l l a w itself is historical l a w . "
5 T h e last system of legal philosophy in the spirit of Hegel w a s published by
Adolf Lasson in 1882. T h e so-called Neo-Hegelianis m of KOHLER, LEHRBUCH DER
RECHTSPHILOSOPHIE (3d ed. 1923) and BEROLZHEIMER, SYSTEM DER RECHTS- UND
WIRTSCHAFTSPHILOSOPHIE (5 vols., 1904 et seq.), on the contrary, has little to do
with Hegel. Hegelianism w i t h o u t dialectics is no Hegelianism.
" W r i t i n g s in w h i c h historical materialism is applied to and tested b y historical
experience are more important than the immense literature about historical materi-
alism. A s to the l a w , cf. KARL RENNER, DIE RECHTSINSTITUTE DES PRIVATRECHTS
UND IHRE SOZLALE FUNKTION (1929) and E. PASCHUKANIS, ALLGEMEINE
RECHTSLEHRE UND MARXISMUS ( 1 9 2 7 ) .

Authenticated
64 GUSTAV RADBRUC H
The economic view of history involves a twofold doctrine: on the one
hand, a doctrine of ideology, and on the other hand, a doctrine of
necessity. On the one hand, it submits a historical hypothesis: "that the
economic structure of society in each case forms the real foundation
upon which the entire superstructure of legal and political institutions
and of religious, philosophical and other views of any historical period
is to be ultimately explained." On the other hand, it contains a political
prognosis: that the economic development of natural necessity will lead
to a socialist economic and, consequently, legal order. In this historical-
causal and not merely teleological foundation of socialism, its foundation
not upon its desirability but upon its future necessity, historical ma-
terialism finds the transformation of socialism "from Utopia to science."
It seems as if the first of these two propositions turns legal philosophy
into a dependent part of social philosophy and the second turns social
philosophy itself into an empirical social science.
But both propositions need to be limited. On the one hand, in the
course of later elaboration or clarification of historical materialism, the
autonomy of ideology, including the sphere of law, has been restored.
Karl Marx himself calls the ideal "the material as transformed and
translated in human brains," without however specifying the form
which the material assumes in human brains. And Friedrich Engels later
says both of them had "neglected the formal while considering the sub-
stantive aspect." 7
An example may serve to illustrate the conversion of the material
when "transformed and translated" into the ideal. The demand for civil
liberty and its fulfillment originated in the interest and the power of
the ascendant bourgeoisie. But the liberty which it intended was not
only liberty for itself but liberty for all — for the very reason that it
demanded that liberty as its right. Legal right essentially involves the
claim of justice; justice, again, demands generality of the law and
equality before the law. T o claim something as of right thus implies that
one concede to the other what one claims for himself. Because the
bourgeoisie claimed liberty as of right, that liberty became liberty for
all and could result also in freedom of organization for the struggling
proletariat and thus could turn into an instrument of combat against
the very bourgeoisie in the interest of which it had had its origin.
This example shows two things. First, the "transformation and trans-
lation" of economic interests and powers into the cultural form of the
law unchains an autonomy of the law which cuts loose more and more
from the dominion of economic interest. Second, this autonomously un-
7 Letter to Mehring of July 14, 1893.

Authenticated
LEGAL PHILOSOPHY 65
folding law is able in turn to react on the very relationship of economic
power from which it originated, so that economic basis and legal ideo-
logical superstructure affect each other mutually. 8
On the other hand, with the independence of legal philosophy within
the social sciences thus restored, criticism has also been directed against
the identification of social philosophy and social science, of Is and
Ought, of an inescapable trend and a desirable goal of development. N o
doubt the overwhelming propagandist weight of the Communist Mani-
festo rests precisely on this, that its authors, unlike their Utopian
predecessors, based socialism not on well intended but impotent human-
itarian grounds, but on the firm foundation of a probable and irrefu-
table calculation, proposed with conquering intellectual self-confidence,
and depicted as an irresistible fate which discourages any resistance
and lends wings to every hope. Y e t there is no doubt either that the
doctrine of the future necessity of socialism is able to confirm socialist
convictions but unable to establish them in the first place. In truth, the
socialist advocates socialism not because he knows its coming is inevi-
table but because he feels the present state of society is wrong, an
"exploitation" or "oppression," while the socialist state of society is
demanded by justice. In truth, socialism is not only a prognosis but
also a battle-cry, not only a prophecy but also a program, not fatalism
but policy. Since socialism is no longer condemned to wait but is called
upon to act, this activistic insight more and more enters into its theory.
Consciously or unconsciously, the empirical-causal view of historical
materialism strives for its complement in a teleological social and legal
philosophy of socialism. 9
General Theory of Law. 5. Thus, in historism, in Hegelianism, and in

materialism, the flame of philosophy burst through the positivism
which threatened to quench it; the evaluating view burst through the
view of existence. T h e n the flame was really extinguished: we enter the
decades of legal positivism. N o longer do people search for the legal
value in legal reality; they rather pronounce any evaluating view of the
law unscientific and deliberately confine themselves to the empirical in-
vestigation of the law. Legal philosophy is replaced b y the general
theory of law, the top story, only now completed, of positive legal
8 Cf. Friedrich Engels' letter to Conrad Schmidt of October 27, 1890, which
happens to refer to the law for exemplification; also Radbruch, Klassenrecht und
Rechtsidee (1929) Ι ZEITSCHRIFT FÜR SOZIALES R E C H T 7 5 et seq.
The outstanding example of this trend of thought is HENDRIK DE MAN,
9
PSYCHOLOGIE DES SOZIALISMUS (1926); cf. Radbruch, Überwindung des Marxis-

mus? (1926) GESELLSCHAFT II 368 et seq.

Authenticated
66 GUSTAV RADBRUCH
science. Its task is to examine the most general legal concepts common
to several legal disciplines, possibly also to rise above the national legal
order and compare cognate legal concepts of diverse legal orders, and
even to go beyond the field of law and to investigate its relations to
other cultural fields.10
T h i s purely empiristic general theory of law would deserve mention
here only as the euthanasia of legal philosophy were it not for the in-
eradicable philosophical impulse that does penetrate it almost against
its will.
T o a large extent, the legal concepts developed b y that theory are
not merely shown inductively to be common to all given legal orders;
they are concepts that may be discerned a priori to be valid for a n y
conceivable legal order. It will be brought out later that concepts such
as legal subject and legal object, legal relation and legal wrong, and
indeed the very concept of the law itself, are not accidental possessions
of several or all legal orders but are necessary prerequisites if any legal
order is to be understood at all as legal. Such concepts are no longer
parts of an empirical general theory of law but rather belong to a philos-
ophy of positive law — though, to be sure, of positive law only. Once
gathered from a critical analysis of positive law, they can never escape
the magic circle of positive law nor lead to an evaluation of positive
law. T o be sure, they too belong to an evaluating view, the subject of
which, however, is not the law but rather the cognition of the law. T h e
question which they answer is not, when is a law right, but rather, how
may a law be correctly discerned. T h e y belong to juridical epistemol-
ogy, to theoretical philosophy, and not to legal philosophy as a branch
of practical philosophy.
Jhering. 6. T h e general theory of law would be inconceivable without

Rudolf von Jhering. He, however, transcends positivism too definitely
to be appraised within its framework. In his mind, all motifs of thought
so far discussed were gathered and joined in that argumentation out of
which arose the renascence of legal philosophy and the revision of juridi-
cal method which we have experienced.
Jhering completed and conquered the program of the historical
school. His genius completed it by showing, in the "Spirit of the Roman
L a w , " b the connection of the law with the national spirit, which the
historical school laid down as a program but never undertook to demon-
10 The program of the general theory of law was devised by KARL BERGBOHM,
JURISPRUDENZ UND RECHTSPHILOSOPHIE (1892). Its principal representatives were

Ernst Rudolf Bierling, Adolf Merkl, and Karl Binding.
b [The reference here is to Jhering's book, DER GEIST DES RÖMISCHEN RECHTS.]

Authenticated
LEGAL PHILOSOPHY 67
strate specifically. B u t he also conquered it, by finding that the pur-
poseful will rather than the dim urge is the force that carries on the
development of the law. "Purpose is the creator of the entire l a w , " and
"Fighting thou shalt find thy right" — those are the leitmotifs of his
works, "Purpose in the L a w " and " T h e Fight for the R i g h t . " c T o the
irrationalism of the historical school he again opposes rationalism. B u t
unlike Hegel he establishes rationalism in the very field of the historical
school: not as " a logical dialectics of conception" but rather as "the
practically compelling dialectics of purpose"; not as a philosophical but
rather as a historical-sociological doctrine. For, at least in his way of
presentation, Jhering did not y e t conquer empirism. Quite characteris-
tically, he called purpose the "creator" of law. W h a t he referred to is
not the transempirical idea of purpose, which possibly may be quite in-
effective in the factual development of the law yet is to provide the
standard for appraising it. Rather it is the empirical event of the state-
ment of a purpose by men. Purpose in this sense is not the opposite, but
a subdivision, of cause: the purposive cause, causa finalis. He, too,
resting upon the foundation of methodical monism, knows but one
scientific approach: the causal one. T h e teleological approach as he
understands it is nothing but the causal view applied especially to the
causation of human action. Sometimes, though, it would seem as if
Jhering semi-consciously used that fictional approach, made familiar to
legal philosophy b y the theory of the social contract, in which the
ground of justification is spoken of figuratively as a cause of origin. Thus,
where he talks of the causal relation of a legal institution to the empiri-
cal act of stating a purpose, he would seem to have meant its teleological
relation to the trans-empirical idea of that purpose. Under the guise of
the sociologist, he would seem to be in truth a legal philosopher. B e
that as it may, Jhering needed to take but one step to progress from
sociology to legal philosophy. Once he viewed himself not only as the
contemplative spectator of strangers stating purposes but as an actor
in the development of the law who himself states purposes, he would
have had to face not the factual statement of the purpose but the de-
manding purpose itself and to see empirical legal reality confronted
with a normative legal standard. He would then have had to perceive
the dualism of the views of legal reality and legal value, and finally to
conquer the utilitarianism of partial purpose statements in an ultimate
absolute idea of purpose. He took this step when, in " F u n and Ear-
0 [ T h e reference here is to Jhering's w o r k s , DER ZWECK IM RECHT (1877-
1883), partly translated as THE LAW AS A MEANS TO AN END ( M o d e r n L e g a l P h i -
l o s o p h y Series, 1 5 1 3 ) , and DER KAMPF UMS RECHT ( 1 8 7 2 ) , translated as THE
STRUGGLE FOR LAW ( 1 8 7 9 ; 2d ed. 1 9 1 5 ) . ]

Authenticated
68 GUSTAV RADBRUCH
nest," d he confronted the constructions of "conceptual jurisprudence"

with the teleological formation of concepts, thus recognizing the lawyer
as a creative collaborator in the development of the law; and the con-
tinuation of the work on "Purpose in the L a w " would surely have ar-
rived at the necessary conclusion of methodical dualism if death had
not taken the pen from the author's hand.
Thus, Jhering leads from the irrationalism of Savigny through the
rationalism of Hegel close to the conquest of that methodical monism
which those two have in common.
Stammler. 7. T h e reestablishment of legal philosophy, the restoration

of an independent view of legal value beside the investigation of legal
reality, based on the methodical dualism of Kantian philosophy, was
the great work of Rudolf Stammler. 1 1 T o be sure, Stammler posed
rather than solved the problem of legal philosophy. W i t h tenacious per-
severance and unafraid to repeat the same discussions over and over
again, he well-nigh hammered two ideas into the legal philosophical
consciousness of his time: that beside the investigation of positive law
there must be developed, in full independence, the "theory of the right
l a w , " but also that this theory of the right law represents only a method
and not a system of legal philosophy. T h e theory of the right law will
not and cannot develop a single legal rule that could be proved right as
of universal validity. It buys the universal validity of its concepts at the
price of their purely formal character. Thus, it is less a legal philosophy
than a logic of legal philosophy, and epistemology of the view of legal
values, a critique of legal reason. It is an extremely valuable entrance
wing to any legal philosophy but not the main structure itself. 1 2
d [The book here referred to is his SCHERZ UND ERNST IN DER JURISPRUDENZ
(1884).]
"WIRTSCHAFT UND R E C H T (5th ed. 1924); L E H R E VOM RICHTIGEN R E C H T (2d
ed. 1926); THEORIE DER RECHTSWISSENSCHAFT (2d ed. 1923); LEHRBUCH DER
RECHTSPHILOSOPHIE (3d ed. 1928); Rechtsphilosophie, in D A S GESAMTE DEUTSCHE
RECHT (ed. by Stammler, 1931); RECHTSPHILOSOPHISCHE ABHANDLUNGEN UND
VORTRÄGE ( 1 9 2 5 ) . T h e f o l l o w i n g m a y be selected f r o m the comprehensive critical
literature about Stammler: MAX WEBER, GESAMMELTE AUFSÄTZE ZUR WISSEN-
SCHAFTSLEHRE (1922) 291 et seq., 556 et seq.; Μ . E. M a y e r in (1905) KRITISCHE
VIERTELJAHRSSCHRIFT FÜR GESETZGEBUNG UND RECHTSWISSENSCHAFT 178 et seq.;
BINDER, RECHTSBEGRIFF UND RECHTSIDEE (1915); ERICH KAUFMANN, KRITIK DER
NEUKANTISCHEN RECHTSPHILOSOPHIE ( 1 9 2 1 ) II et seq. I n accor d w i t h S t a m m l e r :
in particular, G r a f D o h n a in 31 KANTSTUDIEN I et seq. I adhere to e v e r y w o r d of
recognition a n d reservation in the fine appraisal of S t a m m l e r b y SOMLÖ, JURIS-
TISCHE GRUNDLEHRE (1917) 45, η. 2.
12 MAX SALOMON, GRUNDLEGUNG DER RECHTSPHILOSOPHIE (2d ed. 1925) and
C. A. EMGE, VORSCHULE DER RECHTSPHILOSOPHIE (1925), GESCHICHTE DER
RECHTSPHILOSOPHIE (1931) may be mentioned here as having started, like

Authenticated
LEGAL PHILOSOPHY 69
Relativism. 8. Here begin the endeavors of those who cannot forget
that legal philosophy in its great ages always had the task of serving
life by setting up or clearing the goal of great political movements, and
who therefore want to lead legal philosophy out of the charmed circle of
incessant inquiry into its own method, to a system replete with definite
value judgments. T o be sure, no legal philosophy can steal away from
the insight, established by K a n t and reaffirmed b y Stammler, that only
what is of formal character is subject to universally valid cognition. If
legal philosophy is to be directed toward a system and not merely a
method, it cannot but renounce the universal validity of the system. On
the other hand, if it is not to stop with the arbitrariness of a particular
system, it is left with no choice but to develop a system of systems with-
out deciding between them. This, then, is the task of legal philosophical
relativism. M a n ' s urge toward knowledge will attempt again and again
to break through this relativistic self-limitation; the most recent past,
too, has produced quite a number of such attempts. Relativism wel-
comes every such attempt as a clarification of a particular legal philo-
sophical decision, as the deeply personal illustration of one among the
systematic possibilities, without which indeed a relativistic legal philos-
ophy would have to remain a realm of shadows, colorless and shapeless.
B u t relativism cannot help rejecting the pretended universal validity of
any such attempt and demonstrating its ties to very definite basic as-
sumptions of world outlook.
Cultural Philosophy. 9. B u t there is still another direction in which

legal philosophical development has pressed on beyond the narrow
framework of Stammler's legal philosophy. Stammler thinks that the
law and the idea of law must be strictly distinguished and the concept
of law may be derived without any reference to the idea of law. A s we
have seen above (§ 1 ) , no work of man can be understood without refer-
ence to an idea, not even a table, far less the law. T h e concept of law
can be defined only as the reality tending toward the idea of law. B u t
back of this view of the concept of law, there is the basic assumption
that, contrary to Stammler's doctrine, the mere antithesis of Is and
Stammler, f r o m the M a r b u r g N e o - K a n t i a n school of C o h e n and N a t o r p . A c c o r d i n g

to Salomon, legal science is "legal problematics," a demonstration of legal problems,
w i t h positive l a w constituting b u t a complex of definite possibilities of solutions.
These problems are the subject of mere legal technology, while legal philosophy is
the t h e o r y of the idea of l a w as the preliminary question of legal problematics.
E m g e sees the subject of legal philosophy in the logical premises to which legal
science owes its peculiar character.

Authenticated
70 GUSTAV RADBRUCH
Ought, of reality and value, is not enough; that between the statement
of reality and the appraisal of values a place must be saved for the rela-
tion to values, that is, between nature and ideal, a place for culture.
The idea of law is value, but the law is a reality related to value, a cul-
tural phenomenon. This marks the transition from a dualism to a triad-
ism e of approaches (disregarding here the fourth, that is, the religious
approach). That triadism turns legal philosophy into a cultural philos-
ophy of the law. 13
Other Trends in the Legal Philosophy of the Present. 10. A legal

philosophy, based on methodical triadism and relativism, we regard as
the result of the course of development of legal philosophy as heretofore
described. Beside it, however, the previous stages of that development
are at present also holding their ground. 14 The theory of natural law
has survived, and indeed acquired new vigor. 15 Imposing in its consist-
ency and imperturbability, the natural law of the Middle Ages, in the
form of Catholic legal philosophy, still towers over the present age. 16
And the rational law of enlightenment has been resurrected in a system,
based on Kant and Fries, which impresses by its unshaken belief in
reason. 17 Another courageously unseasonable follower of the tradition
* [ T h e author's term is Trialismus, corresponding to Dualismus.']

" T h i s trend of legal p h i l o s o p h y w a s established b y E m i l L a s k (supra, sec. ι
Η. I ) a n d is r e p r e s e n t e d b y MAX ERNST MAYER, RECHTSPHILOSOPHIE (1922);
W I L H E L M SAUER, L E H R B U C H DER R E C H T S - UND SOZIALPHILOSOPHIE (1929), GRUND-
LAGEN DER GESELLSCHAFT (1924); TSATSOS, DER BEGRIFF DES POSITIVEN RECHTS
(1928); R A V A , C O M P I T I DELLA FILOSOFIA DI FRONTE AL DIRITTO (1907), INTRODU-
ZIONE ALLA FILOSOFIA DEL DIRITTO (1919). C f . ANGERTHAL, UNTERSUCHUNGEN ZUR
KULTURIDEE IN DER NEUEREN RECHTSPHILOSOPHIE ( T h e s i s , K ö n i g s b e r g , 1 9 2 9 ) , b u t
also t h e sharp criticism b y Kelsen in ( 1 9 1 6 ) 40 SCHMOLLERS JAHRBUCH 1180 et seq.
T r i a d i s m a n d relativism are combined, as in this b o o k , b y K a n t o r o w i c z ; cf. his
RECHTSWISSENSCHAFT UND SOZIOLOGIE ( 1 9 1 1 ) 2 1 et seq., a n d his Staatsaufassungen
(1925) Ι J A H R B U C H FÜR SOZIOLOGIE I O I et seq.
" C f . LARENZ, RECHTS- UND STAATSPHILOSOPHIE DER GEGENWART (1931);
RECASENS SICHES, DIRECCIONES CONTEMPORÄNEAS DEL PENSAMIENTO JURIDICO
( B a r c e l o n a - B u e n o s Aires, 1 9 2 9 ) .
15 GRIESS, NATURRECHTLICHE STRÖMUNGEN DER GEGENWART (Thesis, Freiburg,
1 9 2 6 ) ; Jus naturae et gentium, eine Umfrage ( 1 9 2 5 ) 34 ZEITSCHRIFT FÜR INTERNA-
TIONALES R E C H T 1 1 3 e t seq.
16 F o r example, c f . CATHREIN, RECHT, NATURRECHT UND POSITIVES RECHT (2d
ed. 1909); VON HERTLING, RECHT, STAAT UND GESELLSCHAFT (4th ed. 1917);
MAUSBACH, NATURRECHT UND VÖLKERRECHT (1918); HÖLSCHER, SITTLICHE
RECHTSLEHRE (2 vols. 1 9 2 8 ) .
17 LEONARD N E L S O N , S Y S T E M DER PHILOSOPHISCHEN RECHTSLEHRE UND POLITIK
(1929) 85 ("Justic e is l a w " ) . C f . m y review in ( 1 9 2 5 ) JURISTISCHE WOCHEN-
SCHRIFT I, 1 2 5 2 - 1 2 5 3 .

Authenticated
LEGAL PHILOSOPHY 71
of enlightenment founds the "eudemonistic principle" he advocates

upon an "intuition resting on the broadest possible empirics," upon a
metaphysics on an empirical basis. 1 8 Again, the much discussed Hegel-
ian renaissance has spread its powerful influence, with one Hegelian
even turning away from the point of Kantia n criticism which he
had previously accepted. 1 9 However, Hegel's philosophical adversary,
Schopenhauer, has also been rediscovered recently for legal philos-
ophy. 2 0 On the other hand, the general theory of law has found a
remarkable presentation, in the changed form of a "juridical basic
theory." 2 1 This theory makes a distinction between the merely general
juridical concepts, which are of universal empirical validity, and those
basic juridical concepts which are presuppositions of any conceivable legal
science. Another legal philosophy of positive law, if legal philosophy
at all, is to be found in the so-called pure theory of law, 2 2 a pecu-
liar combination of positivism with its seeming opposite, the "norm-
logical" theory of the Ought. In its inexorable unmasking of all hyposta-
ses and fictions, it seems to take up the challenge of an original phi-
losopher of the school of Ludwig Feuerbach: 2 3 that as the "high police
of knowledge" it should "destroy" all "legal phantasms," and finally
"annihilate itself." From the pure theory of law, connections are more
and more frequently established with the phenomenological investiga-
tion of the law. 2 4 Phenomenological "observation of the essential," di-
rected toward the "nature of the thing," need not involve a value judg-
ment: T h e determinations of the Ought which are made b y positive
law may with good reason deviate from the laws of existence ascertained
by phenomenology. 2 5 So the problem of a phenomenology of the law
would appear to be one different from that of value philosophy of the
"ARTHU R BAUMGARTEN, RECHTSPHILOSOPHIE ( 1 9 2 9 ) , DIE WISSENSCHAFT VOM

RECHTE UND IHRE METHODE (2 vols. 1920, 1922).
19 JULIUS BINDER, PHILOSOPHIE DES RECHTS (1925) 67: I n Hegel " w e find w h a t
w e h a v e looked for in v a i n in K a n t : the reality of ideas in the empirical w o r l d , and

history as the process of the appearance of the idea in reality." His previous b o o k ,
RECHTSBEGRIFF UND RECHTSIDEE ( 1 9 1 5 ) , h o w e v e r , h a d aligned Binder w i t h the
trend characterized supra, n. 8.
20 GEORG STOCK, RECHTSPHILOSOPHIE ( 1 9 3 1 ) .
21 SOMLO, JURISTISCHE GRUNDLEHRE ( 1 9 1 7 , 2d ed. 1 9 2 7 ) .
22 Introduced b y H a n s Kelsen in his b o o k HAUPTPROBLEME DER STAATSRECHTS-
LEHRE ( 1 9 1 1 , 2d ed. 1923), and since represented in numerous writings b y Kelsen

and his disciples.
23 LUDWIG KNAPP, SYSTEM DER RECHTSPHILOSOPHIE (1857).
24 First represented b y ADOLF REINACH, DIE APRIORISCHEN GRUNDLAGEN DES
BÜRGERLICHEN RECHTES ( 1 9 1 3 ) , w h o w a s f o l l o w e d b y Felix K a u f m a n n , Fritz
Schreier, Gerhart Husserl, and Wilhel m Schapp.
25 T h u s at least REINACH, op. cit. 133.

Authenticated
72 GUSTAV RADBRUCH
law. 2 6 Finally, too, the cry for the Leader [Führer] has found its echo
in legal philosophy: a "pragmatic legal theory" is founded on the "basic
conception of leadership"; it is concerned less with the idea than with
the person who will creatively produce the idea out of "the inner experi-
ence of necessity." 27 N o mention in detail can here be made of foreign
legal philosophy, especially the highly developed Italian and French
legal philosophy. 28
There are as many languages as there are voices, hardly understand-
able to one another any more; there is much keen shrewdness; but rare
are the playful side lights of refined wit or the terrifying and blessing
flashes of melancholy wisdom, and rarest is the seal of classical sim-
plicity which plainly proves itself.
SECTION 4
THE CONCEPT OF LAW
He who shies away from the idea finally does not even have the concept. — Goethe
The question of the concept of law seems at first glance to belong to

legal science and not to legal philosophy. Indeed, legal science has again
and again attempted to get the concept of law inductively out of the
various legal phenomena; and there can be no doubt as a matter of
principle that it is possible by comparing the various legal phenomena
to get the general concept underlying all of them. However, in such a
manner we may only get the concept of law, but we cannot reason it out.
General concepts, as many as one pleases, may be derived from experi-
ence, such as, all men with a certain initial or with a certain date of
birth. But the generality of such concepts, in relation to a larger or
smaller circle of individual facts, does not guarantee their value. T h a t
they are not accidental but necessary general concepts, that is, efficient
and fruitful ones, can never be shown by way of generalizing induction.
" O t h e r questions than those of legal philosophy are also answered b y Ernst
Weigelin in his investigations of the "ethics of reality," EINFÜHRUNG IN DIE MORAL-
UND RECHTSPHILOSOPHIE ( 1 9 2 7 ) .
^WILHELM GLUNGLER, PROLEGOMENA ZUR RECHTSPOLITIK (2 vols. 1931), and
others.
28 E . g . , c f . GIORGIO D E L V E C C H I O , LEZIONI DI FILOSOFIA DEL DIRITTO (1930), and
in France the recently established ARCHIVES DE PHILOSOPHIE DU DROIT ET DE
SOCIOLOGIE JURIDIQUE.

Authenticated
LEGAL PHILOSOPHY 73
T h a t the concept of law is such a necessary general concept is to be
demonstrated now, b y the manner in which it is derived.
Law: The Reality Directed Toward the Idea of Law. T h e concept of

law is a cultural concept, that is, a concept of a reality related to
values, a reality the meaning of which is to serve a value. L a w is the
reality the meaning of which is to serve the legal value, the idea of law.
T h e concept of law thus is oriented toward the idea of law. 1
N o w the idea of law can be none other than justice. Est autern jus a
justitia, sicut a matre sua, ergo prius fuit justitia quant jus* reads the
gloss on r . i pr. Dig. ι , i . But we are also justified in stopping at justice
as an ultimate point of departure, for the just, like the good, the true, or
the beautiful, is an absolute value, that is, a value that cannot be
derived from any other value. 2
Justice As the Idea of Law. One might be tempted to regard justice

merely as a form in which the moral good appears. Indeed, this is correct
if justice is regarded as a quality of man, a virtue, as in Ulpian's words:
constans ac perpetua voluntas jus suunt cuique tribuendi."h Y e t such
justice in a subjective sense cannot be defined but as the sentiment
directed toward objective justice, in the w a y in which veracity, for
instance, is directed toward truth. Objective justice alone is in question
here. But the object evaluated b y objective justice is quite different from
the object toward which the moral value judgment is directed. Always,
what is morally good is but a human being: a human will, a human
sentiment, a human character. Even social ethics evaluates man, in his
relations with other men to be sure, yet it does not evaluate those rela-
tions themselves. B u t just, in the sense of objective justice, can be only
a relation between human beings. T h e ideal of the moral good is repre-
sented b y an ideal human being; the ideal of justice is represented b y an
ideal social order.
1 Accord: BINDER, RECHTSBEGRIFF UND RECHTSIDEE (1915) 60 ("Everything
w h e r e i n the a priori n o r m of l a w , or the idea of l a w , f u n c t i o n s is l a w " ) ; GURVITCH,
L'IDEE DU DROIT SOCIAL (1931) 96: "The notion of law is . . . essentially linked
to the idea of justice. T h e l a w is a l w a y s a n a t t e m p t w i t h a v i e w to realizing
j u s t i c e " ; also DEL VECCHIO, FILOSOFIA DEL DIRITTO (1930) 158: " T h e logical f o r m (of
the l a w ) does not at all tell us w h a t is the sense of an affirmation of the just or un-
just; it is, in short, the t o k e n of j u r i d i c a l i t y . " A g a i n s t the v i e w presented here:
SOMLO, JURISTISCHE GRUNDLEHRE (1917) 131 et seq.
' [ B u t l a w issues f r o m justice as f r o m its m o t h e r, as it were, so there has been
justice prior t o l a w . ]
2 O n the concept of justice, see MAX RÜMELIN, DIE GERECHTIGKEIT (1920);
D E L VECCHIO, L A GIUSTIZIA (2d ed. 1924).
b [ T h e constant a n d perpetual w i l l to allot to e v e r y o n e his right.]

Authenticated
74 GUSTAV R A D B R U C H
From another point of view, too, justice is of two kinds. We may call
"just" either the application or observance of a law, or that law itself.
The former kind of justice, especially the justice of the judge true to the
law, might better be called righteousness. Here, at any rate, we are
concerned not with that justice which is measured by positive law, but
rather with that by which positive law is measured.
Justice in this sense means equality. But equality itself admits of
different significations. On the one hand, as regards its object, it may be
related to goods or to men: the wage that corresponds to the value of the
work is just, but so, too, is the punishment that is meted out to one
man and the other alike. On the other hand, as regards its standard,
equality may be absolute or relative: the wage equal to the work, as
against the punishment of several men proportionate to their guilt.
Both distinctions are combined in Aristotle's famous doctrine of
justice. Absolute equality between goods, e.g., between work and wage,
or between damage and compensation, is called by him "commutative"
justice. Relative equality in treating different persons, e.g., taxation ac-
cording to ability to bear the tax, or relief according to need, or reward
and punishment according to merit and guilt, is the essence of "dis-
tributive" justice. Commutative justice requires at least two persons,
while distributive justice requires at least three. The two persons in the
former case confront each other as co-equals; but of the three or more
persons in the latter case one, who imposes burdens upon or grants
advantages to the others, is superior to them. Commutative justice
is justice in the relation of coordination; distributive justice is to
prevail in the relation of super- and subordination. Commutative
justice is the justice of private law; distributive justice is the justice
of public law.
This is sufficient to clarify the mutual relation between the two kinds
of justice. Commutative justice is justice between persons co-equal as to
their rights. Therefore, it presupposes an act of distributive justice which
has granted to those concerned equality of rights, equal capacity to act,
equal status. 3 Distributive justice, then, is the prototype of justice. 4 In it
we have found the idea of justice, toward which the concept of law must
be oriented. This is not to say that law could be explained exhaustively
3 S o , t o o , E M G E , G E S C H I C H T E DER R E C H T S P H I L O S O P H I E ( 1 9 3 1 ) 3 4 et seq.
1 Moreover, unlike distributive justice, commutative justice is meant to represent
not an absolute value at all but only a process of expediency which serves the
highest possible simultaneous fulfillment of two egoisms. Cf. PASCHUKANIS, ALLGE-
MEINE RECHTSLEHRE UND MARXISMUS 143-144, but on the other hand also the fine
paper by Ernst Marcus in (1923) 2 MOSLEMISCHE REVUE 13 et seq., describing
equivalence as the common root of the laws of nature, juridical laws, and moral
laws.

Authenticated
LEGAL PHILOSOPHY 75
by founding it upon justice. On the one hand, the principle of dis-
tributive justice does not say who is to be treated as equal and who as
unequal; rather it presupposes that, from a viewpoint which it does not
of itself provide, equality or inequality has already been established.
Equality, indeed, is not something that is given; things and men are as
unequal "as one egg is to another." Alway s equality is but an abstraction,
from a certain point of view, of a given inequality. On the other hand,
from the idea of distributive justice we may gather only the relation
and not the kind of the treatment of different persons: we may gather
whether theft in relation to murder is less severely punishable, but not
whether the thief is to be hanged and the murderer to be broken upon
the wheel or whether the thief is to be fined and the murderer to be
committed to the penitentiary. In either direction, justice needs to be
complemented b y other principles if rules of right law are to be derived
from it. 5 Justice is not the exhaustive principle of law. It is rather the
specific principle of law, that which governs the determination of the
concept of law: law is the reality the meaning of which is to serve
justice.
Equity. In the struggle to govern law, however, justice is rivaled by

equity.® T h e dilemma that equity is to be better than justice and yet
not quite opposed to justice, but rather a kind of justice, has troubled
men as early as Aristotle's famous chapter V 14 c of the Nicomachean
Ethics. But again Aristotle already indicated the solution that justice
and equity are not different values but different ways to arrive at the
unitary value of law. Justice regards the individual case from the view-
point of the general norm; equity in any individual case looks for the
proper law of that case, which, however, must also be susceptible of
being elevated finally to a general law; for equity as well as justice is
ultimately generalizing. Thus, in the distinction between justice and
equity, we again confront the previously suggested methodical distinction
between a deductive derivation of the right law from general principles
and an intuitive grasp of the right law out of "the nature of the thing."
E q u i t y is the justice of the individual case. So regard to equity does not
compel us to vary our formula: that law is the reality the meaning of
which is to serve justice.
6 The merely formal character of justice is illustrated by the example of justice
of taxation b y F. K. M a n n in FESTGABE FÜR SCHANZ (1928) 112 et seq.

° Cf. MAX R Ü M E L I N , D I E BILLIGKEIT I M RECHT (1921); BINDER, PHILOSOPHIE
DES R E C H T S 3 9 6 et seq.
c [ I n t h e O x f o r d t r a n s l a t i o n of th e NICOMACHEAN ETHICS (W. D . ROSS, 1 9 4 2 ) , t h e
passage on " e q u i t y " is in Book V , sec. 10.]

Authenticated
76 GUSTAV RADBRUCH
Derivation of the Concept of Law. The foregoing would indicate what
approach to take in determining the concept of law, but it would not yet
give us the determination of the concept itself. We want to know of
what kind that reality is that is intended to serve justice; and we are
indeed able to draw conclusions from that meaning of legal reality back
to the essence of legal reality. Justice means Tightness as related espe-
cially to the law. By virtue of this material qualification of the idea, we
are able to draw from the idea conclusions as to the matter for which it
is valid.
The realities the meaning of which is to serve ideas are of the psy-
chological nature of evaluations and demands. Thus, they represent a
peculiar kind of reality, intermediate between the idea and the other
realities. As psychological facts, they belong to reality themselves; but
at the same time they rise above the other realities by applying stand-
ards and raising demands. Of this kind are conscience, the cultural
phenomenon related to the moral idea; taste, that related to the aesthetic
idea; and reason, that related to the logical idea. The factual phenome-
non which in the same way corresponds to the legal idea is the precept.
It, too, may be said to have the same peculiar character of reality, that
is, both positivity and normativity. Furthermore, the precept as a reality
related especially to the idea of law (i.e., justice) shares with justice its
subject of reference: the mutual relations between men. It is social in
character. As it is the essence of justice ultimately to shape those rela-
tions in the sense of equality, so it is essential to the legal precept in its
meaning to be directed toward equality, to claim to be susceptible of
generalization or to be general in character. A precept addressed to an
individual human being or an individual relationship, say, a "measure"
according to Article 48 of the Reich Constitution [of 1919]/· is neverthe-
less a legal rule if its individual character is due merely to the fact that
its legal terms apply only to that individual person or relationship; that
is, if only the substratum of the precept is individual in character, but
not, if the precept itself is individual in character. We summarize the
essence of the legal precept as both positive and normative, both social
and general. In this sense we define law as the complex of general pre-
cepts for the living-together of human beings.
d [Art. 48, the "dictatorship article" of the Constitution of Weimar, provided in
part as follows: "If in the German Reich public safety and order are to a consider-
able extent disturbed or endangered, the Reich President may take the measures
requisite for the restoration of public safety and order; if necessary, he may inter-
vene with the aid of the armed forces." "Of all measures taken according to . . .
this article the Reich President shall immediately advise the Reichstag. Upon the
demand of the Reichstag the measures shall be repealed."]

Authenticated
LEGAL PHILOSOPHY 77
This determination of the concept of law has not been obtained
inductively from the various legal phenomena but has been derived
deductively from the idea of law. I t is thus not juridical but prejuridical;
that is, in relation to legal science, it is a priori in nature. 7 T h e concept
of law is not an ordinary and accidental concept, but is a necessary
general concept. T h e law is law not because the various legal phenomena
may be classified under it; rather, contrariwise, legal phenomena are
" l e g a l " only because they are embraced b y the concept of law. T h e
concept of law has not been set up above the legal phenomena by them-
selves, democratically as it were, but it has assumed its rule over them
" b y the grace of G o d , " that is, by the grace of the idea. Only when the
chaos of what is given is considered from the viewpoint of the concept of
law is the juridically essential separated from the juridically unessential,
as water and land were separated by the creative word. If, in the words
of Savigny, law is taken for "the very life of men, viewed from a particu-
lar aspect," or considered from a particular point of view, this point of
view constitutive of the legal universe is the a priori concept of law.
A Priori Legal Concepts. However, the concept of law comprises a

number of particular legal concepts which share its a priori nature, that
is, the quality of being not products but instruments of legal science, not
accidental generalizations of empirical legal phenomena but indispensable
categories of juridical thought. Thus, from the nature of law as both
positive and normative there results the concept of the legal rule, and
with the legal rule result the concepts of its elements. It may be said
a priori (that is, in advance) that there can be no legal rule that does
not rule something, thus involving both the something and the ruling:
the state of facts and the legal consequence. Inseparably bound up with
the qualities of positivity and normativity, too, is the question of where
law is created, the question of the source of law. There is no law that
does not owe an answer, and is not able to give an answer, to the question
of the origin of its normative character. From the normative character
there results the twofold possibility of acting in accordance with it or
against it, and therewith result the concepts of legality and illegality,
before which again each legal fact has the a priori duty to identify
itself. From the validity of the law for the living together of men, their
mutual relations, there follows that its contents must be to establish legal
relations, and as their elements, legal duties and legal rights, subjective
rights. e N o legal order is conceivable that may not be resolved into legal
7 "A relative a priori of legal science," SOMLO, JURISTISCHE GRUNDLEHRE 127.

β [ O n "subjective legal rights" as distinguished f r o m " o b j e c t i v e l a w , " see trans-
lator's note 16, LASK, LEGAL PHILOSOPHY, chap. II, supra, p. 32.]

Authenticated
78 GUSTAV RADBRUCH
relations, rights and duties. Again, rights and duties are not conceivable
without subjects to who m they belong, nor without objects to which they
relate. Legal subject and legal object are again concepts which cannot be
dispensed with b y one legal order while being used b y another but which
are necessary to a n y conceivable law.
Later on in our discussions we shall meet still further legal concepts
a priori. For the a priori is a relational concept, characterizing a relation
of certain concepts to certain factual materials. T h u s , the legal concept
as an a priori concept fully unfolds only against the fullness of legal
facts; and these unfoldings can no more be exhaustively enumerated in
advance than can the facts with which the legal concept will be con-
fronted. So the idea of a " t a b l e of categories," that is, a symmetrical
schedule of innumerable a priori legal concepts, 8 cannot be realized.
SECTION 5
LAW AND MORALS
Incidentally, people have always tried to keep the moral laws as vague as possible.
Why are they not fixed in writing or print, like the divine and the civil laws?
Perhaps because an honestly written moral law would have to include also the
rights of men. — Strindberg
From the concept of the law as determined b y us, it must be possible

exhaustively to derive the distinction between l a w and other kinds of
norms. T h a t distinction will be worked out here for the most closely
related kinds of norms, viz., morals and custom.
T o confront law with morality, as is most often done, is to compare
incommensurable quantities. L a w is a cultural concept; morality is a
value concept. A s the idea of justice becomes a cultural reality in the
law, so the idea of morality becomes a cultural reality in morals, that is,
in the psychological factuality of the conscience. W h a t is comparable is
either two value concepts, viz., justice and morality, or two cultural
concepts, viz., law and morals.
Usually the distinction between l a w and morals is couched in the
slogan: " L a w is outward, morals are inward." Concealed in that formula,
however, are four different meanings.
Outwardness and Inwardness of the Directions of Interest. 1. T h e

contrast of "outwardness v. inwardness" has been referred to the sub-
8 S T A M M L E R , THEORIE DER RECHTSWISSENSCHAFT (1911) 222-223.

Authenticated
LEGAL PHILOSOPHY 79
stratum of law and morals, in the belief that external conduct is subject
to legal, while internal conduct is subject to moral, regulation: cogita-
tionis poenam nemo patitur.a Indeed, this statement seems at first to
follow necessarily from the view of law as a complex of rules for the
living together of men, since there is no living together except where the
individual actively enters into relations with other individuals.
However, legally relevant internal conduct is often known to legal
experience. Either internal conduct may govern the legal treatment of a
particular corresponding external conduct, e.g., forms of culpability,
good faith; or occasionally internal conduct by itself alone may produce
legal results, e.g., tutelary education may be decreed when the "mental
welfare" of a child is endangered. b On the other hand, moral evaluation
is as little confined to internal conduct as legal evaluation is to external
acts; indeed, merely internal conduct is outside of moral evaluation.
Just as the "pious wishes" which are never followed b y deeds, or the
"good resolutions" with which the path to hell is paved, are not ac-
counted as meritorious, so consistently no guilt must be found in the
"evil desire," the troubling "temptation." 1 T h e passive life of impulses
itself is morally irrelevant; what is morally relevant is only the active
will wrestling with it. But the will is distinguished from impulses pre-
cisely by its activity. Action alone attests its existence. So the field where
morals apply may rightly be sought in the very actions of men.
So moral judgments may apply to external conduct and legal ones
to internal conduct. There is no field of internal or external conduct that
" [ N o b o d y suffers punishment for his thoughts.]

b [ T h e G e r m a n Civil C o d e , sec. 1666, provides in p a r t : " I f the mental or bodily
w e l f a r e of the child is endangered b y the father abusing his right to care for the
person of the child or neglecting the child, or becoming guilty of dishonorable or
immoral conduct, the court of guardianship shall tak e the measures necessary to
a v e r t the danger."
Subsequently, the Reich Y o u t h W e l f a r e A c t of 1922, sec. 63, provided for
tutelary education if, a m o n g other cases, " t h e preconditions according to sec. 1666
. . . of the Civil C o d e exist and removal of the minor f r o m his previous environ-
ment is necessary to prevent his corruption while he cannot, in the discretion of
the court of guardianship, be suitably placed elsewhere."
T u t e l a r y education w a s defined in sec. 62 of this A c t as follows : " T u t e l a r y
education shall serve to prevent or counteract corruption and shall be administered
in a suitable f a m i l y or educational institution under public supervision and at
public expense."]
' " B a d thoughts, i n d e e d ! W e cannot prevent the birds f r o m flying over us. B u t
w e can prevent them f r o m building nests on our h e a d s ! " — L u t h e r (quoted in a
letter b y T h . F o n t a n e ) . " T h o u g h t s h a v e come, that is not m y fault and I did not
bid them come. I did not k n o w t h e y were evil. T h e n I h a v e struggled w i t h the
t h o u g h t , and I shall not w e a r y as long as I live." — O t t o L u d w i g (quoted b y
W E I C E L I N , M O R A L UND R E C H T S P H I L O S O P H IE 6 0 Η. Ι ) .

Authenticated
8o GUSTAV RADBRUCH
could not be subjected to both moral and legal evaluation. B u t what

appeared at first as a distinction of the subject matter of morals and
law may be maintained as a distinction of their respective directions of
interest: external conduct is of interest to morals only inasmuch as it
attests internal conduct; internal conduct enters the scope of law only
if it suggests external conduct that is to be expected. For instance, in
the doctrine of the criminal law reform movement which regards the
criminal act essentially as a mere symptom of the criminal sentiment of
its perpetrator and deems that sentiment the true ground of punishment,
the criminal sentiment in turn is legally relevant only as the possible
source of further criminal acts.
Again, as the sentiment is legally relevant only as a symptom of
future acts, even acts are inaccessible to legal regulation if they come
into question solely as symptoms of sentiments. Relations which find
expression in acts but in which the acts are relevant not as what they
are but according to what they mean, what they reveal of the actor's
soul, must be left exclusively to moral evaluation. Thus, for instance,
law has withdrawn from friendship, since among friends external con-
duct is a secondary matter without significance of its own, and of
significance only if and insofar as it discloses a sentiment, as a "token
of friendship." Leo Tolstoy, considering all conduct between one man
and another significant only as the expression of a community of love
among men, consistently refused to justify any intervention of the law
and the state. This noblest form of anarchism is rooted in the aversion
to conceding to soulless externals even the most limited value of their
own; in the superbly one-sided thought that anything external is worth
only as much as it contains of the soul; and in the deep feeling that the
lawyer may lose his own soul by his professional habit of casting only
side-glances, as it were, at living human souls as the incidental sources
of their deeds, which alone are legally essential. " T h e external, hustling,
useless activity which consists in fixing and applying the external forms
of life hides from people the truly essential inner activity, the change of
the mind, which alone is able to improve life." I t is the essence and the
mortal sin of the law and of its representatives "to believe that there are
relations in which men may be dealt with without love; but there are no
such relations." 2
Outwardness and Inwardness as to the Subjects of Purposes. 2. T h e

antithesis "outwardness v. inwardness" may also aim at the subjects of
2 TOLSTOY, DAS GESETZ DER G E W A L T UND DAS GESETZ DER LIEBE (1909) 102;
AUFERSTEHUNO P t . II, c h a p . 40. C f . t h e fine b o o k b y BORIS SAPIR, DOSTOJEWSKY
UND TOLSTOI ÜBER PROBLEME DES R E C H T S (1932).

Authenticated
LEGAL PHILOSOPHY 8ι
the purposes of law and morals. T h e legal value characterizes an act as

good for living together, the moral value as simply good. Legal value is
the value of an act for others or for all others; moral value is the value
of an act pure and simple. T h e scholastics used to say that morals is
ab agentic while law is ad alterum.A Consequently, the legal obligor is
always confronted with an obligee, an interested claimant, whereas to
the moral duty such an obligee is attached only as a symbol when it is
called a duty toward the God in one's own breast, toward one's own
conscience, toward humanity in one's own person, toward one's better
self. In the field of law one may talk of duty as an obligation that is
owed; but the moral duty is not thus owed to a creditor, but is duty
pure and simple. Even the so-called duties toward others are not to be
understood in the sense that their fulfillment could be claimed by those
others. "Whosoever smite thee on thy right cheek turn to him the other
also; and if any man will sue thee at the law and take away thy coat,
let him have thy cloak also": these commandments are not intended to
grant a right to the smiting and the cloak but illustrate the very nothing-
ness of any right on either side. Petrazycki has deemed the "imperative-
attributive" nature of the law and the purely imperative nature of
morals the basis of their distinction; and it is no accident that the
juridical approach is attacked in the very person of Petrazycki by Tolstoy
in the last of his writings, when Tolstoy wants in a purely ethical w a y
to found all human relations upon the spontaneous overflowing fullness
of love and not the compelling pressure of a claim. 3
Outwardness and Inwardness of the Modes of Obligation. 3. Again,

the opposition of outwardness and inwardness seems to signify a differ-
ence in their modes of obligation. Morals require one to do his duty out
of a sense of d u t y ; the law permits other motives as well. Morals are
satisfied only b y a sentiment that is in accordance with the norm, law
by mere conduct according to regulations; or in the words of K a n t :
morals require "morality," law requires only "legality."
T h i s distinction is correct, but it is incorrect to regard it as a dis-
tinction between modes of obligation. A duty of mere legality is a con-
e [ F r o m the a c t o r .]
Λ [ T o w a r d another.]
'L. V . PETRAZYCKI, ÜBER DIE M O T I V E DES H A N D E L N S UND ÜBER DAS W E S E N DER
MORAL UND DES R E C H T S (1907); TOLSTOY, ÜBER DAS RECHT, BRIEFWECHSEL MIT
EINEM JURISTEN (1910). On Petrazycki, cf. Gurvitch in (1931) ARCHIVES DE

P H I L O S O P H I E DU D R O I T 4 0 3 et seq. D E L V ' E C C H I O , F I L O S O F I A DEL DIRITTO 1 7 1 et seq.,
also bases the distinction b e t w e e n l a w and morals essentially on this characteristic:
" t h a t t h a t concept of bilaterality is the k e y to the v a u l t of the juridical structure."

Authenticated
82 GUSTAV RADBRUCH
traduction in itself if by duty one understands the relation of a will
subordinate to a norm — and any other definition appears hardly
possible. 4 If one is to recognize "duties" of legality one must concede that
the body may be obliged without simultaneous obligation of the mind;
one must agree to call duty the relation of the substratum of a norm to
the norm, no matter of what kind that substratum may be, and thus to
talk of the obligation of the thought by the logical norm and of the
aesthetic duty of the marble toward the chisel.
Morality and legality, accordingly, do not involve a distinction of
the modes of obligation, but mean precisely this, that the moral norm
alone has a substratum that may be obliged, namely, the will, while the
substratum of the law, namely, conduct, is of necessity insusceptible of
obligation. T h e distinction, then, is merely one between the substrata,
the fact that morals alone regard the individual and his motives while
the law regards living together, which covers only the external (and but
indirectly also the internal) conduct of the individual and not his motives
as such. But if legality is thus understood it is not peculiar to law, but is
common to all values that do not regard the individual and his motives,
including the logical and aesthetical values. Consistently the viewpoint
of legality must then be brought to bear on judging the aesthetic value
of a work of art or the logical value of a scientific work like the value of
a legal act, regardless of the motives of its creator. From this viewpoint,
the cultural achievement of mankind loses nothing in value because
it is largely the product of human ambition, and contrariwise the
" b a d musician" does not improve because he is such a "good man." 5
Norm and Imperative. It follows from this consideration that the

original nature of legal norms is that of standards measuring the living
together of individuals and not of commands directed to the individuals,
that it is primarily composed of "evaluative norms" and not of "deter-
minative norms." 6 Still the law intends not only to judge human con-
duct, but also to bring about human conduct conforming to law and to
prevent human conduct conflicting with law. T h e legal standards are,
therefore, transformed into "imperatives," i.e., prohibitions and com-
mands determining the human will — not b y any means "determinative
4 As a matter of fact, BINDER, RECHTSNORM UND RECHTSPFLICHT (1912) and

LÖWENSTEIN, DER RECHTSBEGRIFF ALS RELATIONSBEGRIFF (1915) 57 et seq., banish
the concept of duty from the field of law.
5 How far this interpretation of legality is in accord with K a n t himself has been
examined b y HAENSEL, K A N T S L E H R E VOM WIDERSTANDSRECHT (1926) 32 et seq.

' The very great significance of this view for the criminal law doctrines concern-
ing wrong and culpability is familiar.

Authenticated
LEGAL PHILOSOPHY 83
norms" evaluating the human will. But the distinction between norm
and imperative needs fuller elaboration. 7
It may best be illustrated by any sentence combining a norm with an
imperative, when normative contents appear in imperative form. 8 " D o
your d u t y ! " L e t us separate the meaning of that sentence from what
carries it, the declared from the declaration. W e then get, on the one
hand, an existential structure, definite in time and space, brought about
and effective b y way of causation, a sequence of tones which sounds
here and now, originating in a certain psychological process in the
speaker and producing another such process in the listener. On the other
hand, we get a nontemporal, nonspatial, noncausal content of significance,
a moral necessity which is valid independently of the place, the time,
and the effectiveness of that declaration. T h a t sentence, then, is an
imperative inasmuch as it exists and is effective, and a norm inasmuch
as it signifies and is valid; it is an imperative inasmuch as a Will is
asserted thereby, and a norm inasmuch as an Ought is stated therein.
Both are combined in the instant sentence though by no means in every
other case. T h e norm is nonreality intending to be realized; the impera-
tive is reality intending to be effective. T h e norm intends to be an end,
the imperative only a means to an end. T h e norm as an end has not
been fulfilled before compliance with the norm itself; the imperative, as
a mere means to an end, is executed upon compliance with its purpose,
whether b y its own motivating force or without its intervention by a
previously existing motivation in the same direction. T h e norm requires
a conduct complying with the norm from a motive complying with the
norm; the imperative is satisfied by a conduct complying with the
imperative no matter how motivated. In other words: the norm requires
morality, the imperative legality — but again, even as regards that sec-
ondary imperative form of the law, legality is b y no means a mode of
obligation, since the very essence of the imperative is not to oblige but
to determine, not to be valid but to be effective. 9
Outwardness and Inwardness of the Sources of Validity. 4. Finally,

the outwardness of law and the inwardness of morals have been looked
7 According to the followin g elaboration of the concepts, K a n t ' s "categorical
i m p e r a t i v e " is in truth a norm.
8 T h e imperative f o r m as here understood includes any f o r m in w h i c h m o t i v a t i o n
is aimed at b y the spoken or written w o r d , that is, the intended imperative and not
only the grammatical imperative. T h e f o l l o w i n g scale illustrates the g r o w i n g impera -
tive vigor of the c o m m a n d f o r m s of the language: C o m e ! — Y o u shall c o m e ! —
Y o u will c o m e ! — Y o u c o m e ! French legislative language prefers the imperative
future (sera puni) ; German , the imperative present (wird bestraft).
9Contra: BRODMANN, RECHT UND GEWALT ( 1 9 2 1 ) 1 3 - 1 4 ; KELSEN in ( 1 9 1 6 ) 40
SCHMOLLERS JAHRBUCH 1234 et seg.

Authenticated
for in the difference of their sources of validity. "Heteronomy" has been
ascribed to law because it approaches its subjects as a foreign will,
obliging from the outside; "autonomy" has been ascribed to morals
because moral rules are imposed on anyone only by his own moral
personality. 10 Yet a heteronomous obligation, an obligation by a foreign
will, is a contradiction in itself. A Will may produce a Must if it is
accompanied by the power to enforce; but neither a foreign Will nor
even one's own Will may ever produce an Ought. We can understand
the term "autonomy" only if by the obliging self of the self-obligation
we understand not any Will, not even the desire of conscience, indeed,
no empirical psychological reality whatever, but the moral personality,
a purely normative, ideal, and unreal structure, in other words, the
obligatory norm itself; what obliges us is not our conscience but the
norm that speaks through it. So one arrives at the dilemma: either to
regard the law as Will — which means to do without establishing its
Ought, its obligatory force, its validity; or else to consider the law as an
obligatory and valid Ought — which means to establish its validity as
autonomous, as demanded by its subject's own moral personality. 11
The foregoing is sufficient to suggest that along with all distinctions
between law and morals there must also be relations between them. This
is not to say, however, that law is the "ethical minimum" (Georg
Jellinek) or the "ethical maximum" (Gustav Schmoller): an ethical
minimum extensively, on the ground that it raises only some moral
duties to a legal duty, and intensively, on the ground that it is content
with outward compliance without requiring inner sentiment; or an
ethical maximum because of the law's compulsive force to carry it
through as contrasted with the physical powerlessness of morals. Both
views ignore the possibility of tragic conflicts between law and morals,
which may result from the character of the law as enactment and of
morals as inner conviction, in the case of the criminal who acts upon his
convictions. Rather, law and morals coincide but partially and acci-
dentally in the contents of their demands. The relation between the two
spheres of norms consists rather in this, that morals, on the one hand,
constitute the end of the law and, on the other hand, for that very
reason are the ground of its obligatory validity.
Morals as the Ground of the Validity of Law. r. In morals alone may

the obligatory force of the law be grounded. It has been shown that
10 On the question of heteronomy or autonomy of the law, see DARMSTAEDTER,
R E C H T UND RECHTSORDNUNG (1925).
11 Accord: R U D O L F L A U N , R E C H T UND S I T T L I C H K E I T (Hamburg University Rec-
tor's Address, 1925).

Authenticated
from legal rules as imperatives, expressions of a will, we may pos-
sibly derive a Must but never an Ought. Of legal norms, legal Ought,
legal validity, legal duties, we may speak only when the legal imperative
is endowed by the individual conscience with moral obligatory force.
The false notion that the founding of legal validity on morals renders
that validity dependent on the rightness of the law, in the sense of
natural law, or on the assent of the individual conscience, in the sense of
anarchism, remains to be dispelled later, when the problem of validity
is discussed. What must be shown here is that our view does not by any
means obliterate the distinction established between the respective con-
tents of law and morals, or incorporate law as a mere province in
morals, or turn the legal norm into a moral norm of some particular con-
tent. The naturalization of the legal duty in the realm of morals repre-
sents an instance of a more general phenomenon, which has as yet been
too little examined: the investment of the same material with a twofold
value character. Thus, the logical value of truth becomes the object
of another evaluation, viz., the ethical one, it turns into a moral good,
when it is set up as the subject of the virtue and duty of veracity. Of
this kind are all "cultural duties," by which working values, such as
truth in the form of science, or beauty in the form of art, are turned
into tasks of moral action; of this kind are also certain duties of "social
ethics," including especially justice in which right law, or righteousness
in which positive law, is conceived as a moral good. Just as the inde-
pendence of the logical laws concerning the value of truth, or of the
aesthetical laws concerning the value of beauty, is not impaired but
truly recognized by setting them up as moral goods, so the laws peculiar
to the legal sphere are fully preserved when this sphere is annexed by
morals. Kant is right in saying: "that all duties, simply because they
are duties, belong to ethics; yet legislation concerning them is not for
that reason always contained in ethics, but as to many of them it falls
outside of ethics." 1 2 Here morals submit to a foreign legislation, give
way to the specific dialectics of another province of reason, subscribe, by
acceptance in blank, as it were, to a content of duties still to be estab-
lished in another sphere of norms. Morals stamp law and justice as
moral tasks, but leave the determination of their contents to an extra-
moral legislation.
Morals as the Goal 0} Law. 2. But this moral sanction of law is pos-
sible only because the law, notwithstanding any possible variance of its
contents from morals, still tends toward morals as its end. To be sure,
12
M E T A P H Y S I K DER S I T T E N (ed. b y V o r l ä n d e r , 1907) 22-23.

Authenticated
86 GUSTAV R A D B R U CH
it cannot intend to serve the realization of moral duties by providing
them with the sanction of legal duties; for it is precisely because the
moral norm is to be complied with for its own sake that it cannot gain
anything by being accompanied by imperatives of another kind that
have the same contents. The law serves morals not by the legal duties it
imposes but by the rights it grants. The face which law turns toward
morals is that of its rights rather than that of its duties. 13 It grants
rights to individuals so that they are the better able to comply with
their moral duties. We may recall, for instance, the similar justification
of ownership which is sought in Article 153 of the Reich Constitution
[of 1919]: "Ownership obliges. The use of property shall at the same
time serve the common good." Thus only may we explain the passionate
ethical stress upon the subjective right, the fact that the thought of
" M y right!" just like the thought of " M y d u t y ! " inspires that sense of
sublimity which the individual soul experiences whenever it becomes
humbly aware of being pervaded by a transcendent consciousness, of
humanity in man. While elsewhere moral pride is always combined only
with what one wrests from himself, in the subjective right it is combined
with what one wrests from others; urge and interest, fettered everywhere
else by the norm, here are, contrariwise, released by the norm. M y right
is basically the right to do my moral duty — and therefore, conversely,
it is my duty to defend my right. In his right, one fights for his duty, his
moral personality. Thus, Jhering could preach the "fight for the right"
as a straight duty of "moral self-preservation." T o be sure, the ideal type
of the fight for the right, the fight in which one defends his moral
personality in the form of his interest, admits a development toward
two opposite extremes. One the one hand, it may rise to a pure fight
for one's moral personality, regardless of one's own interest, involving
even one's self-destruction (Michael KohIhaas). e On the other hand, it
may sink to the level of a naked struggle of interests without any moral
background, nay, to the mere struggle for power of an empty self-
righteousness, bare of the substance even of an interest (Shylock). In-
deed, the law is but the possibility of morals, and for that very reason
it is also the possibility of the immoral. Morals can only be rendered
possible, and cannot be enforced, by the law, because of necessity the
a The question whether the right or the legal duty represents the primary form
of the law is, therefore, to be answered differently in legal philosophy and in juris-
prudence. In jurisprudence the logical sequence runs thus: from the objective law,
the legal duty; from the legal duty (possibly) a (subjective) legal right; but in
legal philosophy, it runs as follows: for the sake of the moral duty, the subjective
right; for the sake of the subjective right, the objective law and the legal duty.
* [The hero of a novel by Heinrich von Kleist.]

Authenticated
LEGAL PHILOSOPHY 87
moral act can only be an act of freedom; but since law can render
morals only possible, it inevitably must also render possible the
immoral. 1 4
Thus, the relation of morals and law represents a relation rich in
tension. A t first, law is just as foreign, just as differentiated from and
possibly opposed to morals as the means always is in relation to the end;
it is only subsequently that, as the very means for the realization of
moral values, the law partakes of the worthiness of its end and is thus
incorporated in morals with the reservation that it operates according
to its own rules.
SECTION 6
LAW AND CUSTOM
A mighty antipode of sincerity among men is urbane courtesy. The greatest misery of
the wise and the greatest happiness of fools rests on conventions. — Franz Schubert
T h e attempts to distinguish law and custom as concepts have always

failed. It has been said that law is made while custom grows. T h a t view
could be refuted simply by pointing to customary law. Again, law has
been regarded as enforceable and custom as susceptible of only volun-
tary compliance. Against this view it could be pointed out, on the one
hand, that there are numerous unenforceable legal duties. Among them
are not only the duties, in international law and in constitutional law, of
the highest organs of the state (quis custodiet custodes?) but also
many a duty of individual members of the legal community (Reich Code
of Civil Procedure, sec. 888 para. 2. b ) On the other hand, it could be
pointed out that the psychological compulsion, which is indeed indis-
pensable to the validity of law, is no less an attribute of custom than of
law, as is shown, for instance, b y a restaurant in which the drinking of
14 S i m i l a r i l y : M A X ASCOLI , INTORNO ALLA CONCEZIONE DEL DIRITTO NEL SISTEMA DI

BENEDETTO CROCE (1925) 35: the purpose of the l a w : to preserve in m a n the possi-
bility of becoming g o o d ; 41 et seq., nevertheless, amorality of the l a w .
a [ W h o is to w a t c h the w a t c h e r s ? ]
b [ T h i s section is among the provisions of the C o d e for the execution of j u d g -
ments for specific performance of acts or omissions. Sec. 888 para. 1 provides in
p a r t : " B y order on motion, the trial court m a y b y fines or imprisonment compel
the j u d g m e n t debtor to p e r f o r m an act w h i c h cannot be p e r f o r m ed b y a third
p a r t y , where the act depends exclusively upon the will of the d e b t o r ." Sec. 888 para.
2 provides: " T h i s provision is inapplicable to judgments to contract a marriage,
to resume matrimonial life, and to render services under a contract of service."]

Authenticated
88 GUSTAV RADBRUCH
wine is "required" or by a poster to the effect that " t h e public is invited

to inspect our goods with no requirement to make purchases." 1
T h e futility of all attempts so far to draw a line between law and cus-
tom suggests that it is impossible to do so. T h a t impossibility may in
fact be proved. Cultural concepts, being concepts related to values, can
be defined only with the aid of the idea of the value toward which they
are oriented. Thus, we have defined morals as the reality the meaning
of which is to represent the idea of the good, and law as the reality the
meaning of which is to serve justice. B u t the idea of a value toward
which custom might be oriented cannot be found, which excludes any
commensurability between law and morals on the one hand and custom
on the other. Custom cannot be coordinated with the other cultural con-
cepts; it has no place in the system of cultural concepts. 2
Antinomic Character of Custom. Custom, then, is not related to law

and to morals systematically; but it is related to them historically. It is
the common anterior form in which law and morals are contained, still
undeveloped and indistinct, the "state of indifference from which the
forms of law and of morality issue in different directions" (Georg
Simmel). Thus, the custom of giving alms develops into the moral duty
of charity, on the one hand, and into the institution of the poor law, on
the other. It is the destination of custom to be absorbed b y law and b y
morals after having prepared and rendered possible both law and
morals.
This character of custom as a preparatory school of law and morals
explains the degeneration of custom which occurs as soon as law and
morals have evolved as independent cultural forms and separated from
each other. T h e n custom becomes a mixed product, intrinsically absurd,
of legal and moral evaluations. T h e outwardness of law may be attrib-
uted to it as correctly as the inwardness of morals, in all their respective
meanings. On the one hand, custom shares the outwardness of law: it is
concerned only with external conduct; it obliges only in the interest of
an outside obligee; its commands approach their addressee from the out-
side; and it is satisfied if he obeys them outwardly no matter what his
motive. On the other hand, it also claims the inwardness of morals: it
sets store not by the handshake but b y the sympathy attested thereby;
one owes it not to others but to oneself to observe the decencies; our
1 Neither has the problem been brough t a n y nearer t o a solution b y Stammler's
concept of the " c o n v e n t i o n a l rule." T h e claim of custom to be v a l i d is rather mor e

" a u t o c r a t i c " than that of the l a w .
2 Contra: WEIGELIN, SITTE, R E C H T UND M O R A L ( 1 9 1 9 ) 9 1 et seq.; BAUMGARTEN,
1 WISSENSCHAFT VOM R E C H T (1920) 190.

Authenticated
LEGAL PHILOSOPHY 89
social conscience and not a book of etiquette imposes our "social obliga-
tions" upon us; only he who respects custom is a gentleman, while he
who just "follows" it externally is an upstart. Y e t these mutually exclu-
sive views are inseparably combined in custom, namely, by means of a
fiction, by the "conventional lie." People have tacitly agreed to behave
as if back of the outwardness of custom there were a corresponding in-
wardness; back of appearance, a reality; back of the greeting, devotion;
back of the contribution expressed in four figures, the "generosity"
which has become a hackneyed form. People have agreed with the
sophisticated grin of augurs to take paper for gold without raising the
painful question of its backing. But just because custom combines the
twofold force of outer and inner mode of obligation, even if only by
fiction, it is much more powerful than are morals and law. " N o t morality
rules the world, but a hardened form thereof, custom. T h e world as it
has come to be forgives a violation of morality more readily than one of
custom. H a p p y the times and the peoples where custom and morality
still are one! All the struggles occurring in large and in small affairs, in
general and in particular, turn on cancelling the contradiction between
these two and rendering the rigid form of custom fluid for inner moral-
ity, on redetermining the coin according to the inner value it contains,"
as Berthold Auerbach says. But the most impressive criticism of custom
— as well as of law — has been made by Leo Tolstoy. Again and again
we meet in his novels the contrast between the goodness without form
of the lower classes of the people and the forms without goodness of
"society."
Social Function 0} Custom. Along with its moral genuineness, how-

ever, custom loses also its social function. Unlike "good old custom,"
"refined manners" are no longer popular custom but the custom of a
class; custom was "rural-moral," decorum is " u r b a n e " ; custom was
rustic, courtesy is courtly; custom was a matter of the "community,"
convention is a matter of "society " 3 — or rather of the society page.
Custom worked to unite the people, convention works to split the people.
Convention expresses the will and the ability to be counted as belonging
to a certain upper stratum of society, the masonic greeting of the ini-
tiated which is changed as soon as once the uninitiated learn it and make
use of it. So, whereas custom was enduring as a bond between changing
generations, convention is subject to fashion. For we call fashion the
endeavor of the " u p p e r " class to distinguish itself b y external marks
from the " l o w e r " class, the more and more accelerated race of the lower
3 C f . T Ö N N I E S , DEE SITTE (1908).

Authenticated
go GUSTAV RADBRUCH
in competing with the upper class, which finds itself forced again and
again to change those tokens of its higher dignity as soon as the lower
class, too, has appropriated them. This class character of convention is
shown, more clearly than by anything else, by the fact that convention
is required to be known and mastered rather than complied with. For
convention is quite unlike moral rules, which cannot be violated at all
except consciously, and unlike legal prescriptions, where culpability is,
if anything, aggravated by consciousness of wrongdoing. Convention,
contrariwise, least forgives the booby who "doesn't know what is
proper," but in everything smilingly indulges the playboy who knows
how gracefully to disregard a conventional form.
Y e t it would be a mistake even after the separation of law and morals
to deny any social function to custom. Even in "society" there still sur-
vive numerous fragments of "community," social classes and primitive
peoples where custom preserves its unbroken unity and where it still
has to fulfill its educational work. Again, just as in the life of the group
the rule of custom prepares its transformation into morals (and into
law), so morals are brought home to the individual in his education first
in the form of custom. No education in its beginnings can do without
the categorical norm: "That is not done" — which after all is a reference
to custom. But this function which custom still discharges at present
does not detract from our previous statement that it is not systematically
coordinate with law and morals but is historically antecedent to them —
just as battle-ax and javelin are still in use today, yet should not appear
in a systematic science of arms, except in the historical introduction.
SECTION 7
T H E PURPOSE OF LAW
Falk: "Do you think that men are created for states? Or that states exist for men?"
Ernst: "Some seem willing to affirm the former. But the latter may well be more
true." — Lessing
Our discussions have shown that justice is the specific idea of law,
sufficient to unfold the concept of law, but that it does not exhaust the
idea of the law. For two reasons, justice alone has been found to be
insufficient for legal rules of definite contents to be derived from it.
Justice demands that equals be treated equally, different ones differently
according to their differences; but it leaves open the two questions,

Authenticated
LEGAL PHILOSOPHY 91
whom to consider equal or different, and how to treat them. Justice de-
termines only the form of law. In order to get the content of the law, a
second idea must be added, viz., expediency. The question of justice has
been raised and answered independently of questions of expediency or
suitability for any purpose, including the purpose of the state. But
within the framework of the question of the purpose of law, the state
for the first time enters the scope of our investigation. Since law, or an
essential part of it, is the will of the state, and the state, or an essential
part of it, is an institution of law, the questions of the purpose of law
and the purpose of the state are inseparable.
In raising the question of the purpose of law, we do not indeed seek
empirical statements of the purposes which may have produced the law,
but rather seek the transempirical idea of purpose by which law is to be
measured. The answer to this question we may obtain only by consider-
ing what values may be said to be absolutely valid in the same way as
the absolute value of the just, and which of these, beside the value of
the just, law is intended and is suitable to serve. We may, however, be
content to point to the traditional triad of ultimate values, the ethical,
logical, and aesthetical ones, the ideals of the good, the true, and the
beautiful, because it is evident that law may intend to serve only one
of them directly, namely, the ethical value of the good:
T o be sure, the ethical value of the good takes in the other absolute
values in the way described above (sec. 5, supra); the logical value of
the true and the aesthetical value of the beautiful, by entering the
theory of ethical goods as ends of ethical action, are invested again with
an — ethical — value character. The theory of ethical goods and the
theory of ethical duties are mutually dependent in that, on the one
hand, the fulfilling of moral duties finds its reflection in a moral good,
viz., the moral personality, and, on the other hand, the moral goods, such
as truth, in turn call forth requirements of moral duties such as
veracity. 1
Individual Values, Collective Values, Work Values. Now the ethical

goods which result in this way are not all attainable simultaneously.
Rather, we can serve one only at the price of neglecting or even violat-
ing the others. This becomes apparent at once when we realize the
substrata of the different ethical goods.
In the whole sphere of the world of experience, there are only three
1 "The moral may be perceived as the form of the Ought attached to the value
contents of life. In substance, however, it is the personal direction toward the su-
preme objective value of our own inner essence." SPRANGER, LEBENSFORMEN (3d.
ed. 1922) 257-258.

Authenticated
kinds of subjects susceptible of absolute worth: individual human per-

sonalities, human collective personalities, and human works. According
to these substrata we may distinguish three kinds of values: individual
values, collective values, and work values. Individual value is the per-
sonality. Ethical, too, is the value of which collective personalities, if
they are recognized, are susceptible. The aesthetic and logical values re-
veal themselves in the works of the arts and sciences as work values.
It may now be easily shown that one is unable to serve all these values
equally. "Only he who purely serves the cause has personality in the
field of science. And this is so not only in the field of science. We know
of no great artist who ever did anything else but serve his cause, and
it alone." 2 Thus the work values demand the opposite of what the
individual values require: not personality but objectivity. In the field of
the individual value of the moral personality, there prevails an "ethic
of sentiment," e.g., truth at any price; in the field of collective values,
there prevails an "ethic of responsibility," e.g., diplomatic lies for the
sake of the common weal. 3 Thus the collective values demand the oppo-
site of what the individual values require. "One asks: What happens
afterwards? The other asks but: Is it right?" as Theodor Storm says,
if in another sense. Finally, hardly soluble tensions exist between the
purpose of the power of collective personalities and the purpose of cul-
ture. "Now power is in itself evil no matter who wields it. Inevitably
one gets into the hands of those forces which are least concerned just
with the continued flowering of culture." 4 Thus the collective values
demand the opposite of what the work values require.
Three Alternatives of World Outlook. So one has to reach a decision

whether to allot first place in the hierarchy of values to the individual,
the collective, or the work values. According to the decision, as to
whether the way of life, and in particular of the law and the state, is to
aim at one or the other of those groups of values, we distinguish indi-
2 M A X WEBER, WISSENSCHAFT ALS B E R U F (1919) 13.

3 MAX WEBER, POLITIK ALS BERUF ( 1 9 1 9 ) 56-57. A n example of sacrificing the
ethic of sentiment f o r the sake of the ethic of responsibility m a y be f o u n d in WERA
FIGNERS ERINNERUNGEN: " R e a s o n advised to join the comrades w h o t o o k the path
of political terror. Feeling drew us b a c k into the w o r l d of the w r e t c h ed and dis-
inherited. I t w a s only later t h a t w e recognized that that m o o d w a s the urge t o w a r d
a m o r a l l y pure life, t o w a r d higher personal values. A f t e r an inner struggle w e m a s -
tered our feeling, our m o o d ; w e renounced the m o r a l satisfaction t h a t life and w o r k
in the country w o u l d h a v e given us, and stepped into the r a n k and file of the c o m -
rades w h o w e r e our superiors b y political instinct."
1 JAKOB BURCKHARDT, WELTGESCHICHTLICHE BETRACHTUNGEN (3d ed. 1918) 96.

Authenticated
LEGAL PHILOSOPHY 93
vidualistic, transindividualistic, and wholly transpersonal views. 5 L e t
us illustrate the opposition of these views in a series of pithy sentences,
each of which has been pronounced categorically in the author's belief of
its incontrovertibility.
Popper-Lynkeus: " T h e disappearance from the world, without or
indeed against his will, of any individual, no matter how insignificant,
who did not intentionally endanger the life of anyone else, is incompar-
ably more important than all political, religious or national events and
the entire scientific, artistic and technical progress of all centuries and
all peoples taken together." Schiller: " E v e r y t h i n g may be sacrificed to
the state except that to which the state itself is but a subservient means.
T h e state itself is never an end, it is important only as a condition under
which the end of mankind may be attained, and this end of mankind is
nothing but the full development of all the faculties of m a n . " These
individualistic attitudes are confronted b y equally brusque transindi-
vidualistic ones: that absolute morality is nothing else "than the abso-
lute life in the fatherland and for the people"; " t h e absolute moral
totality, nothing else than the people itself"; the state, " t h e basis and
the center of the other concrete aspects of national life, the arts, cus-
toms, religion, and sciences; all spiritual activity has but the purpose to
become conscious of that consolidation" (Hegel). " T h e (Italian) nation
is an organism with purposes, life, means of action, which in force and
duration surpass those of its separate or grouped individual members;
it is a moral, political, and economic unit which is integrally realized in
the (Fascist) state" (Mussolini, Carta del Lavoro). T h e transpersonal
view is expressed in the statement by K u r t Eisner: " I for one value
my life not so highly as a creation of eternal art and do not estimate
art so low as to be worth less than living beings," and also in the other,
indescribably harsh sentence: " A statue by Phidias counterbalances all
the misery of the millions of slaves of antiquity" (Treitschke), and in
the early words of Plutarch: " W e cherish a work and despise its maker."
W h e n the temple on the Nile island of Philae was sacrificed to irriga-
tion works, Sir George Birdwood publicly complained about it. There-
upon he was asked by Sir George Knollys: " W h a t would Sir George
Birdwood do if he were alone in a burning house with a living child
and Raphael's Dresden M a d o n n a ? " Sir George Birdwood replied he
would prefer the Dresden Madonna. 6 On the other hand, it has been
6 In another, more widespread terminology, individualism is contrasted with
universalism; cf. e.g., G. JELLINEK, ALLGEMEINE STAATSLEHRE (3d ed.) 174;
WINDELBAND, E I N L E I T U N G IN DIE PHILOSOPHIE (1914) 64; SPANN, HAUPTTHEORIEN
DER VOLKSWIRTSCHAFTSLEHRE (20th ed. 1 9 3 0 ) 26 et seq.
"Analysis of this example in SPRANCER, LEBENSFORMEN (3d ed. 1922) 285.

Authenticated
said by Friedrich Nietzsche: "Great men without works are perhaps
more badly needed than great works for which such a price of human
lives must be paid." And Gerhart Hauptmann during the War [of
1914-1918] said in answer to an attack by Romain Rolland concerning
the destruction of works of art by acts of war: "All honor to Rubens,
but I am among those who are pained far more deeply by the shot-
through breast of a human brother."
Let us now cast in conceptual forms the oppositions we have
illustrated.
In the individualistic view, work values and collective values are sub-
servient to personality values. Culture is but a means to cultivate the
person; the state and the law are but institutions to secure and promote
individuals.
In the transindividualistic view, personality values and work values
are subservient to collective values, morality and culture to the state
and the law.
In the transpersonal view, personality values and collective values
are subservient to work values, morality as well as law and the state
to culture.
The ultimate ends may be summarized by the slogans of freedom, for
the individualistic view; nation, for the transindividualistic view; and
culture, for the transpersonal view.
Three Views 0} the Law. Law and the state, in the individualistic view,
are relations between the individuals; in the transindividualistic
view, they are a totality above the individuals; in the transpersonal view,
they are relations of the individuals to something outside their selves,
to their common labor, their common work.
The transindividualistic doctrine illustrates its view of the state and
the legal community by the analogy of the organism: as in the human
body, so in a good state the whole does not exist for the members but
the members exist for the whole.
The individualistic view uses as illustration the analogy of the con-
tract. 7 Like the organism doctrine, the contract doctrine does not apply
to the actual state. It means, not that real states have been created de-
liberately by way of contract, but only that a right state must be able to
be conceived as originating in a contract between its members. The con-
tract "is by no means necessarily to be presumed as a fact"; "rather is it
7 That the contract theory is to be exclusively attached to the individualistic
view is denied by Guterman in his review of this book in 41 ARCHIV FÜR SOZIAL-
WISSENSCHAIT UND SOZIALPOLITIK 507.

Authenticated
LEGAL PHILOSOPHY 95
a mere idea of reason, which, however, has its undoubted practical
reality, viz., to bind every legislator so to make his laws that they could
have originated in the united will of a whole people, and to regard each
subject who is desirous of being a citizen, as if he had agreed to join
in such a will. For this is the touchstone of the legality of any public
statute" ( K a n t ) . So the contract theory declares the state justified not
because, but rather if, it may be conceived as originating in a contract,
because only then, indeed, it may be regarded as in the interest of every
one of its members. Therefore, wherever the contract theory uses the
term "will," one must insert the term "interest" for which the former
figuratively stands, *f one is to understand the contract theory correctly. 8
Again, the transpersonal view not infrequently uses the analogy of a
building being erected by workers who are joined together neither b y
a whole including them nor by direct relations connecting them, but b y
the common labor they perform and by the common work that is to be
produced thereby.
As technical terms, finally, following in part Ferdinand Tönnies, we
propose the word "society " for living together as constructed on the
basis of individualism, "collectivity" for the collective structure viewed
transindividualistically, and " c o m m u n i t y " for the transpersonal form
of human relations. Whereas society and collectivity are direct social
relations and structures, the community is a structure the social coher-
ence of which is brought about indirectly by a common cause.
Dialectic Relation of the Three Views of the Law. Society, collec-

tivity, and community are related to one another dialectically. Each of
them turns into the other. Each can be attained only by striving for
another.
T h e ultimate end of society is the personality, but personality is
among those values which can be attained only if they are not striven
for. Personality is but the unexpected reward of selfless devotion to the
cause; it is a matter of gift and grace alone. "Whosoever will save his
life shall lose it, and whosoever will lose his life shall find it." Personality
is acquired only by self-forgetting objectivity. T h e boy who ardently
endeavors to practice a character handwriting certainly gets an ugly
handwriting, but never a characteristic one. So he who strives directly
8 T h e r e f o r e , it is no i m p r o v e m e n t u p on b u t only another expression of the basic
idea of the contract t h e o ry to base the state on negotiorum gestio [a quasi contract
in civil l a w , arising f r o m a transaction in behalf of another w i t h o u t his request]
rather than on contract, as proposed b y THEODOR HERZL, JUDENSTAAT (6th ed.) 72
et seq.

Authenticated
96 GUSTAV RADBRUCH
to become a personality may well become a dandy with a mirror in his
hand, but never a personality.
But what applies to the personality also applies to the collectivity,
the nation. National character likewise cannot be attained by ever so
ardent direct efforts, it is but a matter of gift and grace. A people be-
comes a nation not by striving after a peculiar national character but
by self-forgetful devotion to universally valid tasks. Deliberate "regional
art" and "patriotic poetry" will always remain second-rate artistically.
But art occupied with the great subjects of mankind is also inescapably
national. A German truth, a German God, do not exist as ends of
German endeavors, but what a German does for the sake of a cause
becomes inescapably German. Nation as well as personality are cate-
gories subsequently applied by history; they are not ideals for cultural
action.
So both society and collectivity refer to work and community. But
work and community in turn refer back to society and collectivity, in
an interdependency the ring of which cannot be broken. Just as a per-
sonality can be developed only by objective devotion to work, so the
truly great work in turn is but the overflow of a rich personality: "His
work is greatest who can do no other." And just as the personality, so
the nation is the precondition of any true community of work. Indeed,
the end of community labors is not the isolated work, not the book that
gathers dust in the library or the statue that lies buried in the earth, but
rather culture, i.e., the articulated whole, the living unity in which all
cultural ends are joined. But that unity rests not in the works themselves
but in the consciousness uniting them, and not in an individual con-
sciousness which would be altogether unable to grasp its fullness but
in the collective consciousness of the nation which embraces the indi-
viduals and joins the generations.
So it is but emphasis on one link in a closed ring, and not a break in
the ring, to point sometimes to the individual personality, sometimes to
the collective personality, and sometimes to the culture of work as the
ultimate end of individual and collective life. These three possible views
of the law and the state result from emphasizing different elements of an
indivisible whole. 9
The Transpersonal View in Particular. But empirically they are em-

bodied in the political parties. Only the idea of the culture of work is
not expressed in the policies of any particular party. It is not a program
* These explanations show that I by no means "hypostatize a relative contrast
into an absolute one," as I am reproached with doing by ERICH KAUFMANN, KRITIK
DER NEUKANTISCHEN RECHTSPHILOSOPHIE (1921) 71 note.

Authenticated
LEGAL PHILOSOPHY 97
but a feeling for a way of life — such as the way of life of the [German]
Youth Movement, which is expressed in the word "community." Since
transpersonalism in a peculiar way combines individualistic and trans-
individualistic elements, it may provide the background of personal
conviction for all party attitudes. But no state as yet has formed itself
in accordance with transpersonalism, which for empirical reasons seems
to be adequate to partial legal communities only, such as universities,
religious orders, or the Catholic Church, and not to the total legal com-
munity of the state. To be sure, transpersonalism, too, has the idea of
a form of government attached to it, viz., the state organized by occupa-
tional Estates. But where that idea of the state of transpersonal work,
the stato corporative, has been realized, it has become the mere fagade of
a state of transindividualistic power. And yet it is with the transpersonal
standard that nations are subsequently measured by history. The urge
to self-preservation of living peoples wants the state to serve them, as
individuals or as collectivities. But history on the contrary appraises
states according to what remains when men and peoples have passed:
according to their works.
In the following pages, however, no attempt will be made to construe
in a vacuum the ideal image of a state oriented toward the transpersonal
culture of work.10 Rather, the individualistic and transindividualistic
views of the state and the law will be demonstrated in the ideologies of
parties in which they have become embodied historically.
SECTION 8
L E G A L PHILOSOPHICAL T H E O R Y OF PARTIES
Nobody stands in the air above the parties. You fools are
Roaming between the joes, sure to be hit in the clash. — Adolf Glasbrenner
In the following pages, we shall deal with partisan views, that is,
with the ideologies of parties. It may be objected that in regarding the
ideology of a party we do not regard the party from its most essential
aspect; that the interest of the party alone is real, and the ideology of
the party is a mere pretext, merely the fine fagade of that interest.
10 S u g g e s t i o n s i n t h a t d i r e c t i o n in RADBRUCH, KULTURLEHRE DES SOZIALISMUS (2d
ed. 1 9 2 7 ) a n d R a d b r u c h , Wilhelm Meisters sozialpolitische Sendung (1919) 8

LOGOS 152 et seq.

Authenticated
Significance of the Party Ideologies. Let us assume for the moment
that a party has really been founded upon mere political interests with-
out any cooperation of political ideas. Even such a party is of sociologi-
cal necessity forced to provide itself with an ideology, i.e., at least to
pretend that its special interest coincides with the general interest. T o
be sure, such a party ideology at first is nothing but the enchanting
dress that covers the bareness of the interest, but it is sociologically
bound soon to become more than that. For the ideology of a party is
directed not only toward fighting the adversary but also toward
enlisting new adherents. Around the nucleus group which is bound
to this party by an interest there gathers an ever-expanding circle
of party members whose adherence depends not on the interest but
on the idea of the party and who therefore insist on the consistent
and complete carrying out of the idea even at the expense of the in-
terest, thus binding the party to the idea which in turn bound them to
the party.
There is still another way in which the idea of a party grows beyond
its interest. The armies in the struggle of parties must extend their ideal
fronts farther and farther lest they be outflanked. The competition be-
tween the parties forces each of them to have planks concerning all the
questions of public life, even those which are connected with its original
interest only loosely or not at all. Thus a party platform comes to in-
clude more and more demands that are called forth only by ideological
motives and not by sociological conditions.
At the moment the interest appeals to the idea it in turn delivers it-
self up to the logic of that idea, which now goes on to unfold according
to its own law, possibly even against the interest that called it into
service. Like a ghost, the spirit may perhaps be called at will but may
not be sent back home at will. The interest cannot use the service of the
idea without in turn becoming subservient to the idea. Of sociological
necessity, the interest unwillingly becomes the vehicle of the idea. Hegel
sees the "trick of reason" in its making the unwilling interests work for
it.
So, in turning now to the ideologies of parties, we are concerned not
with a mere phantom but with a really effective sociological force. 1
Individualism. The individualistic view of the law and the state has
been the first to have its precipitation in a party ideology, indeed, in a
'On t h e f o l l o w i n g , c f . BINDER, PHILOSOPHIE DES R E C H T S 2 8 8 et seq.; also Μ . E.

MAYER, RECHTSPHILOSOPHIE 71 et seq., and, concerning his views , Μ. S a l o m o n in
(1924-25) 1 8 ARCHIV FÜR R E C H T S - UND WIRTSCHAFTSPHILOSOPHIE 4 3 1 et seq.

Authenticated
LEGAL PHILOSOPHY 99
series of different ideologies. T h e point from which those ideologies ra-
diate in different directions is the concept of the individual. 2
One may at first be inclined to locate the individual, as the starting
point of individualism, in the empirical particular human being. B u t
from the concrete individual with all his fancies, whims, and spleen,
there is no way at all that would lead to a legal and political order
serving all equally ( " T o please everyone is impossible"), but only one
to the denial of any law and any state. M a x Stirner, who started with
the "single one," i.e., the concrete ego, consistently had to end in anarch-
ism. Anarchism is that form of individualism which assumes to be able
to start from the empirical, concrete individuality.
So the law and the state cannot aim at serving the real particular
human being with all his inclinations, no matter how unreasonable and
immoral. But no more can they be oriented toward the ideal image of
the perfectly moral and reasonable man. It is of the essence of reason
and morality that they cannot result from legal compulsion but can
only be achieved in freedom. This wrecked enlightened despotism, which
constituted another form of individualism, 3 for it wanted to serve the
individuals — serve them even against their wills — and to enforce the
unenforceable: reason and morality. Enlightened despotism is that form
of individualism which makes the morality and reason of individuals the
objects of direct compulsion.
The Concept of the Individual. T h e concept of the individual, then,

at which liberalism as well as democracy aims, must be the mean be-
tween the empirical individuality and the moral personality. T h i s is the
natural individual inasmuch as he may become a moral personality, the
personified idea of the capacity for morality: personified freedom. Hence
there result the progressively more precise statements: that the law ought
to serve the individual — the law ought to render possible individual
morality — the law ought to effect individual freedom — as far as it can
2 T h e individual as the subject of the purpose of the legal n o r m and the individual
as the point of attack f o r the m o t i v a t i n g force of the legal norm are different prob -
lems. T h e former is dealt w i t h here, while the latter is discussed in m y lecture
DER MENSCH IM RECHT ( 1 9 2 7 ) . H o w the R o m a n s t h o u g h t of man in the l a w in
the latter sense has on one occasion been stated b y G o e t h e : " T h e y were really
interested in m a n only inasmuch as something can be gained f r o m him b y force or
b y persuasion" — the v e r y clever and v e r y selfish man, homo oeconomicus, who
until t o d a y has also remained homo juriditus. H o w the R o m a n s , on the other hand,
regarded the individual as the subject of the purpose of the legal n o r m has been
shown b y Hegel in the statement q u o t e d b e l o w , n. 5.
3 Contra: G u t e r m a n in 41 ARCHIV FÜR SOZIALWISSENSCHAFT UND SOZIALPOLITIK
506.

Authenticated
effect it, that is, not inner freedom but the outward liberty which inner
freedom presupposes, the deliverance from the motivating force of so-
cietal surroundings, whether it consist in the terrorism of the fight of all
against all or in the suggestions of the social environment.
In one sense, therefore, the individual of the individualistic view of
the state is the isolated individual, who is connected with other individu-
als by no bond but the bonds tied by the law itself. Thus in the individu-
alistic view the social phenomenon of law purports, speaking paradoxi-
cally, to destroy the social, i.e., the fact that every one is determined by
all or by some others, and to replace it with a side by side grouping of
free individuals without contacts. Expressing it less paradoxically, it
purports to replace the wild-grown irrationalism of manifold tangled
social ties with a rational minimum system of legal relations. The legal
maxim runs: "Law separates but does not make friends." We sense that
delivering effect or, if a hyperbole is permitted, that antisocial function
of the law whenever in personal relationships that are hard to dis-
entangle we regard it as the last way out to look at the matter in a
"purely business," i.e., a purely legal, way. 4
However, the individual of legal philosophical individualism, being
but personified liberty, at the same time implies the equality of all indi-
viduals. Whereas difference, peculiarity, "individuality" mark the em-
pirical individual and the moral personality ("Each owns an image of
what he ought to become" a ) , the legal philosophical individual, con-
ceived as the mere capacity of empirical individualities for individual-
ized morality, is as such incapable of any individualizing characteristic.
He is an individual without individuality, comparable and frequently
compared to the atom of the natural sciences, forever equal in a thou-
sandfold multiplications and infinite reflections. " M a n in the abstract,
the most artificial, most regular, most refined of all machines, is con-
strued and invented, and he looks like a ghost in true and sober bright
daylight" (Tönnies). 5
4 Schopenhauer compares h u m a n society to a society of porcupines which c r o w d
together in order to w a r m one another b u t must keep apart lest they be hurt b y
one another's quills. T h e middle distance w h i c h they finally discover Schopenhauer
calls h u m a n courtesy. H e migh t also h a v e said: the l a w , conceived individualistically.
* [ Q u o t a t i o n f r o m a poem b y Angelus Silesius.]
5 Hegel, PHILOSOPHIE DER GESCHICHTE ( R e c l a m ed.) 361, shows h o w the R o m a n s
created this concept of the i n d i v i d u a l i t y: " T h e abstract general personality did n o t

yet exist ( a m o n g the G r e e k s ) , f o r the min d h a d first to develop to that f o r m of
abstract universality, w h i c h harshly disciplined m a n k i n d. Here in R o m e w e n o w
find that free universality, t h a t abstract liberty, which on the one hand sets the
abstract state, politics, and p o w e r a b o v e the concrete individuality and f u l l y sub-
ordinates the latter, and on the other hand creates the personality confronting t h a t

Authenticated
LEGAL P H I L O S O P HY ΙΟΙ
The abstract nature of the legal philosophical individual may be most

aptly illuminated by the picture of the social contract. Tha t contract
does not indeed mean the real agreement of real wills of real men, but
fictitiously takes for intended what anyone reasonably cannot be un-
willing to intend, since it is in his true interest. The contracting party of
the social contract thus is fictitiously taken for a purely rational being
who knows, and is solely determined by, his true interest. The social
contract is entered into not by real men, but by unending repetitions of
one abstract rational scheme.
As a result, the individualistic view of the state appears to some so
very unindividualistic — that is to say, if the term is related not to the
individual but to individuality. In the individualist view, moral individu-
ality, just because it is a value of the highest order, and law and the
state are mere means subservient to it, may realize itself only beyond the
juridical sphere; while empirical individuality may occur in the legal
order only in the general form of a personified capacity for the moral, or
of personified freedom, which is the form of the individual without in-
dividuality. So it is precisely in individualism that individuality falls
outside, both hither and yon, of the idea of law.
Liberalism and Democracy. Liberalism and democracy, differing from

anarchism and enlightened despotism because of their different concept
of the individual, are distinguished one from the other by a different
evaluation of the individual. b The earlier characterization of democracy
as "left liberalism," that is to say, a more intense kind of liberalism, was
misleading. Tha t liberalism and democracy differ not merely in degree
but in kind is indicated by the opposition of their most extreme forms:
anarchism as utterly intensified liberalism, and socialism as democracy
thought through to a conclusion, namely, continued beyond politics into
economics. This opposition in world outlook between liberalism and
democracy is now to be worked out step by step from its political
repercussions.
Democracy requires the unconditional rule of the will of the majority;
liberalism demands the possibility of the individual will maintaining it-
self under certain circumstances even against the will of the majority.
To liberalism, the starting points of political philosophical thought are
universality — the freedom of the ego in itself, which must be well distinguished
from the individuality. For personality is the basic determinant of the law, it comes
into existence mainly in property, but is indifferent to the concrcte determinations
of the living spirit, with which individuality is concerned."
b
[The term "liberalism" is used throughout this work in the specific sense of the
nineteenth-century latssez-faire conception of the state.]

Authenticated
102 GUSTAV RADBRUCH
the rights of man, the fundamental rights, the rights of liberty of the
individual, those portions of his natural freedom antecedent to the state
which are brought into the state with the unconditional claim for respect
because the state's task and its justification consist exclusively in their
protection: " T h e ultimate end of any political society is the preserva-
tion of the natural and imprescriptible rights of m a n " (Declaration of
1789). In the democratic view, on the contrary, the individual's freedom
that is antecedent to the state is put b y him completely at the disposal
of the will of the state, the will of the majority, in consideration of and
in exchange for merely the opportunity to take part in forming that will
of the majority. From that difference of fundamental views there follow
quite different principles of political organization of liberalism and of
democracy, involving the long misunderstood antagonism between
Montesquieu and Rousseau. Liberalism pays homage to Montesquieu's
doctrine of the separation of powers, which intends to play the two pre-
tenders for absolutism, monarch and majority, against each other in
favor of the unimpaired rights of individual liberty; democracy with
Rousseau rejects the separation of powers because it combats that abso-
lutism of the majority which is the very goal of democracy.
Here majority, there liberty; here participation in the state and hence
possibly in the majority, there freedom from the state; here "free citi-
zenship," there "civil liberty" ; here rights of political liberty granted b y
the state, there natural liberties left at rest b y the state; here equality
of the rights of liberty granted, there a liberty, equally left to all, to use
very different natural abilities, an equal start in the race which soon
changes into inequality; here the thought of equality outweighs that of
liberty, there contrariwise the thought of liberty outweighs that of
equality. For it is to be understood, after all that has been said, that
this distinction involves not the elimination of the liberal b y the demo-
cratic element or vice versa, but the predominance of one or the other
in what fascist terminology calls the "demo-liberal" mixture.
And so we are able to penetrate to the opposition in world outlook
from which the aforementioned particular oppositions result. In algebraic
terms: democracy attributes to the individual but a finite value, liberal-
ism an infinite one. Consequently in democracy the value of the indi-
vidual may be multiplied, the value of the majority of individuals ex-
ceeding that of their minority; on the contrary, the infinite individual
value of liberalism, of conceptual necessity, cannot be surpassed even by
the value substance of no matter how large a majority. T h a t different
evaluation of the individual seems to be founded on the different struc-
ture of the ethical concept of value on either side. T o the liberal, it
appears that in principle the moral value may be completely fulfilled

Authenticated
LEGAL PHILOSOPHY 103
in a single individual. E v e r y individual is called upon to realize the
moral value that is for all equal and complete, hence unsurpassable and
therefore infinite. T o the democrat, on the contrary, the moral value
acquires its content only by its application to the many different indi-
viduals, and a different content for each individual. Only in an infinite
number of individuals may the entire wealth of the moral world be
displayed.
Social View of the Law, and Socialism. T o liberal and democratic

individualism, however, there must be added social individualism. I t
originated in the criticism of political and civic equality contrasting with
social and economic inequality, which is the essence of "demo-liberal"
individualism. In social reality, the liberty of property, equal for all,
turns for the owner of means of production from a mere dominion over
goods into a dominion over men, and for the propertyless classes into
serfdom to property. T h e liberty to contract, equal for all, turns for the
property-owner into liberty to dictate, and for the man without property
into defenseless subjection to dictation. Political rights, equal for all,
mean a power many times increased in the hands of the propertied
groups that are able to fill the coffers of parties and finance the press, as
compared with the propertyless. But this criticism against merely legal
formal equality is in the last resort directed against the isolated indi-
vidual without individuality, from which the demo-liberal view starts. It
implies the postulate that law and the state be oriented toward the
concrete individual in society 6 — not, indeed, toward the individuality
of every single being, from which, as has been shown, no w a y at all leads
to any conceivable view of law and the state, yet neither toward the
abstract generic concept of man thought of as personified liberty; but
rather toward a plural number of social types, such as the employer and
the employee, the laborer and the office worker. 7 T h u s only the social
view of law and the state renders the differences of social power, the
individual's position of power or powerlessness, visible to the juridical
eye. Thereby it creates the possibility of taking them into account
legally, of differentiating in the treatment of the socially powerful and
"KARL MARX, ZUR JUDENFRAGE: "The emancipation of man is accomplished

only w h e n the real individual h u m a n being takes the abstract citizen b a c k unto
himself and, as an individual h u m a n being in his empirical life, in his individual
w o r k , in his individual relationships, has become a generic being; onl y w h e n m a n has
recognized and organized his jorces propres as social forces and therefore no longer
separates social force in the f o r m of political force f r o m himself."
' C f . R a d b r u c h , Von der individualistischen zur sozialen Rechtsauffassung (1930)
13 HANSEATISCHE RECHTS- UND GERICHTSZEITSCHRUT 457 et seq. (also: (1931)
ARCHIVES DE P H I L O S O P H I E DU DROIT 3 8 7 et seq.).

Authenticated
104 GUSTAV RADBRUCH
the powerless, of supporting the weak and curbing the strong; it replaces
the demo-liberal idea of equality with the social idea of equalization. So
the social law in this characterization represents the victory of equity
over strict justice.
While the social idea aims at the equalization of social inequality,
socialism demands its removal b y removing its cause: private ownership
of the means of production. Y e t socialism, like the social idea, is a form
of legal philosophical individualism. In the economic view, socialism may
be opposed to individualism because the former does not regard economic
life as consisting of free individuals working with and against one an-
other, but wants to subject it to transindividual regulation. But in the
legal philosophical view, all that matters is that that transindividual
regulation, too, is intended in the last resort to serve the individuals.
Thus, even the Communist Manifesto culminates in the ultimate goal
of an "association in which the free development of everyone is the
condition of the free development of all." T h e paradox, that that goal
of liberty for all is to be reached by means of limiting the liberty of all,
the socialist view shares with all other individualist views. It is the basic
problem of legal philosophical individualism, with which even the doc-
trine of the social contract had to wrestle. Again, from the relation of
socialism to "bourgeois" individualism there follows the duality of its
tactical trends: the form of transition to the socialist commonwealth, the
dictatorship of the proletariat, is understood, on the one hand, as demo-
cratic majority rule, and on the other, as minority rule of a proletarian
elite. In the one form, then, the socialist idea is entwined with the demo-
liberal idea; in the other, it involves the belief in the necessity for a
separation, at least a transitional one, from the form of popular govern-
ment under the law.
Conservatism. It was only much later that the individualistic party

ideologies were opposed b y a transindividualistic conservative p a r t y
ideology. 8 T h e former are aggressive, the latter defensive ideologies. T h e
individualistic parties wanted to reform the political facts in accordance
with their ideology; the conservative parties support the existing political
facts b y a subsequent ideological construction. Consequently, the indi-
vidualistic ideologies are rational, the conservative ones irrational: his-
torical or religious. T o the former, the state is composed of its parts like
a machine; to the latter, it is shaped b y a mysterious vital force like an
organism. T h e picture of the organism, the rule of the head over the
limbs, serves conservatism to illustrate its doctrine: that, just as the
8 C f . M a n n h e i m , Das konservative Denken, 57 ARCHIV FÜR SOZIALWISSENSCHAFT

UND SOZIALPOLITIK 68 et seq., 470 et seq.

Authenticated
organism maintains its identity in changing its cells, so the people unites
not only its present but also all its past and future members as " a holy
bond between the generations" (Treitschke) ; that for this reason alone
not the people sets up its ruler but the ruler is set up over the people;
that he rules in the name of the whole and not at the mandate of the
individuals, receiving his sanction not from below, by the will of the
people, but from above, by history and religion, b y legitimacy and the
grace of God, by the charisma of the leader. 9 "Authority, not m a j o r i t y , "
says Stahl; and Mussolini replaces the triad of 1789 with the new one of
"Authority, Order, Justice" — with justice understood in the Platonic
sense of the order of estates.
Almost more important even than the conclusions from the organic
theory of the state as to the position of the ruler are its implications for
the position of the individual. Individualistic legal philosophy starts
from individuals and sums of individuals; transindividualistic legal
philosophy starts from individualities and collective wholes of individu-
alities. In the image of the organism there is proposed a richly articulated
state with manifold intermediate formations between the whole and the
individuals, multiformity and inequality of functions, differentiation in
kind and rank between the regions and localities, racial groups, classes
and individuals. Thus, in the conservative ideology, unlike the individu-
alistic one, individuality has its place. T h e individual of the individual-
istic view of the state was abstract, isolated, and without individuality.
Conservatism, since it thinks of the individual not as isolated but as
member of an organism, is able to understand him as individuality. His
freedom is not the liberty equal for all, the abstract opportunity for each
and every thing, but the freedom fully to work within his limited peculiar
character for the collective best; not freedom from everything, but
freedom for something, hence freedom without equality. Whereas indi-
viduality had no place in individualistic ideology precisely because it
was the ultimate end thereof, it has its place in conservative ideology
" T h e same political function t h a t w a s fulfilled hitherto b y the organic t h e o ry of

the state is n o w being assumed b y the doctrine of integration (SMEXD, VERFASSUNG
UND VERFASSUNGSRECHT, 1928). A s against the organism doctrine, it emphasizes the
t h o u g h t t h a t " t h e individual, to be sure, lives in the whole, but the whol e no less
lives in the i n d i v i d u a l " (LITT, INDIVIDUUM UND GEMEINSCHAFT, 3d ed. 1926, 284).
T h e whol e lives only b y being experienced ever again b y the individuals. In the
doctrine of integration, then, the organic v i e w of the state is actualized, turned
f r o m the static into t h e dynamic, f r o m the substantial into the functional. B u t the
political function of the doctrine of integration, like that of the organic theory,
consists in its suitability for foundin g even non-democratic constitutional f o r m s
u p o n the will of the people, not indeed the will of the popular m a j o r i t y , but the
integrating will of the folk, a popular c o m m u n i t y which cannot be determined and
controlled b y numbers and hence can largely be construed at will.

Authenticated
ιο6 GUSTAV R A D B R U C H
precisely because it constitutes but a means at the service of the collec-
tivity. But the collective whole itself, like the individual, is an individu-
ality. The individualistic idea, starting as it does with the individual
without individuality, cannot consistently come to a final stop before
reaching its ultimate end in mankind without nationality. In the trans-
individualistic view, an ultimate end is reached in the individuality of
the national whole. So conservative thought leads to the twofold articu-
lation of the world in nations and of the state in occupational estates.
At present, however, the conservative idea of the state and the law
is expressed but with refractions in the parties that are closest to it.
Peculiarly essential to conservatism is that historical or religious monism
which finds value in reality. Parties which confront reality with an
ideal, if only the ideal of a past, necessarily lack that structure of con-
servative thought. But their divergence from the conservative way of
thought is aggravated still further when they are not even able to de-
mand the complete restoration of the past but confront the present with
a new ideal of the future enlaced with elements of the past. This diver-
gence becomes very profound indeed if they pursue their aim not with
constitutional but with revolutionary, nay, counterrevolutionary means.
Even in the political picture of the future drawn by these parties, we can
as yet trace only the general conservative-organic-transindividualistic
features. Fundamentally, we may reduce it to the readily available but
ambiguous catchword: "The common weal before selfish interest." c All
specific demands are in the nature of agitation rather than a program.
In accordance with their irrational way of thought, these parties do not
demand political power to realize a preestablished program but say
conversely: first power, then the program! So the program of Fascism
prior to its seizure of power is completely included in the slogan: Italia a
noi! d And even the constitutional scheme of occupational estates which
it adopted after its seizure of power has justly been described as "not a
coherent system of state but merely an adroitly devised instrument of
simple dictatorship." 1 0
Political Catholicism. Finally, an intermediate position between the

transindividualistic and the individualistic parties is occupied by political
Catholicism. The Evangelical [Protestant] and Catholic views of the
church are related to each other exactly like the individualistic and
transindividualistic ideas of the state. In the Evangelical view, the
c [A slogan contained in the Twenty-five Points which were the program of the
Nazi party.]
" [Italy shall be ours!]
10 C f . L U D W I G BERNHARD, D E R STAATSGEDANKE DES F A S C H I S M U S (1931) 42.

Authenticated
church is a human institution for the service of the individual souls, who
alone are religiously valuable. In the Catholic view, on the contrary, the
church, quite apart from any value it may have for the sanctifkation of
the individual souls, is an institution established by God Himself, with
a transindividualistic religious value of its own. T h e state in the Catholic
view is imbedded in, or at any rate attached to, the church as thus
understood. So it may be regarded as "authority by G o d " and hence
touched by a reflected glow of that transindividualistic value of the
church; but it may also be regarded as a secular state and a mere instru-
mentality of individualistic purposes of security and welfare. Therefore,
it is possible for Catholicism to join the right as well as the left, the
transindividualistic as well as the individualistic parties.
T o this extent our party setup may be illuminated by legal philosophy.
T o this extent, then, it has objective foundations. Through the thicket of
further splits between parties, through the coppice of the minor parties,
no light can show a w a y.
SECTION 9
ANTINOMIES OF THE IDEA OF L A W
Did you ever think a thought through to its conclusion without hitting upon a
contradiction? —Ibsen
W e now look back at the road we have traveled thus far.
Justice, Expediency, Legal Certainty. From the concept of the law, a

cultural concept, that is, a concept related to value, we were pressed on
to the value of the law, the idea of the law: L a w is what, according to its
meaning, is intended to serve the idea of the law. T h e idea of the law we
found in justice; and we determined the essence of justice, of distributive
justice, as equality: equal treatment of equal, and correspondingly un-
equal treatment of different, men and relationships. W e were able,
indeed, to orient the concept of the law toward justice; y e t we were
unable thereby to obtain the guiding thought from which exhaustively
to derive the content of law. For while justice directs us to treat equals
equally, unequals unequally, it does not tell us anything about the
viewpoint from which they are to be deemed equals or unequals in the
first place; moreover, it determines solely the relation, and not the kind,
of the treatment. Both questions may be answered only by referring to

Authenticated
ιο8 GUSTAV RADBRUCH
the purpose of the law. Thus to justice there was added, as a second
element of the idea of the law, expediency or suitability for a purpose.
However, the question of purpose and expediency could not be answered
unequivocally but only relativistically, by the systematic development
of the different views of law and the state, the views of the different
parties. Y e t that relativism cannot remain the last word of legal philoso-
phy. The law as the order of living together cannot be handed over to
disagreements between the views of individuals; it must be one order
over all of them.
So we are confronted with a third postulate concerning law, ranking
with the other two, a third element of the idea of the law: legal certainty.
The certainty of the law requires law to be positive: if what is just
cannot be settled, then what ought to be right must be laid down; and
this must be done by an agency able to carry through what it lays down. 1
So, most oddly, the positivity of the law itself becomes a prerequisite of
its Tightness: to be positive is implicit in the concept of right law just as
much as Tightness of content is a task of positive law.
Of the three elements of the idea of law, it is the second, expediency,
to which relativistic resignation applies. But the other two, justice and
legal certainty, are above the conflicts between views of law and the
state, above the struggle of the parties. It is more important that the
strife of legal views be ended than that it be determined justly and
expediently. The existence of a legal order is more important than its
justice and expediency, which constitute the second great task of the
law, while the first, equally approved by all, is legal certainty, that is,
order, or peace. 2 So, too, all equally submit to the postulate of justice.
The entire political struggle of the day represents an endless discussion
about justice. That he withholds from others what he claims for himself;
that he has to grant others what he takes for himself; that he is not
entitled to demand for himself what otherwise could be demanded by
others as well: that is the kind of objections, demands, and refutations
that fly like shuttlecocks incessantly back and forth between the politi-
cian and his political antagonist. But they rest on the tacit assumption
on the part of all disputants that what is right for one is fair for an-
o t h e r — which is the idea of justice. The idea of justice is absolute; it is
1 T h i s line of reasoning is concurred in b y MAX RÜMELIN, DIE RECHTSSICHERHEIT

(1924) 3·
2 "Peace, security — these are the first benefits the l a w is to afford us. E v e n if
w e should be in profound, irreducible disagreement on the higher ends of the l a w ,
w e could nevertheless arrive at an understanding so as to m a k e it achieve these
intermediate ends in w h i c h w e are all interested." CUCHE, CONFERENCES DE PHILOS-
OPHIE DU DROIT ( 1 9 2 8 ) 19.

Authenticated
LEGAL PHILOSOPHY io g
formal, indeed, but universally valid withal. L i k e legal certainty, it is a
nonpartisan postulate; but upon the view of the state and the law, the
party attitude, it depends how far these postulates are to precede or rank
below other postulates concerning the law, to what extent expediency or
justice of the law is to be sacrificed to legal certainty or conversely
legal certainty is to be sacrificed to them. Universally valid elements of
the idea of the law are justice and legal certainty; a relativistic element,
however, is not only expediency itself but also the rank of the three
elements relative to each other.
Our investigation has been pressed irresistibly from one element of the
idea of the law to another: the three elements of the idea of law require
one another — yet at the same time they contradict one another. 3
Tensions Between the Three Ideas of Legal Value. Justice and ex-
pediency raise opposite demands. Justice is equality; equality of the law
demands generality of the legal rule. Justice generalizes to some degree.
But equality is not given in reality; always, equality is but an abstrac-
tion from actual inequality, taken from a certain point of view. Still,
from the point of view of expediency, every inequality remains essential;
expediency is bound to individualize as far as possible. So justice and
expediency become contradictory. T h e contradiction is illustrated, for
instance, b y the conflict between administration and administrative
courts, the struggle between the tendencies of justice and expediency in
criminal law, and, in another field, the contradiction between pedagogic
and disciplinary requirements in all mass education. This relation of
tension, however, is irremovable. 4
B u t a contradiction arises also between justice and expediency, on
the one hand, and legal certainty, on the other. Legal certainty demands
positivity, yet positive law claims to be valid without regard to its
justice or expediency. Positivity is a fact, positive law presupposes a
power that lays it down. So law and fact, law and power, while opposites,
enter into a close relation all the same. But legal certainty not only
requires the validity of legal rules laid down b y power and factually
carried through; it also makes demands on their contents: it demands
that the law be capable of being administered with certainty, that it be
practicable. It frequently impresses the law with features that conflict
with individualizing expediency. For instance, it draws sharp lines where
3 C f . R a d b r u c h , Die Problematik der Rechtsidee, in the y e a r b o o k (1924) DIE

DIOSKUREN 43 et seq. Concerning the "relation of tension" between justice and legal
certainty, see also PETRASCHEK, RECHTSPHILOSOPHIE DES PESSIMISMUS (1929) 181
et seq., 408-409.
* C f . ISAY, RECHTSNORM UND ENTSCHEIDUNG (1929) 135 et seq.

Authenticated
HO GUSTAV RADBRUCH
life knows only flowing transitions, or it defines a state of facts b y

external symptoms instead of the really intended inner facts.
Indeed, the demands of legal certainty may ultimately conflict with
the conclusions from that very positivity which is required by legal
certainty. Thus, in the interest of legal certainty, customary law or
revolutionary law, in derogation of previous positive law, may be con-
sidered valid once it has succeeded at the expense of such previous law.
This phenomenon in the field of legal validity is paralleled also b y
phenomena in the contents of the valid law itself. Just as, in the interest
of legal certainty, illegal facts may destroy and create (objective) law,
so for the sake of legal certainty legal (subjective) rights may arise
from, and be terminated by, illegal facts. 1 In the interest of legal certainty,
res judicata renders even the substantially wrong decision valid for that
particular case ·— and renders the wrong precedent valid possibly even
beyond the particular case. 5 In the statute of limitations, title by adverse
possession , b the protection of possessory estates in private law, and the
status quo in international law, even the illegal situation is given the
effect of destroying or creating rights in the interest of constancy, that
is, of certainty in legal life. 6
One might be tempted to settle the conflict between justice, expedi-
ency, and legal certainty b y proposing a straightforward division of
labor between the three principles according to their fields of operation.
B y justice we would test whether a precept is cast in the form of law at
all, whether it may at all be brought within the concept of law; b y
expediency we would determine whether its contents are right; finally,
by the degree of legal certainty it affords we would judge whether to
ascribe to it validity. As a matter of fact, we determine by the standard
of purported justice alone whether a precept is at all legal in nature,
whether it accords with the concept of law. 7 B u t the contents of the
law are governed b y all three principles. T o be sure, the bulk of legal
contents is governed b y the principle of expediency; but even these legal
* [On " o b j e c t i v e l a w " and " s u b j e c t i v e legal r i g h t " see translator's note b, LASK,
LEGAL PHILOSOPHY, c h a p . I I , supra, p. 32.]
" T h e "ideal of universal agreement," which W . JELLINEK, SCHÖPFERISCHE
RECHTSWISSENSCHAFT (1928) has proposed f o r judicial decisions, also belongs in
this connection.
b [ T h e term used in the G e r m a n text is Ersitzung, the R o m a n usucapio, w h i c h
w a s adverse possession begun in the g o o d faith belief in one's ownership at the
time of acquisition.]
'Contra: M . R Ü M E L I N , D I E RECHTSSICHERHEIT (1924) 2 4 , η . 4.
' T h i s , of course, does not prejudge their admissibility [ l e g a l i t y ] : thus, A r t . 48
of the Reich Constitution [of W e i m a r , 1 9 1 9 ] authorizes [dictatorial] "measures,"
which because of their individual nature do not bear the character of l a w .

Authenticated
LEGAL PHILOSOPHY ill
contents are modified by justice, as, for instance, when a doctrine de-
rived from expediency demands application even beyond the range of
its expediency on grounds of legal equality. Moreover, there are a num-
ber of legal provisions which are dictated b y no expediency at all but
solely b y justice or legal certainty. Equal protection of the laws or the
prohibition of ad hoc tribunals, for instance, rests on requirements not
of expediency but solely of justice. And required solely by the demand
for legal certainty are the so-called "directing norms," 8 which com-
pletely fulfill their purpose b y just being there without any purpose
governing their specific contents. T h e y are legal rules the opposite of
which would be just as right and which only purport to provide a
uniform regulation, no matter which; e.g., the traffic rule " K e e p r i g h t ! "
which fulfills its purpose of preventing collisions no better than would
the opposite rule, " K e e p l e f t ! " 9 Finally, too, it will appear that even
the validity of positive law that is unjust and wrong cannot be main-
tained unqualifiedly; hence the question of validity may be considered
not only from the standpoint of legal certainty but also that of justice
and expediency.
Antinomic Character of Legal Philosophy. So our result is this, that

the three aspects of the idea of law, justice, expediency, and certainty
of the law, jointly govern law in all its aspects, although they may
sharply contradict one another. T o be sure, different ages will be in-
clined to lay decisive stress upon one or the other of those principles. So
the government by prerogative c [of enlightened despotism] sought to
raise the principle of expediency to sole dominion, unhesitatingly push-
ing aside justice and legal certainty in its administration of law b y
cabinet fiats. So the age of natural law tried to conjure the entire con-
tents of the law out of the formal principle of justice and at the same
time therefrom to derive the validity of law. So, with fatal one-sidedness,
the past age of legal positivism saw only the positivity and certainty of
the law and caused a long standstill in the systematic examination of the
expediency, not to mention the justice, of enacted law, for decades nearly
silencing legal philosophy and legal policy. But the very one-sidedness
8 C f . M A R S C H A L L VON B I E B E R S T E I N , V O M K A M P F DES R E C H T E S C E G E N DIE GESETZE

(1927) 116, 123.
' Such directing norms would be needed even in a community of perfect beings
w h o would fully k n o w and fulfill the duties of justice. It is therefore incorrect to
explain the law merely as a makeshift remedy for human sinfulness, destined to
disappear whenever the human race should arrive at the summit of sinless morality.
E v e n the "heavenly hosts" cannot do without parade regulations.
0 [See infra, sec. 26, note a.]

Authenticated
of each of the successive legal ages serves to illustrate the contradictory
many-sidedness of the idea of law.
We have shown contradictions without being able to resolve them.
We consider this no defect of a system. Philosophy is not to relieve one
of decisions, but to confront him with decisions. It is to make life not
easy but, on the contrary, problematical. A philosophical system is to
resemble a Gothic cathedral in which the masses support each other by
pressing against each other. How suspect would be a philosophy that
did not consider the world a purposeful creation of reason and yet
resolved it into a rational system with no contradiction! And how super-
fluous any existence if ultimately the world involved no contradiction
and life involved no decision! 10
SECTION IO
T H E VALIDITY OF L A W
"Thou shalt because I will" is nonsense; but "Thou shalt because I shall" is a correct
syllogism and the basis of all law. — Seume
In the conception of legal certainty, the problem of the idea of law

touches the problem of the validity of law, which we now explicitly
present for discussion. 1 The question of the validity of law is the ques-
tion of the "normativity of the factual" (Georg Jellinek): How can a
norm issue from a fact, a legal Ought issue from the legal will of the
state or society, since it seems that a Will, if accompanied by power,
can produce a Must but can never produce an Ought?
Juridical Doctrine of Validity, i . T o be sure, in legal science that

Will is questioned, not as to its mental factuality but solely as to the
significance of its contents. Yet the only possible way to express the
contents of a command without referring back to the fact of command-
ing, is by the words: "This ought to b e ! " The meaning of a Will separated
from its psychological foundation is an Ought, that is, the content of an
imperative, a norm that is neatly cut out of the factuality of the giving
10 So, too, A . B a u m g a r t e n refers to the " a n t i n o m i c structure of the universe,"
RECHTSPHILOSOPHIE 34, a n d professes a " p h i l o s o p h y of contradictions," 1 DIE
WISSENSCHAFT VOM R E C H T (1920).
1 On the problem of the v a l i d i t y o f l a w , c f . E M G E , VORSCHULE DER R E C H T S P H I -
LOSOPHIE 81 et seq., and BURCKHARDT ORGANISATION DER RECHTSGEMEINSCHAFT
(1927) 163 et seq.

Authenticated
of the command. So legal science, of methodological necessity, conceives

the contents of the law as something valid, an Ought, something
obligatory. 2
But in searching for the ground of that validity, the juridical doctrine
of validity at some point necessarily encounters the factuality of an
authoritative Will that cannot be further derived anywhere. I t will
derive the validity of a legal rule from other legal rules, that of an ordi-
nance from a statute, that of a statute from the constitution. B u t the
constitution itself can and must be taken b y such a purely juridical
doctrine of validity for a causa sui.a It may well explain the validity of a
legal rule in relation to other legal rules, but never the validity of the
highest legal rules, the fundamental laws, and hence never the validity
of the legal order as a whole. Legal science is purely immanent; it is
caught and confined within a particular legal order, the meaning of
which alone it is called upon to understand. Accordingly, it may forever
measure the validity of a legal order by that very order's claim to
validity only, but can never decide impartially about the claim to
validity of one of these legal orders in relation to other orders.
T h u s it is helpless when faced with "collisions of norms" in all their
numerous forms. In the conflict between custom, morals, and law, it can
forever side only with the law, which is its given subject-matter, and
can never serve as an impartial judge above the disputing parties. T h e
conflict between domestic and foreign laws it cannot decide impartially
but only in accordance with the claim of validity of the domestic law, the
so-called "international private l a w " or "international criminal l a w , " b
which is of course part of the national law. In the controversies between
statute law and customary law, between the law of nations and municipal
law, between the state and the church, between legitimitv and revolu-
tion, in the "struggle of the old with the new l a w " ( G . Jellinek), it can
forever plead only the one-sided claim of the part it serves, like an
2 A t this point, the v e r y i n v o l v e d line of reasoning concerning the problem of
the legal duty m a y be summarized once again. Legal philosophy cannot on its o w n
strength establish the idea of legal d u t y . It k n o w s the l a w in its normative f o r m as a
standard only and as an imperative in a purely f a c t u a l cast alone (supra, sec. 5,
pp. 8 1 - 8 3 ) . W h a t is legally prescribed turns into a d u t y only b y being elevated to a
moral d u t y , that is, within the field of ethics. T h e legal duty is thus established as a
moral d u t y , and not a true legal d u t y (supra, sec. 5, pp. 84-85). T r u e legal duties
exist only in jurisprudence, w h i c h is concerned w i t h the content of meaning of the
legal imperatives. T h a t content of meaning, separated f r o m the f a c t of the Will that
carries it, can be understood only as an Ought t h a t establishes duties — and only
in the limited sense w h i c h will presently be described in the text a b o v e .
" [Cause of itself.]
b [These Continental terms are equivalent to "conflict of l a w s , " denoting the
legal rules governing the choice of l a w . ]

Authenticated
ii4 GUSTAV RADBRUCH
attorney, but can never pass objective judgment. Indeed, it would be
unable on cogent grounds to deny the validity even of the imperatives of
a paranoiac who believes himself to be king. Only from the standpoint of
one legal order can it ever criticize the claim of validity of another one —
tamquam e vinculis sermocinaric (Bacon) — but it can never on its own
strength establish why it takes the standpoint of just that legal order.
So it is unable on its own strength even to justify the choice of its
field of work. The subject-matter of its work must be assigned to legal
science by an extra-juridical approach.
Sociological Doctrine of Validity. 2. For an impartial choice between

all those colliding norms, then, a jump from the world of meaning into
the world of existence seems inevitable. Valid is that legal order which
succeeds in rendering itself factually effective, whether it has won for
itself the minds of those subject to it by long, convincing, and habituat-
ing influence or has been forced upon them by compulsion and punish-
ment. What is required for the validity of a legal order, however, is not
its efficacy in every particular case; it is sufficient that it is carried
through in the average of cases.
This emphasis on the typical suffices to indicate that such a doctrine
of validity is sociological-historical, or descriptive, and not juridical-
philosophical, or normative. Normative doctrines of validity aim at
establishing the validity of the law in all particular cases. But the
validity of the law as against a particular individual cannot very well
be based on its being effective usually, that is, against others. Still an-
other feature shows the descriptive nature of this doctrine of validity.
It is compelled, corresponding to the degrees of efficacy, to assume
degrees of validity, and hence to assume the validity, differing by
degrees, of two simultaneous legal orders in conflict with each other.
But a normative doctrine of validity aims precisely to decide between
such conflicting legal orders with respect to their validity.
The Power Theory. The historical-sociological doctrine of validity 3

appears in two versions: the power theory and the recognition theory.
According to the power theory, the law is valid because it is the com-
mand of a power which is able to carry it through. But command and
power imply only a Will and a Can, so they may call forth at most a
Must but not an Ought on the part of the addressee, possibly obedience
but never a duty to obey. Just as a worthless paper (according to
0 [Discoursing in jail, as it w e r e . ]
8 On the distinction between juridical and sociological doctrines of v a l i d i t y , cf.
M A X WEBER, WIRTSCHAFT UND GESELLSCHAFT (2d ed. 1926) 3 6 8 et seq.

Authenticated
LEGAL PHILOSOPHY
Merkl's apt comparison) acquires no validity by one with a pistol in

his hand forcing it upon someone else for payment, so an imperative
does not become valid against him who, gnashing his teeth, is forced to
submit to it, and still less against him who sneers at it, knowing how
to evade it. For if the law is valid only because it is backed by power, it
cannot be valid where that power fails. Accordingly, not to be caught
would mean not to have offended, as in Spartan morals; and with the
statute of limitations run, at the latest, the deed would not only cease
to be punishable but cease to be wrong.
However, an analysis of the concept of power is enough to lead one
beyond the power theory. Power is not bounded b y force. Power is
spiritual: 4 in the last analysis, all power is power over souls. " T h e ruler
is raised but by the obedient" (Schiller). 5 Y e t the greatest power is the
law: " E v e n the strongest one is not strong enough unless he transforms
his power into law, and obedience into d u t y " (Rousseau); and therefore
law is the best "policy of force" (Jhering). N a y , your very force is
nothing but m y fear: Qui potest mori non potest cogid (Seneca). All
power rests on the recognition, willing or unwilling, of those subject
to it.
The Recognition Theory. So under our hands the power theory has
changed into the recognition theory. T o refute this theory, which bases
the validity of law on the consent of those subject to the law, the objec-
tion has been raised that it destroys the legal bond by making it depend-
ent upon the pleasure of those who are to be bound: sub hac conditione
"si volant" nulla fit obligatio e {Dig. 44, 7, 1 , 8 ) . Thus, it is said, it causes
the law to fail precisely where it should stand the test: against the
criminal, who by transgressing the law withdraws his consent to it in
what seems the most unequivocal manner. B u t that objection overlooks
the fact that recognition is a function not of the will but of feeling,
belonging in the field not of mental spontaneity but of mental passivity;
that it no more rests with us to find something right or wrong than to
find something beautiful or ugly, good or evil, true or false; that just as
we cannot at will switch off our taste, conscience, or reason, so even the
4 "Do y o u k n o w w h a t surprises m e most in this w o r l d ? T h e impotence of

material force. T h e r e are only t w o things in the w o r l d , the s w o r d and the spirit. In
the long run, it is a l w a y s the spirit that will conquer the s w o r d . " N a p o l e o n I a f t e r
the Russian campaign.
"Oboedientia jacit imperanlem [Obedience makes the ruler]. On these alleged
w o r d s of Spinoza, see W . JELLINEK, GRENZEN DER VERFASSUNGSGESETZGEBUNG
( 1 9 3 1 ) 16, η. 29.
d [ H e w h o k n o w s h o w to die k n o w s h o w not to be forced.]
" [ S u b j e c t to this condition: " I f I should wish t o , " no obligation is created.]

Authenticated
ιι6 GUSTAV RADBRUCH
criminal cannot shake off his sense of law, which binds him to a norm,
simply by transgressing it. Often, indeed, the criminal by his very crime
expresses his recognition of the law he violates. T h e thief injures the
property of another in order to get property of his own, thus in principle
recognizing the legal institution of property and, consistently, all that
is necessary to protect that property — hence recognizing his own cul-
pability. For the forged document, the forger claims the very public
faith that he shakes by his forgery, thus recognizing the legal good he
violates and, consistently, the protection of the law which turns against
himself.
Y e t these examples also suffice to indicate that the recognition theory
does not stop with the psychological factuality of recognition but rather
imputes as indirectly recognized what one cannot consistently fail to
recognize. As in the doctrine of the social contract, so in the recognition
theory, what is in the "true interest" of the individual is fictitiously
taken to be willed by him. If we discard that fiction, if we base the
validity of the law not on the fictitious recognition of its validity by
those subject to it but on their true interest in its validity, we complete
the transition from the historical-sociological to the philosophical doc-
trine of validity.
Philosophical Doctrine of Validity. 3. B u t does not such a philosophi-

cal doctrine of validity necessarily identify the valid with the right law,
the right with the valid law, positive validity with absolute validity?
Does it not relapse into the errors of natural law, which denied the
validity of wrong law just because it is wrong and ascribed validity to
right law just because it is right?
N o doubt, if the purpose of the law and the means necessary to attain
it could be known with scientific clarity, the conclusion would be in-
escapable that that natural law, once it was scientifically recognized,
must extinguish the validity of positive law deviating therefrom, just as
the disclosure of truth must extinguish the exposed error. T h e validity of
demonstrably wrong law cannot conceivably be justified. However, any
answer to the question of the purpose of law other than by enumerating
the manifold partisan views about it has proved impossible — and it is
precisely on that impossibility of any natural law, and on that alone,
that the validity of positive law may be founded. A t this point rela-
tivism, so far only the method of our approach, enters our system as a
structural element.
Ordering their living together cannot be left to the legal notions of the
individuals who live together, since these different human beings will
possibly issue contradictory directions. Rather, it must be uniformly

Authenticated
governed by a transindividual authority. Since, however, in the relativis-

tic view reason and science are unable to fulfill that task, will and power
must undertake it. If no one is able to determine what is just, somebody
must lay down what is to be legal; 6 and if the enacted law is to fulfill
the task of terminating the conflict of opposing legal views b y authorita-
tive fiat, law must be enacted by a will which is able also to carry it
through against any contrary legal view. He who is able to carry law
through thereby proves that he is competent to enact law. Conversely, he
who does not have enough power to protect every one of the people
against anybody else has no right to command him either ( K a n t ) . T h e
first promise of a revolutionary government is to reestablish and main-
tain the "safety and order" which the revolution has just disturbed —
this is the first of its promises because only b y maintaining safety and
order may a revolutionary government legitimitize itself. Charles Martel
asked Pope Zachary : "Should he who has the power also be k i n g ? " T h e
Pope answered in the affirmative, 7 upon the ground: ne conturbaretur
ordo.1 " H e is lord who keeps us quiet" (Goethe, Faust, Part II, A c t I V )
— that is the "fundamental norm" upon which the validity of all positive
law is based. It has been expressed in these words: " I f in a community
there is one who has supreme power, his commands shall be obeyed," or,
more briefly, as in Rom. 1 3 : 1 : " L e t every soul be subject unto the
higher powers." 8
" T h a t is, l a y d o w n w h a t o u g h t to be legal, a n d n o t w h a t is right, w h i c h w o u l d

b e c o n t r a d i c t o r y in itself. T h e c o m p e t e n c y of the h o l d e r of p o w e r to enact l a w
m a y i n d e e d m a k e a certain legal v e i w t h e basis of t h e legal order b u t c a n n o t p r o -
n o u n c e it a u n i v e r s a l l y v a l i d legal t r u t h ; it m a y t e r m i n a t e the s t r u g g l e of the legal
v i e w s f o r p o w e r b u t n o t the c o n t r o v e r s y b e t w e e n t h e m as opinions . O n the c o n -
t r a r y , t h e v e r y r e l a t i v i s m w h i c h calls u p o n p o w e r t o choose b e t w e e n the v a l i d i t y
of l e g a l v i e w s d e m a n d s t h a t t h a t p o w e r l e a v e t h e field o p e n f o r c o n t r o v e r s y b e t w e e n
l e g a l v i e w s as opinions . I t requires l e g a l i t y of b e h a v i o r b u t also f r e e d o m of criticism
a n d of p r o p a g a n d a . T h i s has v e r y p r o p e r l y b e e n said, in c o m p l e m e n t i n g the s t a t e -
m e n t s in this b o o k , b y G u t e r m a n in 41 ARCHIV FÜR SOZIALWISSENSCHAFT UND
SOZIALPOLITIK 508.
' R A N K E , ÜBER DIE EPOCHEN DER NEUEREN GESCHICHTE, L e c t u r e 8, sec. 3.
1 [ L e s t order be d i s t u r b e d . ]
8 C f . WALTER JELLINEK, GESETZ, GESETZESANWENDUNG UND ZWECKMÄSSIGKEITSER-
WÄGUNG (1913) 27 et seq., a n d GRENZEN DER VERFASSUNGSGESETZGEBUNG (1931) 1 6 ;

also his n o t e Ι in GEORG JELLINEK, ALLGEMEINE STAATSLEHRE ( 3 d e d . ) 264. K e l s e n ,
t o o , s a y s " t h a t b y the basic n o r m o n l y a n a u t h o r i t y w h o s e n o r m s are o b e y e d b y
a n d large m a y be set u p as a n a u t h o r i t y c r e a t i n g l a w , " a n d he finds in the basic
n o r m " t h e t r a n s f o r m a t i o n of p o w e r i n t o l a w , " NATURRECHTSLEHRE UND RECHTS-
POSITIVISMUS (1928) 65. [ T r a n s l a t e d in KELSEN, GENERAL THEORY OF LAW AND
STATE (194s) 437·] R o m . 13:1 w a s in f a c t r e f e r r e d to, a f t e r t h e R e v o l u t i o n
[of 1 9 1 8 ] , b y the [ G e r m a n C a t h o l i c ] C e n t e r P a r t y , t h r o u g h D e p u t y G r o e b e r in the
N a t i o n a l A s s e m b l y [of W e i m a r ] , F e b . 13, 1 9 1 9 : " I n o u r o p i n i o n , a n y a u t h o r i t y is
b y the g r a c e of G o d , n o m a t t e r w h e t h e r it is m o n a r c h i c a l or r e p u b l i c a n . "

Authenticated
Il8 GUSTAV RADBRUCH
So the connection between power and law, the origin of law in a

breach of law, the theory of the accomplished fact in international law,
the normativity of the factual, are now established philosophically. Y e t
this is b y no means a relapse into the sociological doctrine of validity.
T h e law is valid not because it can be carried through effectively; rather,
it is valid if it can be carried through effectively, because it is only then
that it can afford legal certainty. T h e validity of positive law, then, is
based upon the certainty which it alone possesses; or, circumscribing the
sober term "legal certainty" by weightier verbal formulae, upon the
peace it creates between conflicting legal views, upon the order that ter-
minates the struggle of all against all. Positive law is to "establish peace
in action during the war of opinions, during the struggle of philosophers"
(Anselm Feuerbach). Justice is the second great task of the law, while
the most immediate one is legal certainty, peace, and order. " I ' d rather
commit an injustice than tolerate disorder," said Goethe and also: " I t
is better that you suffer wrong than that the world be without law." 9
Antinomies of the Doctrine of Validity. B u t such cannot remain the

last word of legal philosophy on the question of validity. Only this has
been established, that legal certainty too is a value and that the legal
certainty which positive law affords may justify even the validity of
unjust and inexpedient law. N o t established, though, has been any abso-
lute precedence of the demand of legal certainty, which is fulfilled by
any positive law, over the demands of justice and expediency, which it
may possibly have left unfulfilled. T h e three aspects of the idea of law
are of equal value, and in case of conflict there is no decision between
them but b y the individual conscience. So the absolute validity of all
positive law as against every individual cannot be demonstrated. It
would indeed be miraculous if something real should have value and
validity throughout. T h e individual conscience usually will, and properly
may, deem an offense against positive law more objectionable than the
sacrifice of the individual's own legal conviction, 1 0 but there may be
"shameful laws " which conscience refuses to obey. A t the time of the
" T h e same kind of legal sense is aptly described by THEODOR FONTANE, MEINE
KINDERJAHRE: "AS long as revolutionary struggles fall short of certain victory, I
follow all these insurgencies with greater or less disapproval, founded, I would say,
not on my legal sense but on my sense of order." Fontane sees its basis "in a
certain sense of order, a natural claim to be made in view of superiority of numbers
or power."
" T h e value of legal certainty is put too low as against legal conviction by
MARSHALL VON BIEBERSTEIN, V O M K A M P F DES R E C H T E S GEGEN DIE GESETZE (1927).

Authenticated
Socialists A c t 8 the [German Social Democratic] Convention of W y d e n

resolved to amend the Platform of Gotha to read that the party strives
for its aims b y all means, and no longer merely b y all legal means.
T o be sure, "every lawyer always ought to deem best any existing
legal constitution and, if it is amended b y superior authority, then the
one succeeding it" ( K a n t ) . T h e judge, charged with interpreting and
serving the positive legal order, ought not to know any but the juridical
doctrine of validity, which deems the law's meaning of validity, its claim
to validity, equal to real validity. It is the professional duty of the judge
to validate the law's claim to validity, to sacrifice his own sense of the
right to the authoritative command of the law, to ask only what is legal
and not if it is also just. T o be sure, the question may be raised whether
this very duty of the judge, this sacrificium intellects} this devotion in
blank of one's own personality to a legal order the future changes of
which one cannot even anticipate, is morally possible. B u t however un-
just the law in its content may be, by its very existence, it has been seen,
it fulfills one purpose, viz., that of legal certainty. Hence the judge,
while subservient to the law without regard to its justice, nevertheless
does not subserve mere accidental purposes of arbitrariness. Even when
he ceases to be the servant of justice because that is the will of the law,
he still remains the servant of legal certainty. W e despise the parson
who preaches in a sense contrary to his conviction, but we respect the
judge who does not permit himself to be diverted from his loyalty to the
law b y his conflicting sense of the right. For the dogma is of value only
as an expression of faith, while the law is of value not only as a precipi-
tation of justice but also as a guarantee of legal certainty, and it is pre-
eminently as the latter that it is entrusted to the judge. A just man is
worth more than a merely righteous, merely law-abiding man; but we
do not usually call judges "righteous" but only " j u s t , " since a righteous
judge b y that very token, and by that alone, is also a just judge.
Y e t the judge, who is in conscience bound to consider all enacted law
valid, may be faced b y a defendant who is bound by his conscience to
regard unjust or inexpedient law as invalid although it is enacted. 1 1
Against the latter, the law may prove its power but can never demon-
strate its validity. T h a t case of the "criminal from conviction" proves a
truly tragic case precisely because there is no solution for it. D u t y de-
' [ G e r m a n statute, 1878-1890, containing sweeping repressive measures against

socialists.]
b [Sacrifice of the intellect.]
1 1 " I swore to observe the constitution conscientiously; b u t w h a t if m y con-

science demands of me not to observe i t ? " — B i s m a r ck t o C r o w n Prince Friedrich
Wilhelm. C f . ZECHLIN, BISMARCKS STAATSSTREICHPLÄNE 60 et seq.

Authenticated
120 GUSTAV RADBRUCH
manded the crime of the perpetrator, duty demands the sentence of the
judge, and duty may possibly demand that one submit to the penalty
incurred for the crime committed out of duty — for the sake of the law's
inviolability, of legal certainty. Socrates thought and acted thus when he
scorned escape from the execution of the miscarriage of justice: " D o you
think that a state can survive, and is not indeed destroyed, where sen-
tences that are pronounced are without force and are invalidated and
frustrated b y individuals?" 1 2
SECTION I I
PHILOSOPHY OF HISTORY AND THE L A W
The stone patiently suffers the forming chisel, and to the musician who touches
them the chords respond without resisting his fingers. The lawmaker alone works
at a self-acting, resisting material — human freedom. — Schiller
T h e theme of the philosophy of history is history from the viewpoint

of the realization of values, history as the road toward, or again the
wrong road away from, value. So the problem of the philosophy of his-
tory in relation to the law (or the philosophy of legal history) is to con-
template, in the reality of historical events, the realization of the
concept, the idea, and the validity of law (which in three spheres of
problems have formed the theme of our discussions so f a r ) .
The Law as a Form of Culture, i . " L a w " is not only the category ante-
cedent and basic to any legal contemplation, not only the form of
thought outside of which nothing legal can be conceived, but also the
real form of culture which comprehends and molds every fact in the
legal universe. For a new legal trend is realized not in a legal vacuum
but either b y reinterpretation of existing legal institutions or by inser-
tion of new legal institutions into a given legal system. In either case,
it is built into the architecture of a tremendous legal structure, altering
it in details only, and is inescapably qualified b y its style. L a w as a con-
ceptual category is expressed in reality by the law as a real form of
culture.
Form and Material oj the Law. T h e question thus raised in the phi-
losophy of history concerns the relation between the matter and the
12 Cf. A L S B E R G , D E R P R O Z E S S DES S O K R A T E S (1926) 27-28.

Authenticated
form of the law, between the donnes and the construita ( G e n y ) , between
the realia of legislation and their legislative formation (E. H u b e r ) . It
has been answered by manifold different estimates of the formative
power of the legal form and the resisting power of the legal matter. 1
T h e theory of natural law assumes that the resisting power of the
matter against the idea may be put at zero. It completely volatilizes the
matter of the law. In its view, the material of the legal idea is not a
definite historical situation but the state of nature; and that state of
nature is depicted not as a sociological relationship, but rather as an un-
sociable side-by-sideness of individuals; the first creation of social rela-
tions between them being reserved to the legal idea, unhampered by any
preexisting sociological ties. A n d since the theory of natural law knows
no resistance of historical or sociological matter, it denies the change-
ability of the legal idea, which indeed could spring only from its material
concrete element and not from the quite empty and hence quite universal
pure form. So natural law affirms a legal ideal that is everywhere ever-
lastingly the same.
I t is the merit of the historical school to have overthrown that doctrine
of the omnipotence of the legal form. W h a t is given by the "national
spirit" is stressed at the expense of the formative forces of reason. T h a t
the resistance of matter may indeed not be put at zero is shown by the
simple reflection that the decisive movements in the social world are out-
side of the influence of the law. T h e legal order can command the indi-
vidual only; it can gain influence on social processes but indirectly, b y
w a y of the individual, and hence to a very limited extent; processes of
mass psychology, for instance, it cannot dominate. A n d it cannot at all
effect natural events. T h u s economic life being both a natural and a
social process, both technical and economical, moves essentially uninflu-
enced by law and is in turn apt to react upon the law. 2
A s a result of such considerations, the doctrine of omnipotence has
been opposed by the doctrine of powerlessness of the law. In the ma-
terialistic view of history, law is a mere mode of appearance of the
economic life, hence the legal form is a mere mode of appearance of
legal matter. In calling law the form of the economy, this view refers
not to the formative but to the formed form, not to a form into which
the matter is pressed, but to one which it assumes, not to innermost
essence but to outward appearance. I t regards law as historically and
* [That which is given and that which is construed.]

1 Cf. Radbruch, Rechtsidee und Rechtsstoff (1923) 17 ARCHIV FÜR RECHTS- UND
WIRTSCHAFTSPHILOSOPHIE 3 4 3 et seq.
2 Cf. RENNER, DIE RECHTSINSTITUT E DES PRIVATRECHTS UND IHRE SOZIALE
FUNKTION ( 1 9 2 9 ) 1 4 5 et seq.

Authenticated
sociologically conditioned throughout, without any formal element of
universal validity. In this sense, Marx-Engels note, in their Draft of a
German Ideology: b "Never forget that law has no more a history of its
own than has religion."
As has been shown previously (sec. 3, pp. 63-65, even historical
materialism has been compelled to recognize that the forms of culture,
and in particular the legal form, follow laws of their own. It does not
simply identify the ideal with the material but regards the ideal as a
transformation and translation of the material into a new form, without,
however, giving sufficient attention to the formal aspect of this process.
For our part, we have established that the legal form is the form of
justice, that is, of equality and generality, and that by this form any
purposeful endeavor that wants to utilize the law is inescapably seized
and is deprived of the sole dominion of its set purpose. The question of
the philosophy of history concerning the relation between the form and
matter of the law thus is to be answered by saying that each law is a
product of legal matter and legal form, with now the formal, now the
material, element prevailing. Typical are Roman law on the one hand
and Germanic law on the other.
Closely connected with the doctrine of the exclusively material deter-
mination of the legal form is another doctrine in the philosophy of his-
tory, the doctrine that not only every legal content but the legal form
itself is transitory, the Marxist doctrine of the "withering away of the
law." According to it, the juridical world outlook is the "classical world
outlook of the bourgeoisie" (Engels), which superseded the theological
world outlook of feudalism; in the proletarian transitional state, this
civil law with its affectation of justice is to be replaced with a class
"law," "without any make-up," i.e., with the legal form deliberately
discarded, which would then in the classless society be completely sub-
merged and make room for a mere "administration of goods." Justice is
only the ideological reflection of the market with its do ut des,c destined
to disappear with the individualist market economy. T o be sure, the
justice which is referred to there is but the justice of private law, com-
mutative justice. By stepping beyond the "narrow horizon of civil law"
(Marx) and of commutative justice, there would then be established but
the exclusive dominion of another justice, the distributive justice of
public law; or, in other words, the entire law would be rendered public
and the individualistic would be merged in the social law. So even the
socialist commonwealth will be a government of laws, d though one gov-
B [ E N T W U R F EINER D E U T S C H E N IDEOLOGIE.]
c [I give that you give.]
a [Cf. infra, sec. 26, n. a.]

Authenticated
erned by distributive instead of commutative justice. T h e living together

of human beings without any legal form at all is inconceivable. 3
The Realization of the Idea of Law. 2. T h e question of the realization

of the idea of law in history may be raised in two ways. It is possible to
start from the legal ideas of the several parties and trends of world out-
look and to examine how far history serves to realize each of them. T o
each view of the law and the state there would then correspond a particu-
lar philosophical construction of history. One may cite as examples, of a
liberal philosophy of history, K a n t ' s Idea of a Universal History with
Cosmopolitan Intent; e of a socialist philosophy of history, the Com-
munist Manifesto; of a transindividualistic philosophy of history, L .
von Ranke's lectures before K i n g M a x of Bavaria and his Political
Conversation·, f and of a transpersonal philosophy of history, Jakob
Burckhardt's Observations on World History β But, on the other hand,
it is also possible to discuss the question in what way ideas, and in par-
ticular legal ideas, influence history at all, whether in the form of delib-
erate statements of purposes b y individuals or in the form of unconscious
social processes.
Deliberate and Unconscious Development of the Law. T h e answer to

this question, which goes back to the opposition between Hegel and
Savigny, 4 can only be this, that the idea of law has become a progres-
sively more deliberate and more purposeful motive power of history.
This development may be characterized b y different slogans: as the de-
velopment from the national spirit to the will of the state, from the
"organic" growth of law to "purpose in the l a w " and to the "fight for
the right" (Jhering); h or, considering the social institution by which
norms are laid down, as the development from community to society
( T ö n n i e s ) ; or, again, considering the form taken by the legal position
of the individual, as the development from status, the state in which one
s C f . PASCHUKANIS, ALLGEMEINE RECHTSLEHRE UND MARXISMUS ; also R a d -

bruch, Klassenrecht und Rechtsidee (1929) 1 ZEITSCHRIFT FÜR SOZIALES RECHT 75
et seq., and Kelsen in ( 1 9 3 1 ) 66 ARCHIV FÜR SOZIALWISSENSCHAFT UND SOZIAL-
POLITIK 449 et seq.
" [IDEE EINER ALLGEMEINEN GESCHICHTE IN WELTBÜRGERLICHER ABSICHT.]
' [POLITISCHES GESPRÄCH.]
Ε [WELTGESCHICHTLICHE BETRACHTUNGEN.]
* Hegel against S a v i g n y : " B a r b a r i a n s are governed b y urges, customs, emotions,

b u t are not conscious of it. B y the l a w being enacted and k n o w n , everything
accidental of emotion or belief, the f o r m of revenge, pity, selfishness, is cancelled,
and thus only does the l a w attain its true destination and acquire its h o n o r . " C f .
ROTHACKER, EINLEITUNG IN DIE GEISTESWISSENSCHAFTEN (2d ed. 1930) 62-63.
11 [Supra, sec. 3, n. c.]

Authenticated
124 GUSTAV RADBRUCH
is born, to contract, the social situation created by one's own will (Henry
Sumner M a i n e ) .
T o be sure, the statements of purposes which progressively replace
instinctive acts do not necessarily correspond to absolute ideas of such
purposes; they may be purely egoistic and arbitrary statements. Y e t
frequently the deliberately egoistic statements of purposes, like the in-
stinctive acts, unconsciously become the instruments of universally valid
ideas of purposes. T h e fact has been described b y Wundt , who called it
the "heterogony of purposes," and by Hegel, who spoke of the "trick
of reason." Our description above (sec. 8, pp. 97-98) of the relation be-
tween ideology and interest in party activities presents an illustrative
example. Based on that sociological fact of sic vos non vobis' is the
theory of liberalism, the theory of the prestabilized harmony of universal
self-interest and common weal, which has been "transformed and trans-
lated" into lyrics b y Rückert: " W h e n the rose adorns itself, it adorns
the garden." Again, the Marxian theory of necessity, of the inevitable
development toward socialism b y social forces which b y no means delib-
erately aim at a socialist order of society, rests on the same thought. T h e
materialistic view of history represents, not indeed a subjective idealism
of ideal motives, but an objective idealism of victorious ideas. In the
words of K a r l M a r x : Though t may not press toward reality, y e t reality
contrariwise presses toward thought.
T h e inevitable development in the formation of law from the instinc-
tive to the purposeful, from the irrational to the purposive rational, m a y
be evaluated in different ways. T h e view that the rationality of things
and of relations is superior to any individual reason cannot but respond
to that naturally necessary development with an attitude of cultural
pessimism. T h e other view that there is no rationality in things and re-
lations other than that which rational individuals have imparted to them,
cannot but hail that same development with cultural optimism as the
victorious procession of reason through history, as progress without end. 5
Theory of Legitimacy and Theory of Catastrophes. 3. Finally, too, the

idea of legal validity is susceptible of consideration b y the philosophy of
history. From the viewpoint of the juridical doctrine of validity, one
may examine not only the relation of one legal rule to another within a
certain legal order, say, of a statute to a constitution, but also the rela-
tion of the historically succeeding legal orders to one another. Applied
1[ T h u s it is y o u ( w h o a c t ) t h o u g h not f o r yourselves.]
5H o w e v e r , it must be stated here that the great theorist of the " c o m m u n i t y "
does not b y a n y means d r a w conclusions of cultural pessimism f r o m the irresistible
development f r o m c o m m u n i t y to s o c i e t y ; Tönnie s in (1925) 49 SCHMOLLERS
J A H R B U C H FÜR GESETZGEBUNG, VERWALTUN G UND VOLKSWIRTSCHAF T 1 8 8 et seq.

Authenticated
to history, the juridical doctrine of validity turns into the principle of
legitimacy, the postulate that each new legal order must have evolved
from its predecessor in a legal way, and the negation of any legal order
that cannot be justified from the legal order preceding it. "Law must
remain law."
Y e t "any law there is in present mankind has come about against
legal form" (Fichte). "How many existences in the political world of
today are not rooted in revolutionary soil?" (Bismarck).® There is only
one legitimate development uninterrupted through millennia: the chain
of ordinations reaching from the apostles to every individual Catholic
priest. So the theory of legitimacy is no more able to do justice to the
problems of the philosophy of history than the juridical doctrine of
validity is to those of legal philosophy. Law cannot originate in law
alone; again and again law grows from wild roots. There is an original
creation of law, a first generation of law out of factuality, lawmaking by
law-breaking, new legal ground on congealed revolutionary lava.
The two opposite views might be called Neptunism and Vulcanism in
the philosophy of history, the theory of continuity and the theory of
catastrophes of legal history. They are forms in which the more com-
prehensive views of historism and rationalism appear. Legitimism corre-
sponds to the view in which gradual progress without jumps, a category
of historical thought, is turned into a norm of political action (sec. 3, p.
62, supra). Quite in accordance therewith, legitimism raises the juridical
doctrine of validity, a form of legal scientific thought, to a political doc-
trine. Against this it may be said that even the historical catastrophe
does not fall out of history, that it, too, becomes subject to the subse-
quent insight into its long prepared, historically necessary causation. T o
that historical continuity, however, there also corresponds a legal con-
tinuity. Unchanged above all catastrophes of the law stands the legal
principle that at any time he is called upon to lay down law who is able
to enforce the law (sec. 10, p. 117, supra). Revolution results in this,
that other social forces succeed to the supreme authority of power pro-
vided by that "fundamental norm." But the fundamental norm itself
reigns unchanged above any change of forces. Its effect is that the new
revolutionary government represents the legal successor of the former
legitimate government. Only thus can it be understoood that a revolu-
tionary change in the form of government does not affect the identity of
the state itself, e.g., that imperial Germany and republican Germany
represent the same German Reich. 7
Β Ι GEDANKEN UND ERINNERUNGEN (1898) 176 — in that detailed correspondence
with Gerlach concerning the principle of legitimacy.

' C f . ANSCHÜTZ, REICHSVERFASSUNG (3d revision, 10th ed., 1929) 8 et seq.

Authenticated
SECTION 1 2
RELIGIOUS PHILOSOPHY OF THE L A W
Net ulla nobis magis res aliena quam publica.* — Tertullian
Religion is the behavior which conquers values; by conquering worth-

lessness it conquers the opposition of value and reality, identifies value
and reality, justifies all existence; it is the emotional theodicy (sec. 1,
pp. 50-51, supra). The theodicy expressed in concepts we call religious
philosophy, as contrasted with the philosophy of values. Both the ap-
proach of the philosophy of values and that of religious philosophy may
be applied to every subject matter — including the law. 1
Y e t the complete identification of value and reality which is proposed
cannot be achieved by a human mind. An expedient of religious philos-
ophy with regard to facts which can be understood neither as valuable
nor as nonexistent is the concept of the unessential: the worthlessness
which defies any attempt at conquering it is regarded as nonexistent in
a deeper sense, as without essence. But it is not worthlessness alone that
may appear unessential in the view of religious philosophy. Even what
has been established as valuable by the philosophy of values may be un-
essential from the most absolute point of view of religious philosophy:
"before God." So the question of the religious philosophy of the law is
whether law is not only valuable but also essential.
Early Christianity. A mythology of the law in pre-Christian antiquity

would show us religious, definitive, essential significance closely spun
all around the law and the state. T o Christianity in its original form, on
the contrary, law and the state appeared quite remote from God, quite
unessential, quite nugatory. Says Jesus: "Who hath set me above you to
settle your inheritances?" The story of the penny of tribute must not by
any means be read as expressing anything but the profound indifference
of Jesus toward political and legal matters: As far as I am concerned, do
render unto Caesar the things which are Caesar's, if only you render
unto God the things that are God's — the emphasis is solely upon the
second half of the sentence. In the parable of the laborers in the vine-
yard, a great gesture puts the question of law and justice far aside in
favor of goodness and mercy. And when the fraudulent behavior of the
" [ A n d no affairs are m o r e foreign to us than affairs of state.]

1C f . R a d b r u c h , Über Religionsphilosophie des Rechts, in RADBRUCH AND
TILLICH, RELIGIONSPHILOSOPHIE DER KULTUR (2d ed. 1 9 2 1 ) .

Authenticated
unjust householder is chosen, with superb sarcasm, as a parable for the
preparation for rendering account to God, Jesus' view of the unessential
character of legal evaluation is expressed with a sharpness which is only
made more cutting, almost terrifying, precisely because this is not the
theme of the parable. Is the difference between right and wrong, between
ownership and theft, really so very great? Mammon in any form is "un-
just mammon" — this is the intended view which is the unexpressed
basis of the parable, nay, almost its expressed basis: for the Lord praised
the unjust householder for having acted cleverly. The just and the unjust
understand each other perfectly, Jesus feels; they are related by a secret
underground family resemblance and sympathy, like forester and
poacher, inquisitor and delinquent. Coming to close quarters with an-
other, one cannot help having something in common with him; the
method of defense is prescribed by the method of attack: so the way of
law is necessarily governed by wrong; law, at best a relative good, is in-
extricably bound up with wrong in a sphere of common sinfulness. Only
against this background can we fully understand those deeply moving
words, the most radical revaluation of all values for all times: "Do not
resist evil!" Do not quarrel about the coat, give up the cloak also!
Yourselves turn your cheeks to the blow! To be proved right or to
suffer wrong — both are equally unessential. Essential in the mutual
relations between men is only love. The life of the community enters
the scope of religion not as the result of a legal order above the
individuals but only as the radiation of Christian charity of the indi-
viduals. The community of men in its essence is no legal community but
a pure, anarchic community of love: "Ye know that they which are
accounted to rule over the gentiles exercise lordship over them; and their
great ones exercise authority upon them. But so shall it not be among
you: but whosoever will be great among you, shall be your minister:
and whosoever of you will be the chiefest shall be the servant of all." 2
In the later developments three different attitudes have been taken
toward this purely negative religious philosophy of the law.
Tolstoy, i . Leo Tolstoy has taught us to regard the law not only as
unessential but even as anti-Christian. Any outward thing is significant
only as a radiation of inwardness; but the law, valuing outwardness for
its own sake and touching inwardness with a mere side glance, diverts
s
T h e question of the relation between law and religion reappears as an intra-
theological problem in the form of the question of the relation between God's
justness and goodness. Cf. ESPOSITO, LINEAMENTI DI UNA DOTTRINA DEL DIKITTO
(1930) 14s et seq.

Authenticated
128 GUSTAV RADBRUCH
one from w h a t alone is needed.® Y e t radical as m a y seem T o l s t o y ' s com-

plete negation of the law, his Christian anarchism, the Sermon on the
M o u n t itself is much more radical still. F o r more radical indeed than
the passion which undertakes to fight against the compulsion of l a w is
the superior contempt w h i c h refuses to engage in a fight and rather ex-
tends the commandment against resisting evil, not only to wron g b u t
also to the compulsion of law, and not only (as in T o l s t o y ) to active
b u t also to passive resistance. Obedience to authority because resistance
to it would attribute an undue significance to that whole question, w h i c h
is religiously indifferent — that is the standpoint of the Sermon on the
Mount.
Catholicism. 2. Catholicism, on the contrary, concedes a relative reli-

gious significance to l a w and the state. T h e thought of natural l a w is re-
newed and given religious color, and natural law is related, at least as a
preliminary step, to the ethics of love of the Sermon on the M o u n t .
C o m p a r a b l e to the state of Estates, there is established a gradation of
spiritual estates, of whic h each has its own ethics and the highest only
has the full duties of the ethics of Christian love. A t one of the lower
steps of this structure, the state and the l a w also find their place, hence
t h e y glow in a reflection of religious significance. L a w and the state are
not anti-Christian, as in T o l s t o y ; they just are not y e t full y Christian.
T h e law is valued even more h i g h l y : for the church in the Catholic
v i e w possesses a legal order not arbitrarily made b y man b u t established
b y God Himself. T h e r e is a jus divinumb whic h is not only of secular
and provisional but also of transcendental and absolute validity. A s long
as people were content to see in religion not so much a direct inner rela-
tion of the individual as a relation of the united collective b o d y of Chris-
tendom to God, the contradiction between the evaluation of law b y the
philosophy of values and b y religious philosophy could be considered
fully resolved.
Reformation: Luther. 3. B u t the R e f o r m a t i o n wanted again to relate

each individual directly to God. E a c h individual is faced eye to e y e with
the ultimate demands of the Christian ethics of love. So the possibility
of regarding law on the one h a n d and the full ethics of love on the other
as spheres of duties of different estates is broken asunder; the conflict
between the standpoint of l a w and the Sermon on the M o u n t is again p u t
into each individual h u m a n breast. L e g a l philosophy and religious phi-
3
Cf. BORIS SAPIR, DOSTOJEWSKY UND TOLSTOI ÜBER PROBLEME DES RECHTS
(1932) 65 et seq.
11 [Divine Law.]

Authenticated
losophy stand again independently side by side and in a contradiction to
each other that cannot and must not be veiled: on the one hand, the
ethic of the sanctity of law, of legal self-preservation, of the fight for the
right; on the other, the doctrine of the unessential character of law, of
nonresistance, of the reprobation of legal controversies. Yonder the
sword, wrath, and sternness, sheer punishing, prohibiting, judging, and
sentencing, to force down the bad and protect the pious; here mercy and
charity and sheer forgiving, sparing, loving, serving, doing good, peace
and joy — Luther's strong soul obviously delights in the tension between
these opposites. He has expressed them by the opposition between the
morals of office and personal morals, without, however, assigning to the
morals of office a fixed field not to be entered by personal morals. It has
always been the way of religious renewal and religious heroism to sw.eep
like storm and fire through the area in which worldly life expected to be
able to unfold under its own law undisturbed by religion — from Jesus
to Tolstoy. Religion, being revolutionary and respecting no human en-
actment, does not permit its jurisdiction to be limited by the fences of
civil morals; nor did Luther intend it to do so. Luther's formula means
not the conquest, but the very sharpest demonstration of an unconquer-
able contradiction. We are challenged to live in the world of the law and
the state fully conscious of its being conditioned and threatened by the
absolute religious postulate, to live in it as in a foreign country, as if we
did not live in it. L a w and the state possess but a provisional signifi-
cance ; in the last resort they are unessential. 4
The unessential in the law, proclaimed by the Sermon on the Mount,
has been deepened by Tolstoy to the anti-essential, limited by Catholi-
cism in the sense of the relatively essential, and restored by Luther in
the sense of the but provisionally essential and ultimately unessential.
However, Christian religious philosophy with its doctrine of the un-
essential character of the law and the state is by no means able to unhinge
the doctrines of the philosophy of values concerning the positive value
of the law and the state. L a w and the state are unessential only inasmuch
as all worldly life is unessential, from an other-worldly standpoint, "be-
fore God." B u t the philosophy of values, including legal philosophy,
assumes a standpoint within this world and passes value judgments
within this world, conscious of being enclosed in the conditions of
worldly life. Either standpoint has its natural foundation: the entangle-
ments of worldly man in society contrasts with the ultimate terrible
* The profession of nothing more than this Lutheran view of the relation between
Christianity on the one hand and the state, law, and w ar on the other caused the
"Dehn case" [involving the alleged pacifism of a Protestant minister in the German
r e p u b l i c ] , C f . GÜNTER D E H N , K IR C HE UND VÖLKERVERSÖHNUNG ( 1 9 3 2 ) 84-85.

Authenticated
130 GUSTAV RADBRUCH
loneliness of the woman who gives birth and of the human being who
dies. " W e work together b y hundreds, we love b y twos, we die alone"
(Iwan Göll).
SECTION 1 3
T H E PSYCHOLOGY OF THE M A N OF THE L A W
Jurisprudence, dressed in the traditional [German] color of the faculty of law, speaks:
"Red is the law so that its rules
May live in my disciples' veins.
If logic gives them all their tools,
The righteous cause will end in chains!" — Karl Heinsheimer, Festspiel.
Eduard Spranger has coined the concept of psychology as a spiritual

science. 3 1 Contrary to the efforts of psychology as a value-blind natural
science, this psychology relates mental processes to values. It investi-
gates mental processes as directed toward cultural values, as forming or
understanding structures of meaning, in short, as spiritual achievements.
It examines what structures of the mind, or "forms of life," are requisite
for a spiritual achievement of a certain kind. Forms of life which
Spranger describes as ideal types are theoretical man, economic man,
aesthetic man, social man, political man, and religious man.
Objective Law as a Form of Life.b These types do not include juridical

man or "the man of the l a w . " According to Spranger, his is not a simple
structure but a complex formation, a mixture of the social and theoreti-
cal structures. 2 W e too regard the form of life of the man of the law as a
complex formation, since the very idea of law, to which it is related,
represents a complex formation, the trinity of justice, expediency, and
legal certainty. N o w Spranger correctly says that " w h a t has been called
purpose in the law is not itself legal in nature," but rather social, politi-
cal, cultural; to that extent, then, the law has no peculiar corresponding
form of life besides the social, political, theoretical, and aesthetic ones.
B u t the remaining two elements are specific legal values, which cannot
be reduced to other values. Inasmuch as the form of life specific to the
* [On the term "spiritual science," cf. translator's note b , LASK, LEGAL PHILOS-
OPHY, Introduction, in this v o l u m e , supra, p. 3.]
1 C f . EDUARD SPRANGER, LEBENSFORMEN ( 3 d e d . 1 9 2 2 ) 3 et seq.
b [On " o b j e c t i v e l a w " and " s u b j e c t i v e legal r i g h t " see translator's note b, LASK,
LEGAL P H I L O S O P H Y , c h a p . I I , supra, p. 32.]
2 C f . SPRANGER, op. cit. 3 2 6 et seq. O n the psychology of the m a n of the l a w , cf.
also RIEZLER, DAS RECHTSGEFÜHL ( 1 9 2 1 ) .

Authenticated
LEGAL PHILOSOPHY
man of the law is determined in its structure b y justice, this form may
be ranked with the forms of life elaborated b y Spranger. Again — using
Spranger's terms — justice determines the structure of the man of the
law in a twofold sense: as ideal justice and as positive justice, i.e., as
legal certainty.
Justice and legal certainty impress different, indeed, contradictory,
stamps upon the man of the law. Justice is apt to establish a transposi-
tive and progressive, while legal certainty is apt to establish a positivistic
and conservative, attitude toward the law. W i t h the sense of justice,
there contrasts the "sense of l a w " as a sense of order. As a layman, the
man of the law is oriented rather toward justice; as a lawyer, he is
oriented rather toward legal certainty. T h e former — again using
Spranger's terms — is rather a "legal idealist," the latter rather a "legal
formalist" or, speaking without a value judgment, a "legal realist." For
this very reason, it may be said that the sense of law of laymen and
lawyers must be measured by opposite criteria: the sense of law of the
lawyer, by how hard he finds it to put up with an injustice of enacted
law; the sense of law of the layman, b y whether he is able at all to put
up with an injustice of enacted law in the interest of legal certainty.
If we want to illustrate the two forms of life of the man of the law b y
personalities, we may think, on the one hand, of Schiller, who challenges
us to reach toward heaven and bring down its inalienable and inviolable
l o f t y rights 3 (and yet who also praises holy, blessed order); and, on the
other hand, of Goethe, who would rather commit an injustice than
tolerate disorder (and yet who deplores that the law that was born with
ourselves, alas! is never talked about).
Both mental structures of the law degenerate unless they penetrate
each other. On the one hand, there is the Philistine of order, whose em-
bodiment in office is the bureaucrat and whose civic image Goethe him-
self has presented in the Easter Promenade in Faust; on the other hand,
there is the unchained fanatic of justice. Justice, as we have seen, is an
empty category that may be filled with the most varied contents. So
the madness of justice without purpose may dress the utmost mon-
strosity up as an ideal (Robespierre). Justice is a polar value, which
needs resistance if its essence is to prevail. Justice that is not again and
again wrested from love becomes injustice, just as mercy would become
unsteady weakness were it not in turn to be wrested again and again
from justice. Justice without love hardens into self-righteousness, upon
which the suppressed vital forces sooner or later terribly revenge them-
selves. In the figure of Angelo in Measure for Measure, Shakespeare has
" L o c k e ' s " a p p e a l to H e a v e n " ; cf. DELVECCHIO, GIUSTIZIA (2d ed. 1924) 73 n. 1.

Authenticated
132 GUSTAV RADBRUCH
presented to us the image of the zealot of the law who slips into self-
righteousness and injustice, the rebellion of suppressed desires running
wild against the self-righteous norm.
Y e t both legal certainty and justice involve still further common
dangers because they equally require human lives to be measured b y
concepts. A s against the steady flow of the stream of life, the concept
stands out as discontinuous; and as against the concrete nature of the
phenomena of life, it stands out as general. It is possible to say, without
becoming paradoxical, that there is no such discontinuity in the stream
of life, no particularity of separate actions at all, that there is only the
constant totality of a human being or rather the flowing totality of his
life. L i f e and man are no more composed of particular acts than the sea
consists of particular waves. T h e y are totalities; the individual acts are
movements, flowing into one another, of one indivisible whole. Perhaps
those men who are seized b y the machinery of the law are most pro-
foundly tormented b y their impotent experience of having the picture of
an act, and the total picture of a life out of which that act is forcibly
torn, distorted precisely because that act is viewed in isolation and the
life originating it is viewed from the aspect of that accidental detail. Y e t
it is of the inalienable essence of legal science to intend to see but the
particular trees and not the wood.
Moreover, the lawyer always looks at the individual human being and
the individual case through the glasses of the general legal concept,
through a close veil, as it were, which permits him to see but the rough-
est outlines — just like blindfolded Themis. 4 T o illustrate how poorly
the law grasps the reality of a life, it is sufficient to compare the biog-
raphy of a great human life with its juridical condensation. T o the man
of the law, what is left of Goethe consists of his birth and death certifi-
cates, the document of his admission to the bar, his marriage license
and the birth certificate of his son, the recordings of his house on
Frauenplan and of his cottage on the Stern, the contracts concerning
the publication of his works, and his appointment as a privy councilor!
So what is juridically essential in a concrete individuality is but its most
abstract quality — its very quality of being one concrete individual.
Legal thought requires attention to be given to the most concrete life
and y e t only to its most abstract outlines. Roman law excels Germanic
law essentially because of its superior power of abstraction, which thus
cruelly simplifies the fullness of life. T h e lawyer must be able to see
only a juridical scheme in a living human being. It was this that caused
Tolstoy to pronounce his judgment of damnation over the lawyers: " t h a t
4 O n this s y m b o l , see E . VON MOELLER in ( 1 9 0 5 ) ZEITSCHRIFT FÜR CHRISTLICHE
K U N S T 1 0 7 et seq., 1 4 2 et seq.

Authenticated
all these people think there are circumstances in life where a direct rela-
tion of man to his fellow-man is not needed." 5 This attitude of the man
of the law is also referred to b y Spranger, who ascribes to him " t h e
closest relation to the scholar" and to the scholar's striving for theoreti-
cal universality of rules. Indeed one is tempted to call him most closely
related of all to the mathematician. Just as the mathematician m a y see
only the spatial and numerical relationships in all colorful reality, so
the lawyer too may give attention only to very definite rough outlines
in the picture of life that is so rich in colors and forms. As a matter of
fact, Savigny has characterized legal science as an "arithmetic of con-
cepts"; and, in a more recent book on the question of aptitude for the
legal profession, it is maintained that a poor mathematician is a poor
lawyer.®
T h i s is far from implying that a good mathematician is a good lawyer.
T h e degenerate form of the " i v o r y tower" jurist suggests precisely the
professional habits of one who has so long been used to having to dis-
regard the full flow of life that he has altogether forgotten to regard it.
T h i s degenerate form comes into existence when the man of the law in
his concern with justice and legal certainty forgets the third aspect of
the idea of law, viz., expediency. In thinking of justice and legal cer-
tainty, the man of the law comes close to theoretical man; in thinking
of expediency, he becomes related to social man and even to political
man.
Subjective Right as a Form of Life.c So far we have oriented the figure

of the man of the law toward objective law. B u t he may also be viewed
with reference to subjective right. In the former relationship, his out-
standing personification is the judge; in the latter, he becomes personi-
fied in the fighter for a right, whose characteristic sense of law is the
sense of his own right. T h a t sense is most clearly understood when it is
compared with its opposite: conscience. 7
One must first become fully aware of the problematic character of
that duality of ethical voices in every human breast: one ethical legisla-
tion forever imposing duties alone, and another authorizing claims; one
binding the will, and the other contrariwise unchaining it; the former
abhorring interest and fettering selfishness, and the latter justifying in-
B Cf. SAPIR, D O S T O J E W S K Y UND TOLSTOY (1932) 7 8 et seq.
' HOLLENBERG, JURIST OHNE EIGNUN G (Ι931).
c [See translator's note b, srtpra, this section, p. 130.]
7 Contrariwise, I S A Y , R E C H T S N O R M UND ENTSCHEIDUNG (1929) 90, declares the
sense of l a w a n d the m o r a l sense t o be "essentially o n e , " a n d RÜMELIN, RECHTS-
GEFÜHL UND RECHTSBEWUSSTSEIN ( 1 9 1 5 ) 30, s a y s t h e sense of l a w "shares one
source w i t h conscience." N e i t h e r , h o w e v e r , refers t o the feeling of one's own right.

Authenticated
134 GUSTAV RADBRUCH
terest and allying itself with selfishness. Let us for a moment hark to
their dialogue:
Says conscience: "Whosoever smite thee on thy right cheek, turn to
him the other also; and if one man will sue thee at the law and take
away thy coat, let him have thy cloak also." But the sense of law replies:
"Do not let your right be trampled underfoot by others. He who makes
himself a worm cannot afterwards complain of being trodden upon"
(Kant). Resumes conscience: "But I say unto you that ye resist not
evil!" But the sense of law insists: "I'd rather be a dog than a man if I
am to be trodden upon!" (Kleist). And again conscience: "Love your
enemies, bless them that curse you." And against this the sense of law:
"The fight for one's right is a command of moral self-preservation"
(Jhering). "Blessed are the peacemakers," says conscience, but the
sense of law rejoins: "He who feels the law on his side must act roughly;
a polite law won't mean anything" (Goethe). This does not silence con-
science; only we cannot continue to listen to their unending dialogue,
loath as we are to leave the last word with one or the other party.
Sense of Law and Conscience. Every one of us is the scene of the seem-
ingly irreconcilable conflict of two ethical systems: a system of duty
and love, peace and humility, and a system of right and honor, fight and
pride. Since the acceptance of Christianity, the moral world and the
moral life of each individual are rent in two: beside our Christian con-
science, there abruptly stands our pre-Christian sense of law. We are,
say, pious Christians and at the same time convinced adherents of
dueling; or we believe equally in the God of love and the right to war.
Down to its last depths, this contradiction has been traced by Ibsen's
dramatized ethical casuistry. Again and again — in Mrs. Alving, in
Rosmer, in the master-builder Solness — the suppressed rights of life
maintain their ethical claims against the antivital tyranny of duties;
again and again the "trolls," the ancient gods whom Christianity
has degraded to monsters, rebel against the despotism of Christian
conscience.
Not until Kant has it been possible systematically to reconcile the
two hostile ethical worlds. He did so by the same line of reasoning to
which Jhering later lent his fiery eloquence: by characterizing the fight
for the right as the fight for the possibility of fulfilling moral duties, as
moral self-preservation, and thus attributing a content of moral duties
to the law. Yet the equilibrium between conscience and sense of law, as
described by Kant or Jhering, between the "modest firmness" which
always remains conscious of the subservience of right to duty and the
"robust conscience" which is not so burdened by duties as to forget to

Authenticated
claim its right, is an ethical ideal, to be sure, but not a psychical reality.
Sense of law and conscience are tied to characterological conditions
which are as different and incompatible as their respective pathological
cultures, the delusion of right of the querulous and the delusion of sin
of the melancholic; so different indeed that they will hardly ever be
found in equal strength in the same man. Actually, sense of law and
conscience have been characterized as the centers of two fundamentally
different human types, the anger type and the anguish type. 8 T h e reader
need only examine those who surround him — at the first glance, those
predominantly gifted with conscience will set themselves clearly apart
from those prevailingly gifted with a sense of law, the gentle from the
wrathful, the kind from the strong, the saints from the heroes, the
sneaks from the brawlers, the sheep from the goats. Therefore, even
after K a n t , philosophers who regard themselves less as creators of uni-
versal systems than as moral teachers with a mission to remedy one-
sidedness by opposite one-sidedness, will again and again build ethics
exclusively upon the sense of law or, conversely, exclusively upon con-
science. T h e former will praise rights as the noblest of duties, the other
will deny any right to rights. In our days, the first has been done by
Nietzsche, the second by Tolstoy. T h e noble man, says Nietzsche, "must
count his privileges and their exercise among his duties." N o t to resist
evil, defenselessly to suffer wrong, is our part, according to Tolstoy.
B u t the rarity of a well-developed sense of law is to be explained not
only by the fact that it demands an equally well developed conscience
at its side; in addition, the sense of law, quite different from conscience,
presupposes an active intellect. W e are told of our duty in a particular
case by our conscience without having first had to become conscious of
the general maxim on which it is based. Of our right, on the contrary, we
become conscious only by recalling the general norm from which it flows.
For the moral norm applies to men in isolation, the legal precept to men
in relation to one another; and whereas the moral duty demands of me
recognition regardless of whether it claims validity for others in the
same situation, a right, by its very concept, I may attribute to myself
only if I am ready to concede it to others in the same situation. Without
such generalization, claims can be raised only through a feeling of
arbitrariness and not through a feeling of right. So the sense of law re-
quires a nimble mind that is able to shift from the specific to the general
and back from the general to the specific. T h e fighter for rights is char-
acterized b y a peculiar mixture of intellectualism, which alone is able
to raise the particular to generality and thus to judge it according to
" C f . K o r n f e l d , Das Rechtsgefühl (1914) 1 ZEITSCHRIFT FÜR RECHTSPHILOSO-

P H I E 1 3 5 et seq.

Authenticated
justice, and of passion, which alone is able to fill the abstract thought
of justice with the effective fire of individual life.
Spranger has proposed to describe the fighter for his right, in contrast
with the man of the law, as a power type. In this sense, even the impotent
type of man who struggles in vain, say, against the force of res judicata,
appears as a frustrated power type, a passive form of the power type.
Y e t this does not adequately characterize the fighter for his right. The
peculiarity of this power type consists precisely in combining power in
the service of an interest with the consecration of ethical value, merging
within a single form interest and value, which elsewhere are always op-
posites. The tremendous explosive effect of the sense of law rests pre-
cisely on its combining into a single force the two opposite forces of
man, value-consciousness and desire. This explains also why the sense of
law, more than other senses, is liable to be overemphasized and so to
become diseased. Thus, it has been shown that the manifold "relief
neuroses" of our time are really "law neuroses," diseases of the sense of
law. 9 But the sense of law is only too apt to deteriorate not only in the
direction of exaggerated intensity but also in that of pollution. Envy,
desirous of having what another has; jealousy, unwilling to let another
have what one does not have oneself; and vindictiveness, anxious to
make another suffer what one has suffered oneself, dress up in the de-
mands of equality and justice, whether from hypocrisy or from self-
deception ; and the legal power contained in the right degenerates into a
lust for power which is anxious to affect the adversary, detached from
any interest. We speak of chicane when a right is thus to be realized for
its own sake alone, with no regard to its moral or even utilitarian pur-
poses; and The Merchant of Venice, if indeed it is to be mounted upon a
legal philosophical formula after famous models, resembles many an-
other story of the wise judge in showing how the law, contradicting itself
in a chicane, restores itself as it were by a counter-chicane — so strong
is its inherent moral purposiveness.
So the description of the man of the law has recalled to us again what
we have previously faced in various ways: that the law is in labile
balance, ever threatened and forever to be restored anew, in the midst
of polar tensions.
8 Cf. von Weizsäcker in (1929) 2 D E R NERVENARZT 569 et seq.

Authenticated
S E C TIO N 1 4
A E S T H E T I C S OF T H E L A W
To you, the Muses willingly

Hand roses down from every bill and deed,
And yet you serve two lords more bitterly
Opposed than love of Christ and Mammon's greed. — Goethe to H. P. Schlosser, 1774
Law may make use of art, and art of law. Like every cultural
phenomenon, the law needs bodily means of expression: language, ges-
ture, dress, symbol, building. Like any bodily means of expression, the
bodily expression of the law is subject to aesthetic evaluation. And, like
any phenomenon, the law as subject-matter may enter the arts, the
specific field of aesthetic evaluation. So an aesthetics of the law is re-
quired. 1 So far, however, it has been formulated only in beginnings and
fragments.
In the early epochs of peoples, when separation and autonomy of the
cultural fields were unknown, not only law, custom, and morals, or law
and religion, but also law and art were closely connected, nay, contained
in one another. As to those periods, we may pursue "poetry in the law"
with Jakob Grimm, "humor in the law" with Otto Gierke, or the myth-
ological forms of the idea of law, Themis and Dike, with Hirzel. With
the separation of the cultural fields, however, law and art too have more
and more fallen apart and even into hostile opposition. Poetry is not
exactly on good terms with the law. Law, the most rigid of the cultural
structures, and art, the most changeable form of expression of the
changeable spirit of the times, live in natural hostility, as witnessed by
numerous utterances of poets about the law and by the frequency of
young poets giving up the legal profession. 2
Art of the Law: Aesthetics of Forms of Legal Expression. But that

very separation of law from art has perhaps served to clarify the specific
aesthetic value of the law which it does not owe merely to an admixture
from the foreign sphere of art. This could be demonstrated clearly in
the language of the law, which was able to develop only when the law
1
Cf., above all, THEODOR STERNBERG, I EINFÜHRUNG IN DIE RECHTSWISSEN-
SCHAFT ( 2 d ed. 1 9 1 2 ) 1 7 8 et seq.; also GEORG MÖLLER, R E C H T UND STAAT IN U N -
SERER DICHTUNG ( 1 9 2 4 ) ; H A N S FEHR, D A S RECHT I M BILDE ( 1 9 2 3 ) ; D A S R E C H T IN
DER D I C H T U N G (1931).
2
C f . RADBRUCH, E I N F Ü H R U N G I N DIE RECHTSWISSENSCHAFT (7th and 8th ed.
1929) 207-208,

Authenticated
138 GUSTAV RADBRUCH
was segregated strictly from other cultural fields and which by that very
development gained its aesthetic peculiarity, due, to be sure, to its mani-
fold renunciations.
T h e language of the law is frigid, renouncing any emotional tone; it
is blunt, renouncing any argumentation; it is concise, renouncing any
intention to teach. T h u s there comes into existence a lapidary style of
self-imposed poverty, a style which cannot be surpassed as an expression
of the self-assured consciousness of power of the commanding state and
which in its utterly sharp precision could serve as a style model to an
author of the rank of Stendhal. 3
Whereas the language of the law is the cold lapidary style, b y odd
contrast, glowing rhetoric is the language of the fight for rights, of the
fighting sense of law. T h e sense of law combines in itself two seemingly
contradictory elements: feeling, which elsewhere is usually attached to
the concrete and obvious only, and the abstract generality of the legal
rule. For the fighter for a right is characterized b y that peculiar mixture
of coldness and ardor, of generalizing intellectualism which reduces the
particular case to its principle and individualizing passion which burns
through the wrong it opposes as something singularly monstrous. So the
adequate form of expression of legal controversy is rhetoric, the essence
of which is to endow the general with the obviousness and effectiveness
of the particular, whereas poetry contrariwise bestows upon the particu-
lar the symbolic significance of universality.
Still other aesthetical values are to be found in the judicial opinion
and in legal science. W e are satisfied with a correct solution of a legal
question, but we enjoy only an "elegant" solution. Rudolf Sohm extols
the faculty of Celsus "in the particular legal case to develop the general
rule which, cast in the most concise form of language, soaring with the
force of winged words, like a flash of lightning illumines the landscape
far and wide." Sohm thus manifests his aesthetic pleasure in a scholarly
quality which preeminently characterized that incomparable teacher
himself. This elegance of judicial solutions may be expressed b y the
formula: Simplex sigillum veri,3· which suggests that beauty is regarded
as the indicia of truth, an aesthetical value as the criterion of a logical
one.
On that pleasure in the elegant solution of what seem hopelessly
knotty judicial tangles there feed the numerous stories of "wise judges"
which may be found in the literature of all peoples. Their effect is due
to the surprise which is caused b y seeing the evidently appropriate deci-
sion conjured up from seemingly insignificant words or facts.
3 C f . R A D B R U C H , op cit. 3 5 et seq.
' [Simplicity is the seal of truth.]

Authenticated
The Law in the Arts: Law as an Artistic Subject. Therewith we have
already turned from the artistic expression of law to law as a subject-
matter of the arts. T h e quality which cannot but render law an alluring
artistic subject is the variety of its inherent antitheses, the opposition of
Is and Ought, of positive and natural law, legitimate and revolutionary
law, freedom and order, justice and equity, law and mercy, etc. So those
artistic forms which essentially express antitheses will be especially at-
tracted to the law ; in particular, the drama, from Sophocles' Antigone
to Shakespeare's Merchant oj Venice and Measure for Measure. Georg
Jellinek 4 has shown how the drama of antiquity glorifies the sanctity
and inviolability of objective law, while the modern drama sympathizes
with the rebellion of the subjective sense of law against the legal order.
T o the art of today, positive law is either the hard fate which shatters
the individual, or the oppressive force against which a higher justice
raises the banner of revolt, or perhaps simply the stupidity of bureauc-
racy at which the wit snaps his fingers with pleasure.
This also suggests the other form besides the drama that is especially
suited to express the antitheses of the law: in literature, the satire, and
in the plastic arts, the caricature. A good lawyer would cease to be a
good lawyer were he not fully conscious, at any moment of his profes-
sional life, of both the necessity and the profound questionability of his
profession. So the serious lawyer sees without displeasure those mockers
who fill the margins of his statute books with all sorts of ironical ques-
tion and exclamation marks, such as Anatole France; he likes even more
to see those ponderers among the poets whose doubting humanism
touches the fundamentals of justice, such as Tolstoy or Dostoevsky or
the great caricaturist of justice who is both a mocker and a ponderer,
Daumier. Only the Philistine feels at every moment unquestionably use-
ful as a member of human society. T h e shoemaker of Socrates knew
what he was in this world for: to make shoes for Socrates and others;
Socrates only knew that he did not know it. But our burden as lawyers
is heaviest: we are to believe in the profession of our life and yet at
the same time, in some deepest layer of our being, again and again to
doubt it.
*i AUSGEWÄHLTE SCHRITTEN UND REDEN (1911) 208

et seq. C f . also R a d b r u c h ,
Mass für Mass, in LÜBECKISCHE BLÄTTER, S e p t. 6, 1931 (FESTSCHRIFT FÜR DEN
LÜBECKER JURISTENTAG) .

Authenticated
140 GUSTAV RADBRUC H
SECTION 1 5
T H E L O G I C OF L E G A L S C I E N C E
What is the truth that those mountains bear — is it a lie to the world at their
jeet? — Montaigne.
Having completed our considerations of legal philosophy in a strict

sense, we focused the law upon the contexts of the philosophy of history,
of religious philosophy, of psychology as a spiritual science, and of
aesthetics. Into ethics we had fitted the law previously when we consid-
ered the purpose of law. It remains to speak of the law as a subject of
logic, of the methodology of legal science.
Legal Science and Sciences Concerned with Law. The sciences the
subject-matter of which is the law we shall call sciences concerned with
law. Of these, we shall call legal science in a strict sense that science con-
cerned with law which works at the law by means of the specifically ju-
ridical method. This legal science proper, viz., systematic, dogmatic legal
science, may be defined as the science concerned with the objective
meaning of positive legal orders. This characterizes its special position
among the other sciences concerned with law.
ι . Its subject is made up of positive legal orders. It is a science con-
cerned with valid and not with right law, with the law that is and not
the law that ought to be. It is thereby distinguished from those sciences
concerned with law the subject matter of which is the law that ought to
be, viz., from legal philosophy as the science concerned with the purpose
of law, and from legal politics as the science concerned with the means
to attain that purpose.
2. Legal science in the strict sense deals with legal orders and not
with life under law, with legal norms and not with legal facts. Therewith
it is so delimited as to exclude research into legal facts — from papy-
rology to criminology. The legal order, the legal norms, are concepts
directly related to values; as given, their meaning is to serve justice.
Life under law, the legal facts, are concepts indirectly related to values;
as given, their meaning is to correspond to that legal order, to those
legal norms, which in turn are oriented toward the idea of justice.
3. Legal science is a science concerned with the objective meaning
and not the subjective meaning of law. It determines how the law is to be
understood and not necessarily how it was intended. The existence of
law, the thoughts which its authors intended to put into it and the
thoughts which its expounders actually gathered from it, the law as a

Authenticated
caused and causative fact, is dealt with not b y legal science in the strict
sense but b y the "social theory of l a w " (Georg Jellinek) 1 : legal his-
tory, 2 comparative law, sociology of law.
T h e work of legal science proper, of dogmatic, systematic legal sci-
ence, is done at three stages: interpretation, construction, and system.
Interpretation. T h e essence of juridical interpretation is best clarified

by comparing it with philological interpretation. August Boeckh has
characterized philosophical interpretation as "knowing the k n o w n " —
thinking again what has been thought before. Philological interpreta-
tion is directed toward determining a fact, the subjectively intended
meaning, the thoughts actually thought by actual men which are basic
to the spiritual work that is the subject of the interpretation — a purely
empirical method. B u t juridical interpretation is directed toward the
objectively valid meaning of the legal rule. 3 It does not and cannot stop
at determining the meaning intended by the author of the law, for the
simple reason that each enactment is participated in by many authors,
resulting in a possible multiplicity of views of participants on the mean-
ing of the law; whereas juridical interpretation, serving the administra-
tion of justice, must of necessity work out a single signification of the
law. B u t even if all participants were of one mind, this would not neces-
sarily determine the authoritative meaning of the law. Legislators are
not the authors of the law; the legislative will is not the collective will
of those participating in the making of the law ; it is, rather, the will of
the state.
N o w the state speaks not in the personal utterances of those who
participate in lawmaking but solely in the law itself. T h e legislative will
coincides with the will of the law. It signifies but the personified total
content of legislation, the content of the law reflected in a fictitious
single consciousness. So the legislative will is not a means of interpreting
but the goal and the result of interpretation; it is an expression for the
a priori necessity of a systematic interpretation, free of contradictions, of
the entire legal order. It is therefore possible to determine as the legis-
lative will what never existed in the conscious wills of the authors of
the law. T h e interpreter may understand the law better than its creators
understood it; the law may be wiser than its authors — indeed, it must
1 Cf. KANTOROWICZ i n 1 ERINNERUNGSGABE FÜR M A X WEBER (1925) 9 3 et seq.
2 On the relation between legal history and dogmatic legal science, see FRANZ
S O M M E R , I KRITISCHER R E A L I S M U S UND POSITIVE RECHTSWISSENSCHAFT (1929) 216
et seq.
' M A R C K , SUBSTANZ- UND FUNKTIONSBEGRIFF IN DER RECHTSPHILOSOPHIE (1925)
77, regards the opposition of subjective and objective meaning as a mere "distinction
of degrees."

Authenticated
142 GUSTAV RADBRUCH
be wiser than its authors. T h e thoughts of the authors of a law neces-

sarily have gaps, cannot always avoid obscurities and contradictions;
yet the interpreter must be able to derive a clear and uncontradicted
decision from the law in any conceivable legal case. For, as stated in the
[French] Civil Code and implied in any other code, " a judge who
refuses to render a decision under the pretext that the law fails to cover
the case or that it is obscure or inadequate may be prosecuted for
denial of justice." So juridical interpretation does not think again what
has been thought before, but thinks through what has been thought of.
It starts with the philological interpretation of the law, only to go
quickly beyond it — like a departing ship which is first piloted on her
prescribed way through the waters of the port but then takes her own
course under her captain's orders at the open sea. It passes by imper-
ceptible steps from interpretation in the spirit of the legislator to rules
which the interpreter himself "would lay down as a legislator," as pro-
vided in the famous introductory section of the Swiss Civil Code. It is an
insoluble mixture of elements theoretical and practical, perceptive and
creative, reproductive and productive, scientific and transscientific, ob-
jective and subjective. T o the extent, however, that interpretation is
practical, creative, productive, transscientific, it is determined in each
case by the changing requirements of the law. Therefore, the legislative
will, which it aims at and results in determining, is not fixed by inter-
pretation as a definite content for all times but remains able to respond
with new meaning to new legal requirements and questions under the
conditions of changing times; it must be understood not as a single act
of the will, which once called the law into being, but as the changeable
permanent will which keeps the law in existence. Says Hobbes: " N o t he
by whose authority the law was first made but he b y whose authority
it continues to be law is the legislator." This view is symbolized b y the
legend of Solon voluntarily exiling himself after completing his codifica-
tion: the empirical legislator leaves the field to the ideal legislator who
lives only in the law itself.
T o understand this peculiar character of juridical interpretation fully

one must not judge it by the empirical model of philological interpreta-
tion. One must rather keep in mind that philological interpretation is a
late product in the history of knowledge, juridical interpretation being
less closely related to it than to incomparably older forms of interpreta-
tion. In primitive periods people attributed to the word a power inde-
pendent of the speaker's thoughts and, as it were, magic. 4 T o them the
word of the oracle, for instance, was the receptacle of a hidden mean-
* " . . . where the word was so important, having been a spoken w o r d" ( G o e t h e ,
Divan) .

Authenticated
ing which, unrecognizable to the uninitiated, was illumined, lightning-
like, only b y its realization. H o w m a n y f a i r y tales h a v e been founded
upon the a m b i g u i t y of words of which the speaker w a s unconscious!
W e speak of a freak of nature where a natural phenomenon has b y
accident been made to carry a meaning: a c a v e of stalactites repre-
senting a hall of columns, or two rocks representing monk and nun.
So the word, too, was a freak of nature in primitive times, permeated b y
a significance unbeknow n and unintended. So it is only consistent that
in those times even nature, lacking knowledge and intention, was re-
garded as carrying significant meaning, and natural phenomena were
taken for symbols, that not only the creations of the h u m an mind but
also the natural phenomena were subjected to anthropomorphous inter-
pretation. T h u s , St. Augustine said that "prophetic power is spread
throughout the w o r l d , " and even Goethe observes: " O n e is j u s t l y pleased
when inanimate nature produces a symbo l of w h a t we love and venerate. "
T h i s w a y of interpretation, directed toward the meaning that tran-
scends consciousness, was elevated to a scientific method b y the scholas-
tics. Well k n o w n is their doctrine of the fourfold meaning of the
scriptures:
Littera gesta docet; quid credas, allegoria;
Μ oralis, quid agas; quo tendas, anagogia,a
T o be sure, in getting at an allegorical, a moral, and an anagogical

meaning b a c k of the literal meaning, according to the doctrine of inspira-
tion, they professed to disclose thoughts a c t u a l ly thought, not indeed
b y the h u m a n authors of the holy scriptures, but b y God Himself. 5
In a nonscientific manner, this w a y of interpretation has survived
into our own days . In the clergyman's sermon the individual words of
holy scriptures under the impression of the particular situation are made
to gleam in ever new significations regardless of their original meaning.
Indeed, the indelible vitality of the biblical word rests on its susceptibil-
ity to this w e a l t h of interpretation. E v e n from profane words p l a y f u l
p r o f u n d i t y likes to elicit a deeper meaning b a c k of the intended one.
Goethe in his Divan expresses multiple meaning in a gracious picture:
" T h e word is a f a n ! Between its ribs a pair of beautiful eyes look o u t ;
the fan is a lovely g a u z e . " A n d in the magazine Die Jugend (1899,
N o . 6 ) , the following fine passage can be found :
It has always been one of my purest pleasures when from the superficiality
of thoughtless words a plummet could be cast into the depths of things and
* [ T h e letter tells y o u w h a t h a p p e n e d ; allegory, w h a t to believe; the moral, h o w
to b e h a v e ; a n a g o g y , whither to tend.]
5 C f . H A N S V O L L M E R , V O M L E S E N UND D E U T E N HEILIGE« SCHRIFTEN (1907).

Authenticated
144 GUSTAV RADBRUCH
the nonsensical provided the frame for an undreamt-of sense. This is not
malicious arrogance but modesty, for it implies something like comfort and
hope that even our wisdom, which we so often have to doubt, may leave
room for a meaning, hidden from us, which higher spirits in friendly interpre-
tation ascribe to it — since in case of doubt the better intention is always
presumed in favor of the accused.
This passage was signed with the initials G. S.; it was written by Georg
Simmel. 6
However, juridical interpretation is distinguished from those in-
tuitive forms of interpretation by its utterly rational nature. I t is not a
magical or a mystical interpretation, nor a play of profundity, but a
logical interpretation. Assuming that logic originated in the sophists'
instruction in rhetoric, scientific logic originally was the logic of advo-
cates; for rhetoric is the act of proving and refuting in alternating
orations, especially in forensic orations. N o w in that logical art of de-
riving proof and refutation from the law, the question is not what the
lawmaker has thought of but what may be made of the text of the law
for this cause. T h e search is not for the meaning actually intended b y
the lawmaker but for what may be imputed to him, hence for a meaning
that is gathered from the law although it was not put into it. 7
Such rational, advocatory interpretation of the law solely out of the
law itself is most closely related to that Biblicism of early Protestant
theology which wanted to establish nothing without the H o ly Scriptures
and everything upon the Hol y Scriptures. 8 Luther himself stressed that
parallel: " A lawyer talking without his text is disgraceful, but much
more disgraceful is a theologian talking without his text." 9 B u t juris-
prudence need not rest the legitimacy of its method solely upon this
after all rather questionable relation to an obsolete method of theology.
It may also feel in the very good company of thoroughly modern
branches of knowledge.
"Cf. SIMMEL, HAUPTPROBLEME DER P H I L O S O P H IE (Göschen editions, 1910)

71-72.
7 C f . STROUX, S U M M U M JUS, S U M M A INJURIA. E I N K A P I T E L AUS DER GESCHICHTE
DER INTERPRETATIO JURIS (1926).
8 Cf. RADBRUCH i n 4 ARCHIV FÜR SOCIALWISSENSCHAFT UND SOZIALPOLITIK 355
et seq.
" L e i b n i z : Merito partitionis nostrae exemplum a Theologia ad Jurispruden-
tiam transtulimus, quia mira est utriusque Facultatis similitudo [ W e h a v e justly
transferred the example of our division f r o m theolog y to jurisprudence, because of
than w a s suggested b y the above-mentioned scheme {supra, pp. 1 4 0 - 1 4 1 ) . C f .
SCHÖNFELD, V O M PROBLEM DER RECHTSGESCHICHTE 4 SCHRIFTEN DER KÖNIGSBERGER
GELEHRTENGESELLSCHAFT (1927) 351.

Authenticated
In the study of literature, there prevailed until recently philological
interpretation, research into the author's actual thoughts on the basis of
all his utterances about his work, his drafts, his diaries, his letters —
say, "Goethe philology." B u t this investigation into the subjectively
intended meaning is more and more relegated to the background as
against an investigation into the objectively valid meaning of the poem.
Authors themselves testify that the content of their works is not ex-
hausted in that subjectively intended meaning, that to themselves upon
later rereading their own works there often occur new and unexpected
meanings. Such understanding of the work exclusively out of the work it-
self may apply not only to a particular poem but also to the total work of
a writer, his oeuvres. This method then results in a new form of biography.
Traditional biography passed from the personality to the work, under-
stood the work as an emanation of the personality. T h i s new biography
derives the personality solely from the work. I t is biography based on
the work. T h u s has Goethe been presented to us by Gundolf: " T h e
artist exists only inasmuch as he expresses himself in the work of art."
Thus, again, K a n t has been presented by Georg Simmel, who concerns
himself "not with the real historical m a n " K a n t " b u t with an ideal
phenomenon that lives only in the achievement itself as an expression
or symbol of the objective, inner coherence of its parts." T o such a
biography, the creator of the work is not the dead human being who
once created this work, but the eternal poet or thinker who lives in this
work, changing as long as he lives and giving new answers to the new
questions of new times — just as according to that Hobbes passage the
lawmaker is not he by whose authority the law was first made but he b y
whose authority it continues to be law.
N o t only the history of an individual mind but also that of a collective

spirit may be and frequently is based on its work. 1 0 T h e history of
philosophy, or the history of dogmas, once used to endeavor to determine
psychologically the actual influence upon one thinker of other thinkers.
Since Hegel, on the contrary, it sets itself the task, irrespective of bio-
graphical-psychological connections, of developing the objective relation-
ships between systems of thought, of comprehending their historical
succession as a logical process, of understanding the development from
one system to another as if it had occurred in a single mind, of inter-
preting the movement of the objective spirit as if it were the work of one
" L e g a l history, too, m a y be w o r k e d out as history of the spirit, as investigation

into the m o v e m e n t s of objective meaning. It then is closer to dogmatic legal science
than w a s suggested b y the above-mentione d scheme (supra, pp. 140-141). Cf.
SCHÖNFELD, V O M PROBLEM DER RECHTSGESCHICHTE 4 SCHRITTEN DER KÖNIGSBERGER
GELEHRTENGESELLSCHAFT (1927) 351.

Authenticated
146 GUSTAV RADBRUCH
mind — just as the same "spirit of the lawmaker" back of the change in
laws changes and yet persists. 11
However, the examples we have submitted to the reader may still be
insufficient to dispel the impression that the suggested kind of transem-
pirical interpretation may be a conjuring trick which gets more and
different things out of a vessel than were put into it. Is it really possible
and plausible that one can gather a meaning from a work of the mind
which was not put into it by its author? Simple examples suffice to
answer this question in the affirmative. A riddle, too, may have a second
unintended solution besides the one envisaged by its author, the second
being just as correct as the first one. Again, a move in a game of chess
may possibly have a meaning in the context of the game that is quite
different from the one attributed to it by the player. Now such a move
in a game of chess, not dependent upon the player alone, is any sentence
that we speak. "The language thinks and invents for us" — which means
that by thinking and speaking I fit my thoughts into a world of thought
governed by specific laws of its own. Just as truly as I am unable to create
anew a language and a world of thought all by myself, I submit whatever
I utter to the specific laws of the world of thought in which I have to
move, and with every utterance I form conceptual connections which I
cannot remotely anticipate. Says Goethe: "A word that is uttered enters
the circle of the other forces of nature which work of necessity." In this,
the spiritual does not differ from the physical world. In utilizing the laws
of nature I at the same time surrender to them — so, too, the laws of
logic become my masters as soon as I utilize them. Thus under certain
conditions the meaning my utterance was to have is not at all the
meaning it has — a n d not merely because I did not succeed in ex-
pressing the intended meaning but rather because any meaning is a
mere partial meaning in an infinite context of meaning and calls forth
immeasurable effects in this context of meaning: "What he weaves no
weaver knows." One is moved to be modest and yet infinitely exalted by
one's consciousness of each of his thoughts being fitted into an im-
measurable context of meaning, into the world of the "objective spirit"
of which any subjective mind is but part and parcel.
Construction and Systematization. But it still remains to be made

clear what are the specific, "logical" laws which guide us in ascertaining
objective meaning. To understand means to grasp a cultural phenomenon
11
"The entire succession of men, during the course of so many centuries, is to be
regarded as one man who always lives on and learns continually." — Pascal. "The
history of knowledge is a great fugue in which the voices of the nations make their
appearances one after the other." — Goethe.

Authenticated
precisely as a cultural one, viz., in its relation to the corresponding
cultural value. Hence legal scientific understanding, in particular, means
a grasp of the law as a realization of the concept of law, viz., as a given
something the meaning of which is to realize the idea of law, viz., an
attempt at the realization of the idea of law.
It follows that the task of legal science is to work out its material in
two w a y s : categorially, to present the law as realization of the concept
of law and of its component legal categories; and ideologically, to
depict the law as attempted realization of the idea of law. T h i s twofold
work is called "construction" and, where it relates not only to a single
legal institution but to the totality of the legal order, "system." So there
are two kinds of construction and systematization: categorial as well as
teleological. 12 Thus, adjective law is construed teleologically when
procedural rules are reduced to definite principles, such as the maxims
of cognizance within the pleadings b or cognizance by judicial inquisi-
tion; 0 on the other hand, it is construed categorially when procedure is
conceived as a legal relationship, as under the doctrine of the right to
legal protection. 0 Thus, again, in introducing us to criminal law, the
doctrine of the purpose of punishment offers a teleological construction,
while the theory of n o r m s e offers a categorial construction. Still further,
the treatment of administrative law once used to be purely teleological,
following the method of political science as contrasted with the juridical
method established by Otto M a y e r . Moreover, in the structure of the
legal system, categorial viewpoints alternate with teleological ones. For
instance, the distinction between public and private law is categorial,
while labor law and the law of business regulation are teleological con-
ceptions. A purely categorial discipline is the general theory of law. And
corresponding to the emphasis on the categorial or the teleological task
12 C f . R a d b r u c h , Zur Systematik der Verbrechenslehre, ι FESTGABE FÜR

FRANK (1930) 158 et seq., and also Hegler, Zum Aufbau der Systematik des
Zivilprosessrechts, FESTGABE FÜR HECK, RÜMELIN, SCHMIDT ( 1 9 1 3 ) 216 et seq.
b [Verhandlungsmaxime, the original civil l a w maxi m that the scope of trial and
decision is determined b y the allegations and demands of the parties.]
0 [Offizialmaxime, the s t a t u t o r y civil l a w m a x i m t h a t the scope of trial and deci-
sion m a y be changed b y judicial official initiative and inquisition.]
d [Rechtsschutzanspruch, the right to h a v e claims existing under substantive l a w
adjudicated and enforced by legal process, w h i c h is considered a basic procedural
right b y m a n y G e r m a n authorities on adjective l a w , f o l l o w i n g WACH, DER
FESTSTELLUNGSANSPRUCH (1888).]
e [ T h e theory that any prescription of a penalty implies or presupposes a n o r m a -
tive legal rule forbidding an act to be committed or requiring an act not to be

o m i t t e d ; proposed b y BINDING, DIE NORMEN UND IHRE ÜBERTRETUNG (2d ed. 1890-
1920), and m a n y other authorities on G e r m a n criminal l a w . ]

Authenticated
of legal science, formalistic and finalistic epochs have followed each
other in constantly changing succession in the history of legal science. 13
Legal Concepts. T o the three, or rather two, steps of juridical work,

ascertainment of meaning and categorial and teleological elaboration of
meaning, or interpretation on the one hand and construction and syste-
matization on the other, there correspond two kinds of legal concepts.
On the one hand, there are the concepts of which the legal rules are
composed, especially the concepts used in setting forth states of facts in
the terms of statutes and which are clarified by interpretation, the
"legally relevant concepts." On the other hand, there are the construc-
tive and systematic concepts by means of which the normative content
of a legal rule is grasped, the "genuine legal concepts." The former are
predominantly concepts of facts, such as thing, taking away, intention;
the latter are concepts of rights, legal relations, and legal institutions,
such as the rights and duties of vendor and purchaser or the legal institu-
tion of the sale. 14
As to the legally relevant concepts, the formation of legal concepts
depends upon prescientific concepts. For the material of legal science is
not the amorphous formlessness of raw data, but a reality preformed by
means of prescientific, or at least extrajuridical, concepts. Legal science
is largely conceptual work of the second degree, which owes its concepts
to preparatory work done outside of legal science; for instance, it owes
the concept of the fetus to biology, the concept of the vine louse to
zoology. However, legal science adopts no extra-juridical concept with-
out at the same time transforming it. The concept "fetus," while depend-
ing upon the biological concept known by that term, does not coincide
with it. The law distinguishes it from the concept of man as a born
human being, not according to strictly biological viewpoints, but in
conformity with legal requirements; it regards the human being as fetus
as long as the penalty against abortion suffices to protect it, as man
when the stronger protection against killing becomes necessary. And the
concept "vine louse," while it may be coextensive in zoology and legal
13 C f . H e r m a n n K a n t o r o w i c z , Die Epochen der Rechtswissenschaft, in ( 1 9 1 4 - 1 5 )

6 DIE TAT 345 et seq.
14 RADBRUCH, DER HANDLUNGSBEGRIFF IN DER BEDEUTUNG FÜR DAS STRAFRECHTS-
SYSTEM (1903) 29. T h i s dualism of legal concepts seems to be identical w i t h their

" t w o f o l d relation t o v a l u e s " in ERIK WOLF, I STRAFRECHTLICHE SCHULDLEHRE
(1928) 93-94: concepts related to the value of l a w, and concepts related to the
value of legal science. T h e a b o v e distinction m a y also coincide w i t h that between
concepts of legal content and concepts of legal essence ( K e l s e n ) . Contra: SOMLO,
JURISTISCHE GRUNDLEHRE 27 et seq., contrasting the concepts of legal content w i t h
the juridical basic concepts, i.e., the legal concepts a priori.

Authenticated
science, is determined by different contents and characteristics in each:

in legal science, the essential characteristic is the quality of the vine
louse as a vineyard pest, which is quite unessential in zoology. So
naturalistic concepts undergo a teleological transformation when taken
over by legal science. 15 At the same time, this consideration shows that
the three steps of juridical work overlap, that interpretation is not
merely the prerequisite of construction and systematization but in turn
often presupposes teleological construction and systematization.
Legal Science as an Understanding Cultural Science. The essence of

legal scientific work has now been sufficiently clarified to enable us to
fit legal science into the system of sciences as it appears from what has
been said at the beginning of this book (sec. 1). Legal science is an
understanding cultural science. 16 As such, it is characterized by three
features: it is an understanding, individualizing, and value-relating
science.
1. Legal science is an understanding science, directed not at the
factuality of any particular intended meaning, but at the objectively
valid meaningful significance of legal rules. Here we must recall con-
clusions developed before (supra, sec. 10, p. 112). Legal rules are im-
peratives. The imperative expresses a Will. But the objective meaning
of a Will is an Ought. The content of meaning of an act of volition,
disregarding the factuality of its having been willed, cannot be expressed
in any other way but by an Ought. The subject-matter of legal science
consists of facts, legal imperatives, rulings of the Will; but since legal
science considers these facts not as such but according to their objective
meaning, it treats them like rules of Ought, or norms. This may be ex-
pressed by saying that legal science has the subject-matter of an existen-
tial science and the method of a normative science, 17 provided one does
not forget that in the last analysis it remains an existential, namely, a
cultural science.
2. As a cultural science, furthermore, legal science is an individual-
izing science. It may appear strange that this very science, in which the
concept of "the law" originated, is called an "individualizing" science
and not a science of general laws, or "generalizing" science. T o be sure,
each particular legal rule is essentially general. Y e t the subject-matter
1 5 C f . SCHWINGE, TELEOLOGISCHE BEGRIFFSBILDUNG IM STRAFRECHT (1930); also

the n u m e r o u s e x a m p l e s in t h e first edition of this b o o k , 198 et seq.
" Accord (in a d d i t i o n to those cited supra, sec. 3, n. 1 3 ) : ERIK WOLF, I STRAF-
RECHTLICHE SCHULDLEHRE 73 et seq.
" O p p o s i n g this c h a r a c t e r i z a t i o n : KELSEN in (1916) 40 SCHMOLLERS JAHRBUCH
1225 et seq.

Authenticated
GUSTAV RADBRUCH
of legal science is not the particular laws but the legal order made up of
those particular laws, the "historical and hence individual system" 1 8 ;
and the task of legal science is, not to advance beyond the peculiarity of
the particular (say, German or French) legal system to rules common
to all legal orders, but rather to understand these legal orders in their
individuality. 1 9 Moreover, the particular legal case is not a mere example
of a general law, as in the natural sciences, but contrariwise the law
exists only for the sake of deciding the particular cases. I n this teleologi-
cal sense the law is, indeed, not the totality of norms but the totality of
decisions. 20 From this there results the special interest of the lawyer in
the precise scope, the limits and the borderline cases, of a law. It shows
that his interest in a law, unlike that of the natural scientist, is not so
much that in a general statement but rather that in a summarization of
many individual statements b y w a y of an economy of thought. Despite
the laws that characterize the legal order, the character of legal science
is idiographic.
3. Y e t individualizing sciences would be drowned in the abundance
of individual facts could they not resort to a criterion to distinguish the
essential and unessential ones among those individual facts. This cri-
terion is the relation to values. A cultural science embraces only those
facts which bear a relation, friendly or hostile, to the cultural values
toward which it is oriented, facts by which such values are promoted or
hampered, by which they attain, or fail of, realization. However, this
relation to values also involves the variability of the subject-matter of
the cultural sciences. E v e r y revaluation of the values to which that
subject-matter is related involves a restratification of the respective
subjects. E v e r y new age withdraws the mark of essentiality from facts
that theretofore were related to values, and contrariwise it causes facts
theretofore indifferent to emerge into the value-relationship. In every
age, for instance, the borderline shifts between facts truly historical and
those merely antiquarian. E v e r y age rewrites its history.
"With a Stroke of the Legislator's Pen . . ." So it is no wonder that

every age must rewrite its legal science. Kirchmann in his celebrated
lecture on The Worthlessness of Jurisprudence as a Science felt able
to dispose of the scientific character of jurisprudence in the now famous
18 SCHÖNFELD, V O M PROBLEM DER RECHTSGESCHICHTE 3 2 4 .
M T h e unity of the a priori s y s t e m of categories, b y means of w h i c h the multitude
of national legal orders is w o r k e d out, turns legal science into an invisible unit,
notwithstanding its apparent division b y nations. T h e unit in this sense m a y be
characterized as "legal problematics," as in MAX SALOMON, GRUNDLEGUNG DER
RECHTSPHILOSOPHIE.
20 I S A Y , R E C H T S N O R M UND ENTSCHEIDUNG 29.

Authenticated
LEGAL PHILOSOPHY
words: " W i t h three amending words by the legislator, whole libraries

are turned into waste paper." 2 1 Even earlier, Pascal said: " T h e r e is
hardly anything just or unjust that does not change its quality with the
change of climate. Three degrees of latitude farther removed from the
pole, the whole jurisprudence is overthrown. A meridian determines
truth, a few years determine property. T h e basic laws change: the law
has its ages. Odd justice, limited b y a river or a mountain! T r u t h on
this side of the Pyrenees, error b e y o n d ! " Y e t , according to what has
been said above, the changeability of the subject-matter of legal science
by time and place is no argument against its scientific character; other-
wise, one would have to deny the scientific character of history b y the
same token. T o be sure, it might be urged that the above argument
against jurisprudence as science was intended to point out not simply
that its subject is changeable but that it is changeable arbitrarily. Y e t
that stroke of the pen of the legislator which withdraws an old subject
from and assigns a new subject to legal science is no more "arbitrary"
than the stroke of the pen of the poet which changes the value judg-
ments of aesthetics and thus compels a rewriting of the history of litera-
ture, or than the stroke of the sword of the general which changes the
value judgments of politics and thus demands a rewriting of political
history. T h a t stroke of the pen is but a dictated stroke, dictated b y
history. T h e only difference between the changeability of the subject of
legal science and the changeability of, say, that of historical science is
this, that the change in the former case occurs suddenly by one historical
act, and in the latter case mostly, if b y no means always, by a lengthy
historical development.
Turning to Special Problems. W i t h these considerations, the general

part of legal philosophy comes to an end. I t remains to subject the ke y
problems of the particular fields of law to legal philosophical study. Of
necessity, the selection of the questions to be dealt with is to some extent
arbitrary, since there is not a single subject that could not be dealt
with both by the respective particular science and by philosophy. T h e
selection has been made partly with a view to demonstrating, in prob-
lems especially suitable for this purpose, the fruitfulness of the concepts
developed in the general part. Before attacking those chief problems
of the various fields of law, however, legal philosophical clarity must be
reached as to the basic divisions of all law.
21 On K i r c h m a n n , see, besides numerous apologists of legal science, especially
STERNBERG, J . H . v . K I R C H M A N N (1908).

Authenticated
SECTION Ι 6
PRIVATE AND PUBLIC L A W
Jus privatum sub tutela juris publici latet.* — Bacon
The concepts "private law" and "public law" are not among the
concepts of positive law which a particular legal order might just as
well do without. Rather, they are logically precedent to any legal
experience and demand validity at the outset of any legal experience.
They are legal concepts a priori. Not in that sense that the distinction
between private and public law was always recognized: Germanic law
of old did not know it; it was adopted only with the reception of Roman
Law. Again, not in the sense that every legal order must contain both
fields of public and fields of private law: socialism would involve almost
complete merging of private law in public law, while anarchism demands
a legal order of pure private law. Still less in the sense that the boundary
line between private and public law must be identical everywhere; the
same phenomena (e.g., the employment relationship) belong now to
private, now to public, law. Finally, not in the sense that each field of
law must be susceptible of being classed unequivocally as private or as
public law; in labor law, or in the law of business regulation, private
and public law form an indissoluble mixture. 1 Rather, the concepts
"private law" and "public law" are a priori only in the sense that with
regard to any particular legal rule the question may be asked, and an
answer demanded, whether it belongs to private or to public law. 2
A Priori Character of these Concepts. Now legal concepts a priori must

be derivable from the a priori concept of the law. In fact, the distinction
between private and public law is anchored in the very concept of the
law. The law as a complex of positive norms presupposes the existence
of an authority laying down norms. But if the rules laid down for indi-
viduals living together, that is, rules of private law, are really to satisfy
* [ P r i v a t e l a w l a t e n t ly rests under the tutelage of public l a w . ]

1N o r can the a priori character of these concepts be impaired b y the f a c t , justly-
stressed b y Kelsen in (1931) 6 6 A R C H I V FÜR SOZIAL WISSENSCHAFT UND SOZIALPOLI-
TIK 49s, t h a t the concept of p r i v a t e l a w m u s t f r e q u e n t l y serve as a screen to hide
relations of dominion, such as t h a t of the e m p l o y e r , w h i c h are in t r u t h relations in
the nature of public law.
2 T h e same question is raised b y BURCKHARDT, ORGANISATION DER RECHTSGE-
MEINSCHAFT (1927) 10 et seq. Opposing the a priori character, see also E. KAUF-
M A N N , K R I T I K DER N E U K A N T I S C H E N RECHTSPHILOSOPHI E (1921) 86-87.

Authenticated
the reason of existence of all positive law, viz., legal certainty, the
authority laying down the norms must itself be bound by them. T h a t
obligation which binds the authority enacting norms in favor of the
addressees of norms, an obligation in the relationship of super- and
subordination, is necessarily of public law character.
B u t the distinction of private and public law is suggested not only in
the concept of law, but even in the idea of law. Justice, being either
commutative or distributive justice, i.e., either justice between coequals
or justice in the relationship of super- and subordination, itself indicates
its two substrata, private and public law.
So the concepts " p r i v a t e " and "public l a w " are a priori. B u t the
relative value and rank of public and private law are subject to historical
change, to evaluation according to a world outlook.
Liberal View. T o liberalism, private law is the heart of all law, with
public law as a narrow protective frame laid around private law and
especially private property. T h e [French] Declaration of the Rights of
M a n and of the Citizen of 1789 regards the crown as an authority rev-
ocably granted b y the nation for the benefit of all and not for the
monarch's profit, but regards private property as a natural, imprescript-
ible, inviolable, sacred right: the absolute ruler was to leave his throne
only to have absolute capital ascend it.
T h i s relative rank, as between private and public law, which is
assumed by liberalism is expressed in the ideas of the social contract
doctrine. It involves " a compromise between private law and public
l a w , " 3 the attempt to trace super- and subordination in the state to an
agreement between the originally coequal individuals, i.e., to dissolve
public law fictitiously in private law. Liberalism carried to the extreme,
namely, anarchism, seeks to dissolve public law in private law not only
fictitiously but really. B y refusing to recognize any obligation that is
not self-obligation, it makes the social contract doctrine not only the
political theory but also the principle of organization of social living
together.
In positive law, the liberal view of the relative rank as between
private and public law leads to that penetration of the coördinative
ideas of private law into public law, which is of the essence of a govern-
ment of laws. T h e state in its business relationships [Fiscus] is sub-
jected to private law. It assumes the same position as the individual by
becoming a party in criminal and administrative procedure. T h a t con-
troversial legal conception, the "public law contract," would involve the
state placing itself on the same level as the individual.
3 L . VON R A N K E , POLITISCHES GESPRÄCH ( 1 9 2 4 e d . ) 34.

Authenticated
Conservative and Social Views. Precisely contrary are the conclusions
under the opposite view of the precedence of public over private law.
From this standpoint, private law appears but as the scope left, provi-
sionally and revocably within all-embracing public law, to private
initiative, which is granted in the expectation that it will be used dutifully
and may be withdrawn as soon as that expectation is not fulfilled. This
is the transindividualistic-conservative standpoint; but on this question
it is in fundamental agreement with the individualistic-social standpoint.
They differ as to the reasons for the precedence of public law. The former
maintains the definitive preeminence of the state over individuals, the
latter the preeminence of the state as the protector of the economically
weaker individuals. But out of these different reasons there follows the
same relative rank as between private and public law.
Social Law. The social-legal view of that relation results from the
essence of social law, its devotion to the individual as a social being.4
Social law 5 renders visible the social differentiations of individuals, their
social positions of power or powerlessness, and thereby enables the law
to take them into account, to strengthen social impotence and curb
social predominance. B y so doing, it replaces the liberal idea of equality
with the social idea of equalization; it brings to the fore distributive
instead of commutative justice; and since equalization by distributive
justice necessarily supposes a superior authority above the individuals, it
supersedes self-help by the help of organized society, especially the help
of the state. This, however, involves the emergence of that great figure
of organized society, the state, behind even the most private individual
legal relations and their private participants, as the third and chief
participant, always observant, ready to intervene, and frequently inter-
vening. It involves a conception of even the most private legal relation
as more than merely a concern of the private persons participating
therein, as a social-legal relation, which is a relation of public law.
In a social-legal order, therefore, private and public law are not
juxtaposed with clear-cut boundary-lines but rather overlap. This ad-
mixture, this washing through of private with public law occurs above
all in the fields of labor law and business regulation. If the former is to
back up social impotence and the latter to put a curb on social predomi-
4
Attention to this connection is drawn b y KASPAR ANRATHS, DAS WESEN DER
SOGENANNTEN FR EIEN W I S S E N S C H A F T L I C H E N BERUFE (1930) 8 et Seq.
5
On the manifold meanings of this word, see GURVITCH, L'IDEE DU DROIT SOCIAL
( 1 9 3 1 ) 154 et seq. The view of social law which is taken in the present book (see
also supra, sec. 8, p. 1 0 3 ) comes closest to the view of DUGUIT, LES TRANSFORMA-
TIONS DU DROIT PRIVE DEPUIS L E CODE NAPOLEON ( 2 d ed. 1920).

Authenticated
nance by means of social equalization through a power above the indi-
viduals, both must contain public and private law, distinguishable indeed
but not separable.
What in objective law appears as the publicizing of private law, in
subjective rights appears as the penetration of the private title by a
content of social duties, such as was expressed as a program in the prop-
erty clause of the Reich Constitution [of Weimar, 1919], Article 153:
"Property obliges. Its use shall at the same time serve the common
weal." So social law shows a structure similar to that of the feudal law
of the Middle Ages. The latter, too, granted rights as the material basis
of services, though the result was not that the right was granted for the
sake of service but that the office was based on the right and in turn
appeared as a privileged right. But the social law of the present is pro-
tected against a similar degeneration by the legal guarantees of the duty
content of the right, if only by the guarantee of legislation standing
ready to act, ever on the alert to limit or withdraw rights which are not
exercised dutifully. Thus, above private property there is suspended the
Damocles sword of expropriation, socialization, by the Weimar Con-
stitution, Articles 153, 155, 156. b
Nothing expresses the character of a legal order as clearly as the rela-
tion in which it puts public and private law and the way in which it dis-
tributes the legal relationships between private and public law. 6 The
overthrow of feudalism coincided with the growing consciousness of the
distinction between private and public law. T h e development toward
government by prerogative c was revealed in the freeing of public law
from private law pollutions; the parallel though contrary development,
the emergence of a government of laws, was revealed in the liberation
of private law from public law ties. T h e no less epochal change we are
now passing through, again in the opposite direction, from liberal to
social law, is revealed in new public law restrictions being imposed upon
private law, especially upon freedom of property and of contract.
b [ A r t . 153, sec. 2: " A n expropriation m a y be resorted to only f o r the c o m m o n
good and on the basis of a l a w . I t shall take place in exchange f o r due compensation
unless a l a w of the Reich shall p r o v i d e otherwise. . ." A r t . 155, sec. 2: " R e a l
estate, the acquisition of w h i c h is required to s a t i s fy housing needs, to p r o m o t e
settlement and cultivation, or to a d v a n c e agriculture, m a y be expropriated. " . . .
Art. 156, sec. 1 : " T h e Reich m a y b y l a w transfer to c o m m o n ownership private
economic enterprises suitable for socialization, w i t h o u t prejudice to compensation in
analogous application of the provisions for expropriation. It m a y cause itself, the
states or the municipalities t o participate in administering economic enterprises and
associations or otherwise secure a determining influence therein."]
e C f . M a r t i n D r a t h , Das Gebiet des öffentlichen und des privaten Rechts (1931)
3 ZEITSCHRIFT FÜR SOZIALES R E C H T 229 et seq.
c [ C f . infra, § 26, η. a.]

Authenticated
GUSTAV RADBRUCH
SECTION 17
T H E PERSON
The emancipation of man is accomplished only when the real individual human
being takes the abstract citizen back unto himself and, as an individual human being
in his empirical life, in his individual work, in his individual relationship, has be-
come a generic being . . . — Karl Marx
T h e thought of purpose, together with the thought of order, is in-

herent in the concept of law ; hence not only the means-end relation, but
also the thought of an end of ends, an ultimate and self-sufficient pur-
pose, is involved in the very concept of law, as an indispensable form of
legal thinking. If this is so, the concept of the person, the subject of the
law, a must be deemed a category of legal thought which is not based
uppn nor confined to legal experience but is of conceptual necessity and
universal validity. For "the subject of the law is a being that is consid-
ered b y a certain historically given law in the sense of an end unto
himself, while the object of the law is one that in the same situation is
treated as a mere means to conditional ends." 1
Person as a Concept of Equality. Ends unto themselves preclude any

relation of rank among one another. Consequently, the concept of the
person is a concept of equality. As has been shown above (sec. 8, pp. 98
et seq.), individualism, in regarding the individual human being as such
an ultimate end of the legal order, does not see his concrete individuality;
rather, the individual of individualism is an individual without indi-
viduality; he is nothing but individualized human freedom, and this
concretion of freedom without individuality involves the equality of all
individuals. As we have also seen, however (supra, sec. 8, p. 103), op-
posing this concept of an individual, divested of his peculiarity and
hence relieved of his social context in the individualistic view of the
law, there arose the social approach to the law, which replaces him with
the concrete and social man, for instance, the employer and the em-
ployee, the laborer and the office worker, in their differentiations of social
and economic power.
B u t the concept of the person, unaffected by this development, re-
mains a concept of equality, whereby the powerful and the powerless,
* [In German legal terminology, "subject of the l a w " is synonymous with "legal
person" and "object of the l a w " has the meaning of "property."]
1 STAMMLER, UNBESTIMMTHEIT DES RECHTSUBJEKTS (1907) 28-29; THEORIE
DER RECHTSWISSENSCHAFT ( 1 9 1 1 ) 1 9 4 e i seq.

Authenticated
the haves and the havenots, the weak individual person and the mam-
moth corporate person, are deemed equal. Without that concept of
equality, we could not conceive of private law; for, as we have seen,
private law is the field of commutative justice, i.e., of the equal measure
of exchanged performances, performances being commensurable only if
the subjects who exchange them are deemed equal. 2 So both individual-
istic and social views of the law are bound to start with the concept of
equality of the person. The social view by no means dissolves that con-
cept of equality into the differentiated types of the employer, employee,
laborer, office worker. Being an employer, employee, laborer, or office
worker, in this view marks but different situations occupied by persons
who are deemed equal. If back of those social types there did not stand
the concept of equality of the person, we should lack the common de-
nominator without which we could not conceive of any comparison and
equalization, of any considerations of justice, indeed, of private law
and, possibly, of law altogether.
These considerations sufficiently indicate the "artificiality of the
subject of the law as against the real plenary subject." 3 Legal equality,
equal legal capacity, which is of the essence of the person, does not
inhere in human beings and human groups but is only attributed to them
by the legal order. Nobody is a person by nature or by birth — as is
shown by the legal institution of slavery. T o be a person is the result of
an act of personification by the legal order. All persons, natural as well
as legal ones, are creatures of the law. Speaking quite strictly, the
natural persons, too, are "legal persons." No controversy, then, is pos-
sible about the "fictitious," i.e., artificial nature of all persons, both
natural and legal. The problem of the legal person — fictitious person or
real group person? — is rather the problem of its metajuridical sub-
stratum. Is there a prejuridical being back of the legal person, like the
human being back of the physical person, a being encountered by the
law and simply endowed by it with legal personality? This is the prob-
lem on which the controversy about the nature of the legal person turns.
Teleological Interpretation of the Problem of the Legal Person. What

alone that nature may be we are told by the legal philosophical concept
of the person which precedes these considerations: to be a person means
to be an end unto oneself. So a man is a person not because he is a
2 S a y s K a r l M a r x : " I n order to relate things to one another as commodities, the
custodians of commodities must behav e t o w a r d one another as persons." C f .

P A S C H U K A N I S , A L I G E M E I N E RECHTSLEHRE UND M A R X I S M S (1929) 87 et seq.
3 Cf. MARCK, SUBSTANZ- UND FUNKTIONSBEGRIFF IN DER RECHTSPHILOSOPHIE
(1925) 117.

Authenticated
158 GUSTAV RADBRUCH
physical-mental living creature but because in the eyes of the law he

represents an end unto himself. So, too, in order to show that groups of
persons are entitled to legal personality, we need not show that like men
they are biological beings, organisms, but need only show that like
individual men they represent ends unto themselves. T h e "organic"
theories of the legal person, on the contrary, search for a biological,
instead of the teleological, substratum of the legal person. B y w a y of
hypostasis, they substitute naturalistic structures for units of purposes;
or at best they hide teleological conclusions behind naturalistic language.
It is true that even the legal philosophical definition of the subject of
the law which is proposed above refers to a " b e i n g " that is deemed an
end unto itself by the law. B u t the relation between being and end is the
exact opposite to that assumed by the organic theories. T h e organic
theories of the legal person try first to determine the being that is its
substratum, in order then to hearken to its purpose. Contrariwise, the
teleological doctrine derives the unity of the being from the independence
of the purpose. However, in most cases nothing will at first be discovered
back of the legal person but the plurality of the participating individuals,
its members, its organs. T o be sure, in a particular case there may be
back of a legal person a sociological unit, a " c o m m u n i t y " ; but that fact
is irrelevant to the question concerning the " r e a l " unit back of the legal
person. For unity is never unity as such, it is but unity from a certain
point of view. T h e unity of the substratum of the legal person must be
unity from the point of view of its unified purpose. From the viewpoint
of the unified transindividual purpose, the individual persons who gather
together in order to realize it join in a unit with a common purpose.
Accordingly, the real substratum of the legal person would be the indi-
vidual persons joined in a "teleological u n i t " by a transindividual pur-
pose that they serve. 4
However, in our discussion so far, the preliminary question has not

yet been answered whether individual human beings may have and
pursue transindividual, superhuman, objective purposes, and whether,
therefore, there may be specific purposes of legal persons that cannot be
resolved into individual purposes of their participants. T h e answer de-
pends on the fundamental legal philosophical attitude, on the decision
between individualistic, transindividualistic, and transpersonal views of
the law. T h e correlation between the three distinctive theories as well
as the three different positive legal types of the person, and those three
basic views of the law, is a splendid additional confirmation of that
basic doctrine of ours.
* On teleological unity as the principle of the legal person, cf. GEORG JELLINEK,
A L L G E M E I N E STAATSLEHRE ( 3 d e d . , r e p r i n t o f 1 9 2 1 ) 171.

Authenticated
Savigny, Gierke, Brinz. T h e individualistic theory of the law is ex-
pressed in the fiction theory of the legal person. According to it, there
are only individual purposes. " A l l law," says Savigny, oddly contradict-
ing his basically romantic transindividualistic attitude, "all law exists
for the sake of the moral freedom inherent in every single human
being; therefore, the original concept of the person must coincide with
the concept of the human being." Legal persons would then be persons
without any specific substratum. T h e only subject of purposes is the
individual human being. When human groups are endowed with legal
personality, they are merely treated as if they were the subjects of
purposes, are fictitiously taken for subjects of purposes, for men at
large. Legal personality could then only mean separate legal bookkeep-
ing as to certain particular individual purposes, a legislative technique
to which no specific prejuridical substratum would correspond.
T h a t individualistic theory of the legal person is opposed b y the
transindividualistic theory contained in Gierke's doctrine of the real-
group person. If we divest it of its organic-naturalistic terms, we may
reduce it to the affirmation of distinct transindividual group purposes
which cannot be interpreted as merely adding up the individual pur-
poses of the members of the group.
Finally, the theory of the legal person assumes transpersonal appear-
ance in Brinz' theory of "property with a purpose." Here, too, specific
purposes are ascribed to the legal person, yet they are not "personal"
purposes, in the sense that they are not purposes either of individual
persons or of group persons, but are transpersonal, purely objective
purposes, say, cultural purposes. Person then means certain goods and
men being bound to certain objective tasks, say cultural ones. 5
Individualistic Fiction Theory, Transindividualistic Real Group Per-

son, Transpersonal Property with a Purpose. Each of these three doc-
trines starts from a particular kind of legal person as its prototype, to
which it tries conceptually to adapt the other types of the legal person.
T h e fiction theory starts from the individual human being; the theory
of the real group person, from the private and municipal corporation;
the theory of the property with a purpose, from the charitable founda-
tion b and the institution of public law. Whereas the fiction theory is
compelled to construe the legal persons individualistically, the other two
° Hauriou's view of the institution groupe seems also to be of a transpersonal

kind. Cf. Gurvitch in (1931) ARCHIVES DE PHILOSOPHIE DU DROIT 151 et seq.
b [Anglo-American law has no equivalent of this German type of legal person,
the " f o u n d a t i o n " ( S t i f t u n g ) devoted to a cultural purpose. T h e closest analogy is

the charitable trust.]

Authenticated
ι6ο GUSTAV RADBRUCH
doctrines are compelled conversely to view even the natural person
transindividualistically or transpersonally. In such a view, just as the
subjective right turns into an office and a service, the individual's quality
as a person means his quality as an organ, the individual being "a
subject only inasmuch as he is considered an organ of the community." 6
In the operation of positive law, however, individual personalities, cor-
porations, and institutions are without apology placed side by side as
phenomena subject each to but one interpretation: individual person-
alities to an individualistic, private and municipal corporations to a
transindividualistic, foundations and institutions to a transpersonal,
interpretation.
SECTION 1 8
OWNERSHIP
That the man who possesses the Juno of Ludovisi should have the right to destroy
her! — Friedrich Hebbel.
To regulate the relations between human beings in a world in which

the supply of the goods of life is limited involves the regulation also of
the relations of human beings to things, or of the distribution of things
among human beings. Thus the law of property is established as a con-
cept that no conceivable legal order can do without. Among the property
rights, again, ownership represents such a category of legal thinking
that is not based on but rather precedes any legal experience.1
A Priori Character of the Concept of Ownership. The multiplicity of

possible ways of dealing with things cannot be fully divided up into a
number of property rights of limited contents. There is needed a sub-
jective right which places a thing at one's disposal without limiting him
to definite ways of dealing with it — a right to the "last word" over the
thing: ownership. Ownership contains the right of the owner to all
particular ways of dealing. Compared with ownership, therefore, prop-
erty rights of limited contents may be regarded as rights not in one's
own things but only in those of another. Such rights are not concep-
tually necessary but are rather created by the particular legal order;
ownership, on the contrary, is a form of thought indispensable to the
*1 Cf. BINDER, P H I L O S O P H I E DES R E C H T S (1925) 448.

Cf. STAMMLER, T H E O R I E DER RECHTSWISSENSCHAFT (1911) 253 et seq.

Authenticated
LEGAL PHILOSOPHY ι6ι
legal approach. It makes sense to confront any legal order with the
question as to each thing: Who is its owner? The answer to that ques-
tion, to be sure, is to be derived only from experience and is open to
criticism. Ownership is an a priori legal category; not so, however, is
private ownership or common ownership. Whether private or common
ownership prevails we may learn from legal experience only; which of
them ought to prevail, from legal philosophy only. The legal philosophy
of private ownership, in particular, is expressed in the theories of
ownership.2
Theories of Occupation and of Specification. The oldest and still most

widespread philosophcial doctrines of ownership are, the theory of
occupation and the theory of specification. Occupation, or the taking
possession of ownerless things, expands the rule of man over nature. It
turns a mere thing of nature into an economic and cultural good, thus
creating a new piece of natural wealth. So occupation, without changing
the thing that is taken over, also constitutes specification, for instance,
in the case of "original production." However, according to what is called
the theory of specification or theory of work in the stricter sense, a thing
of nature is fully subjected to the rule of man not simply by taking but
only by forming it, by working up the raw material. Accordingly, only
work that produces goods creates the legal title of ownership.
But against the theory of work, of which the theory of taking
possession has been shown to be a variety, two objections may be raised.
In the first place, it may discharge its function to justify private owner-
ship under very definite conditions only, namely, as long as the produc-
tion of goods is still the work of the individual with his own means of
labor: the artisan's work, the peasant's work, and especially mental
work. But ever since production has been taking place in the factory or
the large estate with another's means of labor, by dividing work and in
that sense collectivistically, the same theory of work must inescapably
lead to socialist conclusions, to the expropriation of him who owns the
means of production and takes no part in the work, and to the common
ownership of those who work. Thus, following the theory of work,
sec. 950 of the [German] Civil Code provides that he who, by working
up or transforming one or more materials, shall produce a new movable
shall become the owner of the new thing. That provision, applied to the
present state of economics, would mean socialism were it not for the
interpretation that by him who works up or transforms the material
is to be understood he in whose name, and not he by whose hands, the
2 Cf. DIEHL AND MOMBERT, AUSGEWXHLTE LESESTÜCKE ZUM STUDIUM DER
POLITISCHEN Ö K O N O M I E , V o l . 1 4 : DAS EIGENTUM (1924).

Authenticated
102 GUSTAV RADBRUCH
work is done. Thus, again, the 1931 encyclical of Pius X I on the social
order, recognizing work as a title to possession, immediately adds the
limitation that " n a t u r a l l y " only such work as a man does in his own
name has the power to create ownership.
Besides this substantive objection concerning their double-edged
character, a methodological objection must also be raised against both
the theories of work and of occupation. Both justify the acquisition of
property on the assumption of the existing institution of private owner-
ship but do not justif y that institution itself. T h e y answer the question:
W h o ought to be private owner? but not the question: Ought there to be
private ownership? T h e answer to the latter question can be obtained
only from the fundamental view of the ultimate ends of the legal order.
Ownership, like law itself, may be regarded as serving either the indi-
viduals, the owners themselves, or society; accordingly, the individual-
istic and social theories of ownership may be distinguished. 3 T h e indi-
vidualistic theory of ownership corresponds to the view of liberalism
and democracy. In the social theory of ownership conservatism and
socialism meet, differing from each other in that social ownership in the
socialist view again ultimately serves the individual or the "society "
made up of the individuals, while in the conservative view its ultimate
end is the social whole, the collectivity. T h e individualistic view corre-
sponds to the Roman, while the conservative-social view corresponds to
the Germanic, concept of ownership.
Individualistic Theory of Ownership: Goethe. T h e individualistic

theory of ownership or, as we may also call it, the "personality theory"
of ownership, has found its noblest expression in Goethe. H e has lived it
and he has deliberately molded and clearly expressed what he lived.
Instead of many passages, two may be quoted:
E p i m e t h e u s : " H o w much, indeed, is y o u r s ? "

P r o m e t h e u s : " T h e circle filled b y m y a c t i v i t y .
N o t h i n g a b o v e and nothing underneath."
And again:
F a u s t : " I f y o u inherit ancestors' estates,

E a r n w h a t y o u would possess.
W h a t y o u use not, is burdening, valueless;
T h e m o m e n t can use b u t w h a t it creates."
Here, a dynamic view opposes the static view that private ownership,
once acquired, is permanently established. Ownership needs continuous
" T h u s JHERING, I DER ZWECK I M RECHT ( 4 t h e d . 1 9 0 4 ) 4 0 4 et seq.

Authenticated
LEGAL P H I L O S O P H Y
"integration," to use this fashionable term. I t needs ever again to be
made effective, utilized, and thus acquired and created anew; it is a
work wrought continuously in ever renewed occupation and specification.
Doubtless Goethe in this doctrine of ownership thought of what he loved
most of his property, his collections. They represent one of his great
works, and not the least among them: in them, too, he let his personality
fully live, work, and express itself, in them he became aware of owner-
ship as expansion and expression of the personality, as projection of the
personality. Oriented toward and penetrated by the personality, such
ownership becomes an organic whole in which each single piece of
property gains in value, even in economic value, by its coordination in
sets of related things. There emerges a new unit which is more valuable
than the sum of its parts; by its very existence, ownership becomes
productive. The collector's mentality often represents only one aspect
of this "chemically pure" ownership: the "collector of rarities" enjoys
not so much the thing itself as its sole possession, the exclusion of
others. But in Goethe the joy of possession and the enjoyment of the
thing are finely balanced. Says he to the Chancellor von Müller: " I need
possession to get the true concept of the objects. Only possession permits
me to judge calmly and impartially, free from the illusions which are
fed by the desire for a thing. And so I love possession for the sake not
of the thing possessed but of my education, and because it makes me
calmer and thereby happier." Possession of things for the sake of full
enjoyment of things! Yet his enjoyment of things attains its fullness
only in communication with others. It is the collector Goethe who in his
Years of Wanderinga has coined the unsurpassed formula for his in-
dividualistic theory of ownership, and for its turn toward the social
doctrine of ownership: "Possession and the common good" — which
means: possession as a common good.
According to the personality theory, ownership is not the rule of
man over things but a relation between man and things. Not only man
has his dignity, the thing too has a dignity of its own. Not only does
man utilize the thing, the thing in turn demands something of man; it
demands to be taken care of and not to be wasted, to be utilized and
enjoyed, all according to its value; in a word, it demands love. So the
relation between man and property approximates that between man
and man, not only where such property consists in domestic animals,
which any non-lawyer is loath even to call chattels, but also where it is
represented by lifeless objects. The religious person expresses this rela-
tion of mutual duties between man and thing, this claim of the thing to
* [ H i s n o v e l W I L H E L M MEISTER' S WANDERJAHRE.]

Authenticated
164 GUSTAV RADBRUCH
be not only possessed but dealt with according to its own law, when he
speaks of a " g i f t from G o d . " As a gift from God the "daily bread," in
particular, partakes of the sanctity of the bread which in the eucharist
is transformed into the body of the Lord. 4 So the mother prohibits her
child from playing with bread, telling him the legend of the punishment
meted out to those who violate this prohibition. 5 This veneration of the
bread was relied upon cleverly b y Mussolini for the promotion of domes-
tic agriculture, by celebrating a festival in honor of the bread.
However, these points have been made precisely in order to show how
narrow is the field of application of the personality theory. T h a t mental
attitude which the personality theory of ownership assumes is conceiv-
able only with regard to a small circle of things, to clothing and dwelling,
books and collections, tools and handiworks. T h a t doctrine fits into an
economic world of artisans and peasants, and not one of factories,
banks, and large estates.® In this latter world, the things that are ap-
preciated for their own sake have changed into values and commodities
which are appreciated only according to their price, which one has, not
in order to possess them permanently, but rather to get rid of them as
quickly as possible — thus truly "realizing" them only b y turning them
into money. Whereas in "ownership" the emphasis is on what is one's
" o w n , " the qualitative correlation of the thing with its owner, now an
aggregate of things is conceived of as a " f o r t u n e " according to its
monetary value only, as a quantitative power in the market of commodi-
ties. In a fortune, ownership is denatured: a fortune includes all that is
worth money, and preeminently money itself; yet money is not really
a thing any more but a claim to things, not unlike a chose in action.
Thus, under our present economic system, things, money, and choses in
action merge in a new conceptual unit, which does not coincide with but
overlaps the old conceptual unit of ownership. This inadequacy of the
concepts of the legal order of ownership as contrasted with the con-
ceptual developments of the economic order, and the changed function
of the concept of ownership in this economic order, have recently been
impressively set forth. 7 Here they are of interest only from one point
of view, namely, that apart from a quite narrow circle of things, owner-
4 T h e v i e w of ownership as " o b j e c t i v e service of v a l u e s " has been set forth

beautifull y b y Brunstäd, Das Eigentum und seine Ordnung, in FESTSCHRIFT FÜR
BINDER (1930).
5 C f . , e . g . , D E E C K E , L Ü B I S C H E G E S C H I C H T EN UND SAGEN (5th ed. 1911) no. 216.
' T h e relative correctness of the theories of ownership each f o r a limited circle
of economic goods is pointed out b y Tönnies, Eigentum, in HANDWÖRTERBUCH DER
SOZIOLOGIE.
' C f . K A R L R E N N E R , D I E RECHTSINSTITUTE DES PRIVATRECHTS UND IHRE SOZIALE
FUNKTION (1929).

Authenticated
LEGAL PHILOSOPHY
ship has lost the character of a mental relation and has turned into a
mere purpose relation. 8
Individualistic Theory of Ownership: Fichte. Still a second objection

may be raised against the "personality" theory [of ownership]. Beccaria
once called ownership a "terrible right." Indeed, ownership shows not
only the affirmative aspect of the enjoyment of the thing but also the
negative one of the exclusion of others; and in its sociological form as
capital, ownership excludes others not only from a particular piece of
property but from property altogether. T h e correlative to capital is the
proletariat, the correlative to ownership in this form is the propertyless
human being. So the unfolding of the personality in a very few is bought
at such a price that it becomes impossible in numberless others. Hence
the personality theory must be transformed if it is to afford not only
an opportunity for the strong, as in liberalism, but also an equal chance
for all, as in democracy. It must add to the right of ownership the right
to ownership, that is, the right to work. T h i s is done by Fichte, who
reasons not as a socialist denying private ownership but as a democrat
affirming private ownership. Private ownership grants the enjoyment of
a thing to one, and excludes therefrom another. From the standpoint of
democratic equality it is justified only to the extent that that enjoyment
is universal and this exclusion is mutual. This thought is expressed in
the assumption of a fictitious mutual agreement of guaranty of the own-
ers. Just as the individuals guarantee one another their freedom in the
social contract, so they guarantee one another their ownership in this
property contract. But this contract can be considered to be concluded
and valid only as between owners. T h e propertyless person has no inter-
est in adhering to a contract by which he would merely promise to respect
the ownership of others without gaining a claim to the respect of any
legal goods of his own, so he cannot be fictitiously deemed a party to this
contract. Therefore that property contract does not bind the property-
less. Everyone possesses his property only upon the condition that each
man can live from his own property. From the moment anyone suffers
want, nobody owns that part of his property which is needed to free the
indigent one from his want. If but a single individual is excluded from
ownership, ownership ceases to exist in society.
T h e legal philosophical fiction of the contract of owners hides the

sociological fact that the economic order founded upon private owner-
ship was indeed designed, and functioned without complaints, only for
' T ö n n i e s accordingly distinguishes between p r o p e r t y as the object of the essen-
tial will and p r o p e r ty as the object of the elective w i l l ; cf. his Das Eigentum
(SCHRIFTEN DER SOZIOLOGISCHEN GESELLSCHAFT IN W I E N , 1 9 2 6 ) 1 9 et seq.

Authenticated
ι66 GUSTAV RADBRUCH
a state of society in which none but small owners faced one another in
approximate equality. All parties were equally interested in maintaining
the state of society. Where everyone may say to another: Do ut des}>
everyone may also tell the other: Habeas quod habeo.c T h e mutuality
of the commodities market produced the mutual recognition of owner-
ship. As long as each economic unit was self-sufficient in the closed
economy of the house, ownership was a relation to a thing rather than a
relation to other men. Only when the thing becomes a commodity do
we become more distinctly aware of the relation of our own thing to
others and of another's thing to ourselves, of the claim to mutual respect
for ownership, of ownership as a right between men. Y e t this " m u t u a l i t y "
justification of ownership is at once lost after the economy of the free
market, developing according to its own laws, has separated the owners
and the propertyless and produced a class which no longer has any
interest in recognizing the right of ownership. 9
Social Theory of Ownership: Encyclical Quadragesimo Anno; Con-

stitution of Weimar. However, even the individualistic theories of owner-
ship were never purely individualistic. T h e y were based on the assump-
tion of a prestabilized harmony between individualistic selfishness and
the common weal. T h e social theories of ownership differ from them by
the recognition that this prestabilized harmony is an illusion, that the
social function of ownership is not inseparably bound up with its indi-
vidualistic one but needs to be specially implemented and safeguarded. 1 0
Recently, the social theory of ownership has found an authoritative
expression in the above mentioned encyclical Quadragesimo anno. I t
distinguishes between the right of ownership and the use of property.
T h e right of ownership expresses only the individual aspect of owner-
ship, looking toward private benefit; the use of property expresses the
social aspect of ownership, looking toward the common weal. T h e indi-
vidual function of the right of ownership belongs to natural law, while
the social function governing the use of property belongs to ethics and
hence cannot be enforced b y litigation — unless the ethical social duty
" [I give that y o u give.]

c [ Y o u may have what I have.]
8 Cf. P A S C H U K A N I S, ALLGEMEINE RECHTSLEHRE UND MARXIMUS (1929) 102

et seq.
M I t is formalistic and n o t illuminating t o call the social theory of ownership
the " l e g a l i t y " theory. T h a t term is designed to bring out that the l a w is not b o u n d
b y prelegal natural l a w to regulate the right of ownership in a definite sense, b u t
that it a u t o n o m o u s l y decides u p o n this regulation. B u t since the natural l a w against
w h i c h the legality t h e o ry is directed bears the s t a m p of individualism, the legality
theory itself can be understood only in the sense of the social theory of ownership.

Authenticated
of the owner has become the subject of positive legislation. But the
legislator may and ought to regulate the use of property more strictly
with regard to the requirements of the common weal; indeed (though
this is stated in a somewhat inconspicuous passage of the encyclical) he
may "reserve certain kinds of goods for the public hand because the
excessive power connected with them cannot be delivered into private
hands without endangering the public good." So the individualistic
natural right of ownership, the social ethics of the use of property, and
the liability to positive legal regulation requiring its use for social pur-
poses and even taking it for social reasons, these three overlap in a com-
promise. It is interesting that this corresponds precisely to the regulation
of the property clauses of the [Reich] Constitution of Weimar [of
1 9 1 9 ] . In article 1 5 3 of the Reich Constitution, too, individualistic own-
ership is first guaranteed, but this guarantee is bound to the moral duty
of social use: "Property obliges. Its use shall at the same time serve
the common good." d "This clause binds the citizen but as a moral rule;
the judge, as a rule of construction; the legislator, as a directive legal
rule" (Giese). Thus the law directed by social viewpoints appears as the
third power legally governing ownership: "Its contents and its limits
depend on the laws." e Legislation is thus placed in a position to raise
the "social mortgage of property" from the sphere of merely moral to
that of legal validity. Thus the social function of ownership, though still
left in the realm of ethics, turns into a potential legal duty. The social
duties of ownership are put, not indeed under the sanction of a law now
in force, but under the sanction of a law possibly to be enacted. Thus,
even in the legal view of today, private ownership appears as an area of
activity for private initiative, entrusted to the individual by the com-
munity, entrusted in the expectation of its social use, always revocable
if that expectation is not fulfilled; hence, as a right conditional and
limited, and no longer one justified in itself, limitless, "sacred and
inviolable."
How far the social function of private ownership may be reconciled
with its individualistic function or how far ineradicable individualistic
abuses will force us to make use of the sanction of the social function of
private ownership and to transfer to the community the private owner-
ship of certain objects, such as land and the means of production, are
questions of economic factual science and not of a legal-philosophical
science of values. They are questions concerning not the purpose but its
attainability. For that very reason, they are questions susceptible of an
unequivocal answer, with which, however, we are not concerned.
d
[Ibid. sec. 3.]
* Ubid. sec. i.J

Authenticated
ι68 GUSTAV R A D B R U C H
SECTION 1 9
CONTRACTS
Isn't it enough that this my spoken word

Forever should be governing my days?
Does not the world rush on in all its currents,
And I'm to be one whom a promise stays? — [Goethe], Faust
In the world of the law, title to property and chose in action represent
as it were matter and force: The title to property is the resting, while
the chose in action is the moving, element of the world of the law. The
chose in action carries with it the germ of its death. It perishes when it
attains its end in being fulfilled. Title to property, especially ownership,
is intended to be permanent. It continues in being fulfilled. Therefore,
life under law is static in character as long as it is based predominantly
on title to property, but dynamic in character when the chose in action
becomes its principal foundation.
Statics and Dynamics of Life under the Law. Static was life under
the law while the order of work was still based on ownership, while the
worker was the owner of the means and the products of work, or the
master of work was the owner of the workers as slaves. Dynamic is life
under the law of the capitalistic present. Ownership no longer affords
merely power over things; it affords power over human beings; it turns
into capital. In the capitalistic economic order, freedom of property be-
comes effective especially as freedom of contract. Ownership becomes
the economic center of contractual relationships which grant power; the
contractual relationships become "institutions connected with owner-
ship," 1 with ownership attracting work, as in the contract of employ-
ment, or work attracting ownership, as in the loan." Economic values are
in incessant movement from one chose in action to another; their state
of rest, their repose in a title to property becomes more and more abbre-
viated. Even their final economic status, the investment, assumes the
legal form of the chose in action or the obligation. The dynamic restless-
ness of life under such a law, in which the objects of rights are inces-
santly on the move, is in sharp contrast with the static immobility of
life under a law in which the objects of rights are normally tied to a
definite point of the legal world.
1 C f . K A R L R E N N E R , op. cit., 4 3 et seq.

' [E.g., a n artisan becomes an enterpriser b y b o r r o w i n g capital f r o m a b a n k . ]

Authenticated
N o w the lever of this whole moving world is the free contract. I n
order really to grasp its essence one does well to recall the position con-
ceded to it by the system of natural law.
The Social Contract and the Contracts of Private Law: Fictitious

Elements of the Contract. In the doctrine of natural law, b the contract
was the foundation of all law, the solution of the basic problem of indi-
vidualistic legal philosophy: How the law m a y serve the individuals ex-
clusively and yet at the same time bind the individuals. T o base the
state with its legal power of command upon a contract of its members
seemed to demonstrate all obligation ultimately as self-imposed obliga-
tion. T h e social contract seemed to succeed in reducing all heteronomy
to autonomy and therewith in dissolving all public into private law.
Y e t in truth heteronomy was b y no means conquered, autonomy by
no means established, least of all an autonomy as here intended. For,
whereas autonomy elsewhere means that one is obligated only b y a duty
that one recognizes b y one's self, autonomy here is understood in the
quite different sense of one's self-created obligation. N o w the contractual
will is, indeed, the will to oblige oneself but is not itself the obligation.
T h e will alone can never impose an obligation, neither upon another nor
upon one's self; it can at most intend to produce the state of facts with
which a norm superior to the will connects the obligation. 2 I t is not the
contract, then, that binds; rather is it the law that binds one to the
contract. Contractual obligation is not suitable to serve as the basis of
the obligation of the law; quite on the contrary, it presupposes the obli-
gation of the law.
B u t the social contract remains heteronomous also in a much cruder
sense: T h e individual's will that creates the contractual obligation and
his will that is bound by that obligation, are not identical. Governed
by the social contract are the real individuals; y e t as contracting parties
they are fictitiously taken to be the supposedly rational individuals,
those who supposedly follow solely their own true interest. T h e social
contract is intended not as a fact but as a standard. I t is to affirm, not
that the state originated in real contracts of real men, but that its value
is to be measured b y the success or failure of the attempt to conceive
of it as originating in a contract of men who supposedly were purely
rational beings. Thus, the social contract represents a heteronomous
b [ " N a t u r a l l a w " here refers especially to the " n a t u r a l rights" theories of the
seventeenth and eighteenth centuries.]
2 Cf. REINACH, DIE APRIORISCHEN GRUNDLAGEN DES BÜRGERLICHEN RECHTES
( 1 9 1 3 ) 42 et seq.; BASSENGE, DAS VERSPRECHEN (1930) 10 et seq. [ T h e argument
here is based on K a n t ' s basic thesis t h a t one's duties can arise o n ly f r o m one's
inner conviction, a p p l y i n g a n o r m . ]

Authenticated
170 GUSTAV RADBRUCH
obligation of empirical individuals by the fictitious will of fictitious ra-
tional beings.
It is illuminating to compare the ordinary contract of private law
with the social contract as thus analyzed. The contractual will in private
law is hardly less fictitious than the will of the contracting parties of
the social contract; indeed, in one respect it is even more fictitious. For
the state is liable to be measured at any moment of its life by the
standard of the social contract; thus the social contract must be thought
of, not as concluded at some definite moment, but as capable of being
concluded anew at any moment. The contract of private law, on the
other hand, belongs to a definite moment of time. Yet it is binding per-
manently beyond that moment of time, and this means that the obliging
will and the obliged will diverge in it to an even higher degree than in
the social contract: The obliging will is the will of yesterday, the obliged
one, the will of today and tomorrow. The obliged will is the fickle, em-
pirical one, the obliging will is the will thought of as consistent, willing
today what it willed yesterday — hence a fictitious will. The will there-
fore does not bind itself; rather, the changeable empirical will is bound
to the fictitious permanent will. Contractual obligation is not autonomy
but heteronomy.
One might object that in the contract of private law a fact must have
existed at least once, namely, the real expression of the will of real men,
while in the social contract the contractual fiction needs no factual
point of reference. But this difference must be grossly exaggerated if it
is to explain the contractual will as less fictitious in the contract of pri-
vate law than in the social contract. For, on the one hand, the fiction of
the social contract also refers to a fact: Only he who belongs to the state
may be fictitiously taken to be a contracting party of the social contract;
only to him may all that is included in the fictitious social contract be
imputed as willed. On the other hand, in construing the real expression
of the wills of the parties to a contract of private law everything is
deemed willed that would consistently have to have been willed by them.
Thus, to the contracting party in private law we impute, on the one
hand, his will once expressed as continuing and, on the other, the con-
sistent consequences of his expressed will as implicitly willed. So a good
deal of the will of the contracting party is the legislator's will imputed to
the party. The latter's will does not bind itself, but the law binds him to
his will.
Will Theory and Declaration Theory. These considerations open the

way for the view that as a matter of legal logic, or, at any rate, of natural
law, it is not conceptually necessary to think of the contract of private

Authenticated
law in terms of the will theory, which limits the obligation of the con-
tract to the scope of what was actually willed by the contracting parties.
It is not the will that binds; rather, insofar as the obligation of the con-
tract is bound to the will, it is bound to it by the law. T h e legality theory
proves true with regard to contracts as well as to ownership. Y e t on the
basis of the legality theory, there arises anew the controversy between
the " w i l l " theory and the "declaration" theory, as a controversy, not
over legal-logical concepts, but about legal philosophical principles:
H o w far ought the law to prescribe the obligation of the contract to be
governed by the will, and how far by its declaration? In this contro-
versy, the interests of private autonomy are opposed by those of the
security of trade and intercourse, those of individual freedom by those
of social peace, in short, the individualistic by the social view of the
law. 3 T h e individualistic view of the law demands that, on the one
hand, contracts are binding only as far as the contractual will extends
(will theory) but, on the other hand, they are always binding as far as
the contractual will extends (freedom of contract). T o this doctrine,
the social view of the law opposes two other rules: T h a t the contract
may bind one not only as far as one's will extends but also as far as
the reliance of the other party upon one's declaration extends (declara-
tion theory); and that contracts are not necessarily binding as far as
the will extends but may be without binding force for many reasons
(limitations upon freedom of contract).
Legal limitations upon freedom of contract have proved necessary be-
cause by a kind of dialectical process c freedom of contract had limited
itself and frequently destroyed itself. From the outset, limits were drawn
for it by the social area within which it moved, by the milieu contrac-
tuel* For instance, in a contract of sale the price is determined not by
the two contracting parties but by all those who enter into contracts
about objects of the same kind; by the market. Moreover, only in a
society of men of equal social power, a society of none but small own-
ers, could freedom of contract be freedom of contract for all. When the
contracting parties face one another as haves and havenots, the freedom
of contract turns into freedom to dictate on the part of the socially pow-
erful and bondage to dictation on the part of the socially impotent.
Finally, the more the free capitalistic economy turns into a controlled
one, the more the freedom of individuals to contract is curbed b y the
8 Cf. Gysin, Das Rechtsgeschäft in der modernen Privatrechtsjurisprudenz

(1929) ZEITSCHRIFT DES BEENISCHEN JURISTEN VEREINS, r e p r i n t , 38.
c [ T h e "dialectical process" of Hegel: the resolution of conflicts in the course of
history.]
* C f . E M M A N U E L L E V Y , L A VISION SOCIALISTE DU DROIT ( 1 9 2 6 ) 99.

Authenticated
rule of groups. Freedom of contract itself first rendered possible the
formation of groups of all kinds; now these groups in turn draw more
and more narrow limits around freedom of contract. 5
With juridical freedom of contract thus turning into social servitude
by contract, the law is challenged to restore social freedom of contract
by limiting juridical freedom of contract. Such statutory limitations
upon freedom of contract are possible, and are, indeed, already in force,
in the most manifold forms: In the form of provisions declaring void
certain types of agreements; in the form of a power of avoidance con-
ferred on particular public authorities; in the form of mandatory statu-
tory requirements; in the form of collective bargaining impervious to
modification by individual agreements; and, finally, in the form of
duties to contract and of compulsory contracts. Whole new fields of
law, such as labor law and business regulation, in the last analysis repre-
sent such limitations upon previous freedom of contract. Like owner-
ship, freedom of contract is confined within the limits of the law, and
the individual interest is therewith confined within the limits of the
social interest, by the provision of Article 152 of the Reich Constitution
[of Weimar, 1919] : "In economic intercourse, freedom of contract shall
prevail in accordance with the laws." 6
SECTION 2 0
MARRIAGE
Here, again, is the tragic fundamental phenomenon of life creating a form for
itself which it finds indispensable yet which by the very fact of being a form is
hostile to the mobility and to the individuality of life. The old form has been out-
lived, no new form has been created yet, so people think formlessness adequately
expresses the impetus of life. — Georg Simmel
Nowhere is the "material qualification of the idea" (sec. 2, pp. 53-54,

supra), the dependency of the "ideas" upon the realia of the law, 1 shown
more clearly than in the law of marriage. Marriage confronts the law as
5Cf. Pappenheim, Die Vertragsfreiheit und die moderne Entwicklung des
Verkehrsrecht, in FESTSCHRIFT FÜR GEORG COHN ( 1 9 1 5 ) 291 et seq.
* On the above, cf. Darmstaedter, Sozialwirtschaftliche Theorie und sozialwirt-
schaftliche Praxis des kapitalistischen Zeitalters, 25 ARCHIV FÜR RECHTS-UND WIRT-
SCHAITSPHILO SOPHIE 180 et seq.
1 Cf. Eugen Huber, Über die Realien der Gesetzgebung (1914) 1 ZEITSCHRIFT
FÜR RECHTSPHILOSOPHIE 39 et seq.

Authenticated
a natural and social state of facts of strong naturalistic and sociological
autonomy, which the law cannot form autocratically but to which rather
it has to adjust itself. I t is not accidental that the Roman jurist chooses
for an example of natural law, of the "nature of the thing" which even
the lawmaker cannot escape, precisely the sexual community and the
procreation and upbringing of children: Hinc descend.it maris atque
jeminae coniunctio, quam nos matrimonium appellamus, hinc liberorum
procreatio, hinc education T h e task of legal philosophy can only con-
sist in showing how the law may and ought to adjust itself to marriage
as a natural and social state of facts which must be regarded as given;
to subject this very state of facts to a critique would be the task of a
social philosophy of marriage.
The Problem: The Social Substratum of the Law of Marriage. T h a t

legal philosophical task, however, is rendered especially difficult at pres-
ent because changes have appeared in that natural and social state of
affairs which the legal philosophy of marriage is to presuppose as given.
T h e natural foundations of marriage and the family, the sexual rela-
tion and the relation of descent, had been overlaid by a sociological layer
which became determinative of the juridical form of marriage. Hence
the latter is not unequivocally determined b y the natural foundations.
For instance, the naturalistically uniform sexual relation may be evalu-
ated as legally recognized marriage or as legally rejected concubinage,
and the naturalistically uniform relation of descent may be evaluated as
legitimacy or as illegitimacy. N o w the development which we are wit-
nessing is the breakdown of that sociological intermediate layer, with
the law of marriage thus more and more immediately resting upon the
natural foundation of the factual situation of marriage.
How has that breakdown come about? In the precapitalistic develop-
ment, house and home were still known as economic units, as original
cells of the economic body, in handicraft as well as in agriculture. M a n
and wife, parents and children divided and joined in common economic
tasks. Capitalism has torn asunder the productive community of the
house, the home, the family. Stronger sociological structures, new eco-
nomic units and enterprises, drew the individual members out of the
family and turned each of them into a member of another economic
unit. T h e man went to the mill, the wife helped in another household,
the daughter worked as a salesgirl in a department store, the son per-
haps as a clerk in an office — the family ceased to be a sociological struc-
* [Hence arises the conjunction of man and woman which we call marriage,
hence the procreation of children, hence education. — This passage from Ulpian is
to be found in Justinian's Institutes, I, 2, pr.]

Authenticated
174 GUSTAV RADBRUCH
ture with productive tasks of its own. Less and less it survived even as
a consuming community. I t was relieved of increasingly more of the
economic tasks of consumption; spinning, weaving, and candlestick-
making, washing, baking, and canning, the poultry yard and the vege-
table garden, were separated from the economy of the house and turned
over to distinct industrial enterprises; even the former tasks of educa-
tion in the family were diverted to nursery homes, kindergartens, and
schools. T h u s emptied, the family lost the character of an organism, an
individuality. T h e same tenement housed numerous families and dis-
solved them all into an amorphous and therefore clashing community of
corridors and staircases. T h e family has lost its structure and has be-
come an empty relation between family members, while around it new
communities are about to form, communities of enterprises, of crafts, of
political convictions. T h e endeavor to draw the cultural and juridical
conclusion from that basically economic development, toward an indi-
vidualistic dissolution of the family into its elements, is expressed in the
feminist movement and the youth movement. Our whole problem of
marriage and education today is embraced in that development of mar-
riage and the family from communities to relations, in which man and
wife, parents and children now face one another, eye to eye, connected
b y no objective tasks but b y exclusively personal, psychological, and
physical contacts. 2
T h e social and natural state of affairs of marriage is difficult for the
law to grasp, not only because it has begun to shift but also because it
is extremely complex anyhow, because it presents the most diverse as-
pects to the law and the law may regulate it from the most manifold
points of view. T h e law may view marriage as a sexual, erotic, or ethical
community of life, as parentage, as a place for education and as a means
of carrying out population policies, as a secular institution of the state,
or as a religious institution of the church; and from each of these points
of view the law of marriage could not but develop quite differently. 3 B u t
all these legal views of marriage and the family may be divided into the
two great groups, individualistic and transindividualistic views. In the
individualistic view marriage appears, metaphorically, as a contractual
relation entered into by the spouses; in the transindividualistic view, it
is conceived of as the matrimonial state entered b y the spouses. T h e
former view starts primarily from the relation of the spouses to each
other, the latter from their relation to the children.
2 C f . the description of the dissolution of the home, RENNER, op. cit. 34—35, and
especially the touching picture of the proletarian f a m i l y , op. cit. 133-134.

' E x c e l l e n t statements, in the same direction, in GUNDOLF, GOETHE (10th ed.
1922) 566.

Authenticated
The Transindividualis tic View of Marriage: The Encyclical Casti

Connubii. T h e transindividualistic view of marriage is presented in su-
perbly concise form in the Catholic doctrine of marriage, which has
found its last expression in the encyclical on marriage Casti connubii of
1930. L i k e the code of the Church (Codex Juris Canonici, Canon 1013,
sec. 1 ) , the papal circular letter declares: " T h e primary purpose of mar-
riage is the procreation and education of the child"; "purposes of the
second order are mutual aid, manifestation of conjugal love, and regula-
tion of the natural desire, purposes which the spouses are by no means
prohibited from seeking, provided that the nature of the act and hence
its subordination to the primary purpose, is not affected." T h a t state-
ment of the purpose of marriage governs the parts played in marriage
by the will of the spouses, on the one hand, and b y the norm, on the
other. T h e liberty of the spouses "is concerned with this alone, whether
those entering into marriage really intend to enter a marriage and to
enter it with this particular person. B u t the essence of marriage is com-
pletely beyond the reach of human liberty so that anyone, once he has
entered into marriage, is governed by its laws and essential qualities
which derive from God." From this view of marriage as a matrimonial
state superior to the will of the spouses, there follows the rejection of
the conclusions that would have to be drawn from the contractual char-
acter of marriage: the legal equality of the spouses and the dissolubility
of the marriage for a breach of the contract or b y a contrary contract.
T h e Christian marriage is " a symbol of the perfect unity between Christ
and the C h u r c h " ; and as Christ is the head of the Church, so the hus-
band is the head of the wife; as Christ may not be divorced from the
Church, so the spouses may not be divorced from each other. Finally,
marriage both in its origin and its destination belongs to religion and
the church: its origin is in the sacrament and its destination is " t o take
care of the preservation and expansion of mankind on earth, to bring
up worshippers of the true God, and to turn the offspring to the Church
of Christ."
The Transindividualistic View of Marriage: The Constitution of

Weimar. Whereas in the Catholic view "the family is superior to the
state," in accordance with the religious and ecclesiastic destination of the
family, the political-conservative view orients marriage entirely toward
purposes of the state. T h e marriage clauses of the Reich Constitution
[of Weimar, 1919] are still influenced by this conservative view of mar-
riage. 4 According to the Reich Constitution, article 119, just as accord-
4 On the following, see Wieruszowski in Nipperdey, 2 GRUNDRECHTE UND
GRUNDPFLICHTEN DER REICHSVERFASSUNG (1930) 72 et seq.

Authenticated
ing to Codex Juris Canonici, Canon 1013, sec. 1, marriage serves the
twofold purpose of procreation and education of the child, being char-
acterized as "foundation of family life" and of "the preservation and
increase of the nation," with the first characterization obviously refer-
ring to the educational tasks of the family which are regulated in article
i2o. b But whereas in the Codex Juris Canonici these two purposes are
subordinated to ecclesiastical religious points of view, in the Reich Con-
stitution they are placed in the context of the secular state. The task of
the family in population policies is characterized in the words: "pres-
ervation and increase of the nation"·, so, too, the educational task is
conceived entirely in the secular sense of the state, both as to its ultimate
end, "social fitness," and as to its organs, "watched over by the com-
munity of the state." In the view of marriage of the Constitution of
Weimar, as in that of the papal encyclical, the transindividualistic char-
acter of marriage is expressed in its direction toward the child, more
emphatically in the assumption that its goal is "plenty of children," the
"preservation and increase of the nation," that is to say, if not the
greatest possible increase, at any rate no decrease in the population
figures. No room is given in the Reich Constitution to the thought that
conditions, especially economic conditions, might demand a limitation
of population figures, or to the thought that on eugenic grounds the
quality of the offspring might be preferable to its quantity. But a purely
quantitative population policy is compatible only with a transindividual-
istic view of the state, in which the goal of the life of the state is seen,
not in the happiness and perfection of individuals, but in the military
and economic strength of the nation, in that expansive pressure of popu-
lation against the frontiers which prevents it from yielding to the popu-
lation pressures of other nations. However, one concession to the in-
dividualistic view of marriage has been made by the Reich Constitution:
in the transindividualistic view of marriage, the superiority of the matri-
monial state over the interests of the spouses is usually expressed in the
superiority of the husband over the wife; the Reich Constitution, on
the contrary, demands "equal rights of both sexes" in accordance with
the contractual view of marriage.
b [ A r t . 119, sec. 1 : " T h e Constitution affords especial protection to marriage as
the f o u n d a t i o n of f a m i l y life a n d of the preservation and increase of the nation.

M a r r i a g e rests on equal rights of b o t h sexes." A r t . 119, sec. 2: " . . . Families w i t h
plenty of children are entitled to equalizing consideration." A r t . 120: " E d u c a t i o n of
the offspring f o r bodily, mental, and social fitness is a supreme d u t y and natural
right of parents, w h o s e activities are w a t c h e d over b y the c o m m u n i t y of the
state."]

Authenticated
The Individualistic View 0} Marriage. While in the transindividualis-
tic view marriage is regarded essentially as a community for propaga-
tion, in the individualistic view it is characterized as a community of
love. T h e ascendancy of liberalism inaugurates the ideal of the love
match, seeking its legal form in the favorite natural law concept of the
contract. 5 Y e t there is a contradiction between the love match and the
legal form that is hard to reconcile. Eroticism, that most capricious and
willful phenomenon, and law, the most rational and consistent order of
human life, do not let themselves be joined like substance and form.
Eroticism may be ecstasy or passionless, deliberate pleasure, it may be
mysticism or light-hearted p l a y ; one thing only its very essence resists:
"matrimonial d u t y . " So it seems that the erotic marriage must be a mar-
riage outside the law, a marriage not of compulsion but of conscience,
indeed, not a marriage of conscience but "free love." It seems to range
with a series of other phenomena from which the law has more and more
consistently withdrawn because their essence is of human inwardness,
inaccessible to legal compulsion: friendship and sociability, art and
science, morals and religion.
B u t the denial of the law of marriage, the demand for free love, is not
the last word even of an individualistic view of marriage. Eroticism con-
fronts the law with a dilemma: Eros, transitory and changeable as a fact
of emotion, lays claim in its exaltation to the permanence, nay, eternity,
of its emotion. Thoug h one may know of the transitoriness of love, each
new love believes itself to be eternal. This belief of love in its eternity is
like the will's consciousness of its freedom.® Just as the will is again and
again experienced as free, no matter how irrefutably it is recognized as
unfree, so the transitory love experiences itself again and again as
eternal. Love in its transitoriness rejects legal bonds, yet in its claim to
eternity it wants to bind itself and be bound. T h u s Eros stands in a
peculiarly ambiguous relation to legal marriage, both resisting it and
seeking ultimate fulfillment in it. T h e law of marriage with all its bonds
is therefore supported by the basic erotic conviction and will. Its task
then would be to support this erotic conviction of eternity and this erotic
will to eternity — not unlike the ethos which b y presupposing freedom
really produces freedom, saying: Thou canst for thou shalt. This task of
the law of marriage is not infinite; it can be accomplished because the
erotic relation in marriage imperceptibly becomes associated with a
wealth of practical relations, which as permanent contents bridge the
5 C f . FRIEDEICH ENGELS, DER URSPRUNG DER F A M I L I E (20th ed. 1 9 2 1 ) 7 0 et seq.

6 On the problem of freedom, cf. the discussion of freedom of the will in m y
GRUNDZÜGE DER RECHTSPHILOSOPHIE ( 1 9 1 4 ) 64 et seq., which is not repeated in this
edition.

Authenticated
i78 GUSTAV RADBRUCH
gaps and changes in the erotic relation and outlast its dying down.
Common interests of the most varied kinds, above all the common par-
ental interests, substitute a firm, durable, increasingly stronger founda-
tion for the original subjective and fragile emotional basis of marriage. 7
Y e t such a view of legal marriage cannot surmount its problems.
Legal forms are usually cut out for the average case of the social phe-
nomena; but the legal form of marriage as here depicted is oriented
toward an ideal case. T h e present crisis in the law of marriage is due to
precisely this, that that form of legal marriage, cut out for the ideal
case, must become disastrous for the spouses when the ideal is not ful-
filled, that is, not only in exceptionally unhappy but even in average
cases. As a matter of consistency, that ideal justification of marriage in-
volves the demand for its indissolubility, which must turn marriage into
a prison if the illusive claim to eternity of the erotic experience fails to
be confirmed later in the reality of common parental and other interests.
So representatives of this view of marriage have found themselves com-
pelled in varying degrees to make concessions to the transitoriness of
Eros, which is never excluded by the claim to eternity. Such concessions
include the demand for a relaxation of the law of divorce, the adoption
of the " b r e a k - u p" test rather than the culpability test as the ground for
divorce, and proposals to introduce a temporary marriage, trial mar-
riage, or companionate marriage.
Soviet Russia; Law of Marriage and Socialism. T h e most radical

development toward the contractual marriage with almost no legal
forms has taken place in the law of marriage of Soviet Russia. 8 It in-
volves the informal establishment and the unconditional and informal
dissolubility, of the matrimonial relationship. Its establishment re-
quires no cooperation by the state; registration of the marriage facilitates
its proof but is not a prerequisite of its existence. Marriage becomes a
purely factual state; it is no longer a legal relation but only a state of
facts with legal effects. In the "factual marriage," the contrast between
what used to be marriage and what used to be concubinage is done a w a y
with; thus, on the one hand, the legally binding force of what used to be
marriage is diminished but, on the other, the outlawry of concubinage
is supplanted b y legal safeguards. In marriage, according to its con-
tractual character, there prevails the most complete equality of the
7 O n t h e p r e c e d i n g , c f . MARRIANNE WEBER, D I E IDEE DER E H E UND DIE E H E S C H E I -
DUNG ( 1 9 2 9 ) .
8 Cf. Freund, Zivilrecht der Sowjetunion (in HEINSHEIMER, ZIVILGESETZE DER
GEGENWART; 1927), and the understanding and unprejudiced appraisal by AGNES
MARTENS-EDELMANN in (1931) ZEITSCHRIFT FÜR RELIGION UND SOZIALISMUS 38
et seq.

Authenticated
spouses with reciprocal obligations of alimony and mutual shares in
property acquired during marriage. Finally, dissolution of the marriage
is possible, without the requirement of definite prerequisites or definite
forms, on the ground of mutual consent or at the choice of either spouse;
here, too, registration is only declaratory and not constitutive. "People
think formlessness adequately expresses the impetus of l i f e " (Simmel).
T h e Soviet Russian law of marriage is in accordance with the demands
put forward as early as August Bebel's famous book on woman and
socialism, Die Frau und der Sozialismus. H e had spoken of marriage as
a "private contract without intervention of a functionary." I t may seem
odd that socialism, elsewhere emphasizing the social character of legal
relationships and the implications of social purposes even in relations of
private law, strives to give the law of marriage a purely individualistic,
non-state and desocialized form. B u t the individualistic dissolution of
marriage and the family is not a demand of socialism; rather, as had
been shown at the beginning of this section, it is the result of the capital-
istic development. In its demands concerning the law of marriage, so-
cialism, according to its tendency to adapt the legal form to social real-
ity, simply draws the conclusions from a given social situation. How-
ever, it views the development of the law of domestic relations not
simply as desocializing formerly social relations, but at the same time as
substituting certain social structures for others. This true meaning of the
socialist view of the law of domestic relations becomes clear to us if we
cast a glance at the law of education. Under the [German] Civil Code,
the right to educate is based on parental power, on an inherent right of
the parents. T h e Reich Constitution [of 1 9 1 9 ] , article 120, also declares
it " a supreme duty and natural right of the parents, whose activities are
watched over by the community of the state." B u t the [German] Y o u t h
Welfare A c t [of 1922] and Juvenile Courts A c t [of 1923], in the pur-
port of their regulations if not in their express terms, show a shift of
the right to educate, from the parental power to the community, the
state. According to their provisions, family education in the last analysis
is education in trust for the community, entrusted on the assumption
that it will be carried on in accordance with the interest of the com-
munity, and revocable if this trust is betrayed. So the new law of educa-
tion limits the rights of the narrower social structure in order to expand
those of the more comprehensive social structure. Thus it fits perfectly
into the development of social law.
Cooperation or conflict of individual function and social function,
which we have observed in the law of contracts, of ownership, and of
marriage, are the leitmotifs also of the law of inheritance, with which
the following section is concerned.

Authenticated
ι8ο GUSTAV RADBRUCH
SECTION 2 1
T H E L A W OF INHERITANCE
One ought to be ashamed to die a millionaire. •—• Carnegie
An economic unit, such as an agricultural, industrial, or commercial

enterprise, exists not only for the sake of the acquisitive interest of its
owner but also in the "service of the common good." In view of this
social function of the economic unit, its continuation after the owner's
death appears desirable. A considerable unproductive expenditure of
energy would result if the economic units, in which society organizes
itself, should perish with the men who maintain them and should al-
ways have to be created anew by new men. In any society, therefore,
the appointment of a new owner in the place of a deceased owner of an
economic unit must be regulated by law. Any society needs an "order of
succession." 1
Freedom 0} Testation, Intestacy, Compulsory Distribution and Con-

solidation of Estates. The individualistic form of this order of succession
is the law of inheritance. Like the law of ownership, the law of in-
heritance is built upon the conception of a prestabilized harmony of
individual and social interests. According to this view, the interest of the
decedent as expressed in his will and the interest of the family as basic
to intestacy move together in the direction of the social interest. How-
over, the insight into the illusory character of this assumption and the
striving for a more reliable safeguard of the social function have so far
prevailed much less in the law of inheritance than in the law of owner-
ship. This may be due to the fact that the law of inheritance of today
is an opaque compromise between opposite systems and principles. It
combines the inheritance forms of free testation, of intestacy, and again
of compulsory distribution and compulsory consolidation of estates.2
Moreover, it is a tangle, almost impossible to unravel, of individualis-
tic, social, and family purposes, the latter in turn being based either on
1 O n t h i s a n d t h e f o l l o w i n g , see KARL RENNER, DIE RECHTSINSTITUTE DES PRI-

VATRECHTS UND IHRE SOZIALE F U N K T I O N (1929) 1 3 4 et seq.
2 These three forms of inheritance are distinguished according to ANTON MENGER,
D A S BÜRGERLICHE R E C H T UND DIE BESITZLOSEN VOLKSKLASSEN (4th ed. 1908) 214
et seq.

Authenticated
LEGAL PHILOSOPHY ι 8 ι
a rather individualistic or on a rather transindividualistic view of the

family. 3
Individualistic View. The individualistic principle of the law of in-

heritance is freedom of testation. It represents freedom of ownership
prolonged beyond death. Whereas discretionary succession thus appears
as the primary form of the law of inheritance, legal succession in the
absence of a will must be based on the presumption that the succession
of the next of kin to the rights of the deceased corresponds to his un-
expressed will.
But the law of intestacy as well as the law of the legitimate share a
may be justified also on more immediate individualistic grounds, not in-
deed from the standpoint of the deceased but from that of the heir. A t
a time when sudden compulsion to make economic readjustments in life
was still unknown, it used to be pointed out that the needs, the style of
living, the personalities of those who shared the decedent's life had been
formed on the basis of his property relations, that for this reason one
was entitled to call his property a kind of family property and hence
the members of the family, "trained for their pretensions," had a socio-
logically well-founded right to continue to enjoy the property of the head
of the family even after his death. 4 But if this argument, which is fo-
cused all too much on the attainment of a "life without risk," could be
approved at all, it would certainly apply only to the closest circle of
relatives, those sharing the household of the deceased or supported by
him. It would be insufficient to justify the present law of intestacy which
does not limit inheritance to any degree of kinship, or the right of
"laughing heirs" to inherit from a deceased with whom they were quite
unconnected. The "large family" of all those related by the same blood
and the same name has ceased to be a sociological reality, apart from
family conventions which are rare in the nobility and rarer among com-
moners; thus unlimited intestacy has lost the ground on which it used
to rest.®
3 On the principles of the l a w of inheritance, cf. the s u m m a r y b y B ö h m e r in
NIPPERDEY, 3 DIE GRUNDRECHTE UND GRUNDPFLICHTEN DER REICHSVERFASSUNG

(1930) 262 et seq.
" [ T h e "legitimate share" is the portion of a decedent's estate to which certain
of his near relatives are entitled despite contrary provisions in his will. L a w s of this
t y p e are frequently f o u n d in nations whose legal systems were founde d on the
R o m a n law. T h e y are rare in c o m m o n - l a w countries.]
1 C f . SCHXFFLE, KAPITALISMUS UND SOZIALISMUS (1870), Lecture 4.
" C f . the writings of the l a w reformer Georg Bamberge r ( K i n g ' s Counsel at

Aschersleben [ G e r m a n y ] ) , w h o w a s meritorious also in other fields: FÜR DAS
ERBRECHT DES REICHES ( Ι 9 1 2 ) ; ERBRECHT DES REICHES UND ERBSCHAFTSTEUER
(1917).

Authenticated
i82 GUSTAV RADBRUCH
Transindividualistic and Transpersonal View. T o be sure, the family

functions of the law of inheritance may be understood not only individ-
ualistically but also transindividualistically. T h e family, then, is not
merely the sum total of personal relations between relatives; it is a
whole, superior to those human beings and beyond their personalities,
which is not confined to the circle of those present personal relations,
but in one unit gathers present and past generations across the distance
of time, close and remote relatives across the distance of degrees. Sym-
bols of a family as thus understood transindividualistically are the
"clean escutcheon" and the "honest name" of the family to which the
individual owes respect and sacrifice. B u t if the law of inheritance is to
secure the material foundation for the sociological continuance of a
family group as thus understood, the splendor jamiliae, the estate, must
be preserved and not be split. Whereas the individualistic version of the
family function of the law of inheritance requires the compulsory dis-
tribution of the estate, the transindividualistic version of that family
function implies the compulsory consolidation of the estate, the entail,
and the compulsory single heir.
A t this point, however, opposition arises from the standpoint of the
democratic view of equality, as successfully expressed in the Reich Con-
stitution [of 1 9 1 9 ] , article 155, which requires the dissolution of entails.
I t is not only in the form of entail that the inheritance rights of a few
create an immense number of "the disinherited" on the other side, that
hereditary wealth means hereditary poverty at the other end of the
social order. Upon the law of inheritance there depends, as Walter
Rathenau says, "the very essence of our social stratification, the whole
unchangeable, lifeless constancy of the distribution of national forces.
T h e vital up and down of life which governs nature, the organic alterna-
tion of subservient and dominant members, the beneficent interchange
of the golden vessels, are benumbed b y this fatal power of the genera-
tions, which is the work of man. It condemns the proletarian to eternal
service, the rich man to eternal pleasure." 6 Such considerations have
again and again led to the demand that, even though private ownership
be maintained, the right of private inheritance should be limited or
abolished. If the evasion of laws to that effect, by such means as gifts
inter vivos, can be prevented, such an abolition of the right of private
inheritance would within a foreseeable time unite the entire national
wealth in the hands of the state and establish socialism.
However, besides the motives of " f a m i l y socialism" [above referred
to], social justifications have been adduced to support the right of
6 VON KOMMENDEN DINGEN (1917) 129.

Authenticated
private inheritance, and especially the compulsory consolidation of
estates. W e have seen that the meaning of the order of succession is to
preserve, beyond the death of their founder, economic units that have
once been built up. Consciousness of surviving in one's works is a strong
incentive to economic and cultural creation. T h e principle of an order
of succession as thus understood reads: " O n l y he who is called upon to
continue the true purpose of the property may be an heir." 7 Y e t in
whom, it is asked, could the work of the deceased live on better than in
those who have grown up in and with the sphere of action of the de-
ceased or those whom he himself has trained to be his successors — his
legal heirs or chosen devisees? 8
N o elaboration is needed to show that this social justification of the
law of inheritance is incompatible with the existing law of inheritance,
with the split-up of estates by compulsory distribution and the accident
of unlimited intestate succession. But the law of inheritance has lost
that social function not only from the viewpoint of the heir but also
from that of the estate. In the prevailing mass of cases the estate repre-
sents no longer an entirety of goods devoted to a definite economic pur-
pose, which could not be dissolved without loss, but rather a conglomera-
tion, a sum, a formless mass of values. In the section on ownership, w e
have referred to the development from ownership to fortune, from quality
to quantity. N o w an accidental pile of values, a safe full of the most
varied stocks, private and governmental bonds, and mortgage certificates
is no economic unit that needs preservation. Only because the estate in
most cases assumed that merely quantitative character could the com-
pulsory distribution of estates be carried out at all. On the contrary, the
economic units which need to be preserved throughout the changes of
human beings have more and more passed from the hands of mortal
physical persons to those of immortal legal persons, in the course of the
widely heralded depersonalization of economics and objectivation of
enterprises; they have thereby passed out of the sphere of the law of
inheritance.
T h u s the problems which have been brought out in the fields of the
law of ownership and of domestic relations merge in the field of the law
of inheritance, where they come to a head. All the present problems of
the law of inheritance find expression in the Reich Constitution [of
1919], article 154: b T h e individualistic right of inheritance is con-
fronted with the state's share in the estate, the individual function of
7 Cf. Buschauer, DAS ERBUNRECHT (1918) 53.

" Cf. SCHÄFFLE, op. cit.
b ["The right of inheritance is safeguarded in accordance with civil law. The
share of the state in the estate shall be determined by the laws."]

Authenticated
GUSTAV RADBRUCH
the law of inheritance is confronted with its social function, and the
right of inheritance is placed under the axe of the law.
SECTION 22
THE PENAL LAW
Whether he's to spare or punish,

He must see men humanly. — Goethe
In the theory of penal law it is traditional to distinguish doctrines

concerning the justification and doctrines concerning the end, of punish-
ment.
The Justification of Punishment. T h e quest for the justification of

punishment sprang from the very particular historical situation of a
time when the individual was faced by the state as something foreign, a
state, not yet based on the popular will, in which he had no active part.
In that situation, the punishment required by the purpose of the state
was still in need of special justification in the eyes of the individual.
For, as K a n t says, "man may never be treated as a mere means to the
designs of another and mingled with the objects of the law of property,
being protected therefrom by his innate personality" — the state is
simply "another" as against the individual! In such a view of the state,
punishment by the state is justifiable in two w a y s only: b y showing
either that it is willed b y the criminal himself or that it is deserved
b y him.
Theories of Consent and of Retaliation. T h e first theory, that of con-

sent, was advocated by Feuerbach in his early days, in the sense of
assuming an actual consent of the real criminal to his punishment. H e
who commits the crime, knowing the penal law — which Feuerbach
requires as the presupposition of punishment — consents to the condi-
tion by engaging in the conditional act. On him, punishment may be im-
posed with the same right as entitles one to claim fulfillment of a con-
tract once it is made. This empiristic doctrine is cast in a more spiritual
form by assuming a contract which either is similar to the social contract
or is possibly inserted therein as a clause. B y such a contract, the indi-
vidual, in the event he should commit a crime, has submitted in advance
to punishment — not indeed the real individual, but the individual
thought of as a rational being, to whom is imputed the consistent will to

Authenticated
suffer the consequences of his actions. (We repeat what has been said
before:) T h e thief, b y violating another's ownership, wants to establish
ownership of his own; thus he in principle affirms that the legal interest
he violates is worthy of protection; consistently, he must approve the
punishment of the disturber which is indispensable to protect that legal
interest, hence his own punishment. T h e forger of a document claims
for the forged document the very faith of the public which he himself
violates by his forgery — thus, he again affirms what is implicit in the
legal interest worthy of protection and in the legal provisions necessary
for its protection, namely, the penal law under which he falls. B y thus
regarding as willed by the perpetrator through his deed what he consist-
ently would have to will, the criminal, in Hegel's words, is honored as a
rational being and the punishment is deemed his own right which his
action involves.
While the theory of consent represents the individualistic justification
of punishment, the theory of retaliation, the justification of punishment
on the ground that it is deserved, is based on authoritarian lines of
t h o u g h t 1 — even though its principal representative is the great founder
of autonomy: K a n t . T h e justification of punishment b y the theory of
retaliation, independent of individual consent and individual interest,
has been expressed in that famous parable of K a n t ' s : " E v e n if a civil
society dissolved itself upon the agreement of all its members (for in-
stance, the people inhabiting an island resolved to break up and disperse
throughout the world), the last murderer in jail would first have to be
executed in order that everyone may suffer what his acts deserve and
that blood-guilt shall not rest upon the people." Quite unexpectedly,
" t h e people" appears here not as a sum of individuals but as carrying a
transindividualistic value of its own, which outlasts the individual
interests.
The End of Punishment. In both its forms, the justification of punish-

ment without regard to the state belongs to the past. T h e state which is
based on the popular will, whether on an arithmetical majority or on
some other kind of "integration," faces the individual no longer as
"another" but rather as " w e all." T h e justification of the people's state
as thus understood includes the justification of the punishment necessary
for its preservation. So the doctrine of the justification of punishment is
1 C f . RICHARD SCHMIDT, DIE STRAFRECHTSREFORM IN IHRER STAATSRECHTLICHEN
UND POLITISCHEN BEDEUTUNG ( 1 9 1 2 ) ί ο . R . Schmidt finds a transindividualistic

v i e w in retaliation only in so f a r as it is a justification of p u n i s h m e n t; he sees a
liberal g o v e r n m e n t - o f - l a w s v i e w in retaliation in so far as it is an end of punish-
m e n t ; cf. infra, n. 2

Authenticated
ι86 GUSTAV RADBRUCH
merged in the doctrine of the justification of the state. W h a t remains is

only the doctrine of the end of punishment, that is, of the necessity of
punishment for the state or, speaking more precisely, for the state,
society, or the legal order. These different possibilities of determining
the end of punishment will unfold themselves as we proceed now to
develop the idea of punishment from the idea of law and its threefold
ramification in justice, expediency, and legal certainty.
Penal Law and Justice: Commutative and Distributive, i . Justice

offers first the form of commutative justice as a possible basis of punish-
ment. Just as the price corresponds to the goods, the wage to work,
compensation to damage, so punishment would then correspond to the
crime — as retaliation. T o be sure, in preceding discussions we have
recognized commutative justice, justice between co-equals, as the
justice of private law. In fact, subjecting punishment to the standard of
commutative justice takes us back to a time when penal law was still
private law, when the state inflicted punishment in lieu of the vengeance
withheld from the injured, chiefly in order to give satisfaction to the
injured. B u t even after penal law is reorganized as public law admin-
istered by the state in its own interest, it has not become nonsensical to
measure punishment by commutative justice. For it is of the essence of
a government of laws that the superior state in many relations shall
betake itself to the level of co-equality with its citizens: in civil suits to
which the treasury is a party, in criminal procedure, or before an admin-
istrative tribunal. So the doctrine of retaliation could be interpreted as
a liberal, a government-of-laws view a of the penal law. 2 However, in-
separably mixed with this view was an authoritarian-transindividualistic
view — quite in accordance with the "national liberal" conception of
the Bismarck Empire; witness Binding's theory of penal law, which is
oriented entirely toward the conception of authority.
T h e theory of justice of the penal law contrasts with the theories of
its ends. B u t they too lay claim to justice — though to distributive
rather than to commutative justice. According to them, just punishment
is not the punishment corresponding to the crime, but one criminal's
punishment proportioned to another's in the proportion of their respec-
* [I.e., " l i b e r a l " in the sense of the nineteenth-century laissez-faire conception of
the state. See infra, §26, and n. a.]
21 am abandoning m y f o r m e r one-sided transindividualistic interpretation of
the retaliatory end of punishment, presented in m y article in (1908-09) 5 ASCHAF-
FENBURGS MONATSSCHRIFT Ι et seq., due to the convincing arguments of RICHARD
SCHMIDT, DIE STRAFRECHTSREFORM IN IHRER STAATSRECHTLICHEN UND POLITISCHEN
BEDEUTUNG ( 1 9 1 2 ) 189 et seq. C f . also DANNENBERG, LIBERALISMUS UND STRAF-
RECHT IM 19. JAHRHUNDERT ( 1 9 2 5 ) .

Authenticated
tive degrees of culpability. However, while the doctrine of retaliation
may be fully developed out of the conception of commutative justice,
the conception of distributive justice is not sufficient to derive therefrom
the theories of the end of punishment. T o be sure, distributive justice of
punishment means that the equally incriminated ought to be punished
equally, and the unequally incriminated in proportion to their incrimi-
nation. But it leaves us in doubt, on the one hand, by what standard
we are to measure equality or difference of incrimination, whether by
culpability, dangerousness, or what else. On the other hand, it tells us
only the relation of penalties to one another but not their absolute
severity and kind, only the place of any penalty within a given system
of penalties but not that system of penalties itself; not whether that
system should at the bottom start with jail and flogging and at the top
end with cruelly aggravated death penalties or whether it should start at
the bottom with fines and end at the top with life imprisonment. T h e
answer to these questions, which the theory of justice leaves unanswered,
can be derived only from the second element of the idea of law, that is,
expediency. In thus reaching back to purpose and expediency, however,
punishment at the same time steps out of the framework of the specific
idea of law, justice, in order to become subservient to the purposes of
the state and society.
Penal Law and Expediency: Theory of General Prevention. 2. Once

again, in this connection, we meet a liberal, government-of-laws view
of punishment, which, however, is related this time to the idea of ex-
pediency and the state, unlike the theory of retaliation which is related
to the idea of justice and the law. T h i s is the deterrent theory, in the
form cast b y Feuerbach. Indeed, in Feuerbach's thought on penal law,
as in that of the period of Enlightenment, the deterrent theory paradoxi-
cally serves to bind penal law to the terms of the statute and its state of
facts, and to safeguard the proportionality between crime and punish-
ment. In this respect it is close to the theories of retaliation. 3 B y the
same token, both the deterrent and the retaliatory theories separate the
deed from its perpetrator and the perpetrator from the human being.
T h e concept of the perpetrator, on which penal law is thus based, cor-
responds to the concept of the person in private law. Just as in tradi-
tional private law, say, the laborer is the possessor of his ability to
work, is the seller of the "commodity of labor," without any individuality
of his own, so in a deterrent and retaliatory penal law the lawbreaker is
the perpetrator of his deed, with no individuality of his own. T h e rela-
3 T h e deterrent and retaliatory theories are closely related also in that both m a y
be given a transindividualistic turn. C f . infra, p. 188.

Authenticated
ι88 GUSTAV R A D B R U C H
tionship created by penal law is thus turned into a partial relationship,
entered into not by the whole human being but only by the perpetrator
of this deed. Just as in the individualistic view of the employment rela-
tionship one sells as a commodity his ability to work, so in the corre-
sponding view of penal law one expiates his crime.4 In the merely
partial nature of the relationship of penal law the liberal character of
the retaliatory and deterrent theories is especially clearly expressed. For
liberalism everywhere loosened the personal legal ties of man to his
fellow men in their totality and replaced them with clear-cut partial
relationships — in the relationship of penal law no less than in that of
employment.
Expediency: Theory of Special Prevention. The liberal, government-

of-laws theories of retaliation and deterrence contrast with the doctrine
of custody and correction, which is the theory of social penal law. For,
as shown above, it is peculiar to social as opposed to individualistic law
that it is cut out not for the abstract and isolated individual, the
person, the perpetrator, but for the concrete individual within society.
Just as in labor law it has been recognized that the ability to work is not
something separable from the human being but is the whole human
being as seen from a particular point of view, so it is recognized in a social
penal law that the crime is not separable from the human being but is
again the whole human being from a particular viewpoint. The new
penal law has been summed up in the slogan: "Not the deed, but the
perpetrator"; one should rather say: not the perpetrator, but the man.
It is the concrete human being with his psychological and sociological
peculiarities that enters the ken of the law. From the viewpoint of the
custodial and corrective theory, the concept of the perpetrator resolves
itself into manifold characterological and sociological types: the habitual
and the occasional, the corrigible and incorrigible, the adult and the
juvenile, the fully and partly responsible criminals. So the new school
of penal law may rightly call itself the "sociological school"; for it has
put within the judicial ken facts that hitherto belonged only to sociology.
Expediency: Fascist Penal Law. However, the deterrent theory has

experienced a rebirth, not indeed in its liberal, government-of-laws form
which has just been described, but in a transindividualistic transforma-
tion: in the terroristic penal law of Fascism. The memorial attached to
. PASCHUKANIS, ALLGEMEINE RECHTSLEHRE TJND MARXISMUS ( 1 9 2 9 ) 1 4 9 et
seq., interprets the parallel relation as a sheer causal relation: Th e thought of re-
taliation is determined b y the "basic form to which modern society is subject,
namely, the form of equivalent exchange." Contra: Kelsen in ( 1 9 3 1 ) 66 ARCHIV
FÜR SOZIALWISSENSCHAFT UND SOZIALPOLITIK 483 et seq.

Authenticated
the new Italian Penal Code of 1930 quite explicitly starts from the
Fascist view of the state as an organism. " T h e state represents no longer
the arithmetic sum of its component individuals but the product, syn-
thesis, and concentration of its constituent individuals, groups, and
classes, with its own life, its own purposes, its own needs and interests,
which reach and last beyond the lives of the individuals, groups, and
classes and extend over all past, present, and future generations." T h e
penal law of that state is characterized not as the defense of society
(difesa sociale, in the sense of Ferri) but as the defense of the state
itself ( d i f e s a propria dello Stato); it finds the means of such defense in
the deterrence and incapacitation of criminals, which results from ex-
tremely numerous threats of capital punishment. " T h i s state, which
presupposes the superman as leader, assumes that men are not weak,
helpless, needful of support, but that they are strong. T h e criminal is
therefore basically dealt with as the rebellious enemy of the regime of
the state, against whom the most important function of the penal power
of the state is to deter him and render him harmless." 5
Expediency: Soviet Penal Law. Another regeneration of terroristic

penal law is to be found in Soviet penal law. T h e Soviet Penal Code of
1926 is the penal law of a state in transition, an odd mixture of author-
itarian penal law, which corresponds to the dictatorship of the prole-
tariat, and of Social penal law which foreshadows and anticipates the
classless society of the future. Corresponding to the social view of penal
law, the Soviet law expressly declares that its "task is not to retaliate
and to punish." B u t corresponding to the authoritarian view, it main-
tains that to deter, especially from political crimes, is no less an end of
punishment than to keep in custody and to correct; and this end is
embodied especially in the "supreme measure of social protection," the
death penalty, which is copiously employed.
Even more characteristic than the admixture of authoritarian elements
of penal law is the complete renunciation of government-of-laws guar-
antees in the Soviet Penal Code. Acts for which the statute threatens
punishment are not crimes if in the individual case they lack the char-
acter of a danger to the common good; acts for which no punishment is
threatened are crimes if they turn out to be dangerous to the common
good: the clause Nullum. Crimen sine lege b does not apply in Soviet
Russia. Even the principle Cogitationis poenarn nemo patiturc is im-
5 EBERHARD SCHMIDT, STRAFRECHTSREFORM UND KULTURKRISE (STAAT UND
RECHT, n o . 79, 1 9 3 1 ) 18.
6 [No crime without a (previously enacted) law.]
c [Nobody suffers punishment for his thoughts.]

Authenticated
paired not only by penalizing preparatory acts generally but by even
subjecting to the measures of social protection persons who "represent a
danger by their connection with the environment of criminals or by
their previous activities."
Penal Law and Legal Certainty. 3. If consistently carried through, the

custodial and corrective theory would, indeed, lead to those conclusions,
were they not precluded by the thought that forms the third part of the
idea of law, namely, the conception of legal certainty. Undeniably, the
theory of special prevention is complicated by the fact that it cannot by
itself determine the shape of penal law, which is derived rather from
the interplay of the special preventive purpose with the ideas of justice
and legal certainty. That interplay, moreover, is largely counteraction.
The tension within the idea of law is represented quite clearly within the
particular problem of penal law. The idea of legal certainty saves the
doctrine of special prevention from its extreme conclusion, from ex-
tending punishment even to preparatory acts, attitudes, and thoughts.
Again, the conception of justice, which requires even unequal persons
and circumstances to be treated to some extent equally, opposes the
carrying of individualization to that ultimate extreme which would result
from the conception of special preventive purpose. As against this anti-
nomic formation of a penal law founded upon corrective and custodial
punishment, the doctrine of retaliation discloses greater methodical
efficacy: it serves both to justify punishment and to determine its
purpose, it fulfills within itself both the conception of justice and that
of legal certainty.
Finally, the legal institution molded upon the idea of retaliation
doubtless represents "punishment," whereas a penal law consistently
molded according to the theory of correction and custody ultimately
ceases to be "penal." Indeed, Ferri's draft of a code, and again the Penal
Code of the Soviet Union, consistently with the doctrine of special
prevention, have replaced the name of "punishment" with other terms:
"sanction," "measure of social protection." However, it need hardly be
stressed that the concept of punishment is not a norm and limit deter-
minative of the future shape of what used to be called "penal" law, any
more than the methodical convenience of the doctrine of retaliation,
which renders possible a single solution of all problems of penal law
theory, is a criterion of truth. Indeed, on the contrary, the development
of penal law may well turn out one day to step beyond penal law, with
the reform of penal law opening not into an improved penal law, but
into a corrective and custodial law that would be better than penal law,
both more intelligent and more humane than penal law.

Authenticated
SECTION 23
THE DEATH PENALTY
Who gave you this power over me, hangman? — [Goethe, Faust:] Cretchen in jail
Only a transindividualistic view of the law is able to justify the death

penalty; it alone can attribute to the state any right at all over life and
death.
Transindividualistic Justification. Says Bismarck, in his speech of

M a r c h 1, 1870: " A human force which feels within itself no justification
from above is not strong enough to wield the executioner's sword." T h a t
the turn away from an individualistic view of the state provides the
background for the re-introduction of the death penalty was expressed
especially in the memorial on the new, Fascist, Italian Penal Code, in
terms which celebrate the renewed death penalty as an outright triumph
of this view of the state: "Such a reform represents another happy sign
of the changed spirit of the Italian nation, of the regained virility and
energy of our people, of the total liberation of our juridical and political
culture from the influence of foreign ideologies directly involving the
abolition of the death penalty." Those ideologies are expressly stated to
be " t h e individualistic ideas which triumphed beyond the A l p s , " " t h e
error of K a n t ' s affirmation that the individual, as an end unto himself,
may not be abased to the level of a means." " I t is, on the contrary, true
that society, regarded as an organism comprehending innumerable
chains of generations, and the state which is its juristic organization,
have ends of their own and live for their sake, while the individual is
nothing but an infinitely small and transitory element of the social
organism to the ends of which he must subordinate his acts and his very
existence."
Death Penalty and Contract Theory: Beccaria, Rousseau, Kant. O n

the basis of the individualistic ideas condemned by Fascist Italy, the
death penalty was opposed for the first time b y an Italian, hitherto con-
sidered a glory of Italy: Cesare Beccaria (On Crimes and Punishments,a
sec. 1 6 ) . H e proved the incompatibility of the death penalty with an in-
dividualistic view of the state, as embodied in the doctrine of the social
contract. H e argued that the death penalty contradicted the social
* [DEI DELITTI Ε DELLE PENE.]

Authenticated
contract because life is an inalienable legal good, and suicide is repre-
hensible, hence any suicidal consent to the death penalty in the social
contract is immoral and consequently void. T o be sure, this argument
would be conclusive only if in the [social] contract theory the justifica-
tion of the death penalty were to depend upon its being actually willed
by the culprit. It would not be conclusive if, as in the correct rational
version of the contract theory, the death penalty is deemed justified
provided it can be thought of as willed by the culprit, that is, provided
he cannot rationally fail to will it because it is required by his own true
interest. Once the disposal of one's own life is recognized as a mere
symbolization of one's interest in his own death, no argument may be
based on the inadmissibility of such disposal. The question of the
justification of the death penalty may then no longer be whether the
culprit is to be allowed to consent to the death penalty, but only
whether he is able to consent thereto.
But Beccaria's opponent, Rousseau, makes the same mistake in his
reasoning. Rousseau regards the consent to the death penalty in the
social contract as legally valid because it is but a conditional consent,
given only for the event, not at all to be expected, that one should com-
mit a murder; that is to say, because one consents not to his death but
to the quite remote danger of his death and because it is not immoral to
submit to the danger of death in order to preserve one's life. "In order
not to fall victim to a murderer, one consents to die if he himself should
become a murderer. In this contract, far from disposing of his own life,
one is only concerned with protecting it; and it is not to be presumed
that any one of the contracting parties from the outset contemplates his
being hanged" (Social Contract,b II, 5). So Rousseau arrives at the pos-
sibility of constructing an unobjectionable consent of the murderer to
his own death by transferring that eventual consent back to a moment
at which he did not yet consider becoming a murderer. Who would fail
to see that, by this "having once consented," Rousseau turns the social
contract into an act fixed in time, a historical fact, and thus unexpectedly
slides back into the historical version of the contract theory which he so
decisively rejects in the introductory words of the Contrat Social? If one
sees in the social contract a mere fictitious picture, one must think of it
as timeless, not as concluded once but as renewable at any moment. A
just state must at any moment, with regard to any of its proceedings,
permit an affirmative answer to the question whether it may be thought
of as originating in the contract of all its members; hence even at the
moment when the murderer puts his head upon the block. Therefore,
under the contract theory the death penalty could be justified only if it
B [ L E CONTRAT SOCIAL.]

Authenticated
could be proven that even at this moment the consent of the culprit to
his death may be fictitiously assumed.
T h a t desperate proof is indeed offered by K a n t against Beccaria's
"sophistry and pettifogging." 1 B y an artifice characteristic of K a n t ' s
way of reasoning, he takes for a transcendental relation what in Rousseau
appears as a relation in time. T h e consent alleged to have once been
given by the culprit to the death penalty is replaced with the timeless
judgment of his reason as to that penalty's necessity. For the contracting
party to the social contract is to be found not in the empirical individual
with his real will but in the very reason imputable to the empirical
individual — it having been stressed again and again that the contract
theory fictitiously takes for willed only what one cannot reasonably fail
to will. "Therefore, when I draw up a penal law against myself as a
criminal, it is the pure legal-legislative reason within myself (homo
noumenon) that subjects me to the penal law as one capable of the
crime, hence as another person (homo phaenomenon), along with all
others in a civil society." N o t indeed the criminal's empirical will, but
his "own judgment with which one must of necessity credit his reason,"
necessarily consents to the death penalty even at the moment of its
execution, according to K a n t .
Y e t even if the individual is viewed not in his empirical factuality but
as concreted reason, he cannot be thought of as consenting to the death
penalty. 2 As to any punishment that leaves the convict his mere life, in
no matter how miserable a shape, the consent of his own reason, the
interest of the culprit himself in his punishment, may in principle be
proved: even life imprisonment leaves the convict still with a number
of legal goods, protected b y his own punishment which results in de-
terring others. B u t the death penalty can in no way be shown to serve
the criminal's own interests as well, since it destroys the subject of those
interests. Thus, from the standpoint of the contract theory, one will have
to reject the death penalty, following Beccaria, though not on the
ground that the criminal may not be allowed to consent to it, but rather
because he is not able reasonably to consent to it for lack of any interest
of his own therein. T h e death penalty is incompatible with a thought
basic to any individualistic view of the state, which has been formulated
thus b y Stammler (Lehre vom Richtigen Recht, 208 c ) : " E v e r y legal
demand must be maintained in such a manner that the person obligated
1 METAPHYSIK DER SITTEN (ed. by Vorländer, 1907) 163-164.

2 Against the arguments following in the text: NELSON, DIE RECHTS WISSENS-
SCHAFT OHNE R E C H T ( 1 9 1 7 ) 135-136.
cTranslated as THE THEORY OF JUST LAW (Modern Legal Philosophy Series,
1925) 161.]

Authenticated
194 GUSTAV RADBRUCH
may be his own neighbor" [i.e., may still think of his own interest as
closest to him] . 3
But does not the contract theory prove too much? Does not its argu-
ment deny the state any right to ask its members to stake their lives,
say, in a war? By no means! Staking, that is, endangering, one's own
life may still be shown to be within the interest of the one who, though
endangered, may well survive. But sacrificing one's life, certain death,
even in wartime is commonly not required by the state as a matter of
principle: volunteers are called for in such cases. For the voluntary
sacrifice of one's life for an idea is not contradictory even to individual-
ism; it means to realize life's full value in surrendering one's life. Such
fulfillment of life by the surrender of life may, indeed, occur also under
the death penalty, namely, in a case where the culprit by his own will
has accepted the penalty as atonement. Even in that case, however,
there remains the conceptual distinction between the death penalty
which is imposed and the atonement which is voluntarily accepted. 4
Death Penalty as Self-Defense. Of greater weight is another objection

to the individualistic argument against the death penalty, an objection
that was also raised in that speech of Bismarck's: the admissibility of
killing in self-defense. The authorities as well as individuals are under
some circumstances entitled for preventive purposes to kill an attacker,
who need not even be a murderous one — then why should they be
prohibited from killing the convicted murderer for repressive purposes?
Indeed, Beccaria has considered this objection. 5 He acknowledges the
admissibility of the killing of others if it "should really be the sole
means of restraining the others from committing crimes"; and in this
connection he thinks of "the case of open tumult and uproar which
could be quelled instantaneously by killing the rioters who resist." But
in such killings he sees "the consequence of a real declaration of war,"
which could not be founded upon the law and the social contract but
only upon power, though upon just and necessary power. Let us think
his reasoning through in terms of the contract theory! In the emergency
of self-defense, the social contract is inadequate to protect the legal
goods for the protection of which it was entered into, because the organs
" T h e same argument as here is used by MESS, NIETZSCHE ALS GESETZGEBER

(1930) 70-71.
4 That the inescapability of the death penalty renders it distinctive in kind from
voluntarily staking one's life in any way, no matter how hopeless, is shown in the
statement by Dostoevski, quoted by SAPIR, DOSTOJEWSKY UND TOLSTOI I I .
5BECCARIA, ÜBER VERBRECHEN UND STRAFEN ( [ G e r m a n ] ed. b y Esselborn, 1905)
108, n. 1, 192.

Authenticated
established b y it are not at the moment accessible. Therefore, the state
of nature, including the right of self-defense, is restored as of right, y e t
within the framework of the state of law and with the recognition of
the legal order. T h u s the right of self-defense is an original right of
man that is left to the person attacked, while the right to the death
penalty is only conceivable as a right created on the basis of the social
contract, or rather is inconceivable as such upon individualistic grounds.
B u t above all, there is still another point to be made against the argu-
ment for the death penalty as a right of self-defense: T h a t the right of
self-defense is directed toward repelling the attack, or toward destroying
the ability to attack, as the case may be, and though it may in fact bring
about the attacker's death, it is not specifically directed toward that
killing; so even this right is directed not toward destroying but only
toward endangering life. On the part of those killed in self-defense or
by the death penalty, this conceptual difference is expressed in the very
real mental fact that the former believed in the possibility of escape till
the last moment while the latter had to suffer the terrible feeling of the
inescapability of a death precisely fixed in time.
These discussions have been devoted less to the question of the death
penalty itself than to the task of showing the difficulty as well as the
fruitfulness of the conceptual form of the social contract in an individual-
istic doctrine of law. T h e decisive arguments against the death penalty
are to be sought on levels both higher and lower than legal philosophy:
on the one hand, in ethical and religious arguments against its admis-
sibility, and on the other hand, in statistical psychological proofs of
experience against its necessity.
SECTION 24
MERCY
The quality of mercy is not strained . . . — Shakespeare
T h e legal institution of mercy implies a frank recognition of how

questionable all law is, with its relations of tension within the idea of
law and its possibilities of conflict between the idea of law and other
ideas such as the ethical and the religious. For this very reason, during
periods of unquestioning confidence in the complete and sole rule of
reason, as in the age of natural law and the enlightenment, the power
of pardon was opposed: first by Beccaria {op. cit., sec. 20) and, follow-

Authenticated
ing him, by Kant, who regarded mercy as "the most slippery of all the
rights of the sovereign."
Mercy as a Legal Institution. The intrinsic tensions of the idea of law;

the contradictory demands of justice, expediency, and legal certainty;
the lack of a norm superior to those three aspects of the idea of law, and
the resulting indeterminability of their conflicts — all that has been set
forth above (sec. 9, pp. 107 et seq.). Now the meaning of mercy is to
relax the relation of tension between the conflicting elements of the idea
of law in a different way and, in the opinion of the holder of the pardon-
ing power, a better way than it was relaxed in the judgment. The task
of mercy may be to make justice prevail against positive law, or to make
individualizing expediency prevail against the schematic equalization of
justice. Its aim may also be to solve the antinomies possible within each
of those elements, in a way different from that of the judgment; for
instance, to make substantive law prevail against the procedural weight
of res judicata, equity against justice, or general political expediency,
reasons of state, against the specific expediency of criminological policies.
Mercy as thus understood seems to represent a legal institution,
a "specific instrument in the service of just law," 1 in the sense of the
adages of Germanic law: "Law without mercy is wrong," or "Mercy
stands by the law." Against that view, however, objections are to be
raised if one includes in the concept of law the generality of its norms,
the equality of their addressees with regard to these norms. T o be sure,
he who wields the pardoning power will endeavor to exercise it not
arbitrarily but according to guiding principles. Mercy, too, strives
toward general validity of its basic maxims; and repeatedly in legal
history new legal rules originated from maxims according to which the
pardoning power was exercised, as from the "judging according to
mercy" back in the Middle Ages and from the conditional pardon in
most recent times. But as soon as guiding principles of mercy have
assumed the form of norms ripe for enactment, the competency of
mercy, strictly speaking, comes to an end. Such norms of right law
ought to prevail by way of legislation, and not by way of mercy at the
expense of the law; similarly equity, once it has from the individual
cases established general legal rules, ceases to be equity and itself be-
comes justice. What mercy, although it seeks to attain general validity,
is to make prevail is the right of the individual case and not new legal
rules.2 T o be sure, it takes an effort hardly to be expected of the holder
1 Cf. STAMMLER, LEHRE VOM RICHTIGEN RECHTE 131. [Translated as THE

THEORY OF JUST LAW (Modern Legal Philosophy Series, 1925) 100.]
2 In this sense, Wolfgang Heimann in a Heidelberg doctoral dissertation (1931)

Authenticated
of the pardoning power wholly to disregard, say, his general attitude
toward the death penalty in deciding about sentences of death or his
general view of the punishment of abortion in deciding about sentences
for abortion.
Mercy Before Law. But mercy is not exhausted b y its function as a

legal institution. Those Germanic legal adages which characterize mercy
as a better law contrast with others which call mercy "better than l a w "
and say that mercy goes "before the l a w . " M e r c y has never been con-
fined to the equalizing of tensions within the law; rather it means a
recognition of the fact that this world is not solely a world of law
according to the saying Fiat justitia, pereat mundus,a that there are
still other values besides the law, and that it may become necessary to
help these values to prevail against the law. When, for instance, happy
patriotic events are the occasion for pardons, such a pardon can no
longer be founded upon legal values. B u t the clearest example of such a
pardon not founded upon legal values was the right of persons, who
were not organs of the legal community, to bring about a pardon. In-
stances may be found in the story of the pardoning of Barabbas in the
Gospels, when the people of Jerusalem at Easter, or in the Middle Ages
when religious bodies or cloisters annually, were entitled to ask that a
certain number of convicts be set free. 3 Finally, we recall from olden
times the role which, in the execution of the death penalty, was played
by an accident, or the will of the gods it was presumed to reveal; the
delinquent was freed from punishment if the rope burst or the sword
failed. W e must not regard such institutions of the past (with Stammler)
as "mere curiosities of social history," mere "aberrations"; on the con-
trary it is from them that we may gather essential information about the
meaning of mercy.
M e r c y in those times was a much richer and softer concept than it is
in our time. W e carefully weight out even mercy on the scales of the
law b y ounces and pounds: M e r c y has become a legal benefit extended
according to principles; justice wants to rule even over mercy, like
reason over benevolence. But just as alms once upon time was the free
flow of abundance and not a canalized charity, so mercy is not strained —
calls the idea of pardon the idea of "right discretion" (Willkür in the sense of
Stammler's terminology).
" [Let justice be done though the world perish.]
3 The renewal of the request to set a culprit free is advocated by MESS,
N I E T Z S C H E ALS GESETZGEBER (1930) 28: "Would it not be appropriate in the highest
degree if pioneers, who have achieved something extraordinary for mankind by
staking their own lives, were to be rewarded by the right to ask for the pardon of
a convict?"

Authenticated
198 GUSTAV RADBRUCH
not even by the strain of justice. M e r c y means not merely a milder form
of law; as a lightning flash it strikes into the sphere of law from an
utterly non-legal world and makes the frigid gloom of the legal world
more clearly visible. Just as the miracle breaks through the laws of the
physical world, so mercy is the lawless miracle within the juridical
world of law. In mercy, non-legal realms of value penetrate into the
midst of the legal world: values of religious compassion, of ethical
tolerance. In mercy, the law's claim of comprehensive rationalization is
opposed even b y the kindly accident, by that lordship of chance which
Nietzsche has called the oldest nobility of the world.
So mercy is not exhausted b y being " t h e safety valve of the l a w , " to
use Jhering's terms. It stands as a symbol for values in the world that
are fed from deeper sources and culminate in higher summits than the
law.
SECTION 25
PROCEDURE
Do you think that a state can survive and is not indeed destroyed when sentences
that are pronounced are -without force and are invalidated and frustrated by indi-
viduals? — Socrates
Purpose, in Jhering's words, is the creator of the entire law. Y e t the

law has scarcely been created ere it denies its creator; from the begin-
ning it seeks to be valid for the sake of its own existence without regard
to the accomplishment of its purpose, to live on as a purpose unto
itself according to its own rules. Scrupulously is that autonomy of the
law partitioned off from the purposeful activity of the state, adjudication
separated from administration. Such is the meaning of the principle of
the independence of the judiciary.
Judicial Independence. This principle, then, rests on the assumption

that the legal order and the order of the state are not identical, but
rather that the law confronts the state as an autonomous world. W e
have recognized justice, expediency, and legal certainty as the three
aspects of the idea of law. While the idea of law is closely connected
with the state by the notion of expediency, which after all is mostly
the expediency of the state, it transcends the framework of the state
with its two other features. For justice demands generality and equality
of the norm, as against those affected b y the norm, without regard to the
expediency of the state; and legal certainty demands the validity of

Authenticated
positive law even if it is inexpedient for the state. Whereas the content
of the law is predominantly determined by the expediency of the state,
the form of the law is outside and above the sphere of influence of the
ends of the state.
N o w it is true that the law, even as to those of its characteristics
which are beyond the influence of the end of the state, is still included
in the state; but it is included in the same w a y that the other cultural
values, such as science and art, are raised to tasks of the state, namely,
in their whole autonomy, uninfluenced by considerations of expediency.
T o be sure, for the state the law is only a means to an end, but in the
same sense as, for instance, science: the state puts both to its service by
serving them. T o justice applies what applies to truth; not, indeed, that
the expedient is true (as is assumed by pragmatism), but that the true,
when it may unfold without regard to any purpose, is eminently ex-
pedient. This is w h y there is both promotion of science by the state and
freedom of science from the state. N o t without reason do we speak of
"cognizance" in speaking of judicial judgments; a so judicial independ-
ence means nothing else than the freedom of science, transfererd to the
field of practical legal science.
The Procedural Legal Relation. T h e relation here shown between the

law and its purpose, viz., the origin of law in purposes and yet the inde-
pendence of its validity from those purposes, is reproduced in the
relation between substantive and adjective law. Procedural law is to
serve the purpose of helping to realize substantive law. Y e t it is valid
unconditionally, hence even to the extent that it does not serve, and
indeed may possibly hamper, the purpose of realizing [substantive]
law. In all other normative disciplines we contrast categorical impera-
tives with hypothetical imperatives, that is, with those precepts which
are to promote compliance with the former and which for precisely that
reason are valid only if and inasmuch as they really achieve that pur-
pose. T h e law alone knows exclusively categorical imperatives; even the
procedural norms which are in the service of substantive law are of
categorical and not of hypothetical character. T h e law's tone of com-
mand knows no degrees. T h e lawmaker never either raises or lowers his
commanding voice; whatever he demands he demands throughout with
the same absolute obligatory will.
This independence of the validity of procedural law from its ex-
pediency as a means of realizing substantive law is expressed dogmati-
cally in the sharp distinction between the procedural legal relation and
* [I.e., the court takes " c o g n i z a n c e " of certain facts, or it takes " c o g n i z a n c e " of
certain types of cases w h i c h fall w i t h i n its jurisdiction.]

Authenticated
200 GUSTAV RADBRUCH
the substantive legal relation which it serves to implement. Manifold

practical conclusions are reached on this foundation, most illuminating
of which is the decision of the familiar controversy whether counsel for
the defense is justified in pleading for the acquittal of an accused whose
guilt is known to him personally. Beside the legal rule that the guilty
person is to be punished there stands the other rule, of equal value, that
only the one proven guilty is to be convicted. So the counsel who advo-
cates the acquittal of one who is guilty but has not been proven guilty
still remains an attorney-at-law, not indeed at substantive but at pro-
cedural law. B u t the idea of value which alone can justify such validity
of procedural law, even in cases where it contravenes its task in sub-
stantive law, is legal certainty.
Res Judicata. Lastly, the relation shown above between law and the
purpose of law, and again between substantive and adjective law, ap-
pears in the second degree in respect of res judicata. Just as the law is
valid regardless of whether it satisfies the purpose it has been created
for, just as procedural law is valid regardless of whether it serves the
substantive law it is intended to serve, so the judgment, which is to
settle both the substantive legal situation and the correctness of pro-
cedure, results in res judicata regardless of the possibility that it may
both run counter to substantive law and have originated in incorrect
procedure.
Again it is legal certainty that alorie can explain w h y res judicata
results even from an incorrect judgment. B u t in respect of res judicata
there arises a problem that we have already encountered in discussing
the legal validity of a statute. W e have seen that legal certainty alone
may suffice to support the legal validity of wrong law, y e t that cases
may well be conceived of in which the wrongness of the content of the
law, its injustice or inexpediency, are of such a degree as to overbalance
the value of legal certainty which is guaranteed by the validity of law
once enacted. T o that possible invalidity of enacted law because of its
wrongness there corresponds the thought of absolute nullity of final
judgments because of definite defects of substantive or adjective law.
Only in these cases it is not merely the unjust and inexpedient content
of the judgment that is opposed to its validity, but rather a conflict that
arises within legal certainty: Against the effect of res judicata, required
b y legal certainty, there arises the demand, starting from the very same
thought of legal certainty, that substantive and adjective law be effectu-
ated in practice.
So procedural law most impressively illustrates a ground on which all
law is questionable, namely, that in the field of law the means tends to

Authenticated
become an end unto itself. As the law often conflicts with the idea of
law, so procedural law stands in opposition to substantive law, and so
finally res judicata may conflict with both substantive and adjective law.
SECTION 26
A GOVERNMENT OF L A W S A
Mistrust yourself, my lord, lest you mistake

Reasons of state for justice. — Schüler
How is it possible for the state to be bound by its own law? How are
rights of the individual against the state, how are constitutional and ad-
ministrative law — and constitutional and administrative legal wrong —
how is a government of laws, possible? T h i s problem has traditionally
been raised b y asking whether law "precedes" the state or the state
"precedes" law, that is, whether the state owes its power of command,
as to its extent and limits, to the law, or whether contrariwise the validity
of the law is determined and conditioned by the will of the state. 1
Priority of the Law or the State. T h e two possible answers to this

question seem to face equally grave objections. T h e view that the state
precedes the law is confronted with the fact that the state is not only a
source of the law but is itself a legal institution whose juridical existence
results from constitutional law. Again, to the opposite affirmation that
the law precedes and transcends the state, it must be objected that to
assume a law prior to and above the state means either to revive natural
law or to anchor constitutional law in customary law, whereas the very
fundamentals of constitutional law are settled not by peaceful legal usage
but in the clash of legal views, which can be terminated only by the
decision of the will of a recognized state-power.
" [ T h i s term is used here as an a p p r o x i m a t e rendering of the G e r m a n term

Rechtsstaat (literally, state of l a w , legal s t a t e ) , w h i c h denotes a state in w h i c h
g o v e r n m e n t a l action mus t be authorized b y l a w s and its c o n f o r m i t y to l a w m u s t
be secured b y appropriate safeguards . T h i s is distinguished in G e r m a n terminology
f r o m the Polizeistaat (literally, police s t a t e ) , or g o v e r n m e n t b y prerogative , in
w h i c h g o v e r n m e n t a l action m a y be taken b y executive a u t h o r i t y of the sovereign.
T h e Rechtsstaat is not necessarily Justizstaat (literally: judicial s t a t e ) , or g o v e r n -
m e n t b y j u d i c i a r y , in w h i c h the legality of g o v e r n m e n t a l action is reviewed b y the
o r d i n a r y c o u r t s ; it m a y p r o v i d e other s a f e g u a r d s of legality, such as administra-
tive a d j u d i c a t i o n and r e v i ew b y special administrative courts.]
1 On this p r o b l e m , cf. GEORG JELLINEK, ALLGEMEINE STAATSLEHRE (3d ed.) 364
et seq.

Authenticated
Identity of the State and the Law. From this dilemma, salvation is
promised by the doctrine of the identity of the state and the law (Hans
Kelsen). According to it, the question of the priority of the law or the
state is inadmissible because the two are one. As far as the lawyer is
concerned, the state exists only to the extent to which and in the way in
which it expresses itself by enactments — not as a social power, not as
a historical formation, but only as the creator and the content of its
enactments. The very word "legislation," like other words with this
suffix,·5 signifies both a process and its product, both the action of the
will and what is willed. When legislation is observed as the content of a
certain action of the will, it presents itself to us as law; when legislation
is observed as an action of the will with a certain content, it becomes
personified as the state. As organizing order or organization, 0 legislation
is the state; as organized order or organization, it is the law. The state
and the law are related to each other like the organism and the organiza-
tional pattern. The state is the law as enacting activity; the law is
the state as enacted pattern; the two are distinguishable but not
separable.
According to that view, which identifies the state and the law, the state
would always be in the right, the wrongdoing state would no longer be
a state. Thus the question whether the state is bound by its law would
not indeed be solved but would be made to disappear. For the statement
that the state is always in the right must not be mistaken for a pro-
nouncement in favor of government by prerogative.·1 Nor is the statement
that the wrongdoing state is no longer a state to be taken for a pro-
nouncement in favor of a government of laws — except in a sense in
which the government of every state would be a government of laws. 2
The doctrine of identity is of purely analytical significance for purposes
of definition but is of no legal philosophical substance for purposes of
policy.
Does, then, the doctrine of identity actually succeed in showing that
it is a mistake to raise the question of priority as between the law and
the state? In a purely juridical view, the law and the state are incontest-
ably identical. In that view, the state is indeed the structure that em-
bodies itself in constitutional law. But besides that legal concept of the
state, there is still a concept of the state in its working reality. T o be
sure, this concept of the state in historical-sociological reality cannot be
thought through without resorting to the legal concept of the state; it is
6[The corresponding German suffix is -ung, in Gesetzgebung.']

c[The German term is Ordnung, showing the suffix "-ung."]
d [ C f . supra, n. a.]
2 C f . KELSEN, ALLGEMEINE STAATSLEHRE (1925) 91, 100.

Authenticated
a concept of legal reality, and its structure is that of those concepts of
realities related to values. T h e state as legal reality is nothing else than
the substratum on which law, and especially constitutional law, ought to
be realized, though it by no means has usually been so realized. T h e state
is the substratum as seen from this very viewpoint of realization of law,
i.e., the substratum as compared with its legal implementation. T h e legal
concept of the state is related to the concept of the state in reality about
as follows: " T h e holder of the right to rule is transformed from a formal
right-bearer under the law into a staff of men who are available for the
enforcement of that law; and the right to rule is itself transformed into
the chance, i.e., the probability that the commands of the staff will be in
fact regarded as legitimate and actually o b e y e d . " 3 Against the objection
that the two concepts as thus distinguished ought not equally to claim
the name of "the state," it may be pointed out that this is not the only
case in which the norm and the substratum of the norm are referred to
b y the same term. For instance, " a r t " is both an ideal concept and
standard, by which the inartistic is banned from the realm of art, and a
concept of reality, which includes all art achievements of a period, artistic
as well as spurious ones. So, too, "science" on the one hand means the
standard of truth for the activity of gathering knowledge, by which short-
comings in knowledge are measured as unscientific, and on the other
hand it means the historical cultural concept which, neutral as to values,
embraces scientific truth and scientific error. Again, the very concept of
culture may be understood both as an ideal for the historical-social
cultural facts and as the inclusive concept of those cultural facts them-
selves.
However, the distinction between the concepts of the state in law and
in reality is further complicated because in addition to the legal concept
of the state as above mentioned there is still another legal concept of the
state, which more closely touches the concept of the state in reality. In
another context (supra sec. 15, p. 148) we distinguished two kinds of
legal concepts: "genuine legal concepts," by which the contents of legal
norms are comprehended, and "legally relevant concepts," which are
contained as elements in the legal norms themselves, especially in their
definitions of states of facts. This distinction may be illustrated, for
instance, by comparing the concept of "ownership," as the concept of a
legal institution including all its prerequisites and legal consequences,
with the concept of "contract," as characterizing a state of facts which
establishes legal rights. In accordance with this terminology, the above
mentioned concept of the state is a "genuine" legal concept, namely, the
" C f . Hermann Kantorowicz, Staatsauffassungen (1925) 1 J A H R B U C H FÜR SOZIOL-

OGIE 108, following Max Weber.

Authenticated
204 GUSTAV RADBRUCH
content of the legal order, or at any rate of constitutional law, reflected
in the state as a being, say, the German Reich as the personified Consti-
tution of Weimar. But the German Reich is found as a bearer of rights
or duties in innumerable passages in the legal rules of the Constitution
of Weimar itself; the state accordingly is not only a "concept of legal
essence" but also a "concept of legal content." 4 The concept of the state
as a legal content belongs in the category of "legally relevant" concepts.
But legally relevant concepts are concepts of extralegal reality to which
the legal order refers, which it possibly points up and transforms in cer-
tain respects but the core of which it takes over from life. So, too, the
concept of the state as a legal content in the last analysis means the state
as a real fact, so that the concept of the state in reality thus reaches into
the legal world, as a legally relevant concept.
Now the question of the priority of the law or the state refers on the
one hand to the normative concept of the law, and on the other hand to
the concept of the state in reality. These two concepts are by no means
identical but, on the contrary, involve the highest tension, viz., the ten-
sion which usually exists between a norm and a reality but which is here
still further increased. For the reality "state," the norm "law" is in a
certain sense an inadequate norm, because even the idea of law is not
identical with the idea of the state; the law, besides serving the purpose
of the state, may be subservient to an idea that may collide with the
more immediate purpose of the state, viz., legal certainty, and to an idea
which is originally foreign to the state, viz., justice. To be sure, the state,
subsequently as it were, admits even justice and legal certainty among
its purposes and is ready in part to sacrifice to them "reasons of state."
Thus the essential incompatibility of the law as a standard by which to
measure the state, the tension between the law and the state, is again
somewhat relaxed.
Sei]-Obligation of the State by Law. Once more, then, we face the

problem of the priority of the law or the state, the attempt having failed
.to show that there is no sense in putting this question. An effort to recon-
cile the priority of the state with the obligatory force of law upon the
state is the doctrine of the state binding itself to its law (Georg Jellinek).
However, as we have seen in our critique of the contract theory, the
supposed legal self-obligation is in truth not autonomy but heteronomy;
the will does not bind itself but the will of today is bound to the will of
yesterday, the will of the empirical subject to the will of a subject con-
ceived as ideal. So, too, in the state supposedly binding itself to its law,
the binding self and the bound self are different; the bound self is the
4
C f . K E L S E N , op. cit. 275

Authenticated
state as a legal reality, the binding self is the state as the conceptual
content of its law; the former is the state in the sense in which alone it
was considered in posing the question, namely, according to its concept
in reality, while the latter is the legal order itself. So we face the ques-
tion, in no way simplified, what norm outside of the state binds the state
to its law. The doctrine of the "normative force of the factual," Georg
Jellinek's explanation e (p. 204), that what ultimately matters is whether
or not in the opinion of a particular epoch the state itself is bound by
the abstract declarations of its will, does not answer the problem but
cuts it off. "Normative force of the factual" is a paradox; an Ought can
never spring from an Is; a fact such as the opinion of a particular epoch
can become normative only when a norm has attributed to it that
normativity.
Solution of the Problem: Obligation by Transpositive Legal Rule.

Thus we see ourselves forced beyond both positive law and the state, not
indeed into the world of facts but into a world of norms which are no
longer positive norms of the state, and which therefore can only be norms
of natural law. Indeed, as has been shown above (sec. 10, p. 1 1 7 ) , the
very positivism of the state and the law, when thought through, presup-
poses a legal rule of natural law: "If in any community there is a holder
of supreme power his orders shall be obeyed." In our consideration of
the validity of the law (sec. 10), we have found the justification for the
commanding power of whoever at the time holds power in this, that he
alone is in the position to decide the conflict between legal views authori-
tatively, to render his decision valid, i.e., effective — he alone is able to
establish legal certainty. But if the legal certainty it establishes is the
basis of the current state-power's right to create law, it must also be the
limit of that power. Only for the sake of the certain validity of its laws
does the state have the right to make laws. But that certainty would be
frustrated if the state could free itself from being bound by those laws.
The same thought of legal certainty by which the state is called upon to
make laws also demands that the state itself be bound by its laws. T h e
state is called upon to make laws only upon the condition that it consider
itself bound by its laws. So the natural law rule that whoever at the time
holds power has the right to enact law is inseparable from the other
natural law rule that that holder of power is bound by his own laws. T h e
holder of power would cease to be entitled to enact law as soon as he
himself evaded his laws. With the seizure of the state-power, the obliga-
tion of a government of laws is of necessity assumed and cannot be
declined. So the state is bound by its positive law by transpositive, nat-
e [The reference is apparently to the work cited in n. 1, supra.]

Authenticated
206 GUSTAV RADBRUCH
ural law, by the same principle of natural law upon which alone the
validity of positive law itself can be founded.
Value of a Formal Government of Laws. It has been declared that this

self-obligatory minimum, the state's being bound only by the positive
law enacted by itself, renders the idea of a government of laws posi-
tivistic and empty. It has been pointed out that the idea of a government
of laws in its original form implied that the state was bound to the rights
of man antecedent to the state and to natural law above the state. It
has been demanded that the thought of law ought once again to mean
that a definite idea of law, not merely the concept of law in general, be
applied to the relation of the individual to the state. 5 Y e t the application
of the mere concept of law to the construction of a government of laws
must not be underrated. For law is only what means to be justice. But
b y setting up justice there is set up equality. A command issued by the
state, to be valid for particular men and particular cases as such, would
not be law but arbitrariness. In political reality, too, this thought is
forceful enough to compel arbitrariness and selfish interest at least to
dress up as law. T h a t even this means something has been illustrated in
another connection (sec. 3, pp. 63 et seq.), when it was shown that the
freedom demanded by the bourgeoisie in its own class-interest, since it
was claimed in the form of law, necessarily benefited the fourth estate as
well, even against the interest of the bourgeoisie, as including the free-
dom to organize unions. Moreover, even arbitrary commands of the state
come to be interpreted, b y the organs for the administration of justice,
as rules of law, that is, in the sense required by the principle of equality.
Interpretation, practiced by a class of "lawyer-notables" ( M a x W e b e r ) ,
whose professional honor includes practicing the craft of law according
to rules of art, is the vehicle of that autonomy of the legal form which
tears the law from its root in self-interest and eventually makes it pre-
vail even against the interest in which it is rooted. For the sake of that
autonomy, even the suppressed class may have an interest in the realiza-
tion of the law enacted by the ruling class. So in their many struggles for
their rights the suppressed class in turn becomes the protector of the
very legal order which the ruling class imposed upon it, since that law,
while class law, is indeed class law, since it presents the interest of the
ruling class not naked but in the garb of law, and since the form of law,
no matter what the legal content, always, indeed, serves the suppressed.
5 DARMSTAEDTER, DIE G R E N Z E N DER W I R K S A M K E I T DES R E C H T S S T A A T S (1930).

Authenticated
SECTION 27
ECCLESIASTICAL L A W
Lawyers are often enemies of Christ, as has been said: "a true lawyer, a bad
Christian." — Luther
T h e philosophy of ecclesiastical law is but a sector of the religious

philosophy of law; the question of the church and ecclesiastical law is
but a part of the problem of religion and law. Whe n Catholicism holds
that ecclesiastical law is of God, all law in its view must somehow be of
God. When Luther calls law utterly secular, this characterization refers
also to ecclesiastical law: it, too, is law without God. Nor can one affirm,
with Rudolph Sohm, that ecclesiastical law contradicts the essence of
the church without believing, with Leo Tolstoy, that all law contradicts
religion and all law is law against God.
Catholicism. In Catholicism, the church in the religious sense and the

church in the legal sense are one; the law of the church, just like the
teaching of the church, is of religious significance; the legal church, too,
rests on divine establishment. Even though the teaching and the law of
the church m a y be related as end and means in the eyes of God, who
established them, man is bound by ecclesiastical law, as well as by the
teaching of the church, categorically and not merely conditionally. This
means that the legal church is not a mere means to the end of religious
life but is an end unto itself. T h u s it follows from its divine establish-
ment that the church has a value of its own. Its value is not exhausted
in serving the religious life of its members; it carries its value within
itself quite apart from all its effects upon the salvation of its members.
So it is not an individualistic social structure, not even a transindi-
vidualistic group personality, but rather a transpersonal community of
work — an institution and not a corporation. A symbol of that trans-
personal mission of the church is the priest who offers the sacrifice of
the mass, not for other believers — whose presence, indeed, is not re-
quired — nor even for himself — since the wonder of the eucharist takes
place not ex opere operantis but ex opere operator but for the sake of
the transformation itself. T h a t transpersonal mission again is decisive
for the organization of the church, which is built not from below, from
the beneficiaries of the blessings of ecclesiastical salvation, but from
above, from the participants in the forces of religious salvation, in a
" [ N o t by the working of the minister but by the w o r k administered.]

Authenticated
208 GUSTAV RADBRUCH
structure of hierarchy and dominion. But the divine origin of the legal
church determines also its attitude toward the state and the law of the
state. All law partakes of the divinity of ecclesiastical law. But besides
the law revealed by God, on which the legal church is based, there is the
natural law instilled into man by God, which the state is called upon to
realize. The law of the church and the law of the state, in so far as the
latter remains true to its destination, flow from the same divine source
and are in so far unable to contradict each other. But should the law of
the state become alienated from its divine origin, divine law takes in-
contestable precedence. Thus in superb coherence a uniform legal world
unfolds from the dominating center of revealed divine law.
Sohm, Tolstoy. The dangers of identifying the spiritual and the legal
church, the starting point of the Catholic system, have been sharply
stated by Günter Holstein:
If one wishes to secure the word and the spirit by law and office and for
that reason always takes law, office, and spirit for interconnected, then in
truth one puts law and office above the spirit and the word; then — this is the
inescapable consequence — it is ultimately not the word and the spirit that
determine the kind and conduct of office, but rather official and legal authority
that by its decision determines the kind and content of the world. 1
Fundamentally, this is the danger which Dostoevsky presents as the

essence of the Catholic Church, in his grandiose account of the Grand
Inquisitor before the reappearing Savior. This is also the point of de-
parture of Sohm's doctrine of the contradiction between the church and
ecclesiastical law. Legal formalism and legal compulsion are incom-
patible with the essence of the church, which is to be founded upon faith
and love, that is, upon inwardness and spontaneity. Legal formalism
cannot pass upon one's salvation; legal compulsion cannot enforce a
Christian way of life. But in truth that tension between the legal and
the religious rests not only on legal compulsion and on legal formalism,
but on the fundamental nature of the legal way of thought, its "out-
wardness," of which compulsion and formalism may be said to be but
symptoms. According to the legal way of thought, outward behavior is
taken for essential, the mental attitude from which it springs for sec-
ondary ; behavior that is outwardly lawful is deemed satisfactory without
a demand for the corresponding mental attitude; the discharge of a
legal duty is viewed only as compliance with the demand and claim of
another and with a legal enactment commanding from without. In the
religious view, on the other hand, all that matters is the mental attitude,
1 HOLSTEIN, D I E GRUNDLAGEN DES EVANGELISCHEN KIRCHENRECHTS (1928) 220.

Authenticated
faith and love, neither being enforced b y the claim of another person or
b y the presence of a command b u t both flowing freely from the abun-
dance of the soul. Moreover, in the l a w in most cases not only does a
d u t y h a v e a corresponding right b u t also a right of one person o f t e n
confronts the right of another, as in bilateral contractual relations. T h i s
is the essence of commutative justice, which should be characterized
accordingly as a mere equalization between two egoisms. Since it means
that one has to serve another's a d v a n t a g e only if he finds his o w n ad-
vantage therein, conforming to do ut desp it therefore represents the
exact opposite of a relation based on love. B u t if such contradictions
between law on the one hand and love and faith on the other are thought
through, they compel us to assume not only an opposition between the
church and ecclesiastical law, wit h R u d o l p h Sohm, b u t an opposition
between religion and law altogether, with L e o T o l s t o y . F o r the demands
of the ethics of Christian love claim validity not only for life within the
church but also for life in the world, and here, too, they everywhere
collide antithetically wit h the law. N o t only ecclesiastical law, b u t all
law would then be against G o d .
Luther. Just as in the Catholic view G o d has prescribed their laws to

the church and the world, so according to R u d o l p h Sohm and L e o T o l -
stoy the legal structure of the church and the world rests on divine
establishment; only this divine establishment, precisely contrary to the
Catholic view, is directed toward freedom from all legal regulation,
toward an anarchic community of love.
Catholicism teaches that Christ endowed his church with a legal equipment
fixed and unchangeable in its basic outlines. Sohm teaches that Christ at the
outset gave his church an unchangeable organization of the kind that excluded,
in principle and for all times, any connection with the law. The one is as
mistaken as the other.'
I n the L u t h e r a n view, Jesus neither prescribed nor rejected a legal order

of the church; law is neither of God nor against God, but rather is
simply without God — and it is against God only when it pretends to be
of God and when therefore the legal church invades the field reserved to
the spiritual church. S a y s L u t h e r :
The secular regimen has laws that extend no farther than to body and goods
and what is outward on earth, for over the souls God cannot and will not let
anyone reign but Himself alone. So where secular power presumes to lay
b [ " I give that y o u g i v e , " a f o r m u l a expressing a t y p e of exchange contract in
Roman law.]
2 Cf. K A H L , L E H R S Y S T E M DES KIRCHENRECHTS UND DER KIRCHENPOLITIK (1894)
74·

Authenticated
down laws for the soul it encroaches upon the regimen of God and but
seduces and corrupts the soul. Therefore one must carefully separate the two
regimens and leave both, one to make people pious, the other to establish
peace outwardly and restrain bad works."
To be sure, Sohm and Tolstoy affirm that the law inevitably "pre-
sumes to lay down laws for the soul," since the sphere of validity of
Christian life is unlimited, yet where the legal way of thought begins,
Christian life necessarily ends. But if law should thus be against Chris-
tianity, Christianity on the other hand still cannot be without law •— a
Christianity, at any rate, that does not see its only fulfillment in a hero-
ism of love. Christian ethics itself demands of man not the superhuman
but only the human when it asks him to love his neighbor like himself.
Therewith it tacitly presupposes a minimum measure of safeguarding
self-preservation, and hence the legal institutions required for this pur-
pose. Only when the urge to self-preservation has at least in part been
satisfied can the impulse to love one's neighbor enter one's conscious-
ness at all.
So Luther gave progressively more and more room to law beside love,
without, however, intending in the least to relax the tension between
love and law; rather the tension is put into every individual soul and
brought to a head. Christ's teaching of not resisting evil is thought to
have contemplated man as a Christian and not as a person in authority.
"Christ leaves to authority its right and office pure, but teaches his
Christians as individual people without office and regimen how they for
their part ought to live so that they desire no vengeance at all, and are
so disposed that if someone smites them on one cheek they are ready if
need be to turn to him the other also." It is incumbent upon authority
to preserve the law, but the injured ought to do nothing about it. "So
power ought to help and protect him either on its own or on the sugges-
tion of others, without his complaint, request or suggestion. Where it
does not do so, he ought to let himself be oppressed and injured and to
resist no evil, as the words of Christ read." Later, however, Luther per-
mitted not only authority but the individual himself to preserve his right:
A Christian cannot but be some temporal person because he is under

Caesar at least with his body and goods . . . , insofar as he has a rank or
office, house and home, wife and children, for all that is Caesar's. A Christian
you are for your person, but against your servant you are another person and
owe him protection. Lo, we now speak of a Christian in relatione, not as a
Christian but bound in this life to another person whom he has beneath or
above or even beside him.4
8 C f . KÖHLER, LUTHER UND DIE JURISTEN ( 1 8 7 3 ) 8 - 9 .
4 C f . KÖHLER, op. cit. 12, 1 3 - 1 4 .

Authenticated
T h e Christian, then, ought to live in two worlds at once: as a Christian

in one, as a temporal person in the other; but he ought to live in the
world of the law as if he did not live therein.
T h e law thus remains quite unconsecrated and without essence, un-
related to religion and indifferent to religion. "Secular law is a weak,
poor, impure law, which miserably maintains temporal peace and the
life of the belly." N o r is there any difference on this score between
ecclesiastical law and the law of the state, for in Luther's view ecclesias-
tical law was law of the state. His interest was confined altogether to the
reformation of the teaching of the church; the law of the church he
considered a work of man without any religious significance. T h e form
of the Catholic episcopal church might as well survive as a legal organi-
zation without religious significance if only it filled itself with the con-
tent of true Evangelical teaching. This it did not do, and so it was
necessary for Protestantism to establish a new legal organization outside
of the Catholic Church. But Luther, in his apostolic idealism, in his
superb and fatal indifference toward all religiously insignificant out-
wardness, regarded legal organization as not a religious but a secular
task, and hence a task not of the church but of the state. T h e ruler of a
territory as an "outstanding member of the church" has the duty to
extend the benefits of his ruling power to the church and to organize and
govern the church together with and within the state. " T h e entire law
becomes free for the temporal sword and its authority: there are no
essentially different ecclesiastical and secular laws." 5
Constitution of the Evangelical Church. As a consequence of Luther's

view of the law (unlike Calvinism), the Protestant spirit at first found
no organized expression in its ecclesiastical constitution, which was
purely of the state; to the single spiritual church there corresponded a
different legal church within each territorial boundary; together with
the state, the church came under the dominion of the absolute ruler. T o
be sure, the state which Luther called upon to organize the church was
regarded by him as a Christian state, and its head not only as holder of
the state-power but also as a member of the church and thus subject to
its obligations. T h e more the Christian state was secularized, the more
the organs of the state must appear as foreign bodies in the constitu-
tional life of the church. So in the juridical and legislative work of cen-
turies the Evangelical church gradually has been separated from the
state, it has developed toward independence and unity, arriving at last
at the conclusion of the Constitution of Weimar [of 1 9 1 9 ] , Article 137:
" T h e r e is no established church of the state." A t the same time, the
Δ HOLSTEIN, op. cit. 87.

Authenticated
212 GUSTAV RADBRUCH
Evangelical church has become more and more conscious of the legal
form that corresponds to its essence. Distinct from the Catholic view
which takes the church for a value of its own, in the Evangelical view
the church is an institution of human expediency in the service of the
individual souls who alone are of religious value; accordingly, its con-
stitution is to be built up from below, -from the individuals. T o the
organization of the Catholic Church by transpersonal dominion, there
corresponds in the Evangelical church a formative will toward individu-
alistic association. If one is permitted to apply political categories to the
constitution of the church, one would have to call it both democratic and
liberal in its essential features. I t is democratic inasmuch as its organiza-
tion, in accordance with the religious thought of universal priesthood, is
in the last analysis supported by the individuals associated in the church;
it is liberal inasmuch as it gives room to the sovereignty of faith, that is,
the sovereignty of God who works faith, so that it must forgo the exercise
of influence where the truly religious life within the church begins.
Here, then, we have arrived at the point where the distinction between
the Catholic and Evangelical views of ecclesiastical law consistently un-
folds. In Protestantism, the church in the sense of faith cannot assume
the form of a legal church, for this faith means not indeed the fides quae
creditur but the fides qua creditur\c the faith that is taken for a sum
total, not of intellectual truths of the creed, but of individual, volun-
taristic-emotional acts of believing, is incapable of legal formulation. I n
Catholicism, on the contrary, ecclesiastical law as the legal shell of a
fixed kernel of truths of the creed is as possible as it is necessary.®
SECTION 28
T H E L A W OF N A T I O N S
Whereas the community which has come to prevail throughout the peoples of the
earth has now reached so far that the violation of law at one place of the earth is
felt at all places; the idea of a right of world citizenship is no fantastic and extrava-
gant conception of the law, but a necessary completion of the unwritten code of
constitutional as well as international law into a public law of men generally, and
thus into eternal peace. — Immanuel Kant
It is essentially inherent in legal order to be universal. T h e law cannot

lay down a partial regulation without, by the very selection of the part
of human relations to be regulated, also taking a stand on the unregu-
c [ N o t the creed in w h i c h one b e l i e v e s b u t the c r e e d b y w h i c h one b e l i e v e s . ]
6 Cf. BARION, RUDOLPH SOHM UND DIE GRUNDLEGUNO DES KIRCHENRECHTS
( R E C H T UND STAAT, v o l . 8 ; 1931)

Authenticated
lated part — precisely by precluding legal effects there. Consequently, a

"legal vacuum" is always devoid of law only by virtue of the legal order's
own will; in the strict sense, it is not at all devoid of law, it is not a field
of facts legally unregulated, but one legally regulated in a negative sense,
by denying any legal effect. In the alleged legal vacuum the legal order
has willed nothing — not, by any means, willed not to will, which would
indeed be a contradiction in terms.
The Problem. Thus, what seems to be anarchy beside or above a legal

order is in truth anarchical regulation of the field of facts in question by
the legal order, its delivery to the free play of the forces working therein.
So, too, from the standpoint of a particular legal order, another legal
order is valid only because the former has made room for the latter. T o
be sure, that other legal order in turn claims to be valid of its own
strength and in turn to have created the very possibility of other legal
orders being valid. Therefore, the claim to validity by any particular
legal order embraces the entire globe. Indeed, the fact that "private and
penal international law" a is an element of the national legal order clearly
shows that domestic law claims to deal with all foreign states of facts as
well, if in most cases negatively, by denying domestic legal effects.
Every legal order raises the claim to be world law; in every legal order
there is contained the postulate of the "unity of the normative system"
(Kelsen). This, on the one hand, implies a world law to crown the legal
order as a matter of conceptual necessity, since each individual national
legal order pretends to contain within itself that world law completing
the legal system. On the other hand, since each raises that claim in con-
tradiction to all others, the requirement of legal certainty postulates the
existence of a law of nations above all national legal orders. Suggested
therewith, to be sure, is also what renders the law of nations problemati-
cal: Its own universal claim to validity, whereby each legal order can be
deemed valid only within a particular sphere, contradicts the universal
claim to validity of each national law, which can but resort to its own
will to ascribe validity to the law of nations.
Individualism: The World State. In the individualistic view of the law,

to be sure, this problem is resolved very simply. The individual state is
destined to be submerged in the universal state: the individual without
individuality and hence also without nationality is born a citizen of the
world. The line of thought that starts with the individual without indi-
viduality leads irresistibly to the state of mankind without nationality.
* [Continental terms embracing conflict of l a ws in the fields of private and penal
laws.]

Authenticated
214 GUSTAV RADBRUCH
T h e segregation of mankind into states and nations is historically acci-

dental and provisional; the individualistic view of the state makes logi-
cally possible only the world state which is to embrace all mankind
without so much as meeting on its w a y the nation. " I f individualism
proceeds consistently it m a y indeed arrive at the world state by expand-
ing the boundaries of the state — it will not be able to arrive at the law
of nations as a legal order above and between the states." 1 It is possible
to go back from the world state to the nations as technical administrative
subdivisions, as provinces of mankind with a common language; but in
the systematic view — not, of course, in the historical view — the nation
as thus understood would be because of and after, and not before, the
world state, just as the municipality is conceivable only within the state.
The pure idea of law in and of itself pays no regard to the separation of
society into individual states. From the universal validity of the juridical
law there directly follows the necessity of a legal community which extends
over the whole of society. The existence of a plurality of states, and of bodies
politic generally, is legally accidental. It is neither demanded nor rejected by
the law. It remains a question of expediency whether and how far separate
legal organizations in society are desirable according to such accidental bound-
aries as are determined by geographical conditions or by language, customs
and usages, religion, race, and similar factors.
T h u s Leonard Nelson. 2 From such a line of thought there m a y con-

sistently follow only a decentralized world state but not a league of
nations. So, in fact, in K a n t ' s eyes the league of nations, as the looser
combination of states, is but a substitute for the impracticable world
state. 3 B u t the world state is marked by the same lack of individuality
as the individual without individuality, on whom it is ultimately
founded. Just as it springs from abstract humanity in men, so it flows
into humanity as abstract universality and not mankind as a concrete
whole, into humankind as a "generic name in the natural system" and
not as a "generic subject in historical reality" (Scheler). For this
reason, Lagarde calls the state of mankind as thus understood the " g r a y
international."
Transindividualism: The Dogma of Sovereignty and the Denial of the

Law of Nations. T h e thought of the world state belongs to an age when
the state was conceived solely from the standpoint of the thought of
'BINDER, PHILOSOPHIE DES RECHTS (192J) 562.

2
SYSTEM DER PHILOSOPHISCHEN RECHTSLEHRE UND POLITIK (1924) 5 1 1 et seq.
3
HERBERT KRAUS, DAS PROBLEM INTERNATIONALER ORDNUNG BEI IMMANUEL
KANT (1931) 30·

Authenticated
LEGAL PHILOSOPHY 2X5
law — as a "union of men under juridical laws" ( K a n t ) — and was not
yet connected with the concepts both of the nation and of power. It is
the thought of the national power state that found its juridical expression
in the dogma of sovereignty. But in the attempts to think of the sover-
eign state as nevertheless subject to the law of nations there is repeated,
move by move, the futile endeavor of the individualistic theory of law
to get at the state from the sovereign individual human being with his
inalienable rights of man. In both cases, the solution was sought in the
thought of self-obligation — by founding the state upon the social con-
tract and the law of nations upon the consensus of states. In both cases,
on closer analysis the seeming self-obligation turns out to be obligation
from without. " B y self-obligation, one may explain everything, except
only this, that if there is to be a law of nations there must be obligation
from without b y virtue of which the free self-absolution from the al-
legedly free self-obligation would be violative of the law." 4 The very
appearance of self-obligation could arise only from substituting for the
concrete individuality the abstract individual consistently guided by his
true interest alone. From the concrete individuality, the path leads not
to the social contract but to anarchy. So, too, from the starting point of
the concrete individuality of the state, consistent reasoning leads not to
the law of nations but to the anarchy of states. For "anarchical law "
(Jellinek) is a contradiction in itself; a "law of coordination" is conceiv-
able only on the basis of a law of subordination, as in private law, and
not as a legal order topped by no higher order, like the law of nations.
On the basis of anarchical coordination, even the partial self-obligation
by a concrete contract is inconceivable. If no higher norm binds my will
of today to my will of yesterday it cannot be explained why it should
remain bound to it. Just as anarchism in its extreme form — in M a x
Stirner — denies even the binding force of contracts, so the dogma of
sovereignty, by recognizing the clausula rebus sic stantibus,b leads at
least to a considerable loosening of the obligation of international trea-
ties. Thus, from the standpoint of the dogma of sovereignty, consistency
requires the denial of the legal nature of the law of nations, indeed, even
of the binding force of treaties among states. 5
But the dogma of sovereignty itself provokes immanent criticism. The

4 Cf. RICHARD THOMA in Jus NATURAE ET GENTIUM, EINE UMFRAGE ZUM
GEDÄCHTNIS DES H U G O GROTIUS (Reprint from (1925) 2 4 ZEITSCHRIFT FÜR INTER-
NATIONALES R E C H T ) 67.
" [In treaties, a clause or an implication that the obligation is subject to the
condition that the circumstances remain unchanged.]
5 HELLER, DIE SOUVERÄNITÄT (1927) 161, gives an outright definition of s o v -
ereignty as the quality of a state b y w h i c h , resting on its absolute claim to preserve
itself, it "maintains itself absolutely in a given case e v e n against the l a w . "

Authenticated
2l6 GUSTAV RADBRUCH
conception of the law of nations as an anarchical law of coordination
starts from the possibility of the simultaneous existence of a plurality
of sovereign states. In truth, however, "the state, inasmuch as it is
declared sovereign, i.e., taken for absolute and presupposed as supreme
legal entity, must be the sole legal enity; that is, . . . the sovereignty
of the one state excludes the sovereignty of any other state, and there-
with excludes any other state as a sovereign community." 6 "The sover-
eignty of the one state would immediately exclude that of the other and
thus destroy itself as a universal legal principle." 7 Each state is thought
of as sovereign for the area of its dominion, but an absolute claim of
validity for a limited area of validity is a contradktio in adjecto.c That
sovereignty is incapable of being limited to a definite substantive field
has surely become clear on every side in the controversy against the
doctrine of the division of sovereignty in federalism. But what applies
to the substantive field of validity is no less true for the territorial field
of validity. The reason why not every individual sovereign legal order
raises the claim to rule over the entire globe is only this, that it stops at
the state boundary by virtue of wise self-limitation, and not that at
such boundary another legal order bade it stop — for if it had to give
way to that it would of course not be sovereign. Every state draws its
state boundary for itself, as in the Reich Constitution [of 1919], Article
2; d and from the standpoint of the dogma of sovereignty it is nothing
but a happy accident that the boundary of a state fixed by itself coin-
cides with the boundaries of adjacent states fixed by themselves. But if
accident is what is inexplicable, this implies that the dogma of sover-
eignty is unable to explain such a simple fact as the mutual compatibility
of the constitutions of states fixing boundaries between the states. More-
over, it is unable to explain the mutual recognition of states by each
other as subjects of the law of nations and contracting parties to treaties,
endowed with equal rights. From the standpoint of the dogma of sover-
eignty, the same conflicts arise here as, in the relation of the state and
the church, between the legality theory and the privilege theory of the
concordats: e To each state, the recognition of, or the treaty promise to,
any other state would appear as a favor granted to the other party by
"Thus K E L S E N , A L L G E M E I N E STAATSLEHRE (1925) 106.

7 Thus NELSON, op. cit. 517.
c [Contradictory qualification.]
d ["The area of the Reich consists of the areas of the German states. Other areas
may be included in the Reich by Reich statute if their populations by virtue of the
right of self-determination so desire."]
β [According to the former theory, the concordat is valid as a law enacted uni-
laterally by the state; according to the latter, it is valid as a privilege granted

unilaterally by the church.]

Authenticated
way of a unilateral legal act. So the picture of the group of states that
the dogma of sovereignty offers is not that of a legal community of
subjects of law who are mutually obliged to recognize one another.
Rather it is that of an arena full of beasts of prey, each of whom claims
to remain sole master of the place, but, unable to destroy or drive out
one another, growling and snarling they pass by one another for a while.
The thought of the sovereignty of the state completely resembles that
natural law thought of the sovereign individual human being who brings
his pre-state right of man with him into the state and claims to form the
state in accordance with that right of man. It has since been recognized
that man does not as a subject of law enter the state but is elevated to a
subject of law by the state only. But sovereignty is nothing else than the
quality of being a subject of the law of nations: A state is not a subject
of the law of nations because it is sovereign, but it is sovereign because
it is a subject of the law of nations. So the concept of sovereignty is to
be developed, not out of natural law speculation independent of the law
of nations, but precisely out of the law of nations. Worked out by this
method, it does not mean that above a state there is no further, legal
power on earth (hence, as one would have to conclude, not even a law of
nations); rather it means just this, that the state is immediately under
the law of nations, that it "of right owes obedience to no other legal
norms than those of the law of nations." 8 Therewith a law of nations
above sovereign states ceases to be a contradictio in adjecto; it becomes,
indeed, a tautology.
Transpersonalism: Law of Nations and League of Nations. Sovereign

national states, bound together by a law of nations and a league of
nations — this is the foreign policy objective set by the transpersonal
thought of culture and work. Transpersonalism on the one hand turns
against the dissolution of the national states into a world state. It cannot
overlook the fact that the individual is culturally creative only in the
national community. But it turns just as much against taking the na-
tional state for absolute in the form of the anarchy of states; for it is
equally unable to overlook the fact that the cultural tasks themselves
are international in nature. There is no particular German truth, beauty,
or morality to constitute tasks of cultural work. A cultural nation and
a national culture cannot be thought of as purposes. The national tinge,
like the personal touch, must not even be a secondary thought in cul-
tural work. He who seeks not for the cause but for his own, for the vain
8 Cf. THOMA, op. cit. 69; VIKTOR BRUNS, VÖLKERRECHT ALS RECHTSORDNUNG
(Reprint from ZEITSCHRIFT FÜR AUSLÄNDISCHES ÖFFENTLICHES RECHT UND
VÖLKERRECHT) 34.

Authenticated
2 ΐδ GUSTAV RADBRUCH
expression of individual or national peculiarity, will fail the cause and
yet not arrive at his personality or his nation. Like the personality, the
nation belongs to those values which one attains by not striving for
them — only by self-forgetful devotion to the cause. It is a symptom,
but not a remedy, of immature and weak national consciousness to strive
for national character in all one's utterances. Life while it is being lived
is subject to the universally valid laws of the good, the true, the beauti-
ful ; only the life that has been lived becomes subject to the evaluations
of "personality" and "nation." They belong to history; and it is char-
acteristic of a history-minded age to believe that evaluations that belong
exclusively to subsequent historical contemplation may be transferred
into life to determine goals. National consciousness was always strongest
when a nation believed itself to be called upon to be the missionary of
a transnational idea. This is the structure of national consciousness: the
consciousness of a people to be the first-born carrier of a human value,
to be a "people of humanity." Thus national consciousness itself is
unaware of the national peculiarity of its postulates and achievements —
to determine how far they were nationally conditioned and colored is a
later task of history. The only way of a people sure of itself is, not to
create a distinct national culture mirroring itself, but to create human
values and leave it to subsequent generations to recognize, in what is in
substance valuable, the characteristic national handwriting as well. On
the one hand, then, culture is directed toward transnational goals; on
the other hand, those cultural goals can be realized only in the nation
and in national forms. This is the ground on which to call for an inter-
national cultural community on the basis of national cultural differen-
tiation, for a uniform but decentralized organization of the world.
The Reality of the Law of Nations. Again, the fundamental tripartite

division of legal philosophical standpoints has proved its fruitfulness:
Individualism required the world state; the transindividualistic view of
the state and the law led to the dogma of sovereignty and the denial of
the law of nations; the transpersonalistic view turned out to be the
foundation of the law of nations and the League of Nations. To the
latter view, then, the trend of the development of reality conforms. For
there is a positive law of nations, supported by a common will above the
states, laid down in express agreements and in tacitly acknowledged
customary law. To be sure, only a small part of international legal rela-
tions is regulated in one or the other way. But to the filling of gaps there
apply the principles of finding the law which are formulated in the clas-
sical Article ι of the Swiss Civil Code.1 The legal rule to be applied is to
' ["The statute applies to all legal questions for which it expressly or construc-

Authenticated
be gathered in the first place from "tried doctrine and tradition," that is,
those legal principles, regarded as universally valid, which have taken
shape on the basis of natural law and have not ceased to dominate men's
minds even after natural law has turned from an absolute necessity of
reason into a superb fact of history, and which have thus become part of
the positive law of nations. 9 In the second place, he who is charged with
a decision under the law of nations is to "decide according to the rule he
would lay down as a legislator." This seems to hypostatize right law as
positive law and to blur the sharp line between absolute worth and real
validity of the law. In truth, that objection does not avail in the applica-
tion of international law any more than it does in adjudication in na-
tional law. For back of the individual legal rule that is creatively found
in this w a y , there stands the common will, of the state and above the
states, which supports the whole legal order within as well as above the
states: T h a t , as between the individuals, so too between the states, there
shall be law; and inherent in this common will for law is the tendency
toward universal coherence, tolerating no lacunae or legal vacua, which
has been mentioned at the beginning of this section. 10
B u t the dogma of sovereignty, vacillating between a reluctant affirma-
tion and an open denial of the law of nations, is characterized by its
acknowledgment of the right to war, which accordingly is both a phe-
nomenon and a denial of the law of nations.
SECTION 29
WAR
Pax optima rerum.* — Ancient device of the seal of the University of Kiel
T h e value of war must be judged not, as is frequently done, on the

basis of its favorable or unfavorable secondary effects, but solely accord-
ing to how far it satisfies its peculiar function. If really war, and war
only, were apt to test and awaken heroic virtues and vital forces, still it
could not be judged on this basis any more than legal procedure could
tively provides. If no provision can be gathered f r o m the statute, the judge shall
decide according to customary l a w or, where such is lacking as well, according to
the rule he himself w o u l d lay d o w n as a legislator. I n so doing he follows tried
doctrine and tradition."]
* Cf. ERNST TROELTSCH, N A T U R R E C HT UND HUMANITÄT IN DER WELTPOLITIK
(1923), and m y comments t h e r e o n i n J u s NATURAE ET GENTIUM , EINE U M F R A G E 5 5
et seq.
10 C f . B R U N S , op. cit. 31.
* [ T h e best of things is peace.]

Authenticated
be judged on the basis that it exercises acumen and increases knowledge
of the law. Now the specific meaning of war is victory and defeat, hence
decision of a dispute; whether this is the decision of a legal dispute or
of a dispute of interests, that is, of a collision of values, is to be discussed
still further. Criticism of war can result solely from the inquiry whether
it represents a meaningful method of deciding disputes. 1
Ethics of War. Applying to war, then, successively the methodical in-

struments of all those philosophical disciplines which are concerned with
the evaluation of human action, it follows that ethics is unable to solve
the problem of war. The ethical value judgment relates not to war and
the decision contained therein, but to the part of the individual in the
war, his war guiltlessness or his war guilt. But war guilt cannot very
well mean anything else but to have wanted the war. Taken in this
sense, however, war guilt cannot be determined unequivocally at all.
For, as long as war is valid as a legal institution, every diplomatic step
involves the dolus eventualis b of a war, no matter how thinly diluted,
and all politics is oriented toward the possibility of war. War, according
to the well-known saying, is but the continuation of politics with differ-
ent means, not so much because politics determines the essence of war
as because war determines the essence of politics. The currency of the
bank note depends on the bank's gold reserve, without people through
whose hands the note passes even remotely thinking of it in most cases.
Just so the most trifling diplomatic step, even if accompanied by no
thought of the ultima ratio,c derives its efficacy from the available
amount of men and rifles, horses and cannon, airplanes and tanks that
may be used if need be to enforce it. Politics is related to war like the
threat of violence to violence itself; and it must finally lead to war, even
against the will of those carrying on politics, from the same necessity
which causes any other threat that remains ineffective to turn into
violence. One cannot continually strike against the sword without being
compelled in a given case also to strike with the sword.
Legal Philosophy of War. Only the question of war guilt is a question

of ethics; but the question of the right to war, of the just war, is a
1 On the following cf. Radbruch, Zur Philosophie dieses Krieges, 44 ARCHIV FÜR
SOZIAL WISSENSCHAFT 139 et seq.; SCHELER, DER GENIUS DES KRIEGES UND DER
DEUTSCHE KRIEG (1915), but also SCHELER, DIE IDEE DES FRIEDENS UND DER
PAZIFISMUS (1931).
b ["Eventual intent." This civil law term refers to criminal intent in cases where
the result of the criminal act was contemplated as possible, though not necessary,
and was desired or acquiesced in by the criminal.]
0 [The ultimate argument.]

Authenticated
LEGAL PHILOSOPH Y 221
question of legal philosophy. The legal theories of war seek the criterion
of the just war in this, that it is a reaction against an injury suffered or
imminent, that is, retaliation, enforcement of a claim, or, especially,
self-defense. But if war really were nothing else than the settling of legal
questions, then in the eyes of anyone who does not believe in a prestabi-
lized harmony of law and power it would be the most unfit means con-
ceivable to that end, a form of proceeding which national legal pro-
cedure has left far behind ever since the abolition of trial by combat.
Again, it would certainly not be what it has been glorified for: "the
mover of the human race." For, since the law is always on the side of
the status quo, to make the right to war depend upon injury suffered
or threatened means to award it always to him who aims to preserve,
and never to him who aims to change, the traditional system of states;
it means to attribute unchangeability for all times, as of right, to the
historical accident of what at the time happens to be the division of the
surface of the earth. Above all, however, the legal theories of war elimi-
nate the concept of war itself. If the just war were really nothing else
but self-defense against injustice, then would the resistance of the op-
ponent, self-defense against self-defense, be absurd and an additional
injustice, the war would be a punitive expedition against a morally in-
ferior opponent, the enemy would be a criminal, and the character of
war as a duel between opponents of equal rights would be eliminated. 2
Therefore, the task of war cannot be to prove existing law but can only
be to create new law. The right to victory is not the presupposition but
the effect of the war; only by the war is it gained and proven.
Historical Philosophy of War. Therewith we pass from the legal phi-

losophy to the historical philosophy of war. For evaluating events on the
basis of their effects belongs to the philosophy of history. The just war
would then be the victorious war. Yet, on the other hand, the question
of the just war will call for an answer not by the war only but in advance
of the war. The right to war that is then in question cannot be the right
to victory, which is established only by the victory, but only the right
to enter into the state of war. But at the same time the legal philosophi-
cal view of the just war, which always admitted application to one or
the other party only, is replaced by the concept of the war that is equally
just on both sides. For only if the justice of war is thus referred really to
the war in its entirety, and not only to the position of the one or the
2
The Kellogg Pact, by outlawing wars of aggression, has therefore excluded wars
in their previous sense altogether. The defense which even under the Kellogg Pact
is admissible against aggression is not a war of defense, since it opposes right to
wrong, whereas war presupposes opponents of equal rights.

Authenticated
222 GUSTAV RADBRUCH
other belligerent, is there a thought on which respect of the enemy and
equal rights of the opponents, essential to war, may be based. In the his-
torical philosophical view, on the one hand, the war is justified for the
victor by his victory and, on the other hand, entrance into war must have
been justified also for the belligerent who is subsequently vanquished.
This dilemma is resolved by a reflection upon the difference between
"significance" and "meaning." "Significance" we ascribe to an event when
"values are at stake," "meaning" we ascribe to it when it originates
values.3 A war that is fought for a "good cause" is significant even if
that cause succumbs, though it is not meaningful. According to this
terminology, the category of a war just on both sides affirms only the
"significance" but not the "meaning" of war. Just on both sides is a war
if it involves the decision of a question that on both sides is weighty
enough for war, a collision of interests, of values, for the decision of
which there is no other means but war.
However, whether this significance, namely deciding a collision of
values, may indeed be taken to underlie war, depends upon whether the
decision of such collisions of values may as a matter of principle be
found in victory. War may be construed as implying a question only if
victory is able to furnish the answer to it. Only if victory has a "meaning"
may we attribute "significance" to war. So we find ourselves referred
back to an examination of the statement which has been suggested before
as a hypothesis: that victory realizes a right to victory which is not
created but only proved by the actual course of the war. That is to say,
we are referred back to the question whether military superiority proves
something beyond itself, whether, say, national power may serve as a
measure of national culture.
National culture is a purely qualitative determination of the nation,
not measurable in quantitative terms. But in the military view the na-
tions become "powers," different and comparable according to the quan-
tity of their power, hence assumed to be qualitatively equal to one
another. War, the culminating point of the militaristic view of the state,
is at the same time the lowest point of national differentiation. It is
symbolical that the manifold colors of the national peacetime uniforms
were submerged, during the [First World] War, in the khaki color that
was almost the same for all nations. Every fighting nation forces the
same means of combat upon the other. To be sure, the power-quantity
of the states has been claimed to be the index of the cultural quality of
3
Thus, differing from our terminology in sec. i, here the meaning which is re-
lated to value but is not necessarily of valuable content, the meaning as terminus
medius [median term] is called "significance," while the term "meaning" is reserved
solely for the significance of valuable content.

Authenticated
the nations; a proportionality of culture and power has been asserted,
and war, in which the powers take the measure of one another, has been
glorified as the examen rigorosum of the cultures also. As a matter of
fact, the standing of the natural sciences and technology, of the organi-
zation of business and transportation, of education and social ethics may
express itself in a corresponding measure of military superiority. Yet by
no means the entire, and not even the most essential, store of culture
may be transformed into military energies. The cultural values of
Goethe, Dante, Shakespeare, Moliere cannot be fired off as torpedoes or
blown off as poison gases·—and if nevertheless torpedoes and poison
gases determine what expansion a language and therewith a culture is
to enjoy in the world, the decision is not by the divine ordeal of war
but by the dice of accident; and if subsequent history-writers praise
world history as the world judgment, this is so only because the victor
always writes the history, too. The highest cultural values cannot be
expressed in figures of military power, or indeed in any quantitative
determinations. Culture is not a comparable quantity but an incom-
parable quality; and he who can see the nations only as competing or
even fighting masses of cultures of different size has excluded the cultural
nation altogether from his field of vision.
Religious Philosophy of War. So the philosophy of history dismisses

us without the possibility of finding in war anything other than a power
dispute, possibly indeed with cultural consequences, but without any
cultural significance of its own. The apology for war may, therefore, be
expected only from that source from which consecration and values
ultimately flow to all that exists: from religion. For toward war, as
toward all that exists, a threefold attitude is possible: The value-blind
attitude of science, the evaluating attitude of philosophy, and the value-
conquering attitude of religion. Blind against the value or worthlessness
of war, science investigates its occasions, its causes, its inherent laws.
Evaluating philosophy seeks to determine the criteria of the just war.
But religion finds a value of a higher kind even in the most unjust of
wars. In human nature, as one of its most paradoxical features, the
metaphysical optimism of the religious attitude surprisingly wells up
just when any purely empirical view requires despairing pessimism.
Good fortune carries too much apparent value in itself to raise any
question as to its true metaphysical value; but bad fortune, just be-
cause at first sight it seems to contradict this value, powerfully stimu-
lates the religious disposition innate in all humanity. Yet one must never
forget that theodicy, if the presumptuous word be permitted, is a justifi-
cation of God and not a justification of men; that religious philosophy

Authenticated
224 GUSTAV RADBRUCH
is not ethics; that religious acquiescence in the accomplished fact is no
subsequent justification of those who caused it. The Gospel passage
about Judas, calling down woe unto him from whom the evil cometh
that needs must come, shows that the result and the deed that called it
forth are subject to entirely different laws of evaluation. The religious
view of war is similar to that of pain, which it praises as holy because of
its purifying power yet the causing of which it condemns.
Religion alone, then, may find a blessing even in war; in any other
view, war must remain a calamity that is meaningless and alien to
significance. Any approach other than that of religion, to which alone it
is given to deliver us from all evil, is bound to see in war only disaster
and even in victory only the lesser of two disasters. But acquiescence in
war as an inevitable disaster befits the lawyer worst of all. He above all
faces the question whether the planet which is entrusted to us men is to
be ruled by accident or by reason; whether on the very spot where the
fate of the globe is to be decided, law, instead of establishing its sole
rule, is weakly to leave the field to anarchy; whether the cathedral of
the legal order ought to be topped by a miserable emergency structure,
a ruin before its completion, or whether it ought to end and culminate
in a proud dome.

Authenticated
FOREWORD a
In this book will be found the substance of the ideas developed in

my two preceding works: La philosophic de Vordre juridique positij
[The Philosophy of the Positive Legal Order], Paris, Sirey, 1929; and
La technique de Velaboration du droit positij [The Technique of Elab-
oration of Positive L a w ] , Bruxelles-Paris, Bruylant and Sirey, 1935.
On several important points, however, the doctrine has been rendered
more precise or more complete.
In particular, it appeared impossible to trace a sufficient distinction
between the law and the other rules of human conduct without under-
scoring the essential link uniting the two concepts of law and society:
T h e law is a societal rule. This is not to say that there could not be law
outside of the state and, a fortiori, outside of statutes. T h e state, in
the sense of the civil society, is not the only society. Still, on the tem-
poral plane it is the supreme society and its rule is the supreme rule.
Neither is this to say that the concept of an international law would
be denied. But it is thought that there will be international law, in the
full and true sense of the term " l a w , " only when there will exist an
international society, more or less universal and in any case organically
constituted.
Again, it was desired to examine more closely the relationship^ be-
tween the concept of law and the concepts of natural law and justice,
in order to eliminate incessantly renascent ambiguities. T o o often are
their levels and viewpoints confounded. T h u s it is wrong to put the posi-
tive legal order or the civil law (what is here called the law) within
the direct and exclusive extension of natural law and of justice.
Finally, as indicated by the footnotes, a systematic epitome was
undertaken of the Summa Theologica of St. Thomas Aquinas so as to
mark convergencies and possibly divergencies that appear between the
doctrine of the civil law formulated b y the great medieval philosopher
and theologian and that which a professional jurist of the modern law
may propose.
T h e theory expounded here is confined to a study of the general sys-
tem of the law, excluding the problem of the formal sources and of the
method of interpretation. I t thus makes up the first, and incidentally
" [ T h e f o l l o w i n g is a translation of JEAN DABIN, THEORIE GENERALE DU DROIT.

(Bruxelles: fitablissements fimile B r u y l a n t , 1944.) T h e text of the b o o k is trans-
lated in f u l l ; omissions made b y the translator in some of the author's footnotes
are indicated b y three periods.]
Unauthenticated
228 JEAN DABIN
the principal, part of a comprehensive course in Jurisprudence. Indeed,
the first objective of such a course of introduction to law is to define
the meaning and function of the legal discipline, as a whole and in its
various branches. Do we have to add that the theory of law is of use
not only to law students but to all who in one way or another practice
law? For the theory of law is nothing else than the reasoned study of
that practice.
LOUVAIN
March 15, 1943
Unauthenticated
GENERAL THEORY OF LAW
P A R T ONE
T H E C O N C E P T OF L A W
INTRODUCTION
i. Justifying the Title. We speak of the "concept of law." That title

incontestably lacks clarity. We could have said: Conception of positive
law, a term used to designate the rule expressed in statutes, customary
law, and the case law of courts. Indeed, this is the reality at which we
are aiming. Yet from the viewpoint of exactness and, in any case, from
the methodical viewpoint, the expression "positive law" is not satisfac-
tory. T o begin with, the word "positive" is an adjective which sheds
no light on the meaning of the noun it is to qualify. Granted that ety-
mologically and historically "positive" has the well-known connotations
of the accidental or of the volitional; the word "law" still remains to be
defined. The noun, then, is essential, the more so since there exist "posi-
tive" rules other than those of law. 1 On the other hand, to speak of
"positive law" is to call forth the question of "natural law," since tradi-
tionally the law called "positive" is placed in opposition to law called
"natural." 2 Now, before we ask ourselves if there exists a "natural
1 F o r example, positive morals, decreed b y competent a u t h o r i t y : G o d and the
church.
2 I t is appropriate to note, h o w e v e r (and this is a n e w g r o u n d for discarding the
expression), that the term "positive l a w " is often understood t o d a y in the sense of
the l a w in force, w h i c h is effective and consequently real, as opposed to an ideal
l a w that is merely though t o f ; thus, e.g., Jeze. Going still farther, certain authors
understand it in the sense of efficacious l a w , that is, l a w not simply set d o w n and
promulgated b u t effectively applied ; thus, e.g., Kelsen. [See his GENERAL THEORY
OF LAW AND STATE (trans. A . W e d b e r g , 1945). ] Cf. , in the same sense, R . CAPITANT,
L'ILLICITE, I : L'IMPERATIF JURIDIQUE (Paris, 1928) 1 1 4 et seq., at p. 1 1 5 : " P o s i t i v e
l a w is the l a w generally o b e y e d . " Still others take positive l aw to be that which, in
some w a y or other, results f r o m f a c t s ; thus, the intuitive positive l a w of G u r v i t c h ,
a s y n o n y m f o r " n o r m a t i v e f a c t s " issuing f r o m the social environment . B u t w i t h
this conception one deliberately d r a w s a w a y f r o m established usage, and the posi-
t i v i t y of l a w serves to disguise a positivistic conception of l a w , w h i c h is reduced
to a purely positive science.
Unauthenticated
230 JEAN DABIN
law," that is, a non-positive law, 3 it is well to know what is law — or
what is understood by "law." There always arises the same initial prob-
lem: whether it be natural or positive, what is the meaning of the noun
"law"? That is why we maintain the expression "concept of law" despite
its neutral character, or because of that very neutrality, while reserving
a progressive exploration of the idea which it covers.
2. Choosing a Starting Point. A second difficulty — graver than that

of the title — arises at the outset of the analysis: What should our start-
ing point be? For the word "law" is used in several senses which are not
unrelated to one another yet which remain distinct, corresponding to
distinct realities. Among those different senses we must necessarily
choose, if only to determine the sense we have in mind and thus to
avoid misunderstanding. Y e t that very determination is not without
risk: Under the pretext of defining a word, problems related to the
thing signified are touched and opened up. For instance, the majority of
writers, seeking to define law, start from the idea of justice. But that
means one of two things. Either justice is taken as synonymous with
law, and then the explanation has not advanced one step, as justice re-
mains to be defined. Or else justice (which will always have to be de-
fined) is taken as synonymous with the content of the law, and then
one prejudges the solution of a problem which could only be argued
after one has defined law in a formal sense.
3. Adopting the Idea of "the Rule"; Philological Considerations. The

only method that will stand up under criticism is to set up at the very
beginning the idea of the law as order, regulation, norm, or rule of
conduct. No matter how the idea of the "rule" may be conceived — as a
simple mental representation 4 or as an objective reality, which may or
may not be of a phenomenal nature — there is no doubt that the law
exists as a certain rule of conduct imposing some sort of action, omission,
or attitude. 5
This is suggestively indicated by the etymology of the word droit
[the French term signifying both law and right]. The word, derived
3 On the question of natural law, see below, nos. 200-216. [The cross references
indicate the numbered paragraphs.]

* See, e.g., H . ROLIN, PROLEGOMENES Λ LA SCIENCE DU DROIT, ESQUISSE D'UNE
SOCIOLOGIE JURIDIQUE (Brussels-Paris, 1 9 1 1 ) 2, 73. Cf. A . STOOP, ANALYSE DE LA
NOTION DU DROIT (Haarlem, 1927) 80, 184 et seq., who speaks of the content of
conscience and even of the subconscious.
5 See, in the same sense, as to the point of departure, J. LECLERCQ, LEQONS DE
DROIT NATUREL, ι LE FONDEMENT DU DROIT ET DE LA sociETE (2d ed. N a m u r - L o u v a i n ,

1933), no. ι , pp. 1 1 - 1 2 .
Unauthenticated
GENERAL T H E O R Y OF LAW 231
from the L o w Latin directum, and encountered in identical forms in

several Indo-European tongues (diritto, derecho, Recht, right), simply
suggests the idea of rectitude. L a w f u l or right is what is correct, that is,
conformable, adequate, adjusted to a rule — first in the realm of physics
and mathematics (e.g., right angle, upright line), then in that of morals
and psychology (e.g., right action, upright character), without the
suggested rectitude being limited necessarily to the rectitude of justice
alone, in the strict sense of respect for another's right. T h e same root
breaks through in the Latin regere (gouverner, to govern), rex (roi,
k i n g ) , regnum (regne, reign), regula (regie, rule) — a g a i n with no re-
striction to the justice of the content of the regula — the particular
shade of meaning being that of a command imposed by a superior
power: T h e rule is not only obligatory because it is a rule, but it pro-
ceeds from the outside, from above, from an authority. 6 T h e word jus,
which designates law in the classical Roman language, is less revealing
because its origin is debatable. B u t whether we derive it, as some do,
from the idea of divine will or power (the root yos, yaus, juos, jous,
signifying saintly, pure, as in jurare, to swear), or as others do, from
the idea of a bond (the root yu, yug, yung, as in jugum, yoke, or
jüngere, to join), 7 these notions are quite close to the idea of the rule:
D o not both the divine will and the bond imply the concept of the
obligating norm of conduct? 8 Assuming that the terms justus and
justitia, just and justice, actually derive from jus, it may be added that
the ideas of " j u s t " and "justice" are also indirectly related to the idea
of the rule (through the intermediary ideas of the divine will or the
b o n d ) ; and that relation is obvious in Gerechtigkeit, the German term
for justice, which is directly derived from the idea of law as rule, or
Recht.
4. The Objective or Normative as Against the Subjective, Sense of

the Lawful. In defining law by the idea of the rule, we talk of course
of " t h e law," as objectively lawful (droit objectif), and not of any
6 T h e G r e e k ΑΙκη, w h i c h m e a n s justice, also derives f r o m t h e i d e a of the rule:

f r o m the r o o t Dik or Die, as in dictamen or indictment.
' S e e F. SENN, DE LA JUSTICE ET DU DROIT ( P a r i s , 1 9 2 7 ) 25. n · 1 ί VAN HOVE,
COMMENTARIUM LOVANIENSE IN CODICEM JURIS CANONICI, v o l . i, p t . 1 ( M a l i n e s -
R o m e , 1928), no. 1, pp. 3-4.
8 B e y o n d these p h i l o l o g i c a l considerations , it w i l l be n o t e d t h a t in t h e classical
a u t h o r s the w o r d jus [ t h e l a w or r i g h t ] is o f t e n t a k e n as e q u i v a l e n t to lex [ a l a w

o r s t a t u t e ] ; thus, in t h e expressions jus naturale (= lex naturalis), jus positivum
(= lex humanitatus posita), jus humanum (= lex humana). See, e.g., ST. THOMAS
AQUINAS, SUMMA THEOLOGICA, la Ilae, q u . 95, arts. 2 a n d 4. A l s o infra nos.
201-202.
Unauthenticated
232 JEAN DABIN
right, as subjectively lawful (droit subject!}) — a d o p t i n g a terminology
that is rather unfortunate but has become classic among [Continental]
jurists. 3 Subjectively lawful, in this sense, is the faculty (capacity) or
the attribute (competence) conferred upon an individual or a collective
entity that thus becomes the subject of a right — a subjectively lawful
right: 9 E.g., the subjectively lawful right of ownership, which is the sum
total of the faculties conferred upon the individual owner; the right of
paternal power, which is the sum total of the attributes conferred upon
the individual father; the right of the suffrage, with which the citizen
is endowed as a member of the state; or the right to draft men into the
army, or the right of eminent domain, which belong to the state. Now
this conferring of subjectively lawful rights can logically take place
only on the basis and by virtue of a norm which is called objectively
lawful: It is because the law (objectively lawful) creates them that
there are rights (subjectively lawful) of ownership, of paternal power,
of the suffrage, of the draft and of eminent domain. The objectively
lawful, then, or the law, is primary: In the beginning was the rule.
We do not say, though, that this conferring of rights would be pure
creation on the part of the rule. Possibly, the rule may be bound to
confer them because they already existed before in some way, in which
case the conferring has the character of recognizing or consecrating
rather than of creating. Nonetheless, even then, the subjectively lawful
right is instituted not by itself, by the very quality of its subjective
lawfulness, but because it represents an objective value that is defined
as such by a superior principle — superior to the right as much as to
the rule that is to consecrate it. Consequently, by any token the objec-
tive takes precedence — at least if one stays at the same level. 10 Again,
even if the question is merely one of recognition, the subjectively lawful
* [ T h e distinction referred to here and in other passages of this w o r k is t h a t

between " l a w " and "legal r i g h t ." French legal terminology distinguishes l a w as
" o b j e c t i v e " f r o m legal rights as " s u b j e c t i v e , " since both " l a w " and " r i g h t " are
expressed b y t h e same French term droit. T h i s corresponds to the t w o f o l d use of
the German term Recht-, see translator's note b to chap. I I of LASK, LEGAL
PHILOSOPHY, supra, p. 32.]
" T h a t there are subjects of o b j e c t i v e l a w, i.e., individuals w h o are addressed b y
and subject to the rule, goes w i t h o u t saying, e v en and especially f o r those w h o
deny the existence of a subjective right in the sense of a prerogativ e inherent in the
individual, such as D u g u i t . B u t w e need not here enter into the captious and
v a r i e d controversies raised b y t h e notio n of the subjectively l a w f u l ·— (are there
rights, or only duties and f u n c t i o n s ? ) . In still another sense, the expression " o b -
jectively l a w f u l " refers to a right (subjective) envisaged f r o m the side of the object,
as in the phrase: render to each his l a w f u l due.
10 On the distinction between subjective rights according to morals and according
to l a w , see M . Reglade, Les caracteres essentiels du droit en comparaison avec les
Unauthenticated
right that issues from the superior principle will exist, as a subjective
right, with regard to the inferior rule only in so far as the latter has
recognized it. It is nonexistent as regards the latter, until the moment
of such recognition. From still another side does the objective law (hoc
sensu)h transcend the subjective right. The role of the objective law
actually is not limited to creating or recognizing subjective rights. It
includes the prescribing of obligations or measures of order, either for
the profit of another or for that of the obligor himself, without the
counterpart of any subjective right in the proper sense of that term,
which implies a certain power of enforcement and also a definite
holder. 11
5. As Usually Understood, the Rule Called "Law" Bears Upon Rela-

tionships Between Men. But if the law is primarily a rule of conduct,
it may at once be more precisely said, since the living usage of words
has so decided, that the rule of conduct called "law," taken in its specific
sense, is limited to relationships between men; that it does not, or at
least not directly, concern either duties of man toward God or duties of
man toward himself. As usually understood, law implies that there be
another — another human individual — and that is why Robinson
Crusoe on his island, while bound by duties toward God and toward
himself, is not bound by law. However, the legal rule is not the only
rule to govern relationships between men. Other kinds of rules, more or
less closely related, or at any rate bearing other names, intervene with
some competence in the same field. There is the moral rule, whose field
extends to the entire activity of man without excepting relationships ad
alterum.c There is the rule of so-called social manners, which may be
common to a whole group (civility, politeness, propriety) or peculiar to
certain environments (aristocratic or worldly, professional, sporting). 12
autres regies de la conduite humaine et les lois de la nature, in DROIT, MORALE,

MOEURS, HE ANNUAIRE DE L'INSTITUT INTERNATIONAL DE PHILOSOPHIE DU DROIT
ET DE SOCIOLOGIE JURIDIQUE (Paris, 1936) 184-186.
b [ I n this sense.]
" I n s u f f i c i e n t on this point seems the definition of l a w proposed b y L . LE FUR

in his Essai d'une definition synthitique du droit, 59 BULLETINS DE LA SOCIETE DE
LEGISLATION COMPAREE (1930) 320: " L a w is the delimitation of competencies of
legal persons effected in c o n f o r m i t y with the c o m m o n g o o d b y a qualified a u t h o r i t y . "
W e shall return to this point, incidentally ; see infra nos. 83-85.
c [Toward another.]
" O n these different rules and their proper characteristics, see DROIT, MORALE,
MOEURS (Paris, 1936). See also A . D u PASQUIER, INTRODUCTION A LA THEORIE
GENERALE ET Ä LA PHILOSOPHIE DU DROIT (Paris-Neuchätel, 1937) nos. 257 et seq.;
W . Henrich, Sur la probUmatique du droit coutumier, in 2 RECUEIL D'ETUDES SUH
LES SOURCES DU DROIT EN HONNEUR DE FRANQOIS GENY (Paris) 277-285.
Unauthenticated
234 JEAN DABIN
There are, moreover, certain rules of conduct properly called technical,
regarding the pursuit of crafts, professions, or activities 1 3 susceptible
of affecting others for better or for worse.
6. Defining the Legal Rule. We are, then, at the crossroads. The point
now is to identify, among the systems regulating social life (sensu Ιαίο)ά
that which constitutes the legal rule, and to detach its distinctive prin-
ciple. Let us make at once a statement, without adducing the evidence:
This distinctive principle will be found only if the idea of law is ap-
proached from the idea of the organized group, especially of society.
The law is a social rule not merely in that it presupposes a social
environment, but in that it exists only in and by society, as the rule of
that society. If, then, one chooses among the organized societies the civil
society (national and international), the law (jus politicum) may be
defined as follows: The sum total of the rules of conduct laid down, or at
least consecrated, by civil society, under the sanction of public compul-
sion, with a view to realizing in the relationships between men a certain
order — the order postulated by the end of the civil society and by the
maintenance of the civil society as an instrument devoted to that end.
y. Plan of the First Part of the Book. The commentary explaining

and justifying this definition (which is the subject of Part One of this
work) will be divided into three chapters, corresponding to the principal
elements of the definition. In Chapter I, the legal rule will be analyzed
as a social rule set up and guaranteed by civil society. In Chapter II,
the concept of a rule of conduct and the characteristics of the legal im-
perative will be studied. Chapter I I I will be devoted to determining the
"matters" or spheres of human activity that fall within the competence
of the legal rule. As to the problem left in abeyance, to wit, the kind of
order toward which the law is tending (the final part of the definition),
it concerns no longer the formal aspect but the meaning and content of
the legal rule. Its study is therefore referred to Part Two of this work,
whose subject is the elaboration of the law.
" E x a m p l e s of such activities: driving an automobile or simply m o v i n g one's

o w n b o d y in the street, activities w h i c h , w h e n b a d l y directed, m a y lead to collisions
and injuries to others.
a [In the w i d e sense.]
Unauthenticated
GENERAL THEORY OF LAW 235
CHAPTER I
FORMAL D E F I N I T I O N OF T H E LEGAL RULE
SECTION I . T H E LAW AS THE RULE OF CIVIL SOCIETY

8. Law Implies Societal Life. For the legal rule to make its appearance
it is not sufficient that a man be in a natural or accidental relation with
another man, through kindred, neighborhood, or exchange; say,
Robinson Crusoe on his island facing a new immigrant. Even a plurality
of interindividual relationships is not sufficient. Up to this point, morals
alone come in to provide a rule for such relationships, the first precept
being that of justice in its inter-individual form. 1 As for the legal rule,
it comes into existence only on condition that men form a group, not
solely by sharing certain common physical, psychological, or social traits
producing mere solidarity (such as men of one nation or one social
class), but on the basis of a veritable society, implying a specific social
end, organization, and hierarchy. One perceives the gradation: Relation
to others, solidarity, society.2 Better than the term "social," which is
vague, the term "societal," despite its awkwardness, would suggest the
kind of group here envisaged. The legal rule, then, is the rule that
governs the relationships between men thus grouped in organic, organ-
ized fashion.
Q. Why Societal Life Requires Law. Ubi jus ibi societas.3· To speak of
a legal relation is to speak of a societal relation: There is law, in the
specific sense of a rule distinct from morals and manners, only where
there is an organized society. The reciprocal statement, by the way, is
1
In general, legal philosophers have law take its beginning, on the contrary,
with the simple relation to others, or the interindividual relationship. They start,
then, not from the idea of the rule but from the idea of justice, involving the
obligation to respect another's right ( j u s suum). See, e.g., A. BOISTEL, COURS DE
n
PHILOSOPHIE DU DROIT ( P a r i s , 1 8 9 9 ) , n o . 1 2 , p p . 1 8 - 1 9 ; ° - 7°> P P · 1 2 5 - 1 2 6 ; n o . 74,
p. 1 3 4 ; G. del Vecchio, La justice, sees. 7-9, L'ethique, le droit et l'Etat II, in
J U S T I C E , DROIT, E T A T ( P a r i s , 1 9 3 8 ) 3 9 et seq., 2 7 3 et seq.
2
What characterizes a society and apparently distinguishes it from a community,
from any form of community, is the existence of a common goal with a view to
which the associated individuals concert their efforts. In the community taken as
such (for nothing prevents a society from doubling as a true community of the
associates), the common goal is lacking and so, consequently, is legal personality.
The members are content to share certain things: common traits or a common life.
However, when the community takes the form of a common life, the need for
discipline reappears with a view to ordering that c o m m o n life in the interest of all.
" [Where law is, there is society.]
Unauthenticated
236 JEAN DABIN
equally true: Ubi societas ibi jus.h Every organized society calls forth
a legal rule. First, in order to constitute itself, to subsist, and to func-
tion. For the society exists only due to the human individuals of whom
it is composed. They must therefore be kept in allegiance and under
obligations inherent in the social state by a rule that determines and
sanctions their status as members. 3 Again, the society operates only by
the action of individuals, called its "functionaries," officials and sub-
ordinates of all grades and employments up to the directing personnel,
individuals who in turn are bound by a norm, that of social "service."
Finally, as each society must obtain from its members not only some
contribution to its existence through obligations properly social, but
also some collaboration towards its ends, in larger or smaller measure as
the case may be, it is important that there be a rule defining and guar-
anteeing that collaboration. Hence, a twofold discipline: One constitu-
tive or constitutional, by which the group assumes body and life; the
other directing and ordering, by which the group moves its members in
the direction of the social ends. Thus the legal rule is not simply the
rule for relationships between men taken as such, ut singulis outside of
any social qualification or pertinence; in all respects it forms the law
of a group, whose conditions and requirements it transfers to the two
levels of the constitution of the group and the direction of its members.4
If one prefers another formulation which is rather fashionable today,
the legal rule connotes the "institution," in the sense of society or cor-
poration. It is justified by the "institution"; its observance is called for
and watched over by the social "institution." 5 Institutional by nature,
the legal rule is, however, itself instituted in that it results from a funda-
b [Where society is, there is l a w . ]

8Of course, the rule is not e v e r y t h i n g ; as noted b y H a u r i o u , Aux sources du
droit, in CAHIERS DE LA NOUVELLE JOURNEE no. 23 (Paris, 1933) 49: " T h e highest
f o r m s according to w h i c h the directing idea of an institution tends to express itself
are not properly legal; t h e y are mora l or intellectual." See also G . del Vecchio,
A propos de la conception etatique du droit, in JUSTICE, DROIT, ETAT 305-306.
c [As single individuals.]
4 I n the same sense, see J . Delos, Notes doctrinales thomistes, in 1 ST. THOMAS
AQUINAS, SOMME THEOLOGIQUE, La justice (French translation b y M . - S . Gillet)
234-235. B u t that author is w r o n g , it seems, in seeking to integrate justice forcibly
w i t h the societal order, since justice m a y exist outside of this order as c o m m u t a t i v e
justice, assuming mere interindividual relations.
5 C f . J . Delos, La theorie de Vinstitution, in ARCHIVES DE PHILOSOPHIE DU DROIT
ET DE SOCIOLOGIE JURIDIQUE ( 1 9 3 1 ) . F o r t h a t author, the institutional conception
of l a w is s y n o n y m o u s w i t h a conception of l a w on social foundation s (p. 1 4 4 ) . I t is
interesting to observe that in t h e language of the natural l a w writers of the seven-
teenth and eighteenth centuries the "institutional" w a s opposed to the " n a t u r a l " :
the institution w a s the positive and arbitrary w o r k of m a n .
Unauthenticated
mental operation governed by a certain procedure." Once instituted, it
becomes itself an "institution"; the rule then is an institution which in
turn emanates from the social institution.
10. The Different Kinds of Societies. However, societies are of many

kinds, corresponding to varied principles of division. Ther e are private
societies, pursuing private ends (business corporations, nonprofit asso-
ciations, professional societies, and others), 7 and public societies, pursu-
ing public ends (for instance, the state, the church). There are temporal
societies, worldly in purpose (for instance, the state, corporations oper-
ating for profit, professional societies), and spiritual societies, other-
worldly in purpose (the church, the religious communities, the pious
associations). There are national societies, constituted on the domestic
national level (for instance, the states, certain so-called national
churches), and international or supra-national societies (for instance,
the Catholic Church, the various "Internationals," and, to the extent it
is organized, the society of nations). Moreover, the diversity of kinds
precludes neither jurisdictional conflicts due to the overlapping of ends,
nor relationships of subordination or integration. Thus, temporal socie-
ties are subordinate in a certain manner (where an encounter occurs) to
spiritual societies, private societies are integrated in one respect (that of
the " p u b l i c " interest) with public societies, etc. From still other points
of view, one may distinguish necessary societies, to which the individual
cannot refuse his adherence without denying his nature as man (such as
the state and, in a certain way, the church), and free societies, resulting
from the arbitrary will of the founders; again, general societies, uniting
all individuals on the sole foundation of their quality as men (such as
the state, the church), and special societies, uniting individuals of some
determined specialization (such as the professional societies), etc.
11. Each Kind of Society Has Its System, of Law. N o w each of these
societies, to whatever class it may belong, possesses its double set of
rules of properly social conduct, those regarding its constitution and
6 T h i s is so e v e n f o r the c u s t o m a r y rule, a l t h o u g h it d e r i v e s f r o m the people:

it is also i n s t i t u t e d , f o u n d e d , as t h e result of a p r o c e d u r e .
7 W e l e a v e aside the f a m i l y , w h i c h is n o t really a s o c i e t y f o r w a n t of a c o m m o n
g o a l of the t w o k i n d s of " c o n j u n c t i o n s " w h i c h m a k e it u p , t h e relations b e t w e e n

spouses a n d t h o s e b e t w e e n p a r e n t s a n d c h i l d r e n ; see, in this sense, ST. THOMAS
AQUINAS, SUMMA THEOLOGICA, IIa Ilae, q u . 58, a r t . 7 ad 3 ; also J . D a b i n , Sur le
concept de famille, in 2 MELANGES VERMEERSCH ( R o m e , 1 9 3 5 ) 229 et seq. H o w e v e r ,
w h e n all the m e m b e r s of the f a m i l y live t o g e t h e r in t h e domus [ h o m e ] , t h e y f o r m
a c o m m u n i t y of life a n d h a b i t a t i o n , i m p l y i n g a n interior discipline a n d a u t h o r i t y
a n d , in t h a t sense, a " d o m e s t i c " l a w (supra, n. 2 ) .
Unauthenticated
238 JEAN DABIN
those regarding its discipline (in the sense of group discipline), which
are endowed with the formal characteristics of law: T h e law of private
corporations and bodies, the law of the state for the civil society, ecclesi-
astical law for the religious society (Canon L a w for the Catholic
C h u r c h ) , international law (to the degree to which the society of nations
is organized). 8 T h i s is the natural phenomenon of "social l a w " : T h e
organized groups do not merely exist and tend toward their ends; in
order to exist and to attain their ends, they necessarily produce law. 9
Each of these systems of law, moreover, has its domain and its individual
subjects, a content and physiognomy, of its own, which are determined
by the specific end of the group, by the manner or degree of its organiza-
tion. Thus, the law of the spiritual societies differs in its spirit and
methods from that of the temporal societies; 1 0 municipal law, corre-
sponding to a more fully developed social state, is fuller and stronger
than international law, etc. On the other hand, as the groups are not
juxtaposed or parallel but obey a hierarchical order, the law of the de-
pendent groups must harmonize with that of the superior groups. Thus,
the public or private bodies integrated in the state could not in their
own law contradict or deny imperative dispositions of the law of the
s t a t e ; 1 1 nor could in an organized international society the municipal
law, public or private, of any state be logically admitted to override the
principles of the law of nations, etc.
12. Distinct and Eminent Place of the Law of Civil Society. In a

study limited to the law of the civil society ( j u s politicum), we do not
have to go into that complexity, at least not directly; it was sufficient to
indicate that the law of the civil society was not the only existing or
possible law. B u t precisely because the civil society is superior to the
other groups, at least on the temporal level and from the domestic angle,
it must be emphasized that among the different kinds of law the law of
8 Cf., in the same sense: DE VAREILLES-SOMMIERES, LES PRINCIPES FONDAMENTAUX
DU DROIT (Paris, 1899), I, 4, pp. 6 - 7 ; G. A . RENARD, LA THEORIE DE L'INSTITUTION

(Paris, 1930) 103 et seq.-, G . del Vecchio, A propos de la conception etatique du
droit, sees. V I et seq., loc. cit., pp. 295 et seq.
" C f . G . GURVITCH, L'IDEE DU DROIT SOCIAL (Paris, 1932). I n G u r v i t c h 's v i e w ,
though, the "social l a w " w o u l d comprise, besides the l a w of organized communities
(which w e call societal), a l a w of "unorganized c o m m u n i o n " (op. cit., pp. 28 et
seq.). W e shall come back to that point below, no. 14.
10 On this point, see R . - G . R e n a r d , La contribution du droit canonique ä la
science du droit compari, in INTRODUCTION Ä L'ETUDE DU DROIT COMPARE, I RECUEIL
D'ETUDES EN L'HONNEUR D'EDOUARD LAMBERT, § 9 (Paris, 1938) 108 et seq.; the
same, LA PHILOSOPHIE DE L'INSTITUTION (Paris, 1939) 37, 279-292.
1 1 On this point, and against an anarchical pluralism, see J . DABDT, DOCTRINE
GENERALE DE L'ETAT (Brussels-Paris, 1939), no. 253, pp. 408-411.
Unauthenticated
the civil society occupies — or ought to occupy — a distinct, eminent

place. 1 2 Whereas the law of the particular societies governs their cor-
porative relations in view of their particular group ends, the law of the
civil society ( j u s politicum) is competent to order all activities of the
subjects within its territory, including the legal and non-legal activities
of the particular groups. In that sense, the civil society is sovereign, it
is the commander-in-chief of the individuals and groups, and hence its
law, inasmuch as it is supreme, is the sole true law. 1 3 Moreover, and as
a logical consequence, the civil society alone has at its disposal "uncon-
ditional compulsion": 1 4 If the groups have a certain right of compulsion
over their members for the defense of their own regulations, that right is
exercised only in certain limits and with the reservation of control b y
the public power. 1 5 This explains why usually the law of the civil society
or, designating the same reality by another term, the civil law should
have become synonymous with the law pure and simple: Speaking of
the law, one is understood to speak of the law superior to all others, the
law of the civil society.
ι j . The Law of the Civil Society Is Nonetheless a Societal Law.

However, like the particular laws of all bodies, the law of the civil so-
ciety, no matter how eminent, remains a social law, meaning a societal
law. This remark is important because it tends to dissipate an ambiguity
that would put everything in question again. N o doubt, different from
the ends of the subordinate societies, which are particular, special, and
12 C f . J. Delos, Les caracteres essentiels du droit positif en comparaison avec les

autres regies de la vie sociale et les lois de la realite, in DROIT, MORALE, MOEURS
209-211, according to w h o m the legal order is a phenomenon peculiar to the
political society. It is true t h a t the political legal order, w h i c h is installed b y the
political society, is the supreme legal order. Of course, there are cases of tension:
the state in process of f o r m a t i o n m a y not y e t h a v e succeeded in establishing itself,
or again the state already f o r m e d m a y lose its a u t h o r i t y. ( C f . del Vecchio, op. cit.).
B u t w e look at it here f r o m the philosophical and not the historical point of v i e w .
1 3 In this sense, as regards the l a w laid d o w n b y the father of the family in his
house, see ST. THOMAS, op. cit., Ia Hae, qu. go, art. 3 a d 3: . . .
" T h e formulation is t h a t of G . G u r v i t c h , w h o h o w e v e r regards this " m o n o p o l y
of unconditioned compulsion " as the sole specific trait of the state. In reality, that
trait is but secondary, instrumental: that the state has the m o n o p o l y of uncondi-
tioned compulsion is due to its having the right to that m o n o p o l y ; that it has the
right is due to its h a v i n g the mission to establish order in the society. Hence its
sovereignty, w h i c h constitutes a right and places it above the other groups.
15 In the same sense, see ST. THOMAS, op. cit., la Hae, qu. go, art. 3 ad 2 ; on the
right to punish in particular, see qu. 92, art. 2 ad 3. On disciplinary l a w , the

"particular penal l a w of institutions," cf. A . LEGAL AND J . BRETHE DE LA GRESSAYE,
L E POUVOIR DISCIPLINAIRE DANS LES INSTITUTIONS PRIVEES (Paris, 1938), esp. pp.
94-122.
Unauthenticated
240 JEAN DABIN
often technical, the end of the civil society or the state is general and
human. It is man at whose perfectioning this society aims. B y way of a
certain public good, embracing within its radiation the universality of
human needs, moral and economic, individual and social, the civil so-
ciety seeks to provide for each and all of its members the good life in all
spheres of the temporal order. Now one of the first conditions as well as
one of the ends of the public good is that within the total community
there should prevail a certain order in the relationships between the
individuals and the groups, an order which the law, fixed by the civil
society, undertakes to realize. 16 But if that is so, how can it be imagined
that law could be defined without any reference to morals, which consti-
tute the fundamental human discipline? How could the place of every-
one in the society which is the state be marked without appealing to the
principles that govern the rights and duties of man? It is not surprising
therefore that the law of the state, which is to order private relations,
often takes over as its own, precepts that have already been laid down
by morals, especially social morals.
Let there be no mistake, however: The rule thus taken over from
morals becomes a societal rule in every respect and not from a formal
viewpoint alone. If it becomes a part of the law, if it is laid down and
imposed under threat of compulsion, it is not at all by reason of its own
value, even if that be absolute, but solely because the end of the state
demands it. It matters little that that end is general and human (which
justifies the connection of politics and morals); for all that it remains no
less a specific end, and consequently the rule inspired by that end pre-
serves its societal character.
14. The Other Rules of Social Life (Morals, Manners) Are Not
Societal. It will perhaps be objected that all rules whatever that govern
relationships between men are equally derived from society and are
equally social. Such is undoubtedly the case as regards the rule of social
manners, which is laid down by society (sensu lato) on the basis of cer-
tain social "conventions" and sanctioned, often quite energetically, by
reactions of the social environment. 17 Assuming a sociological morality,
10 O n t h e s t a t e a n d t h e e n d of t h e s t a t e , see J . DABIN, DOCTRINE GENERALE DE
L'ETAT, nos. 25-36, pp. 34-54. We shall come back more closely to the concept of
the common good below, nos. 135 et seq.
" T h e r e would remain for discussion the question of the import of the rule of
social manners: does it decree a veritable obligation (oportet, if only in the field
of decency), like morals and law, or simply a propriety (decet) ? In our times, at
any rate, it is a matter of usages, or habits, whose violation singles out the trans-
gressor and exposes him to a more or less formulated note of reproach on the part
of his environment; it is not a matter of strict, categorical duties. C f . L . Recasens
Unauthenticated
such would also be the case as regards the moral rule, which would have
no other founder than the society itself dictating for its members the
imperatives formulated by the collective conscience.
But even admitting that conception of morality, a radical distinction
remains between the legal rule and the other rules of social life. It is very
well for the moral rule (under the sociological interpretation) and the
rule of social manners (indisputably) to proceed from society or, more
exactly, from the social environment by way of repetition of the same
attitudes, the same gestures (this is the social fact of custom): Still they
have no institutional or societal character, they pursue no institutional
or societal end, they do not subserve the institution or society as group
laws. In fact, the mode of formation or the origin of the rules matters
little. There are rules of customary law, issuing from the social environ-
ment in the same way as the rule of social manners, just as there can be
(witness history, notwithstanding the sociologists) rules of morals laid
down by an authority in the same way as the legal rules of a legislative
source. 18 What gives a rule its legal character is that it is consecrated
and sanctioned, not in an inorganic fashion by the public in the group,
but by the group itself as a body — especially, the state •— in the con-
viction that the rule is required for the good of the group and the attain-
ment of its specific end. The social interest being at stake, social disci-
pline enters the field, and with it the organization of the group in the
persons of its responsible authorities: Chiefs, functionaries, and judges,
the dispensers and guarantors of discipline. The legal rule is thus bound
to the social institution as its cause, a final cause and an efficient cause.
That is why it is impossible to speak of a "law of an unorganized com-
munion." 1 9 "Unorganized communion" may well generate rules of con-
duct, even supporting them by a reaction against violators; but these
rules belong to the category of mores or manners and not the category
of law.
75. Customary Law Has Societal Character. Even in making the as-
sumption of a customary legal rule, the societal idea, especially the con-
sideration of the social end, is the determining and distinctive element.
The idea acts first upon the public of the group, which sees the social
interest involved and calls for law to intervene; then, thanks to the
Siches, Les mages sociaux et leur diffSrenciation d'avec les normes juridiques, in
D R O I T , M O R A L E , M O E U R S , 145 et seq., esp. 160-162.
" T h u s the law of Moses was a positive law containing many moral precepts;
in the same way, the Catholic Church edicts a positive moral legislation for its
faithful.
10 According to G . G U R V I T C H , op. cit. 2 8 et seq.
Unauthenticated
242 JEAN DABIN
public, it acts upon the social organization, which institutes the means of
execution, the procedures of law and compulsion. W h a t , indeed, is sig-
nified by the opinio juris seu necessitatis,d the constituent psychological
factor of custom according to the classical doctrine, 20 if not the convic-
tion that the usage, as practiced, is binding and obligatory with regard
to the organized group — especially, the state — because it interests
that group? It is that conviction that gives the custom its legal charac-
ter, differentiating it from simply moral, non-legal customs. N o r is there
anything to prevent a custom that originally is a moral one or one of
manners from attaining the rank of a legal custom: T h i s phenomenon
will be brought about precisely when in the public of the group — in-
cluding the chiefs, who are parts of the public as well, and who some-
times lead it — there germinates the idea that the effective practice of
these morals or these manners touches in some manner upon the life of
the group or its social ideal, either as a factor of cohesion among its
members or as a distinctive sign of its physiognomy with regard to com-
peting groups. M o r a l or social conformity thus comes to generate the
juridical rule.
There is the possibility or even the certainty that these distinctions
are hardly perceptible in the societies whose civilization has not ad-
vanced much, where the state has not y e t assumed a clear-cut form; it is
for the historian or the ethnologist to resolve that question. 2 1 B u t as for
the society that is ours, they are incontestably known and used not only
by the specialists of the law, but also b y the mass of the people: T h e y
instinctively grasp the difference between what t h e y ' c a l l "the l a w , " e
that is, statutes and official regulations, and the other norms of social
life. Possibly too, even in our society, the distinctive criteria might not
lend themselves to easy application. N o t always is there a neat cut be-
tween moral custom and legal custom, since it has happened that the
moral custom evolves toward "legality. " Y e t this is not sufficient to re-
ject a principle of distinction which is solidly based upon the facts of
social life as well as upon philosophical reasoning. 22
d [ C o n v i c t i o n of Tightness or necessity.]
20 On this doctrine, see ι F. GENY, METHODE D'INTERPRETATION ET SOURCES EN
DROIT PRIVE POSITIF (2d ed.) nos. 109-134, pp. 317 et seq.
21 It has been v e r y justly said regarding the relationships between l a w and morals
that " t h e confusion began in ancient times w h e n custom w a s considered at least the
principal, if not the exclusive, source of l a w , " H . D u p e y r o u x , Les grands problemes
du droit (dealing w i t h the w o r k of L e F u r ) , in ARCHIVES DE PHILOSOPHIE DU DROIT
ET DE SOCIOLOGIE JURIDIQUE (1938), nos. 1 - 2 , pp. 70-72.
* [ T h e French term used here is le code.]
22 On the setting apart of l a w , cf. F . R u s s o , REALITE JURIDIQUE ET REALITE
SOCIALE (Paris, 1942) 164-170, and more generally, G. del Vecchio, L'homo
Unauthenticated
SECTION 2. POWER AS THE SOURCE OF THE L E G A L R U L E
16. Power Alone Is Qualified To Lay Down the Legal Rule. If law
is not simply the rule of social life but the rule of civil society, it could
only be laid down by the power, or at least with the approval and conse-
cration of the power, which is qualified to act in the name of the civil
society, to wit, public authority. W e have here a condition that goes not
to the efficacy or the validity of the law but to its very existence. 1
It is by power that a society exists as a body; it is incumbent on
power to order the state and to regulate the conduct of the individuals in
conformity with the ends of the state. 2 In saying this, we do not adopt a
"dogmatic" or authoritarian conception of the law; we merely recognize
the organic and, in this sense, social character of the legal rule. Nothing
prevents the authority in the state from being organized in a democratic
fashion and exercised directly or indirectly by the nation itself; nothing
prevents the authority in the state from being decentralized on a terri-
torial basis or even on the basis of economic and social interests (cor-
porations). All that is a matter of the political constitution. 3 Nor is it to
be implied that the authority in the state, whether or not democratic,
whether or not decentralized, in working out its rules could not be
affected by, or even inspired by, the opinion prevailing among the
people. 4 In fact, whatever may be the regime of the government or the
w a y of establishing the legal rule — statute, custom, case law — a great
many people without official capacity collaborate in or contribute to the
formation of the law: Specialists in the moral and social sciences, pro-
fessional experts in the fields under regulation, and sometimes the mass
of the public. Very seldom are the rules the original and personal work
juridicus et l'insuffisance du droit comme regle de la vie, in JUSTICE, DROIT, ETAT

236-239.
1 See, in this sense, ST. THOMAS, SUMMA, la Uae, q u . 90, a r t . 3 ad resp., art. 4
ad resp., in fine ( . . . ) ; q u . 95, art. 4 ad resp. (tertio) ; q u . 96, art. 5 ad resp. C f .
C a r r e de M a l b e r g , Reflexions tres simples sur l'objet de la science juridique, in 1
RECUEIL D'ETUDES SUR LES SOURCES DU DROIT EN L'HONNEUR DE FRANGOIS GENY
192 et seq.
2 W e place ourselves f o r t h e m o m e n t on the p l a n e of the d o m e s t i c civil s o c i e t y ,
i.e., t h e state. T h e case of p u b l i c i n t e r n a t i o n a l l a w w i l l be considered b e l o w , nos.

38-40.
3 C f . ST. THOMAS, SUMMA, la Ilae, q u . 90, art. 3 : . . .; q u . 95, art. 4 ad resp.
(tertio); qu. 96, art. 5 ad resp. I t is possible, t o o , t h a t the f o r m of the political
regime influences t h e d e t e r m i n a t i o n of the c o n t e n t of public a n d e v e n p r i v a t e l a w .
C f . MONTESQUIEU, D E L'ESPRIT DES LOIS, b k s . V to V I I ( e d . G a m i e r 40 et seq.).
B u t see infra, n o . 138, n. 9.
' T h e relationships b e t w e e n l a w a n d o p i n i on w i l l be t r e a t e d b e l o w , in t h e p a r t
d e v o t e d to the e l a b o r a t i o n of the l a w , nos. 160 et seq., esp. nos. 164 a n d 165.
Unauthenticated
244 JEAN DABIN
of those in authority; the law develops slowly by largely collective work,
in which it is quite difficult to discover rights of authorship. In this
genetic sense, the law is social, at least as regards its substantial con-
tent: The society underlying the state, or, if one likes, "unorganized
communion," exerts pressure upon the state and thus influences its law. 5
However, law exists only from that moment when the state itself, by
its organs, has erected it as a law of the state, explicitly or by implica-
tion, directly or by renvoi (to a principle or another discipline). Prior to
that moment, the matter might well have been regulated (and it will
continue to be regulated) by morals, by social manners, or simply by
usages: The legal rule, in the sense of a law of the state, is absent. It
does not follow that the subject would then necessarily be free and that
his activity in the field which is assumed to be "empty of law" would
escape any censure, even on the part of the authorities of the state. It
means only that for an appraisal of his conduct from the point of view
of social discipline one can find no preestablished legal rule — whether
one of obligation or one of liberty — and that the cognizant judge (or
official) will have to work out the applicable norm in the special case, in
short, to fill the gap in the law. 6 In such a case, we witness the budding
of a new legal rule by way of case law (law in fieri).3·
ι j. The Courts, Creating Case Law, Constitute Power. Law, precisely,

does not always derive from statutes and regulations, which are the
direct and a priori modes of expression of the law. It may also derive
from decisions of cases, especially the case law of courts, and even from
custom. It is permissible, then, to inquire in what measure case law and
customary law emanate from the public authority which alone is quali-
fied to lay down law.
As regards the case law of courts (judicial or administrative), the
difficulty is only apparent. No matter how independent and, in this
sense, sovereign they may be, the courts instituted by the state to ad-
minister justice in the name of the state are evidently depositaries of a
part of public authority. 7 From another aspect, the law they apply is
5 On the "spontaneous elaboration of the l a w " and the unfolding by the societies
themselves of their natural ends, see F. Russo, op. cit. 33-37, 43-47, 54 and 55.
6 The question of how the judge will elaborate the principle of law applicable to
the special case is reserved for treatment below, nos. 131 et seq.
" [Law in the making.]
' The observation is obviously valid only for the courts of the state, even where
they are corporative courts established or agreed to by the state (system of judicial
decentralization). Its validity does not extend to private tribunals, corporative or
otherwise. Private decisions belong no more to the category of the law of the state
than does private legislation.
Unauthenticated
very much the law of the state, whether they find it formulated in
statutes or, in the absence of statutes, have to work it out themselves.
For it is all very well to claim to separate the judicial power from the
other powers of the state, the legislative and the executive, under the
pretext that the latter two would represent political power while the
power of the judge would be of exclusively legal nature. First, it is a
mistake to oppose law — the law of the state — to politics: Law, the
rule of the political society, is necessarily subordinate to the ends of
politics. Further, to the extent that the courts have to work out the law,
they have to do so very much as the business of the state and for its
ends, which is a political task. 8 Finally, it is illogical to regard as non-
political the judicial power when the latter, in the absence of a statutory
rule, is allowed to supplement the legislative power, which is eminently
political. In effect, the courts are competent, if not to legislate by way
of general disposition, at least to evolve case law, actually equivalent
to statute law, by the exercise of their jurisdiction. Most of the time,
though, such case law is formed but gradually and gropingly; hence it is
difficult to spot the instant of the birth of a rule of case law.
18. Custom Needs the Approval of Power. The problem is more deli-
cate for custom as a source of law. He who speaks of customary law
doubtless speaks of a societal rule which is conceived as group law, 9
yet withal is established by the society itself rather than by the state. Is
it necessary, therefore, to leave the law originating in custom outside of
the law of the state?
The question does not arise with regard to customary law proceeding
from the authorities of the state themselves — the parliament, the ad-
ministration, the courts — inasmuch as these authorities, as a result of
constant practice that has become imperative, create substantive or
procedural rules as to their own activities. Such customary public law
remains the work of the state which makes its own rule for itself
through its human organs. It will merely be necessary to verify the
legitimacy, according to the constitutional regime in force, of such a
system of autonomous formation of the law of the bodies and institu-
tions of the state. 10 Contrariwise, the difficulty appears most clearly in
assuming a customary rule of private law. Can it still be maintained that
* On the political character of the function of the judge in the state, see J. DABIN,
DOCTRINE GENERALE DE L'ETAT, no. 158, pp. 246-248. The opposite opinion proceeds
from a certain erroneous conception of politics as the struggle for power.
• See supra, nos. 8 and 9.
u Cf. R . Capitant, Le droit constitutionnel non icrit, and C. Girola, Les coutumes
constitutionnelles, i n 3 R E C U E I L G E N Y I et seq., 9 et seq.
Unauthenticated
246 JEAN DABIN
that kind of rule emanates from the state? This might be denied on the
ground that the rule has issued from the mass of the public, from
"unorganized social communion," and not from the community of the
state as such. But two observations are susceptible of resolving the
contradiction.
In the first place, whatever conception one may have of legal custom,
and even if one follows the classical doctrine in admitting that it may
exist without the concurrence of any authority 1 1 — still in the politi-
cally organized society custom undeniably is unable to play its role if
the authorities of the state refuse to attribute to it legal value: The
opinio juris b of those concerned must in effect be adopted by the courts
and the law-applying organs of the state. 12 Are these agencies bound to
accomplish that adoption, as they are bound to apply statutory legal
rules? That is another problem, which belongs both to theoretical juris-
prudence and to positive constitutional law. In principle, we see no
reason to deny a priori obligatory value to customary rules, even in re-
spect to the law-applying organs of the state, as long as these rules do
not oppose the end of the political society and the discipline which
the state is charged to maintain. He who speaks of law of the state thus
does not necessarily imply the elimination of the social environment as a
qualified formal source of legal rules. It is necessary yet sufficient that
the rule should in fact obtain the consecration of the state. In this sense
we speak here of law laid down by the state, without distinction between
the law derived from legislative or judicial sources, which issues from
the state, and the customary law, which issues from the social environ-
ment with the approval of the state.
We may further observe that in modern society, where the state has
definitely won its place as ruler of the community, the official sources
(statute and case law) are preponderant both in number and in value.
That preponderance is not accidental. It has often been shown that the
regime of the state tended to cause the ebbing of custom, that it calls
forth the system of statutory law, involving not only uniform and impar-
tial legality but also the form of the written statute enacted by public
authority. If the statutory law, completed by case law, is not the sole
mode of expression of the law of the state, it is the most normal and,
11 See, contra, 1 ED. LAMBERT, ETUDES DE DROIT C O M M O N LEGISLATIF (Paris,
1903) H I et seq. (Introduction, La fonction du droit civil compare.) A summary
of Lambert's ideas will be found in A. LEBRUN, LA COUTUME, SES SOURCES, SON
AUTORITE EN DROIT PRIVE (Paris, 1932), nos. 184-192, pp. 190-198.
b [Conviction of rightness.]
12 Cf. Ι M. PLANIOL, TRAITE ELEMENTAIRE DE DROIT CIVIL (12th ed. by G.

Ripert), no. 11: " A s for myself, I do not believe at all in the possibility of establish-
ing customary rules with obligatory validity outside of case law."
Unauthenticated
too, the most perfect mode. Moreover, no one contests that the statute
could abolish custom, so that where the latter exists, it is in some w a y by
the grace of the statute. 1 3 N o r does it take any subtlety to claim that,
to the extent that the customary rule satisfies the needs of social disci-
pline, the people instituting it function, in a word, as public authority.
Or again, if one likes, the regime of custom is equivalent to a kind of
direct democracy: Constitutionally the people, acting by w a y of custom,
would be qualified, as one of the very organs of the state, to produce
rules of private law. 1 4
19. Diversity and Hierarchy of the Rules According to the Creating

Organ. In the vast and necessarily complicated political societies of the
type of the modern state, the organs of the public authority, even if we
consider only the legislative function, are differentiated and hierarchical.
This gives rise to a gradation of equally differentiated and hierarchical
rules. In states federal in form, there are federal statutes upheld by
federal authority in matters called federal and valid throughout the
whole federal area; there are, on the other hand, the statutes of the
several federated states, valid within the borders of the area of each of
these states. Both in federal and in unitary states, always more or less
decentralized, there are, on the one hand, the rules laid down b y the
organs of the state (the central authority), valid for the entire area;
and on the other hand, the rules laid down by the decentralized powers
(provinces, municipalities) with the authorization and under the control
of the state. T h e municipalities and provinces of the past have more
and more merged with the state; but the latter has left or restored to
them legislative jurisdiction in certain matters (provincial and munici-
1 3 B y virtue of the same f u n d a m e n t a l idea ( p o w e r as the source of the legal rule
in the state) it is f o r enacted l a w , as the expression of the will of the power, not
only to declare itself w i t h regard to such and such a custom b u t also to regulate
the problem of the sources of l a w , in affirming its o w n p r i m a c y a m o n g the sources —
w i t h o u t being open to accusation of judging in its o w n cause and aiming at a
problem w i t h i n the competence of the sociologist and not the legislator (see, in the
l a t t e r s e n s e , 1 F . GENY, METHODE (2d ed.), n o . 5 1 , 2 id., nos. 88-90; A. LEBRUN,
op. cit., no. 1 3 s ) . I t is being f o r g o t t en that the mission of politics, of w h i c h the
enacted l a w is the organ, is to g o v e r n the social, w h i c h renders the enactment
competent both to give solutions and to settle the problem of the sources of
regulation.
" I t is remarkable that St. T h o m a s , supra, n. 3, puts the p o w e r to legislate in
the hands of the multitude (grouped in the state) or its representatives. T h i s ex-
pression m a y designate the elaboration of a l a w b y the people meeting in legislative
assembly as well as b y popular custom. See also, on this point, SUMMA, la Ilae,
qu. 97, art. 3 ad resp.: . . . ; and on free (i.e., democratic) societies, ibid., ad
3: . . . In the same sense, JULIAN in DIG. I, 3, 32, I : . . .
Unauthenticated
248 JEAN DABIN
pal bylaws and regulations). A hierarchy of the same kind is found in
many states, federal or unitary, among the rules originating in the cen-
tral authorities: In the technical terms of constitutional law, we dis-
tinguish between the statute, which is the work of the legislative power,
and the (general) order or regulation issued in application of statutes or
within the framework of statutes by the governmental [executive or
administrative] power (such as a royal order) or even by a minister
alone (a ministerial order).
The statutes or enacted laws themselves are divided, in regimes of
rigid constitutions, into constitutional laws and ordinary statutes, the
former binding all authorities of the state, including the legislator of
tomorrow, and subject to abrogation or modification only by a special
amending process, more complicated than the ordinary lawmaking
process. 15 Another kind of rule can be foreseen, already practiced in cer-
tain countries: The rule laid down by the occupational corporation as
an organism of public law, authorized to lay down rules in its occupa-
pational field as the provinces and municipalities are authorized to lay
down rules in the local territorial field.16 But these varieties, depending
on the public law of each nation, leave the essential idea intact: We
always deal with rules laid down by the public authority. Still, since the
lawmaking public authority is incarnated in different organs, each organ
must remain within the framework of its jurisdiction and, moreover,
lay down its rule in accordance with the prescribed forms and proce-
dures. Otherwise, the rule will be legally invalid. 17
20. The Rules Laid Down By Private Individuals Do Not Constitute

Law. On the other hand, the rules stemming from the wills of private
individuals by way of private legal transactions fall outside of the cate-
gory of the legal rule (in the sense of the law of the state), not only
because their obligating force is limited to the parties of the case, 18 but
also because the private will of itself is not competent to lay down rules
on the state level. This is true both for individual private acts (unilateral
1 5 T h i s hierarchy of rules has given rise to the theor y of the f o r m a t i o n of the
l a w b y less and less general, more and more individual " d e g r e e s " (Stufentheorie),
proposed by Merkl, on which see R . BONNARD i n R E V U E DU DROIT PUBLIC (1928)
668.
"On this form of decentralization — occupational decentralization — see J.
D A B I N , DOCTRINE GENERALE DE L ' E T A T , n o s . 203-209, pp. 331 et seq.
" C f . , in the same sense, on the significance of the objective v a l i d i t y of legal
rules, H. D u p e y r o u x , Les grands problemes du droit, in ARCHIVES DE PHILOSOPHIE
DU DROIT (1938) nos. Ι and 2, p p . 46-48.
" T h i s is the question of the general character of the legal rule, w h i c h will be
examined b e l o w , nos. 56-58.
Unauthenticated
acts or contracts, for valuable consideration or by way of gift, among
living parties or upon death) and for collective acts incorporating eco-
nomic or other groups, whatever they may be, which may have a genu-
ine regulatory power over their members. In the latter case of a "private
statute," as in the case of an ordinary obligation, it is always the private
will that is acting. 19 Supposing, then, that one adopts the theory of the
formation of law "by degrees" [of generality or concreteness] starting
with the most general and most fundamental law, to wit, the constitu-
tion,20 it will be well not to have the system embrace private legal acts,
which represent a principle different from that of the legal rule. 21 This
does not mean that the state or the public authority cannot consecrate
the obligating force between the parties to private legal transactions,
including collective acts. On the contrary, it may do so and, reserving
certain conditions, it ought to do so: The law of the state [etatique]
is not synonymous with a "statist" law that excludes the legitimate
autonomies of individuals and groups in the legal field.
However, in decreeing that agreements legally arrived at become the
statute of the parties, whether on the inter-individual or the corporative
level (as in Article 1134 of the Code Napoleon 0 ), the law of the state
does not elevate the statute of private parties to the rank of a statute
of the state. It maintains it on its subordinate level, but proclaims that
the private rule has obligating force as far as the law of the state is con-
cerned, that the latter sanctions the private rule in the same way as the
rule of the law of the state. In a word, the law of the state is enriched
by a new rule of general import, that of respect for the pledged word:
Pacta sunt servanda.d 22 Furthermore, it is understood that in the case of
a private act setting up a society or association endowed with personal-
ity, the rule created by the group for its members bears the character of
" N o doubt St. Thomas groups with "positive l a w " the cases of private conven-
tion as well as of "public convention" (i.e., the law of the state); see SUMMA,
IIa Hae, qu. 57, art. 2 ad resp. But there he defines the concept of positivity, not
that of laws. His thoughts about laws are expressed id. Ia Ilae, qu. 90, art. 3.
20 See supra, n. 15.
21 As to public legal acts, inasmuch as they lay down general rules, the solution
is obviously different: they realize the very concept of the law of the state. Cf.
D u PASQUIER, op. cit., no. 125, pp. 95-96; no. 130, p. 101.
0 [Art. 1134 of the Code Napoleon provides as follows: "Agreements concluded
in accordance with the laws shall have the force of law as to those who have made
them. They may be revoked only by mutual consent or for causes authorized by
law. They shall be executed in good faith."]
" [Agreements shall be observed.]
22 Cf., in the same sense, D u PASQUIER, op. cit. no. 101, p. 63; no. 125, pp.
94-95· In a different sense, G. del Vecchio, A propos de la conception etatique du

droit, i n JUSTICE, DROIT, ETAT 292-293.
Unauthenticated
2 50 JEAN DABIN
a legal rule as regards these members, but that this is a rule of corpora-
tive law, valid on the sole level of the corporation and otherwise under
the control of the state.
2i. Transformation of Rules of Private Parties Into Law of the State.

However, modern law knows cases of the transformation of private
rules into law of the state; such as, in the field of industrial relations,
the extension to an entire craft or industry, by means of state approval,
of stipulations inserted in collective bargaining agreements. 23 Appar-
ently, the issue is only one as to whom they cover: An agreement brings
into effect rights and obligations with regard to persons who have not
been parties to it at all. In truth, one has to do with a rule of private
origin which is not only incorporated into the law of the state but to a
certain extent converted into law of the state. Hence its obligating force
for all within the craft or industry regardless of whether or not they
participated in the collective bargaining agreements. This is an anoma-
lous and transitional mode of working out the laws of the state, which
proceeds by way of extending to everybody a rule first established for
some few. Under a regime of free corporations, where the group is
formed by those freely adhering to it and keeps the quality of an organ-
ism of private law, this process is the only one possible if it is desired at
once to create a rule valid for all within the craft or industry and to have
those within it participate in the making of the rule. Once the corpora-
tion is decreed to be compulsory and recognized as an organ of public
law with powers of decision (and not of simple consultation), it may
itself directly create obligatory rules as the law of the state, doing so
under the control of the state and in application of the idea of de-
centralization.
SECTION 3. L A W AND PUBLIC COMPULSION
22. As Regards Its Execution, Law Is Guaranteed by the State. The

rule of the social discipline of the state, which is laid down and promul-
gated by the state, is also guaranteed by the state, in the sense that the
state institutes certain means designed to realize its rule effectively and
to carry out what that rule prescribes as exactly as possible.
This necessarily follows from the idea of a rule or discipline that is
social. If the rule were not carried out, the end pursued would not be
23 S e e , o n t h i s p o i n t , J . DABIN, DOCTRINE GENERALE DE L ' E T A T , n o . 207 a n d r e f e r -
ences. Also H. Capitant, L'evolution de la conception jranâise en matiire de con-
ventions collectives du travail, in 3 RECUEIL LAMBERT § 171, pp. 515-517.
Unauthenticated
GENERAL T H E O R Y OF LAW
attained. N o w , by hypothesis, it ought to be attained volens nolens,a

since the social order, the very authority of the lawmaking state, is at
stake. T h e life of the law is in its being carried out: L a w that is in no
w a y active is dead law. True, the codes contain rules that are not applied
or are no longer applied, that are dead branches of legislation. B u t such
cases can only be rare: Normally, obedience should follow the precept
and does in fact follow it. Consequently, if the law wants to succeed, if
it wants to live, it should be fashioned so as to get itself obeyed, morally
by a certain adaptation to common opinion, materially by a complex
of measures of execution that m a y go as far as the use of compulsion. 1
23. Law That Is Not Obeyed Does Not Lose Its Validity as Law.
T h i s is not to say, however, that a rule that is not obeyed would cease
to exist and that disobedience would have the power to abrogate law.
There are those who define the law, at least as positive law, by speaking
of " l a w generally obeyed." B y that they mean that, lacking sufficiently
general obedience, law lacks efficacy and, in that sense, reality: This
is what they call "positiveness." 2 B u t the validity of a rule must not be
confounded with its efficacy. N o matter how necessary the effective real-
ization of the legal rule may be, that rule is nonetheless valid as soon as
it has been laid down in the correct manner: Its relative or even total
lack of efficacy destroys neither its existence nor its validity. If the con-
trary were true, the subjects of a law would be promoted to masters of
that law, which would mean not only anarchy but the overthrow of the
order. Again, how would one recognize and measure the degree of effi-
cacy upon which the obligatory character of a law is to depend? T h e
truth is that a law is valid, of objective validity, independently of the
opinio juris b of the subjects. 3 It is quite another question to know if it
is good to lay down or maintain a rule that would only receive disobedi-
• [Willy-nilly.]
1 On the compulsory or coercive character of civil laws, see ST. THOMAS,
SUMMA, la Ilae, qu. go, art. 3 ad 2; qu. 92, art 2 ad resp., in fine; qu. 95, art. 1
ad resp. and ad 1 ; qu. 96, art. 5 ad resp., in fine, ad 1 and ad 3. Contra: see H .
D u p e y r o u x , Les grands problemes du droit, in ARCHIVES DE PHILOSOPHIE DU DROIT
(1938), nos. 1-2, pp. 53-55. B u t independence of the validity of l a w f r o m its
efficacy does not imply that the v a l i d rule should n o t also be efficacious, and g u a r -
anteed to that end.
2 T h u s , f o l l o w i n g Kelsen w h o finds positiveness in the t w o characteristics of
v a l i d i t y a n d e f f i c a c y , R . CAPITANT, L'ILLICITE, I : L ' I M P E R A T I F JURIDIQUE 1 1 5 et seq.
. . . Cf. D u PASQUIER, op. cit. nos. 314 a n d 318.
b [ C o n v i c t i o n of Tightness.]
3 See, in the same sense, H . D u p e y r o u x , Les grands problemes du droit, loc. cit.
34-42, dealing w i t h the w o r k of L e F u r . Contra: Simonius, Quelles sont les causes
de l'autoriti du droit? in 1 RECUEIL GENY 204 et seq.
Unauthenticated
252 JEAN DABIN
ence. But that is a matter of legislative prudence, concerning only those

who govern. Inasmuch as the rule is laid down, it is not for the dis-
obedience of the subjects to strike it down with invalidity, indeed with
sterility. This is precisely why compulsion is instituted: T o insure the
observance of the rule against disobedience.
24. Abrogation of Statute Law by Contrary Custom. I t is true that

according to certain conceptions, which are sometimes accepted in
practice, the legal rule, where it has issued from statute law, is suscep-
tible of abrogation by desuetude, which entails a return to liberty; or
even of positive replacement by a contrary custom.4 Now desuetude as
well as contrary custom presuppose a failure, deliberate or from negli-
gence, to observe the rule: General and prolonged disobedience thus
becomes a source of law. But there would first of all be need to see if
the failure to observe the statute did not derive from its inapplicability
to those very subjects, so that the disobedience would be but apparent:
A statute that from the outset or by change of circumstances is inappli-
cable could not obligate. No one is bound to the impossible, and the
statute that would demand the morally or materially impossible is not,
or has ceased to be, a veritable statute. 6 Contrariwise, the true problem
appears where the lack of application of the statute would be caused
simply by the displeasure or disagreement it brings about. It is precisely
here that one may ask himself whether the solution of abrogation of
statutes by desuetude or, a fortiori, by contrary custom, ought not to
be discarded as it puts an official premium on disobedience. No doubt,
by hypothesis, the disobedience has ceased to be individual, it has be-
come collective: It is the mass that has become refractory, and therefore
the attitude of the individual who acts like the mass no longer has the
character of individual disobedience. Nonetheless the point remains that
the custom has formed as a result of accumulated individual disobedi-
ences and contrary to what legitimate authority had prescribed.
25. Special Case of Desuetude. As regards desuetude, however, we

may observe that it never results from the negative attitude of the sub-
jects alone, that in addition it requires concurrence on the part of the
' T h i s is the solution proposed, e.g., by ST. THOMAS, SUMMA, la Ilae, qu. 97,
art. 3 ad resp., in fine: . . . CI. A. LEBRUN, LA COUTUME, SES SOURCES, SON
AUTORITE EN DROIT PRIVE (Paris, 1932), nos. 433 et seq., pp. 461 et seq., and refer-
ences id. p. 467 η. i .
6 Cf., in this sense, ST. THOMAS, op. cit. Ia Ilae, qu. 97, art. 3 ad. 2, arguing from
the lack of utility or of adaptation of the law. And see 1 F. GENY, METHODE D'INTER-
PRETATION ET SOURCES EN DROIT P R I V I POSITIF ( 2 d e d . ) 4IO.
Unauthenticated
law-administering agencies (officials and judges) who fail to lend them-
selves to action, prosecution, and sanction. It is the passivity of those
agencies that permits, and hence realizes, desuetude, for their interven-
tion would have resulted in interrupting the prescription of the statute. 6
A still graver disobedience then, it will be said. But the aspect of the
problem has changed. No longer is it our concern to find out if the
disobedience of the subjects can entail the death of statute law: On that
point, the answer is in the negative. It is rather our concern to find out
if the law-administering agencies enjoy a certain freedom in the applica-
tion of statute law, a freedom that may go so far as to refuse such appli-
cation. The question is no longer one of the relationships between the
statute and the subjects, but one of the relationships between the differ-
ent "powers" or agencies in the state, particularly between statute law
and the case law of the courts. As for custom prevailing against statute
law, the same observation will apply, mutatis mutandis ; c although
at the beginning of a custom contra legem d there is disobedience of the
statute, the problem that arises is less one of the validity of the statute
in the face of the attitude of the subjects than one of the sources of law.
Two sources of law are in conflict: Statute and custom; the question is,
which is the predominant source. Again, the question relates to the
organization of the power to decree rules in the state, in short, to the
constitutional regime.7
26. In General, the Law Is Obeyed. Ordinarily, obedience to the law

comes about spontaneously, without state intervention, though not al-
ways without reluctance. No matter how numerous infractions may ap-
pear in the case of laws fettering human passions or imposing pecuniary
sacrifices, they represent but a rather small percentage in the total of
the unnumbered acts of social life: In general, property and life are
respected, debtors pay their debts, taxpayers pay their taxes . . . In
short, law on the whole is doubtless obeyed more often than it is dis-
obeyed. And that is fortunate, for otherwise no compulsion would stand
the test: The measures of enforcement would be paralyzed under the
avalanche of infractions. This is the partial truth involved in the saying:
Positive law (in the sense of "real," "realized" law) is the law generally
* See, in t h e s a m e sense, ST. THOMAS, SUMMA, la Ilae, q u . 97, art. 3 ad 3, in fine,

a r g u i n g f r o m the t o l e r a t i o n of a u t h o r i t y in regimes w h e r e the p e o p l e do n o t h a v e
the lawmaking power.
c [ W i t h c h a n g e s as the case m a y b e . ]
d [ C o n t r a r y to a l a w . ]
' I t m u s t b e r e c o g n i z e d , t h o u g h , t h a t t h e s o l u t i o n of t h e p r o b l e m of t h e rela-
t i o n s h i p s b e t w e e n case l a w a n d s t a t u t e l a w is delicate a n d f a r f r o m clarified.
Unauthenticated
2 54 JEAN D A B I N
obeyed. Should disobedience be general, compulsion would be powerless,
the law would cease to act and hence to live. It matters little, though,
what motive actually dictates obedience. A rule of social discipline is
entitled to require only conformity of action, independent of the recti-
tude or purity of intentions: Speaking socially, and thus juridically, it
is the result that counts, and that, by hypothesis, is attained. 8 But
clearly the fear of the sanction figures among the most active motiva-
tions of obedience to laws, whether as a stimulant for laws containing
commands, or as an inhibiting force for laws containing prohibitions.
The entire criminal law is founded upon the idea of the intimidating
force of punishment: The laws threaten force so as not to have to use
it or, at least, to have to use it only as a last resort.9
27. Sanction and Compulsion. Where voluntary execution fails, com-

pulsion thus enters the arena. What does this mean? The two notions of
sanction and of compulsion must not be confused to the point of never
distinguishing them. On the one hand, every rule of conduct ordinarily
implies a sanction, without that sanction as such having the character of
compulsion that inheres in law: The moral rule has its sanctions — sure
sanctions of the life beyond, and more doubtful earthly sanctions, con-
sisting in the reactions of tormented conscience, of outraged nature, of
shocked public opinion. As for the rule of social manners, it is sanc-
tioned by the approval or disapproval, manifested or perceptible, of the
public environment. Now those diverse reactions have nothing sub-
stantially in common with the sanction of legal compulsion. On the
other hand, there are in law sanctions that fully deserve that name and
yet do not in themselves constitute compulsion. In fact, the state can
decree plenty of measures that tend to bring about the execution of its
rule, specifically if possible, or else by an equivalent. Among these
measures, some are preventive, others compensatory or repressive. Now
nothing prevents us from calling these latter measures, which presuppose
the violation of the rule, by the name of sanctions. Thus, refusal to
discharge the obligation to do a certain act (jacere) is subject to "sanc-
8 Cf. ST. THOMAS, op. cit. la Ilae, qu. 92, art. 2 ad 4, who, starting from the
idea that the end of every law is to make man (morally) good, remarks that fear
of punishment may lead a man finally to obey delectabiliter et ex propria voluntate
[with pleasure and by his own will]. In any event, the law prescribes but the
virtuous thing and not the mode of activity of the virtuous man: . . . , id. qu. 96,
art. 3 ad. 2.
' Cf., in this sense, ST. THOMAS, op. cit. Ia Ilae, qu. 95, art. 1 ad resp. and
ad ι ; qu. 96, art. 5 ad resp., in fine. One can say that, modeled upon the law of the
Old Testament, a juridical law is and will always be a law of fear and not a law of
love, which means that its execution will always have to rest on force.
Unauthenticated
tion" by contractual damages or by dissolution of the contract; violation

of matrimonial obligations is subject to "sanction" by divorce or judicial
separation; injury unlawfully inflicted upon another, to "sanction" b y
damages in tort; theft, to "sanction" by restitution of stolen goods; ille-
gal contracts are subject to "sanction" b y nullity, and unlawful associa-
tions, by dissolution; the incompetent or malfeasant official is dismissed;
the parent betraying his trust is deprived of parental power, etc.
Y e t , to speak precisely, it is necessary that these sanctions themselves,
like preventive measures if any, and like the precept that is guaranteed
b y all such measures, be translated into reality. N o w they will be so
translated, in the absence of voluntary execution, by enforced execution.
Contractual and tort damages and restitution will be executed against
the goods of the debtor by means of various seizures (executory or con-
servatory) , the dissolved association that tries to reconstitute itself will
be dislodged and disintegrated b y physical compulsion. T h u s the law
does not limit itself to providing sanctions; it undertakes their effective
realization, and this is equivalent to the enforced execution of the vio-
lated precept. In other words, execution is always susceptible of being
attained b y force, whether directly, in kind, or indirectly, by the equiva-
lent of sanctions. In this, compulsion consists. 10
28. Punishment and Compulsion. Sometimes, in the gravest or most

urgent cases, the law provides a kind of sanction whose character is one
purely of satisfaction, tending to avenge the attack upon the law and to
prevent its recurrence. This is punishment in its multifarious technical
forms: punishment in its proper sense, civil penalty, fiscal penalty, and
so on. It is no longer a matter of compelling the effective observance of
the violated precept, of going back to the infraction, effacing its result
and somehow annulling it, or in short, of enforced execution, in kind or
by equivalent. It is rather a matter of prosecuting offenders: T h e viola-
tion remains accomplished, but the outrage inflicted upon the rule b y
the very violation is compensated for by a reestablishment of the author-
ity of the law, which is indicated b y the punishment. Forced execution
will intervene with regard to the punishment, but no longer with respect
to the violated obligation. In relation to the execution of the precepts,
the role of the punishment is only psychological and preventive: Acting
by w a y of threat, it tends to create a motive favorable to spontaneous
execution in the future. 1 1 Then, too, nothing stands in the way of pun-
10 Cf., as to the distinction between sanctions of compulsion and sanctions of

equivalence, J . BONNECASE, INTRODUCTION A L'ETUDE DU DROIT (2d ed. Paris, 1931)
no. 42, p. 79; D u PASQUIER, op. cit. nos. 137-138.
" T h e r e are also uncertain cases: equivalents or substitutes so little adequate
Unauthenticated
256 JEAN DABIN
ishment being cumulative with the forced execution of the precept; in
other words, the infraction may give rise to both forced execution and
punishment, the latter then subjecting to sanction the failure of volun-
tary execution and itself giving rise to forced execution.
29. Variety 0} the Forms of Compulsion. Of course, the forms of

compulsion and of the procedure of its application vary with the times,
the places, and the civilizations. The best compulsion being that en-
dowed with maximum efficacy, and efficacy depending upon contingent
circumstances, it will be understood that determination of the procedure
of compulsion is subject to the law of variation. It will also be under-
stood, since compulsion comes to grips with the persons of the subjects,
that the ideas current about the human personality, its rights and its
dignity, influence the regime of compulsion so as eventually to temper
solutions deduced from the single viewpoint of efficacy. There was a time
when the defaulting debtor was sentenced to imprisonment or handed
over to the creditor, whereas in our days execution against the person is
replaced with execution against property. The principle Nemo potest
cogi ad factum,e which no doubt is necessary, physically necessary where
execution of the obligation is not physically possible without the con-
curring will of the obligor, has been extended at least in civil matters to
the case where violence would have to be done to the person in order to
obtain his concurrence in the execution: Specific execution is then re-
placed by money equivalents. In some countries the death penalty has
been abolished, and mutilations of the body — cutting off the hand or
the tongue, or castration — are now in use only among barbarous
peoples. A more refined sentiment of justice has introduced the idea of
a necessary proportion between the gravity of the infraction and the
penalty, has banished from the law books the system of collective
punishments, and so on
Similarly, the mechanics of invoking the sanction vary with the
jurisdictions and subject matters of legislation. Sometimes compulsion
is set in motion motu proprio,f and the police organs see to it that the
law is respected without waiting for an order or permssion to that effect;
sometimes an action is required, ordinarily judicial action, instituted by
the particular injured individual or by any citizen whatever (popular or
taxpayer's action) or by a prosecuting organ of the state (the state
in their function of reparation that one may ask if the pretended reparation does
not rather have a penal character (such as damages to repair a merely moral
i n j u r y ) . S e e A . GIVORD, L A RESPONSABILITE DU PREJUDICE M O R A L ( G r e n o b l e , 1938).
* [Nobody can be compelled to do a thing.]
1 [Spontaneously.]
Unauthenticated
attorney). This is not to say that obedience would be optional, but
simply that the working of compulsion is subject to special rules, de-
pending upon the nature of the protected interests.
j o . Specific Characteristics of Legal Compulsion. But beyond the

diversities of foundations or details, legal compulsion is distinguished,
on the one hand, by its material character: It is not only psychological,
it is physical. The manus militaris e exerts pressure upon the individual's
body or property, he is affected in his liberty, in his estate, or in certain
capacities to act (prohibitions against activities in commerce or man-
agement). On the other hand, legal compulsion is distinguished by its
organized and technical character: At least in states worthy of that
name, pressure results from a machinery preconstituted under precise
rules, functioning in an impartial, objective, and sure manner. 12 From a
formal point of view, that capacity for exaction by force most neatly
defines the legal rule, and especially the legal rule of the state. 13 It
justifies the designation of "public power" that has been given to the
state: The state is power not only because it has the right to sanction
its orders by force, but also because it has, and must have, the imple-
ments of that power. The order of the state, at the border line and in
case of need, is the order of compulsion, of armed force. T o satisfy the
requirements of compulsion it is not sufficient, therefore, that the ordi-
nance be sanctioned by public opinion reacting in its own diffuse and
incoherent manner. A discipline abandoned to the sanction of opinion
is a discipline disarmed and consequently deficient from the legal point
of view.
This is not to say, though, that force would always succeed in all
cases or even with regard to all rules. Despite the power of the state,
there are always smart people who contrive to violate the laws without
incurring the rigors of compulsion; or, again, certain rules are psycho-
logically or technically awkward to apply, so that the machinery of
compulsion lends them but insufficient aid. In any case, actual inefficacy
or impotence of compulsion can affect the validity of the rule even
less than disobedience: That validity binds, and continues to bind, by
virtue of the very disposition made by the rule.
* [ A r m e d force. ]
" B u t see, to the c o n t r a r y , 2 L . DUGUIT, TRAUTE DE DROIT CONSTITUTIONNEL
(3d ed.) § 19, pp. 208-209, w a n t s to retain only the idea of "social sanction,"
excluding that of public compulsion w h i c h to his m i n d is too precise; also F . R u s s o ,
op. cit. 152 et seq.
13 Cf., in the same sense, D u PASQUIER, op. cit. nos. 2 and 3.
Unauthenticated
258 JEAN DABIN
31. Special Cases of Legal Rules Without Compulsion. Sometimes, it
is true, one finds in the codes leges imperjectaeh which, by design or
otherwise, are divested of compulsion and even of sanction. 14 But what
do those anomalies matter? Do they not say by designation that they
represent "imperfect" law — imperfect by the lack of compelling sanc-
tion? In pure logic, compulsion and, generally, measures of execution
are but an adventitious element with regard to a rule, adding to it with-
out becoming an integral part of it. The rule is complete and it obliges
as soon as it disposes and prescribes; the rest is a matter of execution
which does not touch upon the precept. But in law it is otherwise. The
execution is tied to the precept because it is the function of law as social
discipline to act upon society and hence to realize itself. It is not merely
for the individual to realize the law; the law itself must prepare and
attain that realization by measures of execution, and especially of com-
pulsion.
As for the obligations called "natural" in civil law, they are essentially
foreign to the law: Legally, they do not oblige, since he who is subject
to them is free not to carry them out. These obligations are not legal
and, in this sense, they concern the law only by reason of the effects
which laws attach to their voluntary execution (denial of rescission,
denial of the character of a gift) or to their acknowledgment (transfor-
mation into an obligatory civil indebtedness), and no less by reason of
their origin, since they derive from a degenerated civil obligation
(nullity, prescription). Yet, even though consecrated by the law, the
natural obligations remain obligations that, in law, do not oblige. 15
32. Insufficiency of the Formula "Tendency Toward Compulsion.''''

The foregoing considerations enable us to understand why it is im-
possible to define the legal rule simply by a "tendency toward compul-
sion." 1 6 According to that conception, it would suffice that the rule be
" [Imperfect laws.]
11 The leges imperfectae of the Roman law are laws prohibiting a legal transac-
tion without sanctioning the prohibition. See F. SENN, LEGES PERFECTAE, IMPER-
FECTAE, M I N U S Q U A M PERFECTAE ( T h e s i s , P a r i s , 1902).
10This is so even if one claims a distinction between right and action, or between
Schuld (debitum [indebtedness]) and Haftung (obligatio [liability]). A right with-
out action, a Schuld without Haftung do not constitute legal bonds.
16 In that sense, all adherents of natural law: e.g., 1 F. GENY, SCIENCE ET
TECHNIQUE EN DROIT PRIVE POSITIF, n o . 16, p. SI; 4 id. p. 252; Ι J. LECLERCQ,
LEQONS DE DROIT NATUREL ( 2 d e d . ) no. n , pp. 45, 50; D u PASQUIER, op. cit. nos.
282 and 311. Equally so all adherents of the legal rule deduced from common con-
sciousness: e.g., Ι L . DUGUIT, op. cit. (3d ed.) § 8, p. 94 (see the quotation, infra,
no. 107). — But see the more recent study by F. Geny, Justice et force, in ETUDES
DE DROIT CIVIL λ LA M E M O I R E DE, H E N R I C A P I T A N T 2 4 1 et seq., w h o s e subtitle indi-
Unauthenticated
susceptible of sanction b y compulsion without such compulsion having
to be positively organized. T h e motive that dictates the solution is evi-
dent. One seeks in that fashion to safeguard the idea of a "natural "
law distinct from the moral rule and lacking compulsion (if not an obliga-
tory character and, in the special case of justice, the capacity for
exaction); to add effective compulsion would be the work, precisely, of
positive law. Y e t , apart from that attempt to justify natural law, one
must confess that "tendency toward compulsion" is a rather strange
answer. From the viewpoint of compulsion, that is, in distinguishing
rules from that viewpoint, two solutions are possible: Either the rule is
sanctioned by compulsion or it is not. Tertium non datur.1 Effective
compulsion alone provides the answer. T h e "tendency toward compul-
sion" leaves the rule without compulsion; and hence that rule, with
regard to a rule sanctioned b y compulsion, remains but a rule of another
category or, at best, an imperfect legal rule. 1 7
33. Legal Compulsion as the Monopoly of the State. Instituted for

the ends of protecting the rule of the law of the state, compulsion, and
especially the right to punish, belongs only to the state and its compe-
tent organs. In this sense, compulsion is, and cannot but be, public. It
would be the reign of war and of anarchy if every citizen — or private
groups of citizens — had the right to employ force in order to guaranteee
the execution of the laws laid down b y public power, even under the
pretext that those laws would consecrate their own personal interests.
Private compulsion is at times excessive and at times insufficient: In-
sufficient on the part of the feeble against the strong; excessive, or in
danger of being so, on the part of the strong against the feeble. In any
case, it is disorderly and it provokes disorder. Historically, it was one
of the first tasks of the state in its formative stage to substitute its
justice and its compulsion for private justice and compulsion and
gradually to monopolize the coercive power. T h a t was the logic of its
role. As for punishment in particular, one conceives the right to punish
only as the prerogative of a superior authority and not as a right of an
equal against an equal. When one speaks of a private penalty, one deals
not at all with a penalty inflicted b y a private person but simply with a
penalty — or a reparation — called forth to sanction a private wrong,
an injury done to a private interest. T r u e punishment can only be
cates its tendency: Pour Vintegration de la force dans le droit [ F o r integration of

force w i t h l a w ] .
' [ T h e r e is no thir d alternative.]
17 Cf., in the same sense, P . Cuche, A propos du "positivisme juridique" de
Carre de Malberg in MELANGES CARRE DE MALBERG (Paris, 1933) 75-76.
Unauthenticated
JEAN DABIN
public, since only the authority that has laid down the rule is qualified
to exact vengeance for its transgression.18
34. Special Cäses of Private Compulsion. It does happen, however,

that private individuals find each other recognizing a certain right to use
material pressure — physical or economic force — in order to safeguard
the rights they hold by the rule of social discipline (private compulsion).
The classical case is that of legitimate self-defense: An individual under
attack against his life or his property has the right to defend by force
his right to live or his right of ownership. But the question there is less
one of compulsion tending to prevent the violation of the rule guarantee-
ing human life or property than one of instinctive defense of the essen-
tial goods that life and property are for everyone. In any case, the right
of legitimate self-defense plays a subsidiary part: It is admitted only in
the case of necessity, given the inability to have recourse to public force. 19
On the other hand, there are means of economic pressure consecrated
by the social rule itself: Such are the right of retention and the exceptio
non adimpleti contractus) The thing that is due will be delivered only
if the opponent in turn has performed his obligation. But, again, there
is here not so much a means of compulsion put at the service of the legal
rule (notwithstanding its compulsive value, which is by the way rather
psychological) as the application of an elementary idea of reciprocity,
postulated by justice and good faith. Do we have to point also to the
boycott and the blacklist? In cases where they are used legitimately,
they represent the exercise of a right of contractual freedom that is no
longer put at the service of other rights or of a law, but of mere interests
in the field of the competition of life, so that the process no longer offers
any analogy to the idea of legal compulsion.
35. Disciplinary Power of Private Bodies. Let us add that the rule of
the law of the state alone is susceptible of sanction by compulsion, and
above all by punishment. The inferior and subordinate groups may well
enjoy what is called "disciplinary" power, authorizing the application of
so-called disciplinary penalties on the part of the group against members
who have offended against the rule of its internal law. But that disciplin-
ary penal power differs from the power of the state in extent and char-
acter. Not only is it limited as to the kind of offenses and the kind of
penalties; but even where the authority of the group is competent to
18
See, in the same sense, ST. THOMAS, SUMMA THEOLOGICA, la Ilae, qu. 90, art. 3
ad 2; qu. 92, art. 2 ad 3 ; IIa Ilae, qu. 60, art. 6 ad resp. and ad 1.
18
See, in the same sense, D u PASQUIER, op. cit. no. 140. . .
1
[Plea of non-performance of the contract by the other party.]
Unauthenticated
step in, there is always reserved an appeal to the state as the judge of
last resort. 20 Thus, controversies between husband and wife, parents and
children, even in the field subject to the exercise of marital or parental
authority, are susceptible to judgment by the state. Little would it avail
the father of the family to oppose to it his disciplinary power, which
indeed derives from the authority over his family that the state recog-
nizes. That disciplinary power does not withdraw him beyond the con-
trol of the public authority, which is superior to it. T h e same, mutatis
mutandis, goes for the rights of the authority of a corporate body over
its members. Where the state exists, the whole legal system of those
groups, including the disciplinary power, is in a certain way subordinate
to the legal system of the state, whose mission it is to pare down possible
abuses of the authority and disciplinary power of the groups over their
members.
The Objections Against This Definition
36. The Rules of Public Law by Which the State and Authority Are
Constituted. However, the definition of law which has been proposed and
commented upon above is seemingly condemned by the existence of a set
of rules everybody calls legal, which are far from corresponding to the
traits here presented as essential. Such are several rules of municipal
[national] public law and, even more, public international law.
As for municipal public law, one could think first of all of the cate-
gory of rules by which the public authority itself is constituted (form
of government, distribution of powers, etc.). How could the rules organ-
izing authority in the state emanate from that authority which, by
hypothesis, does not exist yet? How could they even emanate from the
state, which comes into being only with the differentiation of the rulers
and the ruled? Logically, the constituted power cannot at the same time
be the constituent power. Thus the definition which ties the legal rule
to authority and to the state, acceptable as to rules set down by the
authority for its subjects, private individuals, and officials, could no
longer be accepted as to the rules, logically and chronologically anterior,
by which that authority is founded.
Y e t upon reflection this is a specious objection. As the principal basis
of the constitutive charter of authority and of its statute, one always
discovers again an authority, which is a public authority. That author-
ity — a whole people, a fraction of the people, a minority, or a single
chief — is doubtless not the constituted authority, but it is the con-
20 C f . , i n t h e s a m e s e n s e , A . LEGAL AND J . BRETHE DE LA GEESSAYE, op. cit. 184
et seq., 321 et seq., 461 et seq.
Unauthenticated
202 JEAN DABIN
stituent authority. It has no strictly legal title, but it has a moral title,
at least to the extent that it can avail itself of certain arguments of
legitimacy. On the other hand, that constituent authority is a public
authority, even though the state is perhaps not yet constituted, because
everything that relates to the state, already constituted or still in the
process of constitution, necessarily takes on a public character, at least
b y intention. 2 1 In quite the same way one would try in vain to embrace
within a single principle, and consequently within the same definition,
the law that is made and the competency to make law: A t the origin of
the law must be a principle which could not be law, a kind of moral and
political principle which, if one likes, one m a y call "natural political
l a w . " 22
57. The Rules of Public Law Governing the Activities of Those Who
Hold Authority. More pertinent is the objection that touches upon the
category of rules of public law governing the activity of those who hold
authority, whatever their functions may be — legislative, administra-
tive, or judicial. For it is understood that in a state under the rule of
law there are rules not only for the subjects in their relationships with
each other and with the state of which they are members but also for the
officials and the rulers, who have to discharge their functions according
to jurisdictional, procedural, and substantive norms determined b y
public law, which is constitutional and administrative law.
N o w , whatever the mode of organization of authority may be, what-
ever precautions m a y have been taken to prevent abuses of power and
to subject each organ of authority to its law, there will always be in the
state authorities that are practically irresponsible, which will obey their
rule only if they wish, against which at any rate the employment of
compulsion is impracticable, indeed inconceivable. This is so for all
organs supreme within their branch [of the government] 2 3 H o w can
public force be mobilized against Parliament, against the Executive,
against the Supreme Court or the Supreme Administrative Tribunal? k
One may well provide sanctions of annulment or restitution against their
21 C f . G. GURVITCH, L'IDEE DU DROIT SOCIAL 1 1 9 : " T h e r e are communities w h i c h
b y one and the same act engender their l a w and f o u n d their existence upon it,
w h i c h create their existence in engendering the l a w that serves as their f o u n d a t i o n . "
H e adds: " T h e s e communities in w h i c h constitution through the l a w and generation
of a l a w coincide are, precisely, n o r m a t i v e f a c t s . "
23 A s to this concept of political natural l a w , see infra, nos. 205 and 215.
23 C f . ST. THOMAS, SUMMA, la Ilae, qu. 96, art. $ ad 3: the prince is b e y o n d the
l a w quantum ad vim coactivam legis b u t n o t quantum ad vim directivam legis
[as to the compelling b u t not as to the directing force of the l a w ] ,
k [ T h e French designations are Cour de Cassation and Conseil d'Etat.]
Unauthenticated
acts, measures of recall or punishment against the persons of their in-

cumbents. B u t the better is often the enemy of the good, and it may
happen that sanctions would be more damaging than the illegalities they
would strive to remedy. Thus, in countries with rigid constitutions which
have no judges to apply sanctions in one w a y or another to the uncon-
stitutionality of statutes, the ordinary legislature is in fact free to violate
the constitution. Again, wherever the judicial power enjoys independ-
ence, the supreme organ of that power, the Supreme Court, although
subject to the laws and charged with assuring their observance by the
courts, is in fact free to violate the law under color of interpreting it.
T h e question then arises whether such rules, involving neither com-
pulsion nor any organized sanction whatever, still belong to the category
of law. T h e answer has already been given for the leges imperjectae:
W e are dealing with law, not with morals or manners, since we have to
do with rules of societal character laid down by public authority; but
we are dealing with imperfect law to the extent to which compulsion, the
guarantor of effective execution, is lacking. 2 4
38. Public International Law: The Lack of Compulsion. More trou-

bling is the case of public international law. Here one views primarily the
relationships between states. N o w it is a fact that at the present stage
of international relations, there exists no organized international society,
universal or even regional, capable of laying down for the member states
a rule of an inter- or super-state social discipline. Consequently, our
definition breaks down in its foundations: N o society, no authority to
set down the rule, no sanction or compulsion to provide for its realiza-
tion. And yet everybody talks and keeps on talking of international law.
L e t us observe at once that, if law it be, it will be a law imperfect on
the side of compulsion. On the one hand, the possible disapproval by
international public opinion (represented b y the other states and citizens
of those states, perhaps also by a fraction of the public of the transgressor
state) could not count as a legal sanction. 23 Still less could the protesta-
tions of the state that may be victimized do so, nor the reprisals taken
by it, war not excepted. W a r may well have its justification, especially
in the case of legitimate self-defense, which is individual by hypothesis;
24 T h u s , authors w h o exclude organized compulsion f r o m the definition of law
are obliged to recognize that f r o m the v i e w p o i n t of application (a v i e w p o i n t essen-

tial in l a w ) "there is l a w , in the full and complete sense of the term, only w h e n the
rule is recognized and protected b y the social p o w e r " : F. R u s s o , op. cit. 156. See
also F. GENY, op. cit. supra, n. 16. — T o others, compulsion w o u l d not be indis-
pensable; . . . see M. Reglade, Essai sur le fondement du droit, in ARCHIVES DE
P H I L O S O P H I E D U DROIT ( l 9 3 3 ) , n O S . 3 - 4 , p p . 1 8 4 - 1 8 5 . . .
25 See supra, no. 30.
Unauthenticated
204 JEAN DABIN
but it does not conform to the concept of legal sanction, which supposes
compulsion exercised by the authority of an organized group. 26 On the
other hand, the efforts made since 1919 to set afoot means of compulsion
of a legal character have finally failed: Rightly or wrongly, several states
which were bound by the terms of the Covenant of the League of Na-
tions to collaborate in the sanctions decreed by the "societal" authority
declined. And no doubt it will take time before a machinery of compul-
sion is ready to function that is both adapted to the particular features
of international life and sufficiently efficacious.
39. Public International Law (Continued): Absence 0} an Interna-

tional Public Society. But if the lack of compulsion leaves only an im-
perfect law, does not the absence of an actual and concrete international
society cause the very concept of law to disappear, at least as it has been
defined, as a law of a group? Despite its logical appearance, the conclu-
sion seems excessive, for the following reasons. No doubt one finds
among the states no society as perfected as the various internal political
societies in which citizens are grouped together; especially, one meets
with no authority here that is properly legislative or executive. Contrari-
wise, there exist international tribunals (courts of justice and courts of
arbitration), creators of rules of judge-made law, and especially a more
or less developed international custom, resulting from the constant prac-
tice of states in their mutual relationships. Now, just as custom at the
domestic level is a source of true law, that is, of an institutional social
rule, although it has not been laid down by public authority, 27 just so
and a fortiori it conserves that character of a generator of law in its
proper sense, of an institutional social rule, at the international level. 28
On the part of states, and generally of collectivities, the adoption of a
common rule indicates a desire for coordination and organization which
one cannot discover to the same extent in the attitudes of private indi-
viduals who submit to private custom. At the international level, the
phenomenon of custom is more than the foreshadowings of a society of
M A s to war, the theological tradition is to the contrary: it considers the just
war a legal sanction. On the other hand, many sociologists speak of a punishment
procedure of primitive l a w ; see, e.g., P. Guggenheim, Contribution au Probleme
sociologique du droit international, in 2 RECUEIL LAMBERT § 76, pp. 117-118. But
individual, unorganized reactions, even when justified, do not constitute a legal
sanction.
28 See, in the same sense, D u PASQTJIER, op. cit. nos. 8 and 41. It is wrong, by
the w a y , for certain writers on international law to claim that international custom
is to be traced back to a tacit agreement, for custom binds every state regardless of
any individual acquiescence.
Unauthenticated
states: It is at once its bait and its embryo. Among states, the recogni-
tion of reciprocal rights and duties, which can only be functional rights
and duties, 29 engenders a quasi-society. 3 0
40. International Custom Is Subordinate to the Category 0} Law.

Y e t , it will be said, are the rules that have issued from international
custom really legal rules? W h y should one not assign them to the cate-
gory of morals or that of social manners?
There could be no question here of a rule of the manners of social
convenience since, b y hypothesis, this is a matter not of convenience but
of obligation: T h e state is bound, in the absolute sense of the word.
Neither could there be a question of morals since, in truth, morals govern
only individuals and not collectivities, without distinguishing between
collectivities that are persons and those not endowed with personality.
Often there is confusion here, due to the ambiguity resulting from the
expression, "international morals." All human individuals, in whatever
field they may act, for themselves or for others, are subject to morals, in
their domestic and international public activities as in private business
or family life. In this sense, it is true that there exist "international
morals" and that there are not two sets of morals, one for individuals
and another for states. T h e "political" lie, the "political" assassination,
committed in the name of the state or for political ends (the pretended
good of the state or the community) are and remain lies, assassinations —
morally and politically. But it does not follow that the states themselves
and the public and private collectivities generally, are subjects of
morals. T h e idea of morality, in its exact and complete concept, is in-
separable from the idea of personality. Only the real, substantial persons,
endowed with their own reason and will and provided with an end of
their own, are susceptible to merit and demerit, to an obligation of con-
science, a right intent, a moral perfection. N o w the collectivities, even
where they unite in themselves the conditions of so-called moral person-
ality (which is the case of the states), have only an accidental, func-
tional personality, and this cannot be reduced to the idea of morality. 3 1
29 On this functional character, see J . DABIN, DOCTRINE GENERALE DE L'ETAT,
no. 296, pp. 478-480.

" O n e could a d d other considerations, d r a w n f r o m the existence of veritable
international l a ws (act of regulation, l a w m a k i n g t r e a t y , act of u n i o n ) , as opposed
to an international contractual agreement; see 1 G . SCELLE, PRECIS DU DROIT DES
GENS 14 et seq.
31 T h i s is the reason, quite exact in itself, w h y GROTIUS, LE DROIT DE LA GUERRE
ET DE LA PAIX [DE JURE BELLI AC PACIS] (translation b y B a r b e y r a c , Basle, 1768)

[English translation, b y Kelsey, in SCOTT'S CLASSICS OF INTERNATIONAL LAW
( 1 9 2 5 ) ] Discours preliminaire [ P r o l e g o m e n a ] § 4 1 , refused to place international
Unauthenticated
266 JEAN DABIN
Contrariwise, nothing prevents us from talking of international law,
because states, like individuals, may be subjects of law, actively and
passively. Law, viewed from the standpoint of its beneficiary, in effect
consists in some prerogative residing in another in a somehow objective
manner. 32 That is why a legal title may perfectly well be found in the
head of a juristic person, and such a person may perfectly well be bound
to respect a legal title. 33 In this sense, there exist an international
"justice," which corresponds to law sensu stricto} an international
fidelity to the pledged word, engendering a law sensu lato,m and even an
international mutual aid, which together form the object of international
law in the sense of a norm governing the relationships between states.
CHAPTER II
C H A R A C T E R I S T I C S OF T H E L E G A L R U L E
41. Plan of this Chapter. Bound in its concept to the idea of the
society-state, which provides its specific environment and framework
(see Chapter I ) , the law is also and primarily, according to our defini-
tion, a rule of conduct. This thesis, seemingly clear enough, still requires
explanations. It is first of all to be proved that law really is a rule of
conduct, thus falling under the category of the so-called normative
sciences, and that it can always be reduced to a rule of conduct, at least
an underlying one. It is further to be shown what traits distinguish the
rule of conduct called "law" from other kinds of rules of conduct even in
the social field. It would be surprising, for instance, if the "societal"
röle of the legal rule remained without influence upon the physiognomy
of the legal imperative.
relations under natural l a w ( w h i c h he understood in the sense of the m o r a l l a w ;

see infra, no. 208): M o r a l s exist only for individuals, while states are subject to the
l a w of nations. C f . J . Lacroix , Elements constitutifs de la notion de civilisation, in
LES CONFLITS DE CIVILISATION (SEMAINE SOCIALE DE VERSAILLES, 1936, compte rendu
des cours) 105: " M o r a l s cannot a p p l y directly to social f o r c e s; they need the
mediation of the l a w . "
32 W e shall come b a c k to this characteristic of t h e l a w , in dealing w i t h justice,
infra, nos. 225-226.

33 Certain writers, to be sure, rejecting the idea of juristic personality, deny
that states are subjects of international l a w ; . . . see, e.g., G . SCELLE, PRECIS DX;
DROIT DES GENS, PRINCIPES ET SYSTEMATIQUE, passim . . .
1 [In the strict sense.]
m [ I n the w i d e sense.]
Unauthenticated
SECTION I . T H E L A W AS A PRECEPTIVE, CATEGORICAL

R U L E OF C O N D U C T
42. The Two Constitutive Elements of Every Rule: Hypothesis and

Solution. Analyzed in its logical structure, the legal rule, any legal rule,
consists of two parts, of which one indicates a hypothesis, the other
(in a word that prejudges nothing) a [consequent] solution. The hy-
pothesis states the conditions of the application of the rule, which by
the way are defined in the abstract: Such and such a situation existing,
such and such a solution shall or ought to follow. It matters little
whether the hypothesis is set out distinctly in a subordinate clause
starting with " i f , " "in case," "supposing," "on condition," "wherever,"
or is furtively included in the main clause setting forth the solution.
Take the rule: The minor lacks legal capacity. The hypothesis is: If a
person is a minor; the solution: He lacks legal capacity. Again, it matters
little whether the hypothesis consists in a pure state of facts, a state of
law, or a mixed state of facts and law. Take the rule: The spouse (or:
The owner, the creditor, the heir, the state, the Belgian citizen) has such
and such a right (or obligation). The quality of spouse (or owner,
creditor, etc.), which forms the hypothesis of the rule, is a state of law,
which again may derive sometimes from facts pure and simple and
sometimes from legal transactions. Take the rule of damages for injury
caused by fault. The two conditions of the right to damages are one of
fact: The injury, and one of law: The fault. 1 Equally little does it
matter whether the hypothesis presupposes that another legal rule has
come into play. Take the rule obliging the creditor who has been paid
by the surety to deliver to the latter the documents to facilitate the
exercise of his recourse [of subrogation] against the debtor. That pro-
vision presupposes the legal rule that the surety is actually bound to pay
for the debtor. Indeed, any rule laying down any sanction whatever —
punishment, damages, nullity, or rescission — is based upon another rule,
explicit or implied, namely, precisely the one whose violation gives rise
to the sanction. But what does that mean? Simply this, that legal rules
are not always separated from one another, that on the contrary they
are linked together, often forming a set or system; and hence, nothing
1 C f . the a n a l y s i s b y D u PASQUIER, INTRODUCTION Ä LA THEORIE GENERALE nos.
1 1 2 - 1 1 3 . T h e h y p o t h e s i s m a y , h o w e v e r , be q u i t e simple a n d consist o n l y in the

existence of a s u b j e c t , as in t h e rules w h i c h p r o h i b i t killing, assaulting , i n j u r i n g .
T o b r i n g these rules i n t o p l a y it is e n o u g h t h a t one h u m a n b e i n g be c o n f r o n t e d
w i t h a n o t h e r h u m a n being. See G . del V e c c h i o , L'homo juridicus et l'insuffisance
du droit comme regle de la vie, in JUSTICE, DROIT, ETAT 229, 231.
Unauthenticated
268 JEAN DABIN
stands in the way of the hypothesis of one rule being itself deduced
from an anterior legal rule. 2
43. The Legal Solution Is a Norm. But what interests us in the legal
rule for the moment is less the hypothesis than the solution. This con-
stitutes the essential element of the rule, the disposition it makes. The
question then is, what are the meaning and the nature of the legal
solution?
Differing from the scientific solution, which is a statement of fact
{sein, or the Is), the juridical solution is a norm, an order; that is, it
belongs to the category of principles directing conduct. Whatever the
origin, objective or subjective, of the legal rule, and even if one derives
it from some reality, social or natural, positive or ideal, 3 it indicates to
everybody what is "to be done," and at the same time it prescribes what
it indicates. In this respect, the legal laws are in no way comparable to
the laws of nature: Nature does not "obey" laws as man "obeys" a law.
The material things which together make up nature are just what they
are. They have causes and produce effects which in turn are just what
they are, their more or less regular, that is, constant sequence assuming
the name of natural "laws" or, as far as they are made explicit by the
scholar's work of statements, experiments, and interpretations, the name
of scientific "laws." But clearly those laws do not impose anything on
nature; on the contrary, they are the more or less adequate expression of
its being and of the manifestations of its being. Man alone, who is spirit,
is subject to laws put before his will and dictating his conduct (sollen,
or the Ought).
Nor should we confound the so-called sociological laws, which like the
laws of nature are laws stating facts (social facts of different orders,
economic, psychological, moral, etc.), with the legal or moral laws,
which are directing laws, distinct in themselves from the actual behavior
of men in society. Even admitting that normal social behavior can create
or reveal the directing norm of individual activities, this does not prevent
elevation of the fact of common conduct to the level of a norm of
conduct for every individual, which signifies a change of plane. 4
2 See, in the same sense, D u PASQUIER, op. cit. no. 115, from whom the illustra-
tion from the law of suretyship has been taken.

" T h i s is the problem of the origin or the mode of elaboration of the legal rule;
see infra, Part II.
* On all these points, cf. the two recent works of G. Cornil, Le droit n'est pas une
science, mais il y a une science du droit in 26 BULLETIN DE LA CLASSE DES LETTRES
ET DES SCIENCES MORALES ET POLITIQUES DE L ' A C A D E M I E ROYALE DE BELGIQUE, s e r . V
(1940) 7 6 el seq., 8 3 - 8 4 ; F . R u s s o , R E A L I T E JURIDIQUE ET REALITE SOCIALE (Paris,
1942) 48-60.
Unauthenticated
GENERAL THEOR Y OF LAW 269
44. Criticism of the Contrary View (Zitelmann). This distinction
between the laws of nature or, more broadly, of reality, and the rules of
human action does not undergo too much discussion, and with rare
dissents it is readily admitted by jurists. According to one of those
dissenters, however, Zitelmann, "a positive law never contains an order.
It is solely a general hypothetical judgment: It affirms that a certain
effect will be produced if a certain cause occurs. Consequently, the legal
rule should be read thus: If X does such and such a thing, Y will resort
to a sanction against him." "Will resort" and not "shall resort": The
legal rule is thus reduced to the scheme of the pure scientific law, simply
marking the relation between two facts, the fact of the sanction conse-
quent upon the fact of a certain attitude. 5 Reserving our criticism as to
the — inexact — fashion in which the relation between the sanction
and the rule is presented,6 we are told: " Y will resort to a sanction."
First, that remains to be seen: He will or will not resort to it: Only the
future will decide. Normally he doubtless will; but why? Because he
ought — or believes he ought — to resort to it, by reason of the rule
that charges public officers to take care of the application of the sanc-
tion. In a word, there is not only the fact of the sanction, but also and
first of all — b y definition — the duty of the sanction; at least for the
sanction, this restores the idea of the norm which was claimed to have
been discarded. 7
45. The Legal Rule Is Always a Norm of Conduct. The law is a norm
of conduct, in the sense that its direct or indirect objective is to govern
the conduct of private individuals (private law) and of officers within
the state (public law) or of the states themselves in the international
realm (public international law).
Opposed to this conception is the thesis of Jeze, who wants to replace
the idea of the rule of conduct throughout with the idea of competency:
L a w regulates competencies. I t organizes the legal capacity of individuals

and the jurisdiction of public officers. T h a t is all it does. P u b l i c and adminis-
trative law is concerned with the legal regime of the manifestation s of wills
occasioned b y the administration of public services. L e g a l analysis a l w a y s
leads the observer b a c k to stating the manifestatio n of the will of an indi-
vidual and determining the legal effects to w h i ch that m a n i f e s t a t i on of a will
m a y lead. T h i s is true f o r private law as well as f o r public and administrative
' Z I T E L M A N N , I R R T U M UND RECHTSGESCHÄFT (Leipzig, 1879) 208, 222.

* See infra, no. S3-
' S e e , in the same sense, the criticism of R. CAPITANT, L'ILLICITE 56-57, and
G. del Vecchio, L'homo juridicus, loc. cit. 230-231.
Unauthenticated
JEAN DABIN
law. The law — private law or public law — is always and exclusively con-
cerned with manifestations of the wills of individuals.8
Other authors introduce a distinction between the rule of conduct

properly so called, "prescribing how everyone ought to conduct him-
self" {Verhaltungsrecht, law of conduct), and the rule determining
the structure and functioning of public or private groups or organiza-
tions (Verfassungsrecht, law of constitutions). 9 In the same sense,
but in a more limited fashion, R . Capitant divides the law into
"police rules," concerning the substance of law, and "competence rules,"
qualifying an organ to create law. 1 0
46. Criticism of Contrary Views (Jeze, Burckhardt, R. Capitant).

But first of all, as already observed, 1 1 it is inexact to reduce all law to
rules of capacity and jurisdiction: Besides powers, proper or functional
ones, the law regulates duties, pure duties. Nor is it any more true that
the law is concerned only with manifestations of wills: Besides acts of
will, a great many other facts, non-voluntary or involuntary, in any case
foreign to the will, generate rules. On the other hand, if it is legitimate
to distinguish among the legal rules a Verfassungsrecht12 (of which
competence rules constitute but a fraction), that Verfassungsrecht does
not for that reason cease to be a rule of conduct. Groups, although they
constitute something distinct from the pure sum of individuals, never
are anything but the product of a certain ordering of member individuals
who are gathered together and integrated in obedience to the constituent
law of the group. T o constitute the state, its powers and services, is to
decree the rules of conduct to be imposed upon the persons, governing
and governed, who constitute the state. T h a t those rules are imposed
upon them qualitate qua,3· b y virtue of their relation to the group, de-
tracts nothing from the essential fact that in this field, just as in the
field of simply inter-individual relationships, the rule "prescribes how
one ought to conduct himself." 1 3 Furthermore, Verfassungsrecht, or the
8 G . JEZE, LES PRINCIPES GENERAUX DU DROIT ADMINISTRATIV: I. LA TECHNIQUE
DU DROIT PUBLIC FRANQAIS (2d ed. Paris, 1925) 7.

' W . BURCKHARDT, METHODE UND SYSTEM DES RECHTS (Zurich, 1936) 132 et seq.
(according to D u PASQUIER, op. cit., no. 116, pp. 8 6 - 8 7 ) .
10 R . CAPITANT, op. cit. 1 4 6 - 1 4 9.
" S e e supra, no. 5.

12 A s noted supra, no. 9, the societal l a w is, first, the l a w b y w h i c h the society is
constituted and functions, and then the l a w laid d o w n b y the society thus con-
stituted.
* t i n their quality as such.]
13 See, on this point, J . DABIN, LA PHILOSOPHIE DE L'ORDRE JURIDIQUE POSITIF
(Paris, 1929) no. 13.
Unauthenticated
competence rules, exist only with a view to Verhaltungsrecht. Groups

are instituted in order to act, jurisdictions, in order to be exercised. N o w
the principal activity of the state and its organs, outside of material acts,
is to direct its subjects b y means of legal rules and orders. As R . Capi-
tant says, "the competence rule has meaning only inasmuch as it pre-
pares for a police rule," i.e., a rule of conduct for subjects or for officers.
" I t is, then, but an indirect rule of conduct. Thus, it is the concept of
the police rule that is essential to law, and any definition of the law
neglecting that notion is necessarily inexact." 1 4
47. The Legal Rule Imposes a Precept and not Advice. N o t every
rule of conduct, however, necessarily involves a precept: T h e directive
may take the form of a wish, an advice, a recommendation, a suggestion.
T h e conduct to be followed is indicated; it is not imposed. It is thus not
altogether correct to say that "the word rule is synonymous with im-
perative." 1 5 Usually, the rule proceeds by ordering; that it may proceed
otherwise is not excluded. 1 6 B u t for the legal rule the case is clear: On
the one hand, the law is not content to advise or recommend, it com-
mands; on the other, its intervention remains limited to commands
without adding advice. 1 7
T h e law commands. Perhaps the authority would get a better response
if it used advice rather than precept. T h a t is a matter of national psy-
chology; and there are in fact circumstances where the state, not
daring to command, advises or, again, recommends and suggests. Good
policy, mindful of efficacy, may require such a mode of intervention.
But then the matter is precisely one of policy, in the sense of practical
politics, and not of law: It is of the nature of the law to prescribe. 1 8
So, too, advice would not bring about the necessary social discipline,
since the subjects would always be enabled not to follow it. Discipline
implies command, with the obligation to submit to it. Nor could there
be any question of confining the law to an advisory role: It is the right
14 R . CAPITANT, op. cit. 149.

15 R . CAPITANT, op. cit. 55.
" A s St. T h o m a s says, op. cit. la Ilae, qu. 91, art. 4 ad 2, " a d v i c e necessarily
proceeds f r o m some principles"; like the precept, it gives direction.
17 Cf., in the same sense, DE VAREILLES-SOMMIERES, LES PRINCIPES FONDAMEN-
TATJX DU DROIT I, 1 0 ( 7 ° ) and 12, pp. 13 and 16.

18 Cf., as regards suggestion, R . CAPITANT, op. cit. 93-97. Conversel y it is to be
noted that advice sometimes a m o u n t s to orders, b y reason of the authority of the

" a d v i s e r " or of certain possibilities of reaction in case of resistance. See, w i t h regard
to the auctoritas of the R o m a n Senate over the magistrates, 7 MOMMSEN AND
MARQUARDT, MANUEL DES ANTIQUITES ROMAINES (French translation b y P . - F r .
Girard, 1891 ) 231.
Unauthenticated
272 JEAN DABIN
and the duty of authority, its function and its very definition, to direct,
no doubt by way of advice but also and in the first place by way of
imperative command. 19
Aside from precepts, morals employ advice, inviting to a higher
perfection, which finds a field of application in all spheres of human
activity, including the sphere of social relationships. The law does not
demand that much: It demands what discipline requires, that is, only
the execution of what is commanded. Perfection resides in the exact,
prompt observance of the indispensable discipline: Neither more nor
less. T o go beyond the law would perhaps satisfy morals, moral advice
or even commands which are often more exacting than those of law.
Or, possibly, it would collaborate with some public policy tending to
bring about a certain social result or to encourage a certain "social"
attitude. This, added to the legal duty, which undoubtedly is of interest
to virtue or to society (ordinarily to both at once), still leaves the law
indifferent, since within the margin of its system it is essentially and
exclusively preceptive.
48. A Precept Underlies the Disposing and the Permissive Rules. But
it is not useless to show that an imperative does indeed underlie all legal
rules.20 This is evident as to many such rules; to wit, those which
directly command something (obligation to do) or, what amounts to the
same, prohibit something, a prohibition being nothing else than a com-
mand to avoid what is prohibited (obligation to abstain). It matters
little whether the formulation is in the present or future indicative
rather than the imperative (or subjunctive), once the rule really sug-
gests an order. 21 Take, for example, the rules that decree the obligation
to register births; to pay one's creditor; to pay damages for wrongful
injury; to provide for one's child; to observe prescribed forms; to enter
military service; to abstain from any wrong, civil or criminal, 22 from
any contract contrary to public policy or morality, or from the admis-
sion of inadmissible testimony. Obviously, these are imperative or pro-
hibitive rules in substance as well as in expression.
But there are cases less neat where the imperative remains implied in
18 Cf., in the same sense, ST. THOMAS, op. cit. I a Ilae, qu. 90, art. 3 ad 2; qu. 92,
art. 2 ad 2; also, on the necessity of the laws, especially the penal laws, qu. 95,
art. ι ad resp.·, qu. 92, art. 2 ad resp., in fine.
2 0 On the following, cf. ST. THOMAS, op. cit. Ia Uae, qu. 92, art. 2.
a R. Capitant is wrong in calling laws formulated in the indicative "declaratory
laws." W h y "declaratory," when they really lay down a precept?

22 The penal laws are equally imperative laws, commanding abstention from the
affirmative or negative act that gives rise to the penalty. They also contain an order,
addressed to the organs applying the law, to make the punishment operative.
Unauthenticated
the legal solution. T a k e the so-called "disposing" rules. B y assumption,

they neither command nor prohibit any act; they define interests and
rights, capacities and competencies; they determine the conditions on
which a certain legal effect begins or the legal effects of a certain situa-
tion. Still more generally, they resolve a question concerning the relations
among people — in short, they "dispose." For instance, the possessor in
good faith of a movable shall be its owner; one's domicile shall be at the
place of one's principal establishment; the child born to a Belgian
father shall be a Belgian; movable objects which the owner of real
property shall have affixed to it for its service and exploitation shall be
deemed immovable; the burden of proof falls upon the claimant; the
husband is presumed to be the father of his wife's child; the minor shall
have no legal capacity; the citizen registered in the electoral lists shall
have the right to vote; a certain organ shall have jurisdiction to make
a certain legal rule or decision.
Y e t every "disposition" involves an injunction to everyone — parties,
third parties, officials administering the law — to respect the legal
regulation. T h e thing commanded is here not a particular determined
act but obedience to a law according to the terms of its disposition.
For instance, when a law declares the possessor in good faith of a
movable to be its owner, that "disposition" implies a prohibition ad-
dressed to everybody, particularly the dispossessed owner, against con-
testing or contravening the right of the possessor. Whe n a law fixes the
domicile at the place of principal establishment, that "disposition"
obliges everybody, interested p a r t y or third party, private individual or
official, to relate to that place the effects the law attaches to the idea
of domicile. A s for a rule of jurisdiction, that "disposition" contains at
once a prohibition of action by any organ other than that declared com-
petent, a prohibition of the latter exceeding its jurisdiction, and an order
to its subordinates to admit the validity of decisions made b y the
competent organ and to conform their conduct to them. 2 3
T h e case of the so-called "permissive" laws (basically, a variety of
the "disposing" laws) is no different. T o permit is to recognize capacities
to act (or not to a c t ) , and therefore to command everyone not to
hamper the free use of the recognized capacity. 2 4
4Q. The Supplementing Laws. Stranger appears the case of the laws
known in private law as "supplementing laws." These laws intervene in
83 Cf., in the same sense as regards the l a w s of competence, R . CAPITANT, op. cit.
79-80, 147-148.
" S e e , in this sense, D u PASQUIER, op. cit. no. 1 1 7 , p. 88. C f . R . CAPITANT, op.
cit. 78-79, . . .
Unauthenticated
JEAN DABIN
matters that in principle are left within the realm of the wills of private
individuals, who have permission to settle them at their convenience.
When the law regulates them it does so only in a supplementing way, in
the absence of a contrary will responding to certain previously fixed
conditions. But one must not confound "supplementing" and "optional,"
as if the command degenerated to a sort of advice. The legal rule is
competent, and hence exists, only in a subsidiary way. But where its
competence is not discarded, it obligates in the same fashion as the
rule not susceptible to derogation, viz., by way of an imperative, and
with regard to the parties as well as to the judge. In the antithesis:
Imperative laws v. supplementing laws, the term "imperative" is to be
understood in the special, technical sense of laws not susceptible to
derogation, i.e., not supplementing. 25
50. The "Directives" or "Standards." As for the distinction between

the "standard," a new term to designate the supple or "directive"
rule, 26 and the legal rule, in the sense of a rigid rule leaving no place for
any power of discretion, it is surprising to see it invoked in a discussion
with which it has nothing to do. Whether "standard" or rigid rule, the
law is always imperative, whatever may be the flexibility or inflexibility
of its disposition.27
51. The Imperative Character of the Law Does Not Exclude Waivers.
Let us note, in conclusion, that the imperative character of the legal rule
does not necessarily exclude all capacity to waive facts or even rights.
In this connection, it is appropriate to distinguish according to the
public or private nature of the interest protected by the rule. Where that
interest is public, directly or indirectly, wholly or in part, closely or
remotely affecting the good of the state or the public, a waiver is think-
able neither on the part of private individuals, since the public interest
is engaged, nor on the part of officials, who are chosen to defend the
public interest, not to sacrifice it. Not only is a waiver unthinkable,
but the legal imperative will normally be executed through public or
25 Cf., in the same sense, R . CAPITANT, op. cit. 6 9 - 7 4 ; D u PASQUIER, op. cit. no.
118.
28 See A . A . A l . S a n h o u r y , Le standard juridique, in 2 RECUEH, D'ETUDES SUR LES
SOURCES DU DROIT EN L'HONNEUR DE FRANQOIS GENY 144 et seq.— Inexact : R .
CAPITANT, op. cit. 86, and D u PASQUIER, op. cit. no. 119 in fine, . . .
27 C f . , in the same sense, R . CAPITANT, op. cit. 82-85 > J· DABIN, LA PHILOSOPHIE
DE L'ORDRE JURIDIQUE POSITIF, no. 7 ; D u PASQUIER, op. cit. no. 119. B u t f r o m a n -

other point of v i e w the directive is an intermediate phenomeno n between the sta-
bility of the juridical and the m o v e m e n t of social l i f e ; see F . R r s s o , REALITE
JURIDIQUE ET REALITE SOCIALE, 140-142, 151.
Unauthenticated
private organs charged with pursuing such execution. Contrariwise,
where the protected interest is solely private, the beneficiary of the rule,
as the master of the value it recognizes — property or liberty, right or
capacity — is always free not to avail himself of it, free even formally
to renounce it. The law remains imperative for everybody, including the
beneficiary, who cannot prevent its value from accruing to him or at
least being available to him by the sole will of the law; but by virtue of
a new, equally imperative rule, by which every person who is of age is
master of his rights, he is not obliged to accept the legal benefit or to
take it into account. 28
It is a nice question, though, how to draw the line between the rule of
private interest and that of public interest, because of the close inter-
penetration of the two kinds of interests. Seen from the angle of abstract
generality, are not the private values, as human goods desirable for all,
matters of public interest?
52. The Legal Imperative Is Categorical and Not Conditioned, or

Technical. But here is a further distinction: The imperative of the law
is categorical.
Apparently this goes without saying, and it may be asked how an
imperative could be anything but categorical. But, rightly or wrongly,
since Kant one opposes to the straight, so-called categorical, imperative
a merely conditional, so-called hypothetical, imperative. Now the legal
imperative has nothing conditional about it. No doubt the law is condi-
tioned in the sense that the disposition of the rule is based upon a
hypothesis and that the command is unchained only inasmuch as the
hypothesis is in fact realized. The realization of the hypothesis thus
forms the condition of the application of the disposition; or, more ex-
actly, it is presupposed by the disposition. But while it may happen
that the realization of the hypothesis depends upon the will of the subject
individual, the same does not hold good for the disposition. Once the
hypothesis is realized, the command is binding categorically, independ-
ently of any condition whatever that may originate in the subject
individual or elsewhere. There exists an "obligation in case . . . ," not
an "obligation if . . ."; the disposition is conditioned, it is not condi-
tional.29 For instance, the rules governing the various kinds of contracts,
28
Very often private relationships are in fact regulated in a manner different
from that provided by the laws. It is for the party "most diligent," hardy, or able,
to initiate action; the others, letting things go, approve or tolerate it out of fear of
conflicts and misunderstanding. Vigilantibus jura prosunt [Rights are useful to
those who are vigilant],
29
See, in the same sense as to this distinction, G. del Vecchio, L'homo juridicus
et l'insuffisance du droit comme regle de la vie, in JUSTICE, DROIT, ETAT 228-230.
Unauthenticated
276 JEAN DABIN
whether under public or private law, whether relating to property or
other interests, presuppose the conclusion of the contract, which de-
pended upon the will of the parties; but once the contract has been
concluded, the rule of the law or of the agreement (the latter on matters
left to the autonomy of the parties) is called into play without condition,
at any rate on the part of the obligor. 30 The same goes for rules of
competence or jurisdiction, for instance in the field of creating law. The
law to be created·—-that is the hypothesis, which calls into play the
competence rule; the latter is conditioned. It does not at all follow that
its imperative would be conditional, even with regard to the authorized
organ. Although the latter may be free to create the law, that is, to
appraise the utility of that creation, it can proceed only according to
the rule of jurisdiction imparted to it. 31
The so-called hypothetical or conditional imperative, on the contrary,
is binding only in relation to a certain result of a technical nature; hence
its synonymous name, "technical imperative." If one wants to arrive at
the result (which for the "technician" is not always optional, for his
particular duty, which enters the picture, is morally and often legally
categorical), then one must take the means to it. B y this token, the
means is obligatory and in that sense commanded. Thus whenever the
question is one of accomplishing anything, whether a work of manual
or of spiritual labor (a scientific, artistic, or even legislative work), the
perfect realization of the work commands the employment of certain
means determined by the pure and applied science of the work envisaged.
Hence the conditional or hypothetical imperative, envisaged as such, is
reduced to a technical rule sanction (if one may speak of sanction) by
lack of success, by failure. 32
Never is the legal rule, with regard to its subjects, technical in this
manner. Assuredly, any rule whatever, the moral rule and the legal rule
as well as the technical, exists only in relation to an end. But there is
this capital difference that the technical rule serves the end of a work —
30 Except for the beneficiary's right not to invoke the rule; see supra, no. 51.
31 Confused by R. CAPITANT, op. cit. 147; and by Brunetti, dealing with the
Italian Civil Code, art. 401, as cited by G. del Vecchio, op. cit. 228. [Art. 401 pro-
vides as follows: "The provisions of this Title [On Minors entrusted to Public or
Private Assistance, and on Filiation] shall apply to minors who have not completed
their eighteenth year and who are children of unknown parents or who are natural
children recognized only by their mother who finds it impossible to provide for their
upbringing. The same provisions shall apply to minors found in an institution of
public assistance, or assisted therein toward their maintenance, education or reedu-
cation, or to those in a state of material or moral abandonment."]
8 2 Cf., in the same sense, DE VAREILLES-SOMMIERES, op. cit. I, 10(3°), pp. 1 2 - 1 3 ;
Del Vecchio, op. cit. 231-235; R. Bonnard, L'origine de l'ordonnancement juridique,

in MELANGES M A U R I C E H A U R I O U , 70-72.
Unauthenticated
a technical, special work, reserved in principle to the technicians, whereas

the moral rule and the legal rule serve the end of order — a human
order, valid for all men by reason of their quality as men. The human
order which is envisaged by morals is the essential human order: That
of perfecting man in his moral, spiritual being. Consequently, the rules
of end and means translating the conditions of this perfection to which
man is called necessarily have categorical character. 33 The same goes for
law. The human order envisaged by the law is that of life in common
within the framework of the political society. Now, since that life in
common forms an integral part of the condition of man, the correspond-
ing rules, even if technical by their material object, 34 have categorical
character. 35
5j. The Sanction Does Not Transform the Categorical into the
Hypothetical. The sanction, penal or otherwise, which accompanies the
legal rule, changes nothing in this analysis. The sanction is decreed not
in order to confer upon the subject an option between the disposition
made by the rule and the sanction; it is decreed, on the contrary, in
order better to guarantee the observance of the dispositon. The rule is
the principal; the sanction, the accessory. Far from transforming the
categorical imperative of the rule into a hypothetical imperative ("Ob-
serve the rule if you want to escape the sanction; nevertheless, if you
prefer the sanction, you have the right not to observe the rule"), the
role of the sanction is to come to the aid of the categorical imperative so
as to bring about its realization in conduct as far as possible. Otherwise,
the pretended sanction no longer corresponds to the concept of a
sanction. 36
True, certain authors, e.g., Kelsen, claim to distinguish a double
imperative in the rule, one categorical, addressed to the public agents
charged with applying the law and particularly with making the
sanction operative, the other hypothetical, addressed to the subjects on
condition that they would avoid the sanction. According to that concep-
tion, one would even have to say that the only rule is that addressed to
the public agents. But that reversal is as contrary to the requirements
of the social order as it is to the principles of logic. If the public agents
33 T h u s prudence — mora l prudence — is required b y a categorical imperative
although it constitutes the virtue charged with adapting means to ends.
** T h u s , e.g., the rules of social prudence decreed b y the legislator in the matter of
road traffic have the validity of a categorical imperative although they constitute
mere technical means of realization.
35 C f . R . CAPITANT, op. cit. 90-91, regarding the n o r m he calls economic or
sociological. . .
* Cf., in the same sense, R . CAPITANT, op. cit. 92-93.
Unauthenticated
278 JEAN D A B I N
have to apply the rule, it is just because the subjects, mere private
individuals or officials, did not observe it when they were bound to.
There exist in reality two equally categorical duties: For the subjects, to
obey the rule; for the public agents, in case of disobedience to apply
the sanction. It is not true to say, because the penal law — essentially a
law providing sanctions — addressing itself to the repressive judge,
decrees that the murderer shall be punished by death, it is therefore
permissible for the subjects to commit murder; nor that murder is
prohibited only on condition or for technical reasons, such as that one
desires merely to avoid the penalty for its repression.37
34. The Imperative Remains Categorical Even in "Risk Legislation."

Sometimes, however, the legal rule looks as if it contained a merely
hypothetical imperative or even left the subjects free to choose between
the rule and the sanction. The public registration of conveyances
seems to be of that character. 38 The law imposes the obligation of formal
registration only on condition that the grantee seeks the result attached
to registration, to wit, that the grant in his favor may be relied upon
against third parties; the means, registration, is commanded only in so
far as the effect, reliability of the conveyance against third parties, is
desired. If, for any reason (carelessness or otherwise), the grantee does
not seek that effect (sanction), he has the right to be disinterested in it
and consequently to do without registration (rule).
But that is an inexact analysis of the system. The imperative is there
used in reference to the term registration, whereas in fact it does concern
the connection established between the two terms, registration and
reliability against third parties. In reality, registration is not commanded,
and hence one could not talk of the ineffectiveness against third parties,
which is consequent upon failure to register, as a sanction. The law
merely decides that in order to have effect with regard to third parties
the conveyance must be registered, that a conveyance lacking registra-
tion cannot be relied upon against them. There we find the disposition
and at the same time the imperative: The effect with regard to third
parties is subordinated to registration; the latter is the requisite condi-
tion for reliability against third parties. No doubt the grantee has a
choice between registration, by which he can rely on the grant against
third parties, and failure to register, when he cannot so rely. But this
37 Cf., in the same sense, R. CAPITANT, op. cit. 97-103. Also, on the secondary
character of penal justice, G. del Vecchio, La justice, § 10, in JUSTICE, DROIT, ETAT
(Paris, 1938) 49-51.
38 The reference is to the Belgian system, where such publicity is ordinarily
optional.
Unauthenticated
alternative has nothing in common with that of rule and sanction: T h e

lack of effect against third parties is only the result — b y the way, an
obligatory, imperative result — and not the sanction of the failure to
accomplish the condition, to wit, registration, which remains entirely
free. On the other hand, as to the registration, one could not talk of a
hypothetical or technical imperative ( " R e s o r t to registration if you
want to obtain efficacy erga omnes b " ) ; otherwise, whenever a legal effect
is subordinated to conditions depending upon the operation of liberty,
the imperative would become hypothetical and technical. 39
This is not to say that in laying down the rule the legislator would
have had no preference as to the effective realization of publicity b y
registration. H e probably even counted upon the disadvantageous effect
of the failure to register in inducing the subjects to register; hence the
name "sanction" given to the lack of effect against third parties. But the
policy of the legislator and the legal rules he can lay down in applying
that policy are two distinct things. In this particular case, the legislator
did not push his policy to the point of decreeing an obligation to register
as a matter of law, or again his peculiarly legal policy lagged behind his
economic and social policy. T h e present subject of our inquiry is the
legal rule envisaged in its imperative role and not in its intimate rela-
tions with the general policy of the state.
55. The Categorical Imperative of the Law Is Binding in the External

and the Internal Forums. T o affirm the categorical character of the legal
imperative is not the same as going into the question, in what manner
that imperative is binding: In the internal forum, i.e., before the tribunal
of conscience, or in the external forum, i.e., before a human tribunal
armed with compulsion. T o resolve this new problem we must more
closely study the order to which the law belongs. N o w , although this
order, like that to which morals belongs, is a human order and not at all
a technical regulation (whence the categorical trait of the two rules), 4 0
the human order of the law is a societal order, instituted with a view to a
social end, more particularly the end of the society-state, while the
human order of morals is the order of individual conduct, in all fields
to be sure, including the political and social. Starting from that differ-
ence, it will be seen at the outset that, necessarily and in any event, the
categorical imperative of the law is binding in the external forum and,
necessarily and in any event, the imperative of morals is binding in the
b [Against e v e r y b o d y . ]
39T h e text rectifies the interpretation proposed in L a P h i l o s o p h i e de l ' o r d r e
JUR1DIQUE POSITIF, no. 12, pp. 48-49.
Unauthenticated
28ο JEAN DABIN
internal forum. A law which would not be binding in the external forum
would no longer be a societal rule, and that is w h y before the courts
and other organs applying the law everyone is responsible for the exact
observance of the rule. Morals which would not be binding in the in-
ternal forum would no longer be a rule of human life, and that is w h y
morals applies of itself, b y its very virtue, to each conscience, which
remains free to obey or not, under its responsibility.
But the problem is not thus solved, for interferences have to be taken
into account. It may happen, first, that the legal rule borrows one of its
precepts from morals. T h i s is a frequent case because order in society
presupposes a certain degree of effectively practiced morality. T o the
prescription of conscience is added the order of the public authority.
T h e converse assumption is more complicated: Can the legal rule which,
of itself and immediately, is binding in the external forum also be bind-
ing in conscience? A n affirmative answer could not be doubtful when
the moral rule explicitly or b y implication refers back to the legal rule.
I t does in fact happen that morals leaves it to the public authority and
to the legal rule to provide for the determination of the exact content
of its precepts depending on circumstances; say, for justice in the
different contracts. In that case, the law will be binding in the external
forum by virtue of its own nature and in the internal forum by virtue of
morals which refers to it.
However, even outside of any thought of reference from morals to law,
there is, in principle, ground for acknowledging that the legal rule is
valid in the internal forum. T h e ground is that, as far as the state, a
necessary and universal society, is concerned, the societal order is a
human order wanted by nature, whence it follows that the rules set forth
in the name of this natural human order oblige the subject in his
conscience. 41 M a n would not be fully man were he not a subject member
of society, respecting his obligations as a member, first among which
ranks obedience to the rules and orders decreed in the name of the so-
ciety by competent authority. Morals, then, enjoins upon the citizens to
obey the legal rule and makes this a duty of conscience, 42 at least when-
ever under the circumstances obedience is required for the realization
of the ends the legislator has set for himself. 4 3 Let us add that the duty
41 See, in this sense, ST. THOMAS, SUMMA, la Ilae, qu. 96, art. 4.
42 Thus the legal rule obliges, not directly by itself and by reason of its own
character, but solely through the intermediary of morals which, in a general fashion,
provides for obedience to just laws. The moral precepts, on the contrary, oblige by
themselves, by reason of the intrinsic value of their particular content.
43 Indeed, cases must be taken into account where the precept would be of value
exclusively as a means and where observation of the precept in the special case
would be of no use because the goal would definitely not be involved. Equity then
Unauthenticated
in conscience to obey a law does not at all imply the duty to find it
good, adequate or opportune; else how could the law progress? Equally
we reserve the case of unjust laws, which are so by being contrary to
the moral rule, for what is immoral could not bind the conscience.
SECTION 2. THE LAW AS A GENERAL RULE
5<5. The Thesis of the Advocates of the Individual Legal Rule. Is

the legal rule always a general one, or can one speak of an individual
legal rule?
Until recently, the legal rule was always defined as general and ab-
stract, addressed to the subjects in general, private individuals or offi-
cials, or to abstractly determined categories among them; e.g., to males,
to minors, to parents, to owners, to creditors, to merchants, to workers,
or to the authorities in general or of a certain grade, in short to "who-
ever shall fulfill a certain condition." 1 But there is a certain trend of
recent date among writers who see no inconvenience in admitting a cate-
gory of purely individual rules, "formulated so as to address one or
several specially envisaged subjects." And they thus contrast "objec-
tive" legal rules (in the sense of general, impersonal ones) with "sub-
jective" legal rules (in the sense of special, individual ones), or, as it
were, in a metaphor, ready-made with custom-made clothing. 2
Evidently, every general rule is called upon to particularize itself in
its application to individuals who are part of the envisaged "generality":
T h e precept laid down for all is valid for everyone in particular, and the
application of the general precept is necessarily individual. However, by
a general rule we understand a rule established in the abstract, outside
requires that the rule that is a means be binding no longer in conscience; see, in
this sense, ST. THOMAS, op. cit. Ia Hae, qu. 96, art. 6, and qu. 97, art. 4 ad resp.
E x c e p t i o n : w h e r e the judge, obliged to a p p l y the l a ws w i t h o u t distinction, has
intervened and pronounced sentence.
1 D E VAREILLES-SOMMIERES, op. cit. I, 5, p. 9. T h e generality of the rule is thus
b y no means s y n o n y m o u s w i t h u n i f o r m c o m m o n l a w , to the exclusion of all special

legislation applying to some social categories; on this point, see J . DABIN, op. cit.
no. 14, pp. 53-54· Also, on privilegia and leges privatae, as opposed t o leges com-
munes, ST. THOMAS, followin g Aristotle, SUMMA, Ia Ilae, qu. 96, art. 1 ad 1 ;
likewise q u . 95, art. 4 ad resp., in medio. N o r is t h e generality of the rule in-
compatible w i t h the idea of dispensation; on dispensation, see ST. THOMAS, op. cit.
Ia Ilae, qu. 96, art. 5 ad 3, in fine, and art. 6, ad resp., in fine.
2 See, in this sense, R . CAPITANT, op. cit. 58-68, 1 5 3 - 1 5 6 ; the representatives of
the Viennese School (Kelsen, M e r k l ) ; R . B o n n a r d , L'origine de I'ordonnancement

juridique, in MELANGES MAURICE HAURIOU (Paris, 1929) 3 5 - 4 1 ; H . D u p e y r o u x ,
Sur la ginirattti de la lot, in MELANGES CARRE DE MALBERG (Paris, 1933) 137 et seq.
Unauthenticated
282 JEAN DABIN
of any consideration of a particular individual and of an individual case.

It matters little whether that rule has been set down at one stroke, by
the process of statutory enactment, or issued from a series of judicial de-
cisions rendered for particular cases (judicial source). Always the rule,
statutory or judicial, is formulated for no one person in particular. On
the contrary, the pretended individual legal rule (not to be confounded
with the dispensation from a general rule, .which is indeed individual
but is not a rule) is intended for named individuals, prescribing the
conduct to be adopted upon a certain occurrence by one or several per-
sons determined by their singular characteristics.
In fact, the history of political thought knows the system of "gov-
ernment by decree" 3 and the regime of the police [or prerogative] state,
both proceeding by way of individual dispositions outside of any pre-
established general rule (jussa de singulis concepta, edicts or decrees
aiming solely at particular cases) .4 But, even outside of those assump-
tions, and along the lines of the principle of a state under the rule of
law, the advocates of the individual legal rule envisage under that term
the following situations, by way of example: The administrative deci-
sion rendered to the advantage or disadvantage of a person (such as the
assessment of a certain taxpayer for a certain amount); the administra-
tive order to a person to take certain sanitary measures on his property;
the order given by a superior to a subordinate in the official hierarchy;
or the judgment requiring of a certain litigant some performance, some
change in status or capacity; or the contract creating rights and obliga-
tions specially adapted to the convenience of the parties who have con-
cluded it or adhered to it. 5
57. Criticism of the Above Thesis. But this analysis does not seem
exact. That there exist individual legal situations — rights, powers, obli-
gations, and functions — flowing from sources other than the general
legal rule, is incontestable and uncontested; the administrative decision,
the judgment, the contract, are sources of such situations. It does not
3 F o r criticisms directed against this system of g o v e r n m e n t b y Aristotle, see M .
D e f o u r n y , L'idee de l'Etat d'apres Aristote, in 2 MELANGES VERMEERSCH ( R o m e ,

1935) 102-105.
* N e a r this conception one can perhaps place the "decisionism" of a Carl Schmitt
( w h o contrasts it w i t h an allegedly abstract and unreal " n o r m a t i v i s m " ) , on w h i c h
see K . W i l k , La doctrine politique du national-socialisme: Carl Schmitt, in ARCHIVES
DE PHILOSOPHIE DU DROIT ( 1 9 3 4 ) , nos. 3 - 4 , La crise de l'Etat 169 et seq.
5 Η. Dupeyroux, op. cit. no. 9, in MELANGES CARRE DE MALBERG 161, goes
farther. He applies the concept of the individual rule not only to acts rendering the
general rule concrete (judgment , administrative decision, c o n t r a c t ) , b u t also to
legislative acts containing a derogation of the general rule.
Unauthenticated
follow that the administrative decision, the judgment, the contract, are
legal rules. N o doubt the administrative decision, the judgment, the con-
tract, imply a command, an individual imperative, valid for the deter-
mined individuals, the addressees or contracting parties. B u t in them-
selves they constitute orders or sentences, and not rules, norms, or
laws, 6 because the legal rule, the norm, the law, called upon to govern
many cases, implies generality. 7 Perhaps it does not suffice to note that
law, as a social discipline valid for a generality, includes generality. 8
Social and general are not necessarily equivalent: On the one hand, an
individual imperative may perfectly well be conceived in a social sense,
taking account of the social interest; on the other hand, even in the case
of the social disciplines, the ideal would always be the particularized
solution, setting out for everyone his rights and duties, "custom-made."
But, quite apart from the danger of partiality, of inequality of treat-
ment and of arbitrariness, such a method is altogether impracticable: In
the social discipline, above all, it is impossible for the authority to assign
to everyone his line of conduct. A n d this impossibility suffices to justify
the principle of the generality of the legal rule. 9
Again, in the actual state of political organization, the pretended in-
dividual legal rules merely put into effect a general rule. If the adminis-
trative decision is binding upon the subject, this is so not by its own
force but because it is rendered in execution of a rule of public law com-
manding the administrator to make the decision he has made (without,
however, denying him a certain power of appraising discretion). If the
losing litigant is bound to comply with the judgment, this is by virtue
not of the imperative of the judge but of the imperative of a law on
which the mission of the judge and the authority of his judgment are
founded. If the contract engenders individual precepts for the parties or
adherents to the agreement, it is because the legal rule attaches such
effects to the conclusion of contracts: Pacta sund servanda, provided they
6 In themselves, f o r to the degree that the administration is authorized to issue
" r e g u l a t i o n s " or the courts have the p o w e r to render " r e g u l a t o r y " judgments, they
become legislators.
7 See, in this sense, ST. THOMAS, op. cit. Ia Ilae, qu. 96, art. 1 ad resp., ad 1 and
2 ; DOMAT, TRAITE DES LOIS chap. X I I , 16, and LES LOIS CIVILES DANS LEUR ORDRE
NATUREL title I, sec. I , 2 1 ; J . - J . ROUSSEAU, D U CONTRAT SOCIAL, b k . II , chap. II.
— A c c o r d i n g to R . CAPITANT, op. cit. 60, n. 1, generality is implied in the concepts of
the norm and of l a w s b u t not in the concept of the rule. . .
" T h i s is the traditional a r g u m e n t ; see ST. THOMAS, op. cit. Ia Ilae, qu. 96, art.
ι ad resp.
' S e e J . DABIN, LA PHILOSOPHIE DE L'ORDRE JURIDIQUE POSITIF, no. 14, p. 53.
Also, as to the superiority of the system of the general rule over the system of deci-
sions rendered in each particular case, ST. THOMAS, op. cit. Ia Ilae, qu. 95, art. 1
ad 2 ; qu. 96, art. 1 ad 2.
Unauthenticated
JEAN DABIN
are validly concluded as to form and content. 10 Let us note that the
basic law does not merely attribute a competency [to decide or to con-
tract] j 1 1 it is also in some way regulatory. This is clear for the adminis-
trative official and the judge, who positively decide the individual case
according to a law, applying the general rule to the special situation. It
is also clear for the contract, where the autonomy of the parties has the
right to act only within the frame of the laws, maintaining respect for
mandatory laws and for public policy and morality.
58. The Objection Concerning the Contract with the Force of Law.
Concerning the contract, it is true, in the relations between the parties
the regulation laid down b y private will has the force of a "law " for the
parties and the judge, exactly like a law of the state (Code Napoleon,
article 1134*), and even to the exclusion of a law of the state when the
latter is only a supplementing law. 12 But, precisely, this law is but a
private law, contractual or corporative. Now the legal rule which is here
in question is the rule laid down by the state. One may say then, if one
wishes, that by means of the permission of the state the contract gen-
erates individual legal rules, but not that the legal rule laid down by
the state could be individual: The state, at least the state under the
rule of law, emits general rules only, upon which, however, there will
rest the individual imperatives of the administrative and judicial au-
thorities as well as the individual imperative of the contract. 13 In the
case of corporative individual rules, emanating from private bodies for
their members, the same principle of generality reappears at a subordi-
nate level. The corporative legal rule, too, is addressed to the generality
of the members; and the individual orders which the authority of the
body decrees are not legal rules on this level either.
SECTION 3 . T H E L A W AS A S Y S T E M A T I C A L R U L E : T H E LEGAL
INSTITUTIONS
59. The Rule as Institution and the State as Institution. The legal
rules do not constitute a pile of detached pieces without connection with
10 Cf., in the same sense, ST. THOMAS, following Aristotle, op. cit. la Ilae, qu. 96,
art. ι ad 1, in fine: . . .
" A s R . CAPITANT says, op. cit. p. 155.
11 [See supra, chap. I, sec. 2, n. b.]
1S C f . the considerations developed b y D u PASQUIER, op. cit. nos. 124-125.
Unauthenticated
one another. On the contrary, they form organic wholes, which we call
institutions: Institutions of rules at the service of the institution that is
the state. In either case of an institution we are dealing always with
some more or less unified body. But the state as an institution is a
social body whose elements are human beings, while the legal institution
is a body of law whose elements are legal rules. Further, the social body
of the state is a real, albeit moral, being, while the body of law has only
logical existence. 1 Finally, the state as institution is unique, while the
legal institutions are multiple. The legal institution in the singular would
be the entire law; but the total law of a people at a given moment of its
history is made up of the sum and the synthesis of the particular legal
institutions. Inasmuch as they are agents of social discipline and of the
end pursued by the state, the legal institutions and rules, the law, must
also be counted among the political institutions which are component
and integral parts of the institution that is the state.
60. Definition of the Legal Institution. What characterizes the legal

institution, as against the legal rule in general, is the systematic note.
For instance, the legal institutions of marriage, of guardianship, of own-
ership, of contract, of documentation, of civil or criminal responsibility,
of agency in private or public law, of appeal and appellate remedies, are
the hierarchically arranged totalities of legal rules relating to those dif-
ferent matters. As for the legal transactions (e.g., marriage, contract),
their conditions of existence, of foundation, of form, of validity against
third parties and also multiple effects of a legal order, must be defined;
as for the rights, liberties, obligations, and competencies (e.g., owner-
ship or agency), their content and limits and the modes of their acquisi-
tion, transmission, and extinction must be determined; as for the ma-
chineries (e.g., guardianship or documentation), their structure and
functioning must be fixed. Cutting across all this, there is need for organ-
izing the preventive and repressive measures needed to guarantee that
the institution become effective in social reality.
Now these diverse problems give rise to a set of rules designed to im-
1 According to Hauriou's terminology , the constituted bodies are "person institu-
t i o n s " while the legal rule is a " t h i n g institution," i.e., an institution existing in the
social environment b u t n o t established w i t h i n its f r a m e w o r k , La theorie de l'institu-
tion et de la fondation, in LA CITE MODERNE ET LES TRANSFORMATIONS DU DROIT, 4
CAHIERS DE LA NOUVELLE JOURNEE (1925) 2 et seq. In reality, the t w o kinds of
institutions are radically different b y their v e r y subject matter. Only one link unites
t h e m : the idea of the organic whole. C f . the criticism b y J . BONNECASE, INTRODUC-
TION λ L'ETUDE DU DROIT, no. 46, p. 87, and J . Delos, Bien commun, securiti, justice,
in 3 ANNUAIRE DE L'INSTITUT INTERNATIONAL DE PHILOSOPHIE DU DROIT (1938) 36,
η. i.
Unauthenticated
28 6 JEAN DABIN
plement a fundamental idea which constitutes the animating and federa-
tive principle of the institution under contemplation. Thus the whole
system of the rules of marriage is deduced from the philosophical-
juridical idea which the legislator has of marriage with regard to the
spouses, the children, and society; the whole system of guardianship is
but the implementing of the simple idea of the protection of the minor
against his own weaknesses and against the exploitation by third parties
by which he could be victimized; and so on.2 The same concept of the
institution is apparent in the distinction formulated by Duguit between
the "normative" and the "constructive and technical" legal rules.3 The
former designate not so much a rule properly so called (which cannot be
understood without "construction") as the directing and, in this sense,
normative principle, which the latter ["constructive and technical"]
then set out to put into operation by diverse processes called by Duguit,
both too vaguely and too strictly, sanctions or "ways of law." 4 The norm
enveloped by constructive rules — that is the equivalent of the legal
institution.
61. Hierarchical Arrangement of the Rules Grouped under the Insti-

tution. Among the rules thus articulated there prevails a hierarchy
whose key is furnished by the end of the institution and by the degree
of proximity of the means to the end, the more remote means being sub-
ordinate to the closer means and so forth along the line. For instance,
the law requires the guardian to act as a good father of a family would
(Code Napoleon, article 450 a ), which is the immediate legal transla-
tion of the supreme idea of protection. Consequently, it provides that
the guardian shall be obliged to render an accounting (second rule, sub-
ordinate; article 469 b ). In order to avoid the guardian's eluding the
accounting, it forbids any agreement between the guardian and the
minor who has become of age unless preceded by the submission of a
2 Cf., in the same sense, J. BONNECASE, op. cit. no. 45.
3 1 L . DUGUIT, TRAITE DE DROIT CONSTITUTIONNEL (3d ed.) § 10, pp. 1 0 6 - 1 0 7 ;
§ 21, p. 224.
4 F o r a criticism of D u g u i t 's formulation , see J . DABIN, LA PHILOSOPHIE DE
L'ORDRE JURIDIQUE POSITIF no. 6.

* [ A r t . 450 of the C o d e N a p o l e o n provides as f o l l o w s : " T h e guardian shall tak e
care of the person of the minor and shall represent him in all civil transactions. H e
shall administer his property as a good fathe r of a f a m i l y w o u l d and shall be
responsible for damages which m a y result f r o m b a d administration. H e shall not be
able t o b u y any p r o p e r t y of the minor, nor to rent it unless the f a m i l y council
shall h a v e authorized a substitute guardian to transfer possession to him as tenant,
nor to accept the cession to him of a n y right or claim against his w a r d . " ]
b [ A r t . 469 provides as f o l l o w s : " E v e r y guardian shall be accountable f o r his
administration upon its termination." ]
Unauthenticated
detailed account (third rule, sub-subordinate), and at the same time it

sanctions that prohibition by the relative nullity of an agreement con-
trary to the law (fourth rule; article 472 c ) . It is by reason of that
hierarchy that the " w a y s of l a w " always occupy but a secondary place
—• both in the system and in the obligation — in relation to the rules
they in some way guarantee and which are therefore the principal ones;
that, particularly, the sanctions could never be envisaged apart from
the rule nor put on a footing of equality with a power of choice. 5
T h e idea of the legal institution also permits us to correct what could
be too radical, and hence deceptive, in the division of the law into com-
partments. This observation is valid above all for the rules of penal law,
which always are but sanctions, of a particular kind indeed, of other
rules they presuppose, rules of private or public law, even where the
latter are not expressly aimed at by the laws of private or public law.
Thus, the penal law punishing homicide is but the sanction of that prin-
ciple not formulated in the civil law: T h e right of life. T h e fact that the
infraction is provided for only as a condition of the application of the
penalty would tempt one to believe that the penalty is principal and the
infraction secondary; the idea of the institution reestablishes the exact
order.®
62. Regrouping of the Institutions in Higher Syntheses. Again, the

diverse legal institutions themselves are for the most part susceptible to
regrouping in a vaster synthesis. Thus, the institution of the sale, as a
contract, depends on the institution of the contract, which in turn
depends on the institution of the legal transaction; the institution of
ownership as a property right depends on the institution of the law of
property; the institution of marriage is one of the elements, and a funda-
mental one, of the whole system of the law of domestic relations; the
institution of guardianship is one of the regimes of protection of persons
without capacity; and so forth. Seen from another aspect, the same in-
stitutions fall under a different synthesis. Thus, the sale can be en-
visaged, outside of the contractual angle, as an exchange for a valuable
consideration, as an act inter vivos, etc.; ownership, as an inheritable
' [ A r t . 472 provides as f o l l o w s : " A n y agreement that m a y h a v e occurred be-

tween the guardian and the minor w h o has come of age shall be v o i d unless it has
been preceded b y the rendering of a detailed account and the delivery of evidentiary
documents, all to be stated at least ten days before the agreement in a receipt of the
account rendered."]
° F o r discussion of an application, see J . Carbonnie r in REVUE TRIMESTRIEIXE DE
DROIT CIVIL (1942) 296-298 and decisions cited.
Unauthenticated
288 JEAN DABIN
right, a right in personalty or realty, etc. — not to forget the deroga-
tions from principles that are justified by the singularity of cases.7
Another, more formal, aspect of the systematization of the law is in
effect the tendency of jurists to reassemble the rules by starting from
more or less general solutions which are said to state "principles" and
with regard to which the rules constitute at times a more or less special-
ized application and at times a more or less radical derogation.8 In rela-
tion to the principle, the derogatory rules are thus displayed as separate
branches, but at the same time their place is marked in the logical
complex of the law. It is necessary, though, to guard against mistakes of
appraisal, and particularly against ranking among the exceptions what
would really be but a new principle concurrent with the first one. For
example, it is wrong to consider as so many exceptions the cases of re-
sponsibility without fault since, in positive law as well as in reason, fault
is not the only principle of responsibility.
6j. The Legal Institutions and Logic. However, the grouping of rules
in institutions does not always satisfy the rules of pure logic. On the one
hand, there are institutions with lacunae where the system is incomplete
for want of one "constructive" rule or another; such is the incapacity of
illegitimate children to inherit more than their statutory share (Code
Napoleon, article 908 d ) , a rule which can be circumvented by abstain-
ing from recognizing the illegitimate children whom the testator would
want to benefit.9 In the course of time, the lacuna may be filled thanks
to the work of case law; but it may happen that it endures and the insti-
tution never arrives at its perfection. On the other hand, there are in-
stitutions which suffer from a certain inner discordance: The legislator
has not been able to choose between two propositions and has resigned
himself to a bastard solution. Take the institution of the incapacity of
the married woman as conceived in the Code Napoleon, which is both a
consequence of the principle of authority in the family and a measure
7 The "general principles of l a w " are not legal institutions in the sense of sys-
tematic wholes. They are particular solutions which are, however, general by their
application.
8 On the scientific character of that systematization, see F. Russo, op. cit. 87
et seq.
ä [Art. 908 of the Code Napoleon provides as follows: "Natural children shall
not be able to receive anything by gift inter vivos or by will beyond what is
accorded them in the Title On Succession."]
9 S e e o n t h i s p o i n t 3 L . JOSSERAND, C O U R S DE DROIT CIVIL POSITIF FRANQAIS n o .
1423.
Unauthenticated
of protection of the weakness of the feminine sex. 10 Among the various
institutions, at the higher levels of generalization, the same phenomenon
of incompleteness or incoherence appears even more often: Certain in-
stitutions mark time and coagulate, while others of the same type
evolve in a more or less abrupt or rapid manner. How could it be other-
wise? The law is the image of life and under its influence. Now life
does not proceed in a compact and rectilinear manner; it advances by
uncertain, discontinuous steps and not at the rhythm of a mathematical
development.
CHAPTER III
T H E S U B J E C T M A T T E R OF T H E L A W
64. In General. Whereas the moral rule, from the point of view of the
good, that is, of the end of man as a spiritual being, governs the entire
field of human activity, inward and outward, individual, social, and
religious, with no limitation as to level or framework, the field of the law
is restricted to the relations of men with men within the perspective of
the organized social group, especially the state. 1 On the other hand, all
human relations of a temporal order (except, however, spiritual inter-
course, particularly that of friendship) fall in different degrees within
the competence of the law, whatever their objective — economical,
extra-economical, or political·—and whatever their form — interindi-
vidual or corporative, municipal or international.
SECTION I . E X C L U S I O N OF I N N E R A C T S : D U T I E S TOWARDS GOD

AND D U T I E S TOWARDS O N E S E L F
65. The Inner Acts Are Subject to Morals. The law regulates the rela-
tions of men with men; this means that inner acts escape the realm of
the law altogether. By inner acts we understand the multitude of psycho-
logical processes, of intelligence, will, sensibility, which remain confined
to the inner man without being necessarily translated outward by con-
duct of commission or abstention. These processes are not removed from
10 O n the i n c a p a c i t y of m a r r i e d w o m e n a n d its f o u n d a t i o n u n d e r the C o d e
N a p o l e o n , see 1 A . COLIN AND H . CAPITANT, COURS ELEMENTAIRE DE DROIT CIVIL
FRANQAIS (9th ed. b y J u l l i o t de la M o r a n d i e r e ) no. 661 .
1 O n t h e " s o c i e t a l " c h a r a c t e r of the l a w , see supra, n o . 6.
Unauthenticated
290 JEAN DABIN
all rules: The rule of reason — in which the principle of morality is

epitomized — is competent to govern the inner as well as the outer life,
exactly on the same ground and with the same force. Thoughts, senti-
ments, wishes, can contradict reason as well as can conduct or expres-
sions of attitudes, and conscience has no more trouble in appraising in-
tentions than in judging conduct. 1
Again, outward acts themselves are susceptible to moral judgment
only on account of the inner dispositions which explain them. Right in-
tentions may wholly or in part redeem the objective badness of the acts,
as inversely the objective goodness of acts may be diminished or annihi-
lated by malice of intention. How could morality be satisfied if it did
not touch that inner world in man where the principle of his being and
the root of his action lie? A morals of deeds would be only a surface
morals, a hypocritical conformity. The destiny of man, which to a large
part is within him, requires the conformity of the heart. The latter goes
so far as to demand that the rule be loved not only in what it prescribes
but for itself, inasmuch as it is the expression of right reason and, in
that sense, of the destiny of the human individual. How could reason
suffer man in his innermost heart to detest his own destiny? 2
66. The Inner Acts Are Not Subject to the Law as a Social Discipline.
Quite different is the position of rules such as the legal rule, which
represent social disciplines. W h a t can a social discipline require? Merely
an order of outward conduct. It is true that in the human world the
society is also and essentially a grouping of souls, implying a communion
in the same ideal, which is the end of the society. T h a t communion is
socially necessary, there being no "living" society without it. Where it is
also a matter of necessary societies, such as the state, the communion is
morally obligatory: N o one has the right in conscience to refuse his soul
to life in the state. However, men communicate with one another only
through the body, which is the indispensable interpreter of every social
relation precisely because man is not pure spirit and the society of men
cannot be conceived of as purely spiritual. In the image of man, who is
the substantial element of human groupings, the society of men, what-
ever its end — even if purely spiritual, aiming at the good of the soul —
is both spiritual and corporeal. B y bodily contact — word, writing, ges-
1 E v e n a restitution in spirit, called for to repair a t h e ft in spirit, is k n o w n to
St. T h o m a s : " A prelate is able to take property f r o m his church in spirit alone w h e n
he begins to h a v e the animus possidendi, of possessing the thing as his and no longer
in the name of his church. H e must then m a k e restitution b y abandoning such
animus," SUMMA, IIa Ilae, qu. 62, art. 5 ad 5.
2 See, on the superiority of the N e w L a w (the morals of the Gospel) over the
Old L a w , ST. THOMAS, op. cit. Ia Ilae, qu. 91, art. 5 ad resp., secundo: . .
Unauthenticated
ture — the human relations, interindividual (e.g., exchanges) or prop-

erly social (organized groupings), acquire not only visible form but
also real existence in the world of space and time. Manifested attitudes
realize the constitutive process of societies: Affiliation of members, nom-
ination of those in titular authority; and also their working operations:
Production and distribution of the social good, collaboration of the lead-
ers and members. Consequently, the manifested attitudes which realize
the social life are logically subjected to the discipline charged with pro-
viding for the requirements of social life.
One must therefore not demand of that discipline that it govern
purely inner acts in which the body has no part: It would intervene in
vain, and what is more, without competence. How compel man to think
justly, to feel and to will rightly, even in the field of social affairs? W h a t
competence in the governing of spiritual faculties could a rule claim
which exists only in view of external social relations? 3 Assuredly, so-
ciety has a major interest in its members nourishing "social" feelings,
favorable to its work and its discipline, because the adherence of hearts
is the best guarantee for the obedience of action. B u t it is in an indirect
manner, by the whole of its policies, particularly in the field of educa-
tion, that the state may contribute to the formation of the "social"
character of its subjects. It will not succeed in that b y measures of
obligation tending directly to call forth and procure the appropriate
sentiments.
6y. Application of This Idea; the "Pedagogical Function" of the

Laws. Such are the reasons why the penal legislator thinks of punishing
an attempt to commit a crime only if it be manifested by beginning its
execution: As long as the crime lives only in thoughts the law keeps out
and cannot but keep out, however morally illicit the criminal thought
may be. Such again are the reasons why the legislator dealing with legal
transactions — of private or of public law — prescribes legal effects only
for the expressed will (if not, in the technical sense of German law, the
"declared" will): A propositum in mente retentum,a bare of social inci-
dence, could not have any social effect. Whether the inner act be taken
immediately as the object of the legal provision (first example) or as
the condition of application of that provision (second example), the
solution is identical: It does not count in regard to social discipline.
Y e t legislators have been known to invade the inner domain and to
decree piety or love (of God, of the family) not only in acts but in spirit.
* Cf. St. Thomas, op. cit. Ia Ilae, qu. 91, art. 4 ad 3: . . . See also qu. 98, art.
ι ad resp.; qu. 100, art. 9 ad resp.
" [A mental reservation.]
Unauthenticated
292 JEAN DABIN
How can that kind of intervention be explained? B y the idea of general
policy: The state makes use of the prestige of a formal law to inculcate
in its people precepts which, despite its intervention, are and remain
moral precepts.4 On the one hand, not every measure nor even every rule
laid down by a law is necessarily of a legal character; to be that it must
also be juridical in its objective and its content. Now there is no law —
no juridical law — where the precept relates to inner acts. On the other
hand, the authority has the right to employ any honest means to attain
the ends falling within its mission: If there are reasons to believe that
the proclamation of a moral precept by the civil law would be such as to
favor the practicing of that precept, technical distinctions could not
check such a policy, especially since the mass of the people, which cares
nothing about jurisdictional divisions, might be shocked by certain cases
of silence of the law. 5
68. In What Sense the Law Is Concerned with Intentions. Still it is

true that the law in all its branches is preoccupied with intentions: The
intention of subjects and the intention of the legislator himself. Thus, it
is intention that qualifies the criminal infraction; that marks the differ-
ence between good and bad faith, voluntary and involuntary fault; that
governs the interpretation of legal acts or transactions, private and
public, including the statutes.® So, too, there are notions or criteria of a
psychological order whose role in law, especially in modern law which
has broken with the old formalism, is considerable. But the assumption
is different. The question in this case is no more one of pure intentions
forming the subject matter for precepts of command or prohibition. It
is one of outward acts — nonlegal or legal — which the jurisit tries to
connect with the intentions that accompany or explain them, moving
from the external to the internal, from the act to the intention. And the
procedure is only normal: As the outward acts emanate from man, an
intelligent and free being, they could not be envisaged, even by the
jurist, in their materiality alone, outside of all considerations of inten-
tion. Only in the light of the idea do the acts take on moral and even
social significance (since society is composed of men). In fact, society is
not indifferent to whether the intentions accompanying or explaining
4 Aristotle spoke of the "pedagogical f u n c t i o n " of a l a w w h i c h instructs and
catechizes rather than commands .
6 F o r instance, the people m i g h t be astonished not to find the precept of m u t u a l
love listed a m o n g the reciprocal rights and duties of spouses. I n fact, h o w e v e r , the
l a w s on the reciprocal rights and duties of spouses prescribe only acts and
abstentions.
" S e e , h o w e v e r , to the c o n t r a r y as regards the interpretation of statutes, ι J .
BONNECASE, PRECIS DE DROIT CIVIL ( 2 d e d . ) n o . 1 0 0 , p . 9 6 .
Unauthenticated
acts are innocent or malicious, social or antisocial, and hence the neces-
sity to treat the acts accordingly, to diversify and shade the dispositions
of the rules according to the intentions. Neither are society and private
individuals indifferent to whether the legal acts or transactions, private
or public (contracts, statutes, etc.), are interpreted according to their
letter or their spirit, and hence the necessity to seek out the intention in
order to set apart the spirit of the disposition from the sometimes ob-
scure, inexact, or incomplete letter. 7
69. Of the Prudence Required in the Search for Intention. However,

prudence is called for. If, unlike pure intention, the intention involved
in an act is susceptible of being clarified b y the act itself or b y the
surrounding circumstances, it is no less true that in some particular cases
the outward act may betray the real intention: Individual psychologies
are often complex and indistinct, which entails the possibility of errors. 8
Let us add that in practice the working conditions of the organs of appli-
cation of the law — administrative officials and judges — rarely permit
a resort to the slow and nice methods of rigorously scientific analysis.
T h a t is w h y prudential reason commands the rejection of psychological
investigation in matters where b y general statistical laws the variety of
individual motives would prevent any sufficiently sure conclusion. Where
the intention must normally remain indiscernible, it is preferable alto-
gether to renounce speculative and often deceptive research and to stick
instead to the materiality of facts — gestures, words, writings. 9
From still another viewpoint does a certain "materialization" of the
law find its justification. T h e requirements of social life, particularly of
economic life, do not always accommodate themselves to the fatal and
damaging insecurity which regard for thoughts and motives entails in
relationships. Goods and documents call for rapid and unhampered cir-
culation. Hence the renascence of formalism — a purely utilitarian
formalism without symbolic value — which characterizes some parts of
the commercial law of today: T h e legal transaction, embodied in the
7 Cf., in the same sense, F . Rtrsso, REALITE JURIDIQUE ET REALITE SOCIALE

ι Ι 7-118.
* Cf., in this sense, L . JOSSERAND, LES MOBILES DANS LES ACTES JURIDIQUES
DU DROIT PRIVE (Paris, 1928) 317 et seq.
' T h i s idea m a y be applied in the field of mora l personality. Scientifically, f o r
m o r a l or legal personality to exist, there must be f o u n d that psychological element
w h i c h f o r m s the soul of the group, to w i t , a certain degree of communion a m o n g
the members. N o w the jurist, unable to recognize this element of communion , sticks
to compliance w i t h procedures constituent of legal personality in order to establish
t h a t there is such p e r s o n a l i t y ; he discards the substance to retain b u t the appear-
ance or color. C f . F . R u s s o , op. cit. 1 2 1 - 1 2 4 .
Unauthenticated
JEAN DABIN
material document, is valid by itself, independently of its antecedents
or, to use the technical term, of its causa* This formalism has limits,
though, for it is characteristic of a materialist civilization systematically
to sacrifice the moral to the economic.
70. The Relations of Man with God Are as Such Outside the Com-
petence of the Law. Let us now return to the outward acts which,
whether or not they are separated from intentions, constitute the only
subject matter of the law. Considered with regard to its objective,
human activity is directed either toward God or to the person himself or
to other men, which division corresponds to the three kinds of tendencies
of human nature: Superior, egoistic, and altruistic ones. 10
The relations of man with God, his Creator and supreme Good, are
governed, as to outward as well as inner acts, by morals, especially under
the heading of the virtue of religion. 11 They do not as such belong to
law, at least not the law of the civil society. Indeed, when religion itself
has been established in society by the ecclesiastical institution (which
must give rise to a specifically ecclesiastical law: Ubi societas ibi jus),
the civil society as such has no competence in religious matters. This
follows from the distinction between the spiritual and temporal powers:
It does not belong unto Caesar to define the rights of God or to make
them his concern. That task belongs strictly to the church and, for
those who reject any church, to the individual conscience.
71. Exceptions: Incidence of the Spiritual upon the Temporal. How-

ever, account must be taken of the echo of religion, its principles, its
worship, its institutions, at the level of temporal civil life. Even in the
case of advocates of a religion without a church, religious feeling will
not remain locked within the interior of conscience: In a manner both
very natural and very legitimate, it will experience the need to external-
ize itself in individual or collective practices or manifestations. It will
then be for the civil authority to proclaim the rule of freedom of wor-
ship and to safeguard it against any attack from whatever quarter, on
b [Causa in the civil law denotes the motivating conditions underlying a con-
tractual agreement; unlike consideration in the Anglo-American common law of

contracts, causa does not have to be established separately in order to spell out a
civil law contract.]
" S e e ST. THOMAS, S U M M A , la Ilae, qu. 72, art. 4. Cf. qu. 94, art. 2 ad resp.,
in fine.
1 1 On the virtue of religion as an annexed virtue of justice, see infra, no. 223.
The moral virtue of religion does not however exhaust the whole religious element.
According to the teachings of the Gospel, God is reached directly by the theological
virtues of faith, hope, and charity.
Unauthenticated
the part of private individuals or public officials. I t is thus that the law
comes to know relations of man with God: Through the interpreter of
freedom of religion and of worship, which becomes incumbent upon men
in their relations among one another.
T h e safeguard of the law may indeed extend beyond this indispen-
sable minimum. If the state deems it opportune it will lay down rules to
prohibit certain acts or attitudes showing ostentatious contempt with
regard to religion, e.g., blasphemy, sacrilege, parody of worship. Indeed,
acts of that kind have nothing in common with the freedom, guaranteed
as such, of sincere antireligious propaganda: Their sole aim is to shock
the feelings of the religious part of the population. T h e injury done to
worship recoils to hit the worshipers: T h e act contrary to religion be-
comes a blameworthy violation of respect for persons and often an at-
tack upon national unity. Finally, without having to assume the case
where the state itself professes a natural or positive religion (case of a
state religion), one could quite well understand that the state, acknowl-
edging a practical value of the religious idea by reason of its social
benefits, would favor religion, and that this policy would be translated
into appropriate rules of public and private law (e.g., compulsory reli-
gious instruction in schools, privileges for the clergy, subsidies for
institutes and works).
Such, rapidly sketched, are the progressive stages of interferences be-
tween the state and religion within the atmosphere of the modern state.
Sometimes religion, the rule for the relations of man with God, provides
law, the rule for the relations of men among one another in organized
social life, with its very subject matter, under the negative aspect of reli-
gious freedom to be safeguarded or religious feelings not to be hurt.
Beyond that, sometimes it dictates a certain pragmatic w a y for the law
to consider social relations, and consequently their regime, from the
angle of the religious idea or simply the religious fact. B u t the connec-
tion is always but indirect: T h e spiritual intervenes in the law only in-
asmuch as it touches the social, inasmuch as the religious element affects
the relations of men among one another. And this is logical since the
state is set up over the temporal while religion as such is a matter of
the individuals themselves and of the religious society. 1 2
72. The Law Takes No Cognizance of the Duties of Man towards

Himself. T h e same principle of the incidence ad alterum, the repercus-
sion upon another, holds good for that category of duties which is called,
somewhat dubiously, the duties of man towards himself.
12 C f . G . R E N A R D , L E DROIT, L'ORDRE ET LA RAISON ( P a r i s , 1 9 2 7 ) 3 2 0 et seq. (Le
droit naturel et la religion naturelle, II).
Unauthenticated
296 JEAN DABIN
Strictly speaking, one could not have a moral duty towards one's self
any more than a legal indebtedness to one's self, for the two opposed
qualities of creditor and debtor are not susceptible of resting on the
same head save by an accounting fiction.13 What is exact is that man has
duties whose objects are his own physical and moral person: His body
and members, his spiritual faculties, his honor, and by extension his
estate, an instrumentality in the service of the person. Morally, man is
absolute master neither of his person nor of his property. The person of
man with all his powers is subject to a natural and supernatural destiny
which imposes upon him his law of perfection and salvation. On the one
hand, man is made for God, for Goodness, Truth, and Beauty, the re-
flections of the divine perfections; on the other hand, man is a social
animal, in solidarity with his kind on many grounds in such a way that
all that actively or passively concerns his person reflects upon others,
those who are in more or less close relations with him.
7J. Reservation of the Principle of Incidence "Ad Alterum." B y this

detour the law once again acquires competence to lay down rules in the
field of "duties towards oneself": These duties can double formally as
duties towards society. As a member of private groups such as the family
and public groups such as the state, the individual is not free to dispose
of his person or his goods to the detriment of groups to which he has a
service to render, a function to fulfill, and which have a strict right to his
collaboration. Once the duty, individual in its immediate objective, takes
on a social aspect incidentally, the intervention of the legal imperative
is justified on the ground of social discipline. That is why the law may
prohibit not only suicide and self-mutilation but also the varied forms
of "prostitution" by which the individual would alienate his honor, the
abandonment for a consideration or without it of certain essential liber-
ties, particularly those touching upon his vocation: The right to marry,
to work, to establish one's self, etc. Any abdication of the human person,
his faculties and attributes, even for the benefit of another individual
who would claim to derive an advantage for his own person from this
sacrifice of the person of another, constitutes a loss of value for the
family or national group to which the diminished individual belongs, and
for humanity as a whole.
Similarly, this is why it is incumbent upon the law to protect indi-
viduals not only against malicious or maladroit undertakings of third
persons but also to a certain extent against accidents and even against
injury they cause themselves, voluntarily or otherwise, contractually or
13 Cf., in the same sense, ST. T H O M A S , S U M M A , la Ilae, qu. 57, art. 4 ad 1 ; qu.
58, art. 2.
Unauthenticated
G E N E R A L T H E O R Y OF L A W 297
extracontractually (cases of defective consent, minority, and other pro-

tective incapacities; cases of weak social classes protected by social
legislation). Independently of any idea of injustice or abusive exploita-
tion suggestive of a directly antisocial act, the sole element of individual
wrong, whatever its form or cause may be (act of a third party, act of
the victim, fortuitous event or act of God), engenders the social wrong,
and therewith the competence of the legal rule to the ends of safeguard-
ing and eventual restoration.
SECTION 2. T H E SOCIAL RELATIONS AND THE CONCEPT OF THE LEGAL

RELATIONSHIP
74. The State-Societal Character of the Legal Rule Recalled. So far

we have proceeded by elimination: The law governs only relationships
between men, directly or indirectly. 1 The time has come to define the
field of the material competence of the law in a positive manner.
Let us first recall our point of departure. The legal rule makes its ap-
pearance only in a certain environment which provides the reason for its
existence and its characteristics, i.e., the organized social environment.
The outstanding organized social environment at the domestic level is
the political society or state, whatever its legal or historical form (the
city-state of antiquity, the free city of the Middle Ages, the modern
unitary or federal state). This outstanding rank finds its explanation in
the very end of the state-society, whose primary aim is to put order into
social relationships, all social relationships of the temporal domain. If
the state-society comes into being it is not in order to add a new unity
to the various relationships and groupings which prior to its appearance
have linked men to each other. Or rather, the state society does make up
a new society endowed with its own end and its special organization; but
its own end is a purelly formal end in the sense that it aims at intro-
ducing a principle of harmony and rational cohesion into society in gen-
eral, which is multiple, confused, and often divided. Now the first instru-
mentality of that harmony and cohesion is the legal rule, issued by the
superior society charged with disciplining the social activities, i.e., the
state. In this respect, there is something synonymous between the state
and the law. On the one hand, the supreme law is that laid down by the
state, exercising its very function as a state, which is first of all the
1 I t is thus inexact to say w i t h M . LEVY-ULLMAN, ELEMENTS D'INTRODUCTION
GINIRALE λ L'ETXTDE DES SCIENCES JURIDIQUES: I , LA DEFINITION DU DROIT (Paris,

1 9 1 7 ) 60-62, t h a t the l a w w o u l d apply to other relationships tha n those of m a n
w i t h his like . . .
Unauthenticated
298 JEAN DABIN
function of order. On the other hand, the law of the state is the only one
that is guaranteed by sufficiently efficacious compulsion. That is why, at
the domestic level, the environment of the state is the environment in
which of logical and factual necessity the legal rule blossoms forth as
the typical norm of organized social life.
75. Universal Competency of the Legal Rule in the Field of Human

Relations of the Temporal Order. Under this perspective, which is the
proper perspective of the law, the competency of the legal system nor-
mally embraces all kinds of human relations in the temporal domain,
precisely because it embraces all that fall within the competency of the
general, governing and directing end of the state. It is by no means
claimed, though, that the law would have the obligation to intervene
everywhere and always, but rather that it has the faculty to do so:
Hence ubiquity of competence and not of intervention. Where human
relations function correctly by virtue of customs or of the play of private
institutions, such as the family and the corporate bodies, the interven-
tion of the supreme rule will be useless and therefore hurtful. This goes
at least for relations other than those which concern the state itsel-f, for
as to these latter it is normal that as they find their cause in the exist-
ence of the state they should be regulated by the exclusive intervention
of the state (statutory law or customary law). As for concrete cases of
intervention, the problem arises from another point of view, that of
determining the content of the law, and it will be dealt with in that
context. 2
76. Exception: Relations of a Spiritual Nature. The general compe-

tency of the law on the subject matter of human relations knows but one
exception, to wit, the relations of a purely spiritual character.
By "spiritual" we understand here not the spiritual of religion, the
supernatural (by contrast with the temporal), but the natural and
temporal spiritual faculties of man: His intelligence and his heart. Man,
a social animal even to his spiritual faculties, enters into communication
with others naturally, not only on the basis of interests or of the solidar-
ity of the family or nation, but also on the broad and disinterested basis
of ideas and affections. Men exchange with other men, learned or un-
learned, fellow-countrymen or foreigners, opinions of every kind, reli-
gious, philosophical, scientific, political, by means of conversation, corre-
spondence, exhibition and reproduction of works, etc. 3 Man seeks and
2See injra, Part II, chap. II, especially nos. 156 et seq.
3Literature and art are not a matter exclusively of the author. The work is in-
tended to reach the public: thus it falls under the principle of spiritual exchange.
Unauthenticated
often finds the sympathy, comradeship, friendship of his kind. A n d this

spiritual intercourse, which no inner or outer frontier impedes, pro-
ceeds through more or less coherent, stable, "instituted" relations, which
may even be embodied in organized groups for non-lucrative purposes:
Scientific, artistic, fraternal, and " f r i e n d l y " societies of all kinds. While
such relations are not freed from the moral law of charity, honor, pru-
dence, moderation, in short, of reason which condemns all disorder even
in the realm of the spirit and of friendship — while they are held to a
certain decorum by the environment of policed societies, yet they do not
adapt themselves to the discipline of the law inasmuch as they remain
in the spiritual state, free from any touch with interests or institutions.
On the one hand, unlike relations of affection founded upon a law of
nature (as in the relations of the family and kinship), they are freely
tied together and untied, as favored b y selective affinities of liking and
predilection. Neither are they bound to express themselves in impera-
tively fixed ritual forms. W i t h the exception of morals and manners, it
is spontaneity without rules that constitutes the value of the intercourse
of minds and hearts. On the other hand, how could there be compulsion
touching the spirit? N o doubt it is not a matter of inner acts, since b y
hypothesis' ideas and feelings give rise to external relations and hence
outward acts. Nonetheless, these relations have their roots in the spirit,
and without constant reference to the spirit they cannot be understood.
N o w at least any rule imposed from without, if not any discipline what-
ever, is by nature repugnant to the spirit. It strives especially against
every mode of forced execution, not only in kind but also b y equivalent,
e.g., satisfaction b y indemnity. A friendship commanded or "directed"
under threat of compulsion would be the negation of friendship. Hence
the individual may well fall short of his moral duty or, to a certain point,
of usages in the matter of friendship or of spiritual intercourse gener-
ally. Legal compulsion, and consequently the legal rule, will abstain
from intervening for this basic reason that "the spirit bloweth where
it listeth," that it obeys only its own inspiration and not a foreign
pressure. 4
77. In What Manner the Law Is Concerned with Friendship. This

is not to say, though, that the law would ignore friendship. First of all,
it protects it as a value, under the heading of "rights of personality,"
4 It is thus a mistake to think, as suggested b y J . BONNECASE, op. cit. no. 41, p.
76, that the relationships betwee n the la w and spiritual intercourse, especially
friendship, w o u l d depend upon the " d o m a i n of the l a w , " according to the contin-
gencies of the social environment. Spiritual intercourse as such cannot be reduced to
a legal norm. See, in this sense, DOMAT, TRAITE DES LOIS chap. V , 1 1 , and chap. V I .
Unauthenticated
300 JEAN DABIN
under the name of the interest of affection. The affection which unites
relatives or friends is indeed for the beneficiaries a human interest of
the spiritual order which third parties do not have the right to aggrieve,
whether directly by fomenting discord among the parties or indirectly
by causing the death of one of them. 5 From a subjective point of view,
friendship is also a generating principle of law in the case of groups with
non-lucrative purposes in the service of friendly aims: From friendship
proceeds the institution which is to impose upon the members a disci-
pline of rights and duties guaranteed by the state. This, however, re-
quires that the associates had the intention to band together in a legal
and not merely a moral and friendly society, it being understood that
the social object will be not so much friendship itself, which resists the
legal imperative, as the establishment of a favorable environment for
cultivating friendship, the ulterior and more or less speculative end of
the group.
Still further, friendship, or at any rate "altruistic" intention, provides
the psychological basis of liberalities inter vivos and by will, and of be-
neficent contracts (gratuitous bailment for use or deposit, suretyship).
If these contracts are binding in law and not merely in morals, this is so
by virtue of the moral and social principle which is taken up by the law:
Pacta sunt servanda?· A promise given freely and with the animus con-
trahendae obligationish confers legal character upon anything whatso-
ever, including the gratuitous gestures of friendship. The law, to be sure,
reserves to itself control of the causac or motive determining the trans-
action: Sincere, morally legitimate friendship or unregulated passion. 6
On the other hand, certain contracts with objectives of self-interest are
accompanied by a note of friendship which normally calls for a reflection
in their legal regime. Such are the contracts of "collaboration" 7 — cer-
tain hirings for service and certain associations — where the spirit of
collaboration, which is one of the forms of friendship, will sometimes
temper the rigor of the ordinary law as shaped by economic considera-
° Established law under the cases. If it is exact that "there is no right to affec-
tion," that "the idea thereof is not properly conceivable," G. Marty, note in SIRE γ
(1931), ι , p. 151, col. i , yet affection where it exists figures among the legally pro-
tected realities.
* [Agreements shall be observed.]
b [Intent to contract an obligation.]
c [See supra, chap. I l l , sec. 1, n. b.]
" S e e M . BOITARD, L E S CONTRATS DE SERVICES GRATUITS ( P a r i s , 1941).

' T h i s is a term used by G. Ripert, Une nouvelle propriiti incorporelle: la
clientele des reprisentants de commerce, CHRONIQUE, DALLOZ HEBDOMADAIRE (1939)
3: "Besides the contract of employment and the contract of partnership, the con-
tract of collaboration should be studied."
Unauthenticated
tions, and sometimes on the contrary will surpass its requirements pre-
cisely in the name of the friendship which must unite the collaborators. 8
As an example of the role of friendship in the law may finally be cited
the principle of "presumptive affections of the deceased," adopted b y
several jurisdictions as a determining criterion of the order of succession.
Whatever place may be accorded in the inheritance system to the idea of
a duty derived from the bonds of blood, it seems impossible altogether
to exclude from it the principle of affection if one wants to provide a ra-
tional justification for testamentary freedom being exercised to the detri-
ment of the heirs.
Hence it is seen that there exist groupings, contracts, statutory rules,
in short, legal phenomena, which have their source in relations of the
spiritual order such as friendship. Those relations occupy too great a
place in life and are too fundamental there not to appear at some turn or
other of the law. Y e t the fact remains that considered directly b y them-
selves relations of the spiritual order partake of the regime of freedom
of inner acts, being in truth but the flowering of such acts in someone
else: W h a t is friendship if not the fusion of two minds, two wills, and
consequently of two intimacies?
78. The Need for More Precise Explanation of "Social Relations."

Outside of the bonds of a spiritual nature, all relations among men are
by nature susceptible to regulation by the law. One could adhere strictly
to this proposition. However, a more precise statement m a y appropri-
ately be made, not for the sake of inquiries in sociology or social philos-
ophy with which we are not here concerned, bu t because such precision
is a matter of interest to legal science. First, the notion of "social rela-
tions" is based upon essential legal categories such as the concept of
"legal relationship" or the division of the law into its diverse compart-
ments or branches. Furthermore, the different kinds of relations are not
to the same extent subject to the grip of the law. There are among them
some that the law affects only in a superficial or fragmentary way . T h u s
the following summary sociological observations are justified b y w a y of
preliminaries.
8 F o r G e r m a n solutions, see V o l k m a r , La revision des contrats par le juge en
Allemagne, i n T R A V A U X DE LA SEMAINE INTERNATIONALE DE DROIT (Paris, 1937) 20-
22, 29-30. M o r e generally, on the penetration of the " c o m m u n i t y s p i r i t" in economic -
social, and hence legal, relationships, see E . - H . K a d e n , Un exemple de la pratique
extra-judiciaire en AUemagne: le contrat de bail uniforme, in 1 RECUEIL LAMBERT
§ 41, p p . 5 1 1 et seq., esp. at 517—518; K . Geiler, Vordre juridique de Veconomie
allemande, in 3 RECUEIL LAMBERT § 152, p. 260 (regarding the right to w o r k ) ; L.
D i k o f f , Vivolution de la notion de contrat, i n ETUDES DE DROIT CIVIL A LA MEMOIRE
DE HENRI CAPITANT (Paris, 1938) 2 1 3 - 2 1 5 . A n d see, on " c o n t r a c t sliding into institu-
t i o n , " G . RENARD, L A THEOKIE DE L'INSTITUTION ( 1 9 3 0 ) 4 3 5 et seq., e s p . a t 4 4 6 et seq.
Unauthenticated
302 JEAN DABIN
7p. Summary of the Various Kinds of Social Relations. It is a fact of
banal experience, corresponding, to be sure, to a requirement of nature,
that on the level of action even more than that of the spirit man lives
only linked to other men. From the moment of his birth, he is united
with his parents, his relatives, his nation, by the indelible bonds of
blood and nationality. From his family and his school he receives all the
physical, intellectual, and moral care during his formative period that
the complex work of education requires. Arrived at the age of maturity,
he himself establishes a home, unless he chooses a religious vocation
where once again he will find a life in the community. By the fact of
proximity of dwellings he is in contact with his neighbors, so much
more numerous in our days when the population has increased and be-
come more densely concentrated. Every time he makes use of any free-
dom whatever — to come and go, to express his thoughts, to work, etc.
•— he meets on his way with the freedom of somebody else with which he
is in danger of colliding. In his economic and occupational activities he
deals with suppliers, customers, coworkers and employees, and he is in
conflict with competitors who at the same time are his colleagues. As
man in isolation is weak, incomplete, ephemeral, he joins forces with his
like in more or less durable groups for lucrative and non-lucrative goals.
Integrated volens nolens in the public societies — the state, the prov-
ince, the municipality — he owes obedience to authority and takes part
in the burdens and the advantages of collective life. The states and the
subjects of the various states, in turn, maintain economic, social, and
political relations with one another which in their totality make up
public and private international life.
80. Attempt at a Classification of These Relations. In view of these

examples, social relations are susceptible of several modes of classifica-
tion, which by the way are cumulative and overlapping.
Regarding their form, men are linked together sometimes by simple
contact (cases of vicinage, clash of freedoms, competition, or in a less
distinct manner repercussion of our attitudes upon somebody else);
sometimes by sharing certain specific common traits producing simi-
larity or solidarity (cases of family relationship or of engagement in the
same occupation); sometimes by exchanging goods or services, ordi-
narily for a consideration (all cases of contracts); sometimes by associa-
tion, private or public, with or without objectives of self-interest — not
to omit the family bond, which in certain respects partakes of the above
modes (contact, solidarity, exchange) while preserving its essential
original significance in the service of life and of the species.
Regarding the persons who are their subjects, social relations are
Unauthenticated
immediately concerned sometimes with the individual or physical per-

son, sometimes with the moral being which is the personified public or
private body resulting from the union of individuals organized with a
view to a certain end. T h i s gives rise to a double set of relations: Inter-
nal relations of the moral person with its members, and external rela-
tions of the moral person with outside individuals and bodies. In-
cidentally, it is understood that, as the bodies exist only through the
individuals, interindividual relations provide the starting point, logically
and chronologically, of corporative relations.
Regarding their objectives, social relations refer to extra-economic
values or to economic values or to politics. B y "extra-economic" values
are meant those kinds of values which are not as such measurable in
money: First of all the human person and his intangible prerogatives,
then the family and its relationships which form an immediate extension
of the human person. T h e economic values indicate the various forms of
wealth, the role of which is to satisfy the economic needs of individuals,
families, and groups. One will however note the interdependence between
the two categories of values; for if the economy is subservient to the
person and the groups, the economy in turn has the person and the
groups contribute to it as producers, distributors, and consumers of
wealth. As for politics, it calls forth the state and the system of relations
issuing from the state, its constitution, organization, and functioning. In
this sense, politics denotes the " p u b l i c " as against the " p r i v a t e " ele-
ment: Whereas the personal and family values and the economic values
belong above all to the private order, the political values are essentially
public since the state by definition is the public society, devoted to the
good of the entire community.
Lastly, from another viewpoint, starting with the assumption of the
plurality of states, one has to distinguish between the municipal rela-
tions, private and public, which move within the framework of the state,
and the international relations, equally embracing the private and the
public, which transcend the borders of a particular state.
81. Attitude and Role of the Law with Regard to Voluntary Social
Relations. N o w these multifarious contacts, constituting the social real-
ity, are not confined to just existing on the factual level and developing
their fortunate or unfortunate effects according to the law of arbitrari-
ness, of interest, or of force. T h e y obey rules — undoubtedly the moral
rule, possibly the rule of social manners, but also the legal rule, consti-
tuting the legal reality, which imposes its compulsory norm upon them.
F r o m the scientific as well as the practical point of view, it is wrong to
try to abolish at least the distinction, if not the differences, between so-
Unauthenticated
304 JEAN DABIN
cial reality and legal reality. For if the social reality, as human reality,
is already incontestably "rich in tendencies and orientations which it
seeks by itself to manifest and to satisfy," 9 one still has to appraise that
finalism, first in itself, relative to moral verity, to the "natural finalities
of social life," and then with regard to the specific conditions, as to
substance and form, of the legal system. 10 This suffices to justify the
idea of normative social sciences.
Faced, then, with the facts of relations submitted to his judgment and
his norm, the jurist has to solve a twofold problem. First, a problem of
legitimity. Certain relations, factually possible, will be forbidden as
fundamentally bad or simply as dangerous for the parties, for third
parties, or for the state. In that case, the law sets its prohibition against
the positive social reality, it rises and fights against it. 1 1 Other kinds of
relations, though bad or dangerous, are tolerated. For opportunistic
reasons or from want of power, the law does not go so far as to forbid,
but it refuses to declare permissible; the positive social reality remains
at the margin of the law. 12 Still other kinds of relations are recognized as
legitimate, eventually encouraged or aided, with or without restric-
tions, according to the inconveniences they may present. The positive
social reality receives legal consecration. 13 Then, there appears a prob-
lem of organization or what is called "regularization." As for forbidden
combinations, the prohibition is to be sanctioned by repressive, or even-
tually preventive, measures. As for legitimate combinations, their more
or less advantageous regulation is to be fixed by determining their con-
ditions of legal existence (substance, form, proof), on the one hand, and,
on the other, their legal effects.
Such is the essentially normative task of the jurist, at least in the case
of relations of exchange and association which depend upon the play of
human wills. Even under a regime of legal freedom such as ours, where
the autonomy of the will constitutes the principle in economic matters,
exchanges and groupings do not cease to be subject to the rule, first
because this freedom is limited by a mass of substantive and formal
prescriptions, and then because it is the solution of the law itself which
sets up as a legal norm respect for promises issuing from the free will.
Still further, the law continues to govern even where it appears to give
' F . R u s s o , R E A L I T E JURIDIQUE ET REALITE SOCIALE S I .
10 This is recognized by F. Russo, op. cit. 53-54.
11 T o cite at random: adulterous relations, contracts contrary to laws, to public
policy or public morals; certain contracts between spouses (sale, partnership), or
between guardian and w a r d ; associations of criminals; at certain epochs and in
certain countries, workers' associations, religious congregations, etc.
a E.g., concubinage; certain kinds of unrecognized associations; etc.
" E . g . , marriage; adoption (at least in certain jurisdictions); exchanges, etc.
Unauthenticated
way. Its present withdrawal may always be followed by a return with

any change in the circumstances which motivated its abstention. 14
82. Attitude and Role of the Law with Regard to Other Categories of
Relations. As for communications and groupings of a necessary charac-
ter, where the will is not autonomous, the function of the law is ulti-
mately none other than to safeguard and maintain them precisely
against disordering by particular private wills. Thus, the family, mar-
riage or the union of the sexes, though freely concluded on the ground
of freedom of inclinations, is bound to an imperative statute worked
out with a view to the task of the family. Thus, the relations between
parents and children, which issue from nature alone without the will
taking any part, are governed b y a statute founded upon the principle
of education. Thus, again, there are the relations springing from life in
the state, an obligatory society willed by the social and progressive
nature of man, whose statute, internal and external, depends on its very
objective, to wit, the idea of the public good.
There remain the relations by contact and the relations b y similarity,
deriving from what is given by fate, somehow mechanically, in social
life, economic and otherwise, on the domestic and on the international
levels. As for the contacts, which so often degenerate into oppositions,
it is for the rule to delimit the respective spheres of action and expan-
sion, to prevent encroachments, and in case of injury to fix responsibili-
ties. Thus, the law establishes obligations between neighbors, decides
upon the conflicts of rights and freedoms, and assures damages for in-
juries and restitution for unjust enrichment at the expense of another.
The jurist even endeavors to convert into profitable collaboration con-
tacts which may promote understanding as well as war. As for the simi-
larities, the task of the rule is to define the consequences which on the
level of social discipline derive from the solidarity existing in fact. Thus,
the law attaches to the solidarity of blood and family relationship a
series of legal effects (duty of support, order of descent, etc.). Thus,
again, starting from occupational solidarity, the law may go so far as to
decree a compulsory corporative body made up of those engaged to-
gether in the same occupation, and so on.
83. The Objective and Subjective Interpretations of the "Legal Rela-

tionship." In so far as they concern the law or, if one likes, in so far as
34 One can speak of the quasi-indivisible union, in the same social fact, of c o m -
pulsion (viz., of the legal rule) and freedom, see F . R u s s o , op. cit. 158, 188, only
in this sense, that freedom m a y be commingled w i t h the rule, b u t not, that the rule
is h a r d ly distinguishable f r o m freedom.
Unauthenticated
3o6 JEAN DABIN
the law takes an interest in them, the relations of fact are thus trans-
formed into legal relationships, and one can subscribe to Savigny's
analysis: " E v e r y legal relationship is composed of two elements: First,
a given subject matter, i.e., the relation itself; second, the legal idea
which regulates that relation. T h e first may be regarded as the material
element of the legal relationship, as a simple fact; the second, as the
plastic element, which ennobles the fact and gives it the form of l a w . " 1 5
T h e actual or potential relations of fact which exist among men become
legal relationships from the moment the law subjects them to its
dominion. Understood in that way, the concept of the "legal relation-
ship" (just as its corollary, the concept of the "legal situation," signify-
ing the status in law of the parties to the relationship) simply evokes the
idea of the rule, the objective rule: T h e legal relationship is that which
is regulated by law. However, another, subjective meaning of the legal
relationship, envisaged as a bond from person to person, is found in
writers, such as Savigny, whose above quoted text is immediately pre-
ceded b y the following passage: " E v e r y legal relationship appears to us
as a relation from person to person determined b y a legal rule, and this
determinative rule assigns a field to each individual where his will reigns
independently of any foreign will." 1 6 In other words, every legal rule
would presuppose a legal relationship in which one of the parties would
be the holder of a subjectively lawful right, a creditor (sensu lato), while
the other would be charged with a correlative obligation, a debtor (sensu
lato).
84. Critique of the Subjective Interpretation. B u t while all relations

of fact which constitute the subject matter of the law have, as their
termini on the active and the passive sides, persons who m a y or may not
be determined a priori, on the contrary one has to deny that the rule of
objective law always creates subjective legal rights. 1 7 T h e rule orders
and consequently decrees an obligation — the obligation to conform to
the rule. But to that obligation there does not necessarily correspond
the prerogative that is called a subjective legal right. In a word, "the
legal relationship" in the subjective sense [of a legal right] "does not
cover the whole l a w . " 1 8 All relationships of fact are legal relationships,
governed by objective law; but neither in fact nor in law are these rela-
tionships reduced to the single form of the subjective right.
16 1 SAVIGNY, TRAITE DE DROIT ROMAIN (French transl. by Guenoux, 2d ed.
1855-1856) 324; f o l l o w e d b y BONNECASE, op. tit. no. 40, p. 75, and no. 45 bis, p. 83.
M SAVIGNY, ibid.
" T h e s e terms are here taken in the classical sense of jurists (see supra, no. 4 ) ,
w i t h o u t referring to the special conception of D u g u i t .
18 D u PASQUJER, INTRODUCTION Ä LA THEORIE GEN£RALE n o . 1 3 0 , p . 100.
Unauthenticated
The subjective right (in whatever sense one may understand it: A s
right, capacity, function, or competency) in effect presupposes a deter-
m i n e d — or determinable — person upon whose head it may rest and
who is capable of exercising and asserting it. This holds good for the
right of the contractual obligee, which authorizes him to demand a serv-
ice of another, even where the obligation is payable to bearer; for the
so-called absolute rights, such as property rights or the rights to one's
own self and his faculties (personality rights); for actions in court; for
the quasi official rights of private law, such as the marital or paternal
authority; or for the jurisdictions of public law. These prerogatives
always have a determinate holder, a physical or moral person of private
or public law.
But a great many legal rules have no active subject, as in every case
where the disposition is laid down in the interest of third parties gen-
erally or of the public. For example, take the rule that forbids agree-
ments contrary to public policy or to good morals. 19 T o be sure, that
rule is established for the public good, and like every measure of the
public good it will finally redound to the benefit of the particular indi-
viduals who make up the public; yet it has no determined or even deter-
minable beneficiary. T o be sure, the right to invoke the nullity of the
transaction hit by the prohibition is conferred by the law upon "any
interested person." Y e t if the action to declare the nullity thus finds one
or several active subjects — those persons who will prove to have an
interest in the nullity — it does not follow that the rule sanctioned by
the action would in turn have any active subject. Again, take the rules
relating to domicile. They evidently concern the relationships among
men: There would be no need to localize persons at some point in space
if they should never enter into relations. Y e t one could not say that those
rules, which no doubt dispose and consequently command, are creative
of subjective legal rights or even of legal relationships. The domicile,
which is a place, is not a relationship, even when the domicile provides
the subject matter of a rule. 20
" E v e r y b o d y " may well be said to be a passive subject, where the obli-
gation in question is the general one not to infringe upon the preroga-
tives of another, as in the case of absolute rights, of jurisdictions, and of
offices (valid erga omnes rather than binding upon anyone in particu-
lar). " E v e r y b o d y " could not be an active subject, the beneficiary of a
" A d d : all police regulations of traffic, sanitation, etc.

20 Neither is domicile "the legal relation existing between a person and a place,"
as defined by A u b r y and R a u , f o l l o w i n g Zachariae. See, for a criticism of that defi-

nition, Ι M . PLANIOL, TRAITE ELEMENTAIKE DE DROIT CIVIL (12t h ed. b y G. R i p e r t )
no. SSS-
Unauthenticated
308 JEAN DABIN
right or holder of a power. For on pain of disorder, activity in any field
requires individualization of the subject as the responsible author of the
activity.
85. The World of the Law Is Not Limited to a Network of Bonds

between Determinate Persons. It is thus a mistake to picture the world
of the law as a sort of network of bonds of rights and obligations be-
tween actually determined persons, on the strength of the claim that it
governs the relationships among men. That picture simplifies the com-
plexity of human relations, which involve not only immediate relation-
ships of active and passive subjects determined at the outset (e.g., be-
tween neighbors, between parents and children, between contracting
parties, between the state and citizens: This is the legal relationship in
the strict and technical sense), but also more indirect, more uncertain
relationships of subjects unlimited at the outset, where the public in
general — actual or future — or some fraction thereof intervenes as an
interested party actively or passively. Moreover, there are legal rules
which, while starting with the assumption of human relations and with
a view to serving them, establish no legal relationship among determined
persons nor among undetermined ones: The rule simply lays down a
mandatory solution in matters which are of close or remote concern to
human relations. Thus the world of the law is defined less by the idea
of the legal relationship than by that of the rule. The world of the law
is primarily the world of the rule, no doubt governing the relationships
among men, but in a broad sense transcending the concept of the legal
relationship in the technical sense.
SECTION 3. THE DIFFERENT K I N D S OF SOCIAL RELATIONS AND THE

CORRESPONDING BRANCHES OF L A W
86. The Fundamental Principle of Division is Given by the Existence

of the State. However, as has been seen, 1 social relations are of various
kinds; hence the different branches and divisions of the law.
While this partition does not destroy the unity of the notion (the idea
of law must necessarily be valid without substantial change for all com-
partments of the juridical discipline), it is understood that the variety
of subject matters influences the behavior of the rule with regard to
each of them.
Among the principles of division which are suggested by an analysis
1See supra, nos. 79-80.
Unauthenticated
of social facts, the most fundamental in our present society appears to
be that derived from the existence of the state at the center of human
relations. N o t only does the state belong to the principle of law — the
law under its form of state law 2 — but it also belongs to the principle
of any logical division of the law. T h e existence of the state, indeed,
gives rise to the double set of private and public relations, on the one
hand, and of municipal and international relations, on the other.
87. Public Relations and Public Law. Once the state appeared as the
supreme group devoted to the public good, a new category was added to
the category of the theretofore private, interindividual or corporative,
relations: T h a t of public or political relations. B y them are to be under-
stood relations touching upon the state, 3 which includes, first, the rela-
tions through which the state is constituted and organized and through
which it acts and functions; then, the relations which the state main-
tains with the subjects, its members, individuals or groups, private or
public (the public groups being such as the provinces, the municipalities,
and the corporations of public law, if a n y ) . N o w then, while private rela-
tions call for an appropriate rule, which is the branch of private law,
the relations to which the state is a party, at least as public power, 4
belong to the branch of public law. This distinction is incontestable even
if, with Duguit and others, one denies the personality of the state. T h e
fact remains that the governing individuals, who are put in the place of
the personal state which is deemed fictitious, act not for themselves but
qualitate qua, i.e., inasmuch as they are working functionaries of the
public good. Whatever the theory by which one represents the state, the
two notions of governors and of the public good (and these one finds
throughout unless the state itself is denied) are sufficient to bring out
the distinction between private relations, which are directed toward the
private individual or private bodies, and relations bearing the imprint of
the public character.
88. Why the Expression "Political" Is Preferable to "Public." How-

ever, the term " p u b l i c " is equivocal; much better would it be to speak
2 See supra, nos. 8 - 1 3 .
* One would be w a r y in arguing from the famous passage in ULPIAN, DIG. I, I, I,
2 ; J U S T I N I A N ' S INST. I , I , 4 : Quod singulorum utilitatem pertinet, — quod ad statum
rei Romanae spectat [ W h a t pertains to the use of individuals, as against what re-
gards the status of the affairs of R o m e ] , which is controversial. It is possible that
status rei Romanae refers not to the R o m a n state but to R o m a n public property.
4 This leaves aside the question whether as to acts done in administering its prop-
erty the state does not fall under the rule of private l a w ; see J. DABIN, DOCTRINE
G E N E R A L E DE Ι , ' Ε Τ Α Τ Π 0 . 7 0 , p p . IO9-IIO.
Unauthenticated
310 JEAN DABIN
of "political" relations and "political" law.® For although the political,
that is, the state, is subservient to the public, that is, the community of
the citizens, the public is not to be confused with the political. On the
one hand, private relations are always of more or less interest to the
public, directly or incidentally; 6 on the other hand, concern with the
public good is not the exclusive monopoly of the state, the incarnation of
the political.
That is why one must reject the criterion of certain authors 7 who
claim as referable to public law every rule laid down for the safeguard-
ing of a public interest and, by that token, mandatory (in the technical
sense: Any disposition of a will to the contrary notwithstanding). That
conception results in emptying private law of a great part of its content,
and even in a way annihilating it by reducing it to the röle of a law
merely supplementing the will of private persons; at the same time, it
fails to understand the existence of a specifically political order, which
is the order of the state itself. Moreover, it is a mistake to search for a
division of the law in the mandatory, as opposed to the merely supple-
mentary, character of the rules. Sometimes the law consecrates auton-
omy, sometimes it excludes it, for reasons connected with the elabora-
tion of the substance of the law. Logically, a division of the law could be
deduced only from the diversity of the matters dealt with and not from
the nature of the solutions applied to the problems.8
8g. International Relations and International Law. The state also

belongs to the principle of another and in certain respects still more
fundamental distinction: That between municipal relations, which move
within the sphere of each particular state, and international relations.
Once the particular states have admitted at least the principle of a rule
obligatory on legal grounds in the field of international relations, inter-
national law is born — public or political international law where rela-
5 These are the terms, e.g., of MONTESQUIEU, DE L'ESPRIT DES LOIS, bk. I, chap.
3; bk. X X V I , chaps, i , 15-18.

6 In this sense, private law is spoken of as being "publicized" — in the sense of
being "socialized" — without involving any confusion or interpenetration of public

(in the sense of political) law and private law. Cf. E. Riezler, Obliteration des
frontieres entre le droit prive et le droit public, in 3 RECUEIL LAMBERT § 143, pp.
117 et seq., esp. at 125-126, 130 et seg.
7 Thus the Swiss W. Burckhardt, in the works cited by D u PASQUIER, op. cit.
no. 171, p. 153, η. i , and all adherents of the so-called theory of jurisprudence of
interests. [See THE JURISPRUDENCE or INTERESTS ( Μ . M . Schoch, ed., Cambridge,
Mass., 1948).]
8 The more so since it is often difficult indeed to know whether or not the legis-
lator has laid down his rule imperatively. Thus, the line of demarcation between
public and private law would be essentially uncertain.
Unauthenticated
tionships between states as political groups are concerned (law of na-
tions, inter gentes);B private international law where relationships be-
tween private persons are complicated by a foreign element (in persons,
property, places). In the latter case a problem of legislative jurisdiction
arises which brings into play the respective sovereignties of the states
concerned. 10
go. Penal Law and Adjective Law Are Only Subsidiary Laws. That is
all there is to this classification. In particular, there is no ground for in-
troducing the penal law and the various parts of adjective law under the
category of public law. Although these branches of the law are related to
the authorities of the state — inasmuch as it imposes penalties or ad-
ministers justice — they seem to be only subsidiary laws, aiming at
carrying into execution rules of substantive law, both public and pri-
vate, municipal and international, without themselves governing any
determinate aspect of social life. 1 1
gi. Private Relations and Private Law. While public relations have no
other objective than the state and the relationships at home and abroad
which life in the state implies, in short, the body politic, 12 private rela-
tions are tied around two great categories of interests: The category of
economic, pecuniary interests, so-called property interests, and the
multifarious category of extra-economic or non-property interests.
Hence the subdivision of private law into the law of property relations
and the law of persons and domestic relations. From another point of
view, while public relations and the corresponding law are exclusively
corporative (at least under the theory of "moral beings"), private rela-
tions and private law are sometimes interindividual — when those con-
* W e keep here to the traditional and simple conception of international law.
But see for a more profound study A. Von Verdross, La lot de la formation des
groupes juridiques et la notion de droit international public, in 2 RECUEIL LAMBERT
I 75, pp. 112-115 (concerning branches of the law) .
10 Actually, indeed, the conflict of laws, and generally conflicts rules of any kind,
are particular to each state — unlike the law of nations, which is common, at least
among civilized peoples.
11 Cf., on procedure, M . Ricca-Barberis, Le droit d'agir dans la tradition ger-
manique et dans la tradition latine (Klage et Actio), in 2 RECUEIL LAMBERT § 108,
pp. 551 et seq. But see, to the contrary, E. Riezler, op. cit., in 3 RECUEIL LAMBERT
i 143, PP· 134-136·
" Undoubtedly public law, too, involves subdivisions. But they either depend on
a formal point of view, such as constitutional law which is the written law of
Constitutions (where one finds public law, no doubt, municipal and even interna-
tional, but also principles of private law, penal law, etc.); or they refer to various
aspects of that same life in the state, such as administrative law which governs
administrative power, revenue law which governs relationships between the treasury
and the taxpayers, election law, or military law.
Unauthenticated
3X2 JEAN DABIN
cerned are physical persons, who may be equal or unequal (the latter b y
subordination of one to the other, as in the case of a " p o w e r , " or, better,
an authority) — and sometimes they are corporative — when they aim
at or start from the existence of a body of private law, whatever m a y be
its end as a group, lucrative or otherwise. 1 3
Q2. Maximum Impact of the Law upon Its Subject Matter in the
Field of Economic Relations. If it is true, then, that all human relations
— domestic and international, public and private, property and non-
property, interindividual and corporative ones — fall within the compe-
tence of law, it is appropriate to add that, for various reasons, the grip
of the rule varies noticeably in degree according to the subject matters.
As regards first of all private relations, which long remained under
the grip of customs and private institutions (family, corporate bodies), 1 4
the penetration of the law is best revealed in the economic field. N o t
because the selfish interest, the normal motor of economic life, would
like to yield to any discipline, on the contrary — nor because all eco-
nomic liberty ought to be proscribed: T h e economy requires a large dose
of l i b e r t y ; 1 5 but rather because law and economics offer structural
analogies. On the one side, the economic values are essentially "things,"
translatable into money, interchangeable, impersonal; on the other, the
law is essentially an external discipline, laid down and applied from
without. T h u s one can understand that such a discipline is pleased with
regulating " t h i n g s " which accommodate themselves more easily to its
touch than the personal values whose inner subjectivity escapes it. N o
doubt the objectivism (or " t h i n g " character) of economics must be well
understood. There is no pure economics, and consequently no pure
thing. B y its origin as b y its end, economics is washed through with the
human: T h e wealth of goods is produced or made fruitful b y man and
is at the service of man, of the collective whole and of everyone indi-
vidually. Moreover, it happens that things acquire a personal value out-
side their commercial value; such are the nourishing earth, the ancestral
1 3 A s to structure, as observed before, the state and private groups are equally
corporative bodies and hence fall under a corporativ e l a w . T h u s , one m a y speak of

" p r i v a t e constitutional l a w , " as the theorists of the institution do, see G . RENARD,
LA THEORIE DE L'INSTITUTION 163, 271 et seq., 278. B u t it is understood that the
state includes and dominates the private bodies at least as f a r as the public g o o d
requires.
" T h e l a w of the state has intervened sometimes to r e m e d y abuses of earlier
disciplines that h a v e become despotic, sometimes contrariwise to support them w i t h
its authority w h e n they have lost some of their force, and sometimes t o m o d i f y their
precepts in a sense mor e open to the needs of the w h o l e c o m m u n i t y .
15 See infra, nos. 156 et seq.
Unauthenticated
home, the family jewels. In this sense, the values of property as "patri-
mony," evoking the idea of the family, are opposed to the economic and
commercial values.
A s a human discipline, the law will obviously try to take these personal
aspects of economics into account, at least as far as its structure as exter-
nal rule does not hinder it from mastering them. I t is this reservation
that justifies the jurist against the reproach that he gives property only
an insufficient analysis (the famous jus utendi, fruendi et abutendi),a
not exhausting and hardly scratching the surface of the moral and
human reality of the relation of the thing to the person. 10 T h e "moral
and human reality of property" is not very accessible to the jurist be-
cause he does not have the means to enclose it in a neat rule that gives
the owner security: It would be socially intolerable if at every one of
his steps the owner could be cross-examined in the name of the moral
and human reality of property. Contrariwise, where the economic values
are sufficiently detached from any element of personality, as in exchange
and commercial transactions, 1 7 the legal rule works with ease, for it has
less trouble in measuring rights and duties where the subject matter as
such is measurable, ponderable, calculable.
93. Far Less Impact in the Field of Personal Values. M u c h less well
adapted and less efficacious is the position of the law with regard to
extra-economic values, those pertaining to the person and the family.
Neither the human person nor his powers (which are his emanations),
neither the soul of man nor his body (which are indivisibly united) are
measurable "things," susceptible of seizure from the outside. Hence the
powerlessness of the jurist fully to objectivate and fence in the relations
which have their direct subject matter in, or touch upon, such values.
T h a t powerlessness is to be observed even where the person is made to
serve economic ends, as in the contract of employment. Labor is not a
commodity precisely because it implies engagement of the person in
the work to be accomplished. B u t how can the extent and value of that
engagement be measured exactly so as to render to each what is his due?
A n d outside of the obligation to pay wages, which is a measurable thing
(though measurable by the yardstick of the human life), how can the
personal relationships, from man to man, between parties to the employ-
ment of labor, be regulated in an adequate manner? 1 8
* [ T h e right to use, e n j o y and abuse.]
16 T h e statement is b y J . T o n n e a u , Propriete, in DICTIONNAIRE DE THEOLOGIE
CATHOLIQUE cols. 738 and 833; the criticism is b y F. R u s s o , op. cit. 84-86. . . .
" W i t h certain reservations even there, f o r the personal element is never suscep-
tible of complete exclusion, see supra, no. 77 w i t h n. 8.
18 See, e.g., articles 9 and 11 of the Belgian L a w on the C o n t r a c t of W o r k of
Unauthenticated
314 JEAN DABIN
If "rights of personality" are involved under a contract or outside a
contract, how are damages to be assured in an adequate manner for
violation of such rights? How can such rights even be defined in their
inner subjectivity, since the personality is, to a large extent, not com-
municable? Forget about the "economic personality" of the industrialist
or merchant, which if need be may be appraised in economic terms,
according to the value of the enterprises (although actually the economic
personality is inseparable from the personality as such). But who can
be satisfied with the legal treatment of attacks upon the physical side
of personality and, above all, upon the moral rights of individuals? No
doubt the law sets up rules and reveals its presence: What good would
it be if it did not protect persons above all in what is closest to them?
But its protection is short, and whatever it may do to improve its means
of penetration, it will never go beyond the surface layer of the sub-
stance of personality. 19
94. The Same, in the Field of the Family. Equally remarkable is the
insufficiency of the legal approach in the field of the family. The relations
between husband and wife, parents and children are infinitely richer
and more meaningful than is evidenced by legal definitions. What is
marriage for the jurist? Simply cohabitation combined with mutual
material aid. Husband and wife live together and have the right to do
so as a result of a solemn agreement, which is the act of celebration of
the marriage; having contracted the marriage, they are bound to live
together in mutual faithfulness and to render mutual aid to each other.
Now such a definition, which is limited to the external side of things —
the common life, habitation in the same domus b — is far from express-
ing the essence or simply the reality of marriage. It barely suggests the
carnal union, whereas marriage is the total fusion, body and soul, of two
human personalities, man and woman, with a view to the propagation
of humankind and to their own perfection. According to scientific and
metaphysical verities, marriage suggests a very vast world where love
and life, individual and species meet; of this profound and truly
mysterious reality the law retains only certain superficial traits which it
can capture. 20 The same remark may be made about the "paternal
group" linking children to their parents. The obligation to feed, bring
up, and maintain children with which parents are charged (Code Napo-
March 10, 1900. The difficulty remains the same if the relationships are conceived
on a community level, in the framework of the "community of the enterprise."
19 See the reproach formulated by G. del Vecchio, Essai sur les principes generaux
du droit, § V I I , i n JUSTICE, DROIT, ETAT 145.
b [House, home.]
x Cf. D. von HILDEBRAND, LE MARIAGE (transl. by Lavand, ed. Cerf, 1937).
Unauthenticated
leon, article 203),° could in its textual tenor be fulfilled in technically as

perfect a manner by an educator as b y the parents. Y e t the child's
progenitors will add to the legal obligation a manner of discharging it, a
diligence and tact whose secret lies in that unique sentiment: Fatherly
and motherly love. Reciprocally, the docility which children are charged
to observe will be fortified by a note of trustful devotion which finds its
irreplaceable source in filial love.
In short, domestic relations — and all relations that approximate
them, such as the relations between the employer and his collaborators,
without falling back for this reason upon "paternalism" 2 1 — present
themselves under a double aspect: A somehow corporal aspect, for which
the discipline of law is appropriate, and a psychological and moral
aspect, irreducible to a rule proceeding from without, such as the law
or the rules of social manners. And it is always the same fundamental
doctrine: T h e internal does not fall under the law, even where the rela-
tions under consideration may have a mixed character, both external
and internal. 22
95. Cause of the Relative Powerlessness of the Law in the Field of

Political Relations. In the order of political relations, where the power-
lessness of the law is equally manifest in certain sectors (the whole field
concerning the duties of rulers, the field of international relations), that
powerlessness, it is well known, is due less to the subject matter than to
the subject individuals. Essentially, it rests upon the impossibility of
subjecting the various sovereign authorities to their rule: Quis custodiet
custodes? d 2 3 B y its nature, politics is wholly subject to the law, with-
out distinction between relations of the citizen to the state and relations
of the state to the citizen, and without distinction between domestic
and international politics. Is not the state in all respects a society devoted
to a certain end, and consequently subjected to the laws of that end?
Are not its organs and agents functionary, and consequently subjected
to the law of their function? T h e very definition of the state-society
assumes the existence of a rule for all who, on whatever ground, are in-
c [Art . 203 of the Cod e N a p o l e o n provides as f o l l o w s : " T h e spouses b y the sole
act of marriage at once contract the obligation of nourishing, sustaining, and raising
their children."]
21 C f . our observations supra, no. 77 (on the note of friendship added to certain
contracts f o r consideration) and no. 90 (on the coefficient of p e r s o n a l e m included

in the contract of w o r k ) .
2 2 C f . , in the same sense, 1 SAVIGNY, op. cit. (transl. b y Guenoux, 2d ed.) 324:
See equally on the l a w as the "logical and universal aspect of social life," F. R u s s o ,
op cit. 128-134.
" [ W h o will w a t c h the w a t c h e r s ? ]
23 See supra, nos. 36-40.
Unauthenticated
3i6 JEAN DABIN
volved in the relations of the state, for the rulers as well as for the
subjects and for the states among each other on the international level.
And as the state is a public, hence external, society, no consideration of
inwardness can hamper the normal play of the rule here nor localize it
in the surface layer of the matter.
96. The Claim that the Nation is Not Reducible to the Legal Rule.
True, it is objected that, if that observation holds good for the state,
which belongs "to the order of organization, of logic, of the universal,"
it does not hold good for the nation, which represents "the affective,
dynamic, original elements of the life of the political society": Facing
the law, there will always be politics, and the sum total of the more
personal and intimate relations of national and international life. Thus
would be explained the field reserved to the exclusive jurisdiction of
states in international law. 24
But, to begin with, how can that dissociation of the state and the
nation be admitted? Is not the state the organized nation itself? 2 5 And
from the moment when the nation is organized in the state, how can it
free itself from the state? The state would, by its nature, fall under the
law; the nation, in what it involves of the original, the personal, the
intimate, would fall under politics. But how can that conception of
politics as connected with the nation rather than with the state, and
above all that opposition between politics and law, be justified? From
the assumption that nations are somehow living beings, moved by forces
which one calls political, animated by sentiments — or passions — which
one decorates with the name mystical, it does not follow that these
living collectives escape all law. T h e human collectivities, made up of
human individuals, are, like the individuals, subject to the law of reason.
That their passions are more violent, that in this respect they have not
gone beyond the stage of primitivism or infancy, changes nothing in the
principle. It will be precisely the role of the state to educate its nation,
as it does its individuals, to discipline it, to civilize it in such a way that
reason outstrips sentiment in the politics of the nation. Nor is there any
question of sacrificing national values; on the contrary, the law com-
mands that they be safeguarded and defended against any enemy,
internal or external. But the legitimacy of national values is one thing,
and quite another is an exacerbated, distrustful, aggressive nationalism
which claims to be freed from any norm. 26
24 F. Russo, op. cit. 129-131.

25 We are speaking here of the nation in general, without necessarily referring to
the principle of nationalities.
28 Only the principle of the competence of the law in all matters of the political
Unauthenticated
97. The Illusion oj the Sufficiency of the Legal Order. The powerless-
ness of the law in political matters thus is not due to the political. It is
due to the fact that the rule is the work of the state itself, the state being
free to decree or not to decree it, and to such effect as the state sees fit,
and, having decreed it, always remains free not to observe it. Thus the
master of the law and the subject of the law are confounded. The state
as legislator is qualified to define and guarantee the obligations of the
state as of anyone in the political society; the state as judge is charged
with applying to the state the rules imposed upon it by the state as
legislator. No doubt, there is nothing to prevent the state as legislator
and judge from subjecting to discipline its own organs, the institutions,
the powers, the men who exercise the functions of the state. But whatever
contrivance may be imagined to escape the circle (division of authority
by separation of powers, etc.), 27 a supreme organ will remain, which
disposes of the rule and its application in a sovereign manner, yet is itself
delivered from any properly legal discipline. The same conclusion applies
in the order of relationships between states, in the absence of an organ-
ized international society: The states, which by the norm ought to obey
a collective discipline, in fact enjoy a freedom legally sovereign, at least
in the sense that no compulsion leads it to respect the rule. The difficulty
is not at all congenital; in the present state of the international world,
it is not surmounted, and its solution seems hardly imminent. Moreover,
supposing that international law one day arrives at the fully legal stage,
one would be faced on this level with the obstacle encountered in the
domestic order: How to obtain submission to the norm of international
law by the supreme organ of international legislation.
This is the "hole on top," the fundamental lacuna which shows the
illusion of the "plenitude of the legal order": If authentic, specific law
is indeed the law that is called positive, one still could not deny that this
positive law needs to be complemented by the moral law in order to fill
the sphere that is necessarily "empty of law" — empty because of the
impossibility of putting under positive law the authority which is the
master of positive law. Where, for this reason, politics escapes from
law, it remains under the jurisdiction of morals, the sovereign master of
all human acts, including the acts of men who "make" politics.
o r d e r is m e a n t t o b e raised h e r e w i t h o u t e x c l u d i n g t h e r e f r o m a priori " t h e m o r e

p e r s o n a l a n d i n t i m a t e realities of n a t i o n a l a n d i n t e r n a t i o n a l l i f e . " T h e q u e s t i o n in
w h a t m e a s u r e a n d m a n n e r the l a w o u g h t to i n t e r v e n e is n o t u n d e r e x a m i n a t i o n .
27 E v e n w h e r e the o r g a n s of legislative or e x e c u t i v e a u t h o r i t y are s u b j e c t t o t h e
j u d i c i a r y t h e y m u s t s h o w t h e m s e l v e s discreet so as n o t to excite reactions hostile

to c o n t r o l ; cf. n o t e P . L . o n t h e C o u n c i l of S t a t e , decision of M a y 16, 1 9 4 1 , SIREY
( 1 9 4 2 ) , 3, 2 i , a t p . 2 i , col. 2, a n d p. 22, col. 1 .
Unauthenticated
PART TWO
THE LEGAL METHOD
CHAPTER I
IS T H E L A W " G I V E N " OR " C O N S T R U E D , " T H E S U B J E C T

OF A S C I E N C E OR OF A T E C H N I Q U E ?
SECTION I . STATE OF THE PROBLEM AND PRESENT THEORIES
g8. Explanation oj the Terms "Given" and "Construed." These are

the terms in which Geny has posed the problem, 1 terms no doubt a little
simple. But since the formulation has become classic among legal
theorists, it seems useful to preserve it while rendering more precise its
meaning, which certainly needs explanation. 2
A thing is given when it exists as an object outside of any productive
intervention of man: Such as God, nature, human beings and their rela-
tions, the contingent facts of history. A thing is construed when, taken
by itself, it has its cause in the efficient activity of man: Such as a house,
a poem, a syllogism, the state. It is clear, further, that the "construed,"
once it has been given reality, becomes something "given" for everybody,
including its author: A given relative datum, if one likes the term,
whereas the thing that owes nothing to human causality is a given abso-
lute. Now, with regard to the "given," to whatever category it may
belong — physical, metaphysical, or historical — the attitude of man is
that of knowledge, of science; with regard to the "construed," man, who
by definition is the constructor, is operative and, in this sense, makes a
work of art or of technology. 3 On the one hand, the attitude of investiga-
tion or reception; on the other, creative operation.
This is not to say that the work of knowledge would exclude all con-
1See F . GENY, in the symposium LES METHODES JURIDIQUES (Paris, 1 9 1 1 ) 181-
1 9 6 ; a l s o , n o t a b l y , 1 SCIENCE ET T E C H N I Q UE EN DROIT PRIVE POSITIF ( P a r i s , 1914)
nos. 33-34, pp. 96-100; 2 id. (1915) I 3 id- (1921) ; 4 id. (1925). [See also F . GENY
and others, THE SCIENCE OF LEGAL METHOD (trans. E . Bruncken and L . B. Regis-
ter, N e w Y o r k , 1 9 1 7 ) . ]
2 On the ambiguity of the notions of "given," "construed," "technique," in Geny's
w o r k , c f . F . R u s s o , R E A L I T E J U R I D I Q U E ET REALITE SOCIALE 30.

' T e c h n i q u e , then, is here understood to mean not so much processes (following
the definition of technique as a complex of processes) as a result which technique
has wrought.
Unauthenticated
struction: In its raw state, the " g i v e n " is difficult to seize for the human
mind; at least there is needed for its comprehension an operation of the
intelligence which cannot proceed without a certain more or less deform-
ing conceptual elaboration. In relation to the " r a w f a c t , " the "scientific
f a c t " is "construed." Y e t the whole effort of science tends to as exact as
possible a restitution of the real, naturally in accordance with the means
at the disposal of science. On the contrary, the work of the man of art or
of technology arrives at something new, which may well have retained
from the real its materials (by contrast with pure creation) or the reason
for its being (by contrast with aimless w o r k ) , but which nevertheless in
its actual form did not before exist in reality. 4 T h u s understood, the
distinction appears hardly contestable. A t bottom, it fits in with the
classical distinction between the speculative or theoretical sciences, which
confine themselves to considering things from the standpoint of their
truth alone, and the practical sciences which, aiming at action, tend to
evolve rules of action, which is here called "construing."
gg. Extent of the Application of the Idea of the "Construed." Little

does it matter, moreover, whether construction refers to agere,a i.e., to
mores (morals and politics) (agibilia), or to facere,b i.e., to the produc-
tions, utilitarian or otherwise, of the laborer, the craftsman, the artist,
the scholar (factibilia) . 5 I t is true that usage reserves the term "tech-
nique" to the minor needs of the various facere, and the name " a r t " to
the major needs (especially in the case of aesthetic work), 6 while in the
field of mores, the name "prudence" signifies the practical reason con-
cretely discerning things to be done and decisions and alternatives to be
taken. 7 But interesting as these distinctions may be, there is no place
here for the moment to dwell upon them. 8 In any event, whether "tech-
nique," " a r t , " or "prudence" is concerned, it is the practical order that
* This is the answer to the objection that any science whatever, even one most
positive in its methods, would be construed; see, in that sense, M . Djuvara, Le but
du droit, i n 3 ANNUAIRE DE L'INSTITUT INTERNATIONAL DE PHILOSOPHIE DU DROIT
ET DE SOCIOLOGIE JURIDIQUE (1938) 100-101. If science is indeed construed by the
human mind, the realities with which it is concerned are not.
* [Acting.]
6 [Making.]
5 Cf., as t o j u s t i c e , S T . T H O M A S , S U M M A THEOLOGICA, IIa Ilae, q u . $8, a r t . 3

ad 3.
" Etymologically, " a r t " and "technique" (τέχνη) are synonymous.
7 On the distinction between art and prudence, see especially ST. THOMAS, op. cit.
IIa Ilae, qu. 47, art. 2 ad 3, art. 5 ad resp. Incidentally, art and even technique are
not excluded from the domain of agibilia but they remain dependent upon prudence.
" T h e y will be encountered again at a more advanced stage of the argument,
infra, nos. 124, 192.
Unauthenticated
320 JEAN DABIN
comes into play: Action to be proposed, work to be elaborated, con-
struction and not speculation. 9
Equally little does it matter who the author of the construction is:
Isolated individual or collectivity, professional or nonprofessional.
Neither in the field of agere nor in that of facere do isolated individuals,
and that includes the specialists, have a monopoly of construction. As
groups of artisans working under the direction of a master have erected
cathedrals, so collective reason is able to pose principles of conduct in
moral matters. Nor shall we consider what is the psychological process
of construction: Spontaneous elaboration (as often in popular work) or
reflective elaboration. What counts from our point of view is neither the
quality of the actor nor the mode of the activity. It is the aim, the work
created. And hence there is no ground for restricting the ideas of the
"construed" and of "technique" to the cases of reflective elaboration on
the part of so-called technicians alone, excluding spontaneous elabora-
tions of collective origin. 10 What has been construed by life, by the
people, remains a human creation by the same token as the individual
work of the specialist.
100. Statement of the Question. After these differentiations, with

which category is the law to be ranked? Is the law, as regards its content,
"given," apart from all human elaboration, or is it rather "construed"
by men, by the professional jurist or the people? And, since the terms
are interrelated, is the law, as something "given," an object of science,
that is, something to be found and registered, or is it, as something
"construed," a work of art or of a technique?
Let us first of all remark that the law may be contemplated from two
points of view: In its historical existence, and in its essence.
101. In Its Historical Existence, the Law Is "Given." In its historical

existence, the law is obviously "given," an object of science, whether we
deal with contemporary law or ancient law, with national law, foreign
law, or international law. This given law, if it is in force, will no doubt
require application to special cases, which belongs to a certain art rather
than to science. But with a reservation for application to special cases,
the historically given law, in force or not, does present itself as a reality,
susceptive of a properly scientific, speculative knowledge. 11 Again, the
"Cf. St. Thomas, Comm. Post. An., bk. I, lesson 14: . . .; also Comm. Eth.,
bk. X, less. 14, in princ.; Comm. Polit., bk. I, less. 1: . . .
10 This seems to be the conception of F. Russo, op cit. 32 et seq., . . .
11 Even the interpretation of the law is a science inasmuch as to interpret the law
means to understand it as it is and not to reform or deform it. In all matters, in-
deed, the real calls for interpretation.
Unauthenticated
law of a country or of a group of countries or, if that is possible, of the
entire world may be studied not as static, at an arrested moment of time,
but in its evolution in the course of the ages. This is the viewpoint proper
to the historian. 12 Finally the law may be studied from a strictly socio-
logical viewpoint, in its relations with the social life either of a country
or an epoch or in general. Anyway, the activity is one of science: The
science of the national or foreign law, the science of legal history, the
science of the sociology of law. The attempt is made to analyze and to
understand certain phenomena as such or by comparison, 13 namely,
phenomena of legal rules. This is the science of the established law,
which is eventually to complete and crown some general theory: A
"philosophy" of such a legal system, 14 a "philosophy" of legal history, 15
"principles" of the sociology of law. 16
102. But What about Law in Its Essence? But outside of the "existen-
tial" law — present, past, future, or merely possible — there is law
pure and simple, denuded of any form of concrete existence. 17 It is in
relation to the law as thus understood, in the state of essence, that our
question is raised. In it one at once discerns the interest in an exact
appraisal of the lawyer's mission. If the law is "given," at least for the
jurist, it will be enough to gather the "given" thing in the reality that
supplies it. According to the more or less "positive" nature of the given,
the method of knowledge will vary: Properly scientific or philosophical,
even theological (in the eventuality that something given that is juridical
has been revealed). But the search always sets itself only one aim: T o
find out the law where it is, as something given. An appeasing doctrine!
The jurist is a man of science: His conclusions have the objectivity and
" O n the "history of the laws of antiquity" (antike Rechtsgeschichte) which in

turn is a part of the "universal history of humanity" [jie] (allgemeine Rechts-
geschichte [properly translated: "universal history of l a w " ] ) , according to Post and
Kohler, see L. WENGER in 1 RECUEIL LAMBERT § 11, pp. 138 et seq. Cf. P.
K O S C H A K E R i n 1 R E C U E I L L A M B E R T § 22, p p . 2 7 4 et seq.
13 The allusion here is to the comparative method, in law (comparative law), in
legal history (comparative history), and in the sociology of law (comparative so-
ciology of law) .
" S e e , e . g . , JHERING, ESPRIT DU DROIT ROMAIN ( t r a n s l . b y Meulenaere).
16 C f . P . DE TOURTOULON , L E S PRINCIPES PHILOSOPHIQUES DE L'HISTOIRE DU DROIT
(Paris-Lausanne, 1908-1919) — though that work includes much legal philosophy.
l e Cf. N.-S. Timacheff, Vetude soctologique du droit, in ARCHIVES DE PHILOS-
OPHIE DU DROIT ( 1 9 3 8 ) n o s . 1 - 2 , p p . 209 et seq.
" O n the necessary distinction between comparative method and general theory
of law, cf. F. Weyr, Remarques genitales sur la nature juridique de la methode
comparative, in Introduction ä l'itude du droit compari, 1 RECUEIL LAMBERT § 26,
p. 311.
Unauthenticated
322 JEAN DABIN
certainty of science. The authentic rule, issuing from the given, has the
validity of the propositions of science: Imagination is excluded. Con-
trariwise, if the law is construed, the door is open to the arbitrary sub-
jectivism of the author of the rule. Even if the construction should be
subjected to principles, the solutions evolved in applying them could
only be vacillating, disputable and disputed.
But whatever may be the security — real or fancied 18 — which one ex-
pects from a "scientific" conception of the law, it is impossible to found
security upon error. The law will be even more arbitrary, or in any case
more tyrannical, if it presents itself in the name of something given that
would lack objective reality. It is truth, then, that it matters to seek even
when it should appear less agreeable, less comfortable than error.
103. Attitude of Legal Positivism, and Criticism. A whole juristic

school adopts an attitude of indifference to the problem, on the stated
ground that it would transcend the jurist's sphere of competence. Ac-
cording to them, the science of law would have only the historically
given law as its subject, which the jurist as such would only have to
outline in scientific form. Such a task alone would be "positive" because
it would be attached to the real, and the historically given law alone is
real. As for the critique of that law or the search for some principle domi-
nating the positive elaboration, that work, which is not indeed denied to
be legitimate, would be "metajuridical," belonging to disciplines other
than the law: Political science, sociology, philosophy. Such is the attitude
adopted, independently of taking any position in the properly philo-
sophical order, by the adherents of the school of so-called legal posi-
tivism, which starts from the positively established law and seeks to
know that law only. 19 But even admitting that legal science could be
immured in the pure exposition of the law, a non-suit for lack of juris-
diction is not a solution. With legal science defaulting after pleading
lack of jurisdiction, another discipline will have to take charge of the
problem, which may be, if one likes, the discipline of legal philosophy. 20
18 The difficulty of " H o w to construe ?" has its counterpart in the other difficulty,
which must necessarily be resolved: "Where to look for the given, and how to inter-
pret i t ? "
" A s representatives of this school may be cited notably Jeze in France and
Kelsen and his followers in Germany. [See H. KELSEN, GENERAL THEORY OF LAW
AND STATE (trans. A. Wedberg, 1945).] On the Kelsen school, see J. Sedlacek,
L'oeuvre de Francois Giny et la science du droit pur, in 1 RECUEIL D'ETUDES SUR
LES SOURCES DU DROIT EN L ' H O N N E U R DE F ß A N g o i s G E N Y 2 7 7 et seq. C f . the doctrine
of the exegetic school in France in the nineteenth century as summarized in J.
BONNECASE, INTRODUCTION λ L'ETUDE DU DROIT ( 2 d e d . P a r i s , 1 9 3 1 ) , n o s . 1 0 8 et seq.,
pp. 180 et seq., especially no. 118, pp. 190-191.
2 0 Cf. CICERO, DE LEGIBUS, bk. I, chap. 5: . . . See generally, on the untenable
Unauthenticated
104. Everybody Recognizes that in Some Part the Law Is "Con-

strued." A first point admits of no discussion: U p to a certain point,
more or less considerable according to varying opinions, the law is con-
strued. T h u s Savigny, the great master of the historical school, recog-
nized the existence of a scientific elaboration of the law b y the jurists,
which he called "legal technique" and which he distinguished from the
spontaneous creation of the law in the heart of the people. 2 1 For Duguit,
custom, case law, and statute law, being "mere modes of stating the legal
rule," 2 2 are a matter of "legal a r t " ; 2 3 as for the foundation of the law,
it is made up of two kinds of rules, the "normative legal rules, or legal
norms properly so called" and the "constructive or technical legal
rules," "established as far as possible to assure respect for and applica-
tion of the normative legal r u l e s . " 2 4 Among the adherents of natural
law, none denies that it requires practical realization, which constitutes
precisely the original resort of the positive law: T h e whole system is
built upon the logical opposition between an element of law given by
nature and a positive element issuing from the will of man. 2 5 Even the
authors most inclined to emphasize the part of the naturally (or scien-
tifically) given within the complex are clearly obliged to admit a limit:
"Science," writes Russo — in this case, social science — "has permitted
us to remove certain indeterminations, but not all: Some irreducible
ones subsist; some social structures are necessary which we have not
been able to uncover even b y the most penetrating analysis of social
life." 2 6
105. The Certain Part of the "Construed": Formal Sources; Ma-

chineries; Differentiations by Enumeration. In fact, the statutes, the
customs, the decisions of cases, inasmuch as they are formal sources of
law, are indubitably construed. T h e y are not the law itself but represent
character of legal positivism (hoc sensu), Η . D u p e y r o u x , Les grands problemes du

droit (dealing w i t h the w o r k of L e F u r ) , in ARCHIVES DE PHILOSOPHIE DU DROIT
(1938), nos. 1 - 2 , pp. 14 et seq.
a On the conceptions of S a v i g n y in this respect, see 3 F. GENY, SCIENCE ET
TECHNIQUE, no. 180, pp. 5 - 6 , and citations there.

2 2 1 L . DUGUIT, TRAITE DE DROIT CONSTITUTIONAL (3d ed.) § 14, p. 154. [ P o r -
tions of the w o r k of D u g u i t were translated in A . Fouillee, J . C h a r m o n t , L . D u g u i t ,

and R . D e m o g u e , MODERN FRENCH LEGAL PHILOSOPHY (trans. J . P . Chamberlain
and E . F. Scott, N e w Y o r k ) . ]
A I L . DUGUIT, op. cit. § 15, pp. 158, 1 6 1 - 1 6 2 ; § 16, p. 173.
2 4 1 L . DUGUIT, op. cit. § 10, pp. 1 0 6 - 1 0 7 ; also pp. 154, 225-226.
25 See, e.g., F . GENY, SCIENCE ET TECHNIQUE EN DROIT PRIVE POSITIF (4 vols.)
passim.
26 F . R u s s o , op. cit. 109; see also 40-42.
Unauthenticated
324 JEAN DABIN
a certain manner of expressing it and containing it. They are organs,
instruments. Now means or instruments are construed. They have their
authors — including custom, which is indeed a creation of the people
because it derives from their attitudes and conduct. Again to the various
organs and instruments of the law there correspond as many particular
procedures and techniques: A legislative technique, a technique of case
law, and one of custom. Nor is this all. Going beyond the mode of ex-
pression, the "construed" enters the content of the law. For instance,
the machinery for the protection of minors, at the very least when
taken in its concrete determination, outside of the idea of protection, is
construed: Any machinery whatever implies construction, including the
legal machineries that are translated into rules of conduct (realm of
agere).27 Similarly, the precise differentiations by enumeration which
one meets in the codes at every step are purely artificial in their con-
crete determination — viz., the figure chosen. No examination is made
as to whether these "constructions" are postulated by any necessity
whatever, nor whether they have a law of their own, which is not in
doubt. It is merely maintained that they are not at all given, that man
establishes them, literally makes them. 28
JO6. Divergence of Opinions as to the Nature and Origin of the

"Given." Y e t following the texts cited above, the law is not construed
in its entirety. B y general opinion, at the basis of the construed portion,
rendered explicit and developed by it, there would repose something
"given," an anterior legal reality which the traditional school calls
natural law, 29 which others call rational law, 30 the "notion of law"
(Bonnecase), 31 the "social reality" seen across its "natural finalities"
(F. Russo, taking up an expression by Delos), 32 the "legal rule" or
"juridical norm" (Duguit), 3 3 or the "normative facts" (Gurvitch). 3 4
" O n agere and facere, see supra, no. 99.

28 T h a t is w h y the theories of radical objectivism are difficult to understand
which claim to exclude any intervention of the will in the domain of the l a w ; see,
e.g., R . Bonnard, L'origine de Vordonnancement juridique, in MELANGES MAURICE
HAURIOU, pp. 48-49.
28 W e shall come back to the " g i v e n " of natural law, infra, no. n o .
30 M . D j u v a r a , Droit rationnel et droit positif, in 1 RECUEIL D'ETUDES SUR LES

SOURCES DU DROIT EN L'HONNEUR DE FRANQOIS G E N Y 245 et seq.
"J. BONNECASE, INTRODUCTION Λ L'ETUDE DU DROIT n o s . 1 3 8 et seq., pp. 217
et seq.
32 F . R u s s o , REALIT E JURIDIQUE ET REALITE SOCIALE (Paris, 1 9 4 2 ) passim, esp.
37-40, 48-60, 108-109.
33 W e shall come back at once to the " n o r m a t i v e " given of DUGIJIT, infra, no.
107.
34 G . G U R V I T C H , L'IDEE DU DROIT SOCIAL (Paris, 1932) passim. Also the same,
Unauthenticated
As an essential element of the whole, what is thus given in the law would
be primary to and imposed upon the construction, so that according to
Duguit the positive law contrary to the "legal rule" would lose all
character as law, whereas to the traditional school the contradiction
would raise the delicate problem of the "conflict between natural law
and positive l a w . " 3 5
Unfortunately, agreement among partisans of the " g i v e n " in the law
ceases when it comes to defining the nature and origin of what is thus
given; and the sometimes rather neutral terms they use (such as the
"legal rule" of D u g u i t) really cover divergent conceptions. From the
first encounter on, the security that had been counted upon vanishes:
T h e " g i v e n " in the law itself becomes the subject of debate! Broadly,
two theses are in conflict, determined b y the philosophical tendencies of
their protagonists: On the one side, positivism, though under varying
aspects, psycho-sociological or squarely materialistic; on the other,
"metaphysical realism," disguising the basic unity of its doctrine under
the diversity of its formulae.
107. The Opinion of Duguit. For Duguit, most eminent representative

in France of the psycho-sociological conception of the " g i v e n , " " a legal
rule exists when the mass of the individuals who make up the group
comprehends and admits that a reaction against the violators of the rule
can be socially organized. T h a t organization may be nonexistent, it may
be embryonic and sporadic; that matters little. At the moment when
the mass of minds conceives of it, desires it, provokes its creation, the
legal rule appears" 36 T h u s the legal rule or juridical norm exists from
the instant and on condition that the "mass of minds" 3 7 aspires to a
socially organized reaction against the transgressors of that primary,
so-called social, norm, which, as analyzed at length by Duguit, consists
essentially of the law of social solidarity, in the twofold form of the
economic norm (for that which relates to the economy) and the moral
norm (for the extra-economic activities). T w o factors, according to
Duguit, contribute to form the state of conscience from which the law
ultimately emerges. T h e y are both facts, and the author, true to his
positive method, proposes to utilize them as such only, without searching
L'EXPERIENCE JURIDIQUE ET LA PHILOSOPHIE PLURALISTE DU DROIT (Paris, 1 9 3 5 ) 142

et seq.
* See F . GENY, SCIENCE ET TECHNIQUE, v o l . 4.
" 1 L . DUGUIT, op. cit. § 8, p. 94. O u r italics.
" D u g u i t , i n d e e d , rejects as u n r e a l the i d ea of a " s o c i a l c o n s c i o u s n e s s " distinct
f r o m a n y i n d i v i d u a l c o n s c i o u s n e s s ; see 1 op. cit. § 12, p p . 127 et seq.] § 1 3 , p p .
146-151.
Unauthenticated
326 JEAN DABIN
for their objective value: T h e y are the feeling of sociality and the feeling
of justice. 3 8 T h e feeling of sociality is " t h e feeling existing at a given
moment that the bond of solidarity which maintains the social integra-
tion would be broken if the respect for a certain economic or moral rule
were not sanctioned by means of law." 3 9 T h e feeling of justice: M a n
always and everywhere has the feeling that he is an individual having a
certain autonomy, which implies respect for two kinds of particular
justice, distributive and commutative, the best definition of which was
given by St. Thomas Aquinas. 4 0
T o sum up, "the consciousness among the mass of the individuals of a
given group that some moral or economic rule is essential for maintain-
ing the social solidarity, and the consciousness that it is just to sanction
it, these are the two essential elements of the formation and transforma-
tion of the legal r u l e . " 4 1 Hence the work of the jurist is twofold: " A
truly scientific w o r k " — one of positive science, where no philosophy, no
metaphysics enter — "to uncover under the social facts the legal rule;
and a work of technical art, to prepare the customary or written rule,
which is the constructive rule tending to determine the scope, and guar-
antee the realization, of the n o r m . " 4 2
108. Theories Searching for the "Given" of the Law in Popular Feel-
ing. In this exposition, one recognizes the guiding theme of the historical
school: Basically, the law emanates from the people. 43 N o t from the
" l e g a l " people, deliberating in its comitiaec or through the intermediary
of its representatives, based on the title of political sovereignty, but
from the real people, going about their ordinary occupations, thinking
out the law as a function of their experience and from the more or less
enlightened ideas they form of the legal ordinance. Another, more em-
pirical formula leaves the definition of the given of the law to public
opinion, that is, to the public in general as far as it has opinions in
matters of law 4 4
Sometimes the people conceive man and his relationships with an-
38
1 L . DUGUIT, op. cit. § io, pp. 115-116.
" ι L . DUGUIT, op. cit. § 11, pp. 116-117.
40
1 L . DUGUIT, op. cit. § 11, pp. 120-122.
41 1 L . DUGUIT, op. cit. § 1 1 , p . 1 2 5 . S e e , i n t h e s a m e s e n s e , R . CAPITANT, op. cit.
127-132.
42
1 L . DUGUIT, op. cit. § 15, p. 162.
43 S e e , e . g . , SAVIGNY, SYSTEME DU DROIT ROMAIN § 7 : " I t is t h e s p i r i t o f t h e p e o p l e ,
living and acting in all individuals in common, that engenders positive l a w . "
c [Popular assemblies in classical Rome.]
44 S e e , e.g., G . CORNIL, L E DROIT PRIVE. ESSAI DE SOCIOLOGIF. JURIDIQUE SIMPLIFIEE

(Paris, 1924).
Unauthenticated
GENERAL T H E O R Y OF LAW 32 7
other from the angle of the universal — and they will then proclaim
abstractly envisioned "rights of man" (individualism) or the principle
of social solidarity (solidarism or socialism). Sometimes the people do
not look beyond the horizon of national (völkisch) d man — they will
then think out the law nationally, depending upon their peculiarly
national temperament and aspirations. Sometimes the people manifest
their will themselves by their behavior or by various more or less
organized and inherent movements. Sometimes a Führer emerges from
their mass, an infallible medium rendering explicit in authoritarian form
the will latent in the spirit of the people (Volksgeist),45
But whatever the world-outlook philosophies (Weltanschauungen)
and the processes, the fundamental conception does not change: Moved
by a complex whole of ideas and feelings, interests and wants, the people
deem just or desirable some legal solution — in private, public, or inter-
national law — which to them seems to merit the sanction of social
compulsion. At this precise moment and by virtue of the popular will,
the "given" of the law exists, which the jurist or statesman has only to
put into form and fit together in the ways of the law. Is the people right
in willing what it wills? Is its estimation well founded? That is a matter
of personal, rigorously private opinion. A t any rate, the jurist, as a
scholar devoted to the observable real, or as one of the members of his
people, is not qualified to substitute his own judgment for the will of the
people. Immanent and transcendental, the "given" of the law resides in
this multiple subject, more or less one, the people, public opinion, which
forges it as it understands, feels, and wills it. 46
log. The "Given" of the Law as a Product of Force. Close to those

psycho-sociological conceptions inspired by "modern science" may be
put the theories, more brutal in form, which at all times in the camp of
so-called realistic thinkers reduce the law to the will of the stronger, as
the epilogue of a struggle for survival, for riches or for power, between
individuals, between classes, between peoples (law of vital competition,
historical materialism, political imperialism, in short, all forms of "social
d [ T h e term used in G e r m a n National-Socialis t ( N a z i ) doctrine, denoting folkish
or racial.]
" S e e J. Duquesne, Sur l'esprit du peuple allemand comme source d'origine du
droit allemand, in 3 RECUEH. LAMBERT § 150, pp. 22 $ et seq.
4βΟη legal psychologism as a manifestation of "legal romanticism," see J .
BONNECASE, INTRODUCTION A L'ETUDE DU DROIT nos. 180-182, pp. 278-281; also no.
140, p p . 219-220. B u t there is no understandable reason f o r classifying as "legal
classicism" the theories w h i c h derive the l a w f r o m "social consciousness" ( D ü r k -
h e i m ) : t h e y equally betray a subjectivist conception, that of the social m a s s; cf.
BONNECASE, op. cit. no. 182, pp. 1 8 1 - 1 8 2.
Unauthenticated
328 JEAN DABIN
D a r w i n i s m " ) . In that struggle which always tends toward conquest or

maintenance of a favorable law, victory would naturally fall to the
holder of the greatest force, unless the "balance of power" (as they say
in international politics) leads to a precarious peace of equilibrium or
compromise. 47 T h e forces at play must not, however, be understood as
solely brutal force: T o it must be added the force of intelligence or of
will — of the will to power: Nietzsche's Willensmacht [JZ'C] — t h e force
of number or of grouping, economic or political force, etc. A l w a y s the

law depends upon a weight, a pressure, foreign to the intervention of any
reason in the law. N o w it is easy to perceive the link that in fact unites
the conception of popular law with the conception of law as force. Does
not the people represent the greatest force? If its will must prevail, is it
not ultimately because it is strongest? Where else than in the force of
the people can one find the reason for its right to create the law? Unless
one says, which amounts to the same thing: T h e popular will most often
is fused with the preponderant social force, which is predominant in the
heart of the mass, thus being able to impose its will upon all.
i / o . The "Given" of the Law as Issuing from Nature (Natural Law

Doctrines). In opposition to those theses which develop the " g i v e n " of
the law from moving and contingent sources stands the classic, tradi-
tional theory of the " g i v e n " as something objective, deduced from na-
ture. Its definition may be borrowed from Geny, its most illustrious
defender among the jurists of today:
The given corresponds approximately to the fundamental notion of natural

law. It consists of a fund of moral and economic verities which, confronted by
the facts, command certain directives for their governance. The objective of
these directives, superior to the arbitrariness of wills, is restricted and vague.
It centers upon the supreme idea of the "objectively just," representing an
equilibrium of interests which sometimes requires auscultation by all our
powers of understanding yet which always furnishes but a rather blurred
orientation, of a nature more moral than economic, in truth, principally
moral. This given . . . furnishes the "rule," the "principle." 48
" F o r a n e w e d i t i o n o f t h e s e t h e o r i e s , s e e H . D E PAGE, D R O I T NATUREL ET POSI-

TIVISME JURXDIQUE (Bruxelles, 1939). And see the school of lnteressenjurisprudenz,
the jurisiprudence of interests, according to which the law is the product of domi-
nant interests, PH. HECK, GESETZESAUSLEGUNG UND INTERESSENJURISPRUDENZ
(1914) 17. [See also the translation by M . Schoch in THE JURISPRUDENCE OF IN-
TERESTS (Cambridge, Mass., 1948).]
48 F. GENY, SCIENCE ET TECHNIQUE EN DROIT PRIVE POSITIF, Conclusions
generates, 147. Also, on what he calls the "rational given," as an essential element
of the classical law of nature, 2 id. no. 169, pp. 380-384.
Unauthenticated
Prudent and even a bit hesitant as this formulation may be, one sees
proclaimed therein the existence, independent of any free choice b y
men — private individuals, people, qualified legislator — of a small
number of regulative principles of conduct in the moral and economic
sphere, principles which the author traces back to the idea of justice.
T h a t justice, conceived as an equilibrium of interests, would essentially
respond to the concept of natural law. T h u s neither morals nor eco-
nomics nor justice are simply the product of states of consciousness or
of opinions. Morals and economics have their laws, different in nature,
but similarly endowed with objective value; and if with Duguit one can
speak of a "feeling of justice," this is not at all a subjective feeling
without correspondence to the real, but on the contrary a more refined
sense of the objective idea of justice that has somehow passed to the
state of a physical habit. A s for the equilibrium of interests that is con-
stitutive of justice, it must, in the spirit of Geny, not be understood as a
mechanical balance where the interests are gauged solely by the weights
of their constantly variable forces, but a moral balance where the
comparison is established in the light and on the basis of a superior,
permanent principle, which is precisely the objective idea of justice.
Objective, because it has its foundation in nature, especially the nature
of man: Inasmuch as it is spiritual, human nature in effect postulates
that respect of man for man which lies at the beginning of the equilib-
rium of "interests," that is, in a word, of human values, wherein justice
consists. It is also added that in order to discover that justice, at least
in each of its applications, all our powers of understanding may be
made to contribute, not only discursive reason, but also intuition, feel-
ing, conscience, not even excluding faith.
SECTION 2. EXAMINATION OF THE THEORIES OF THE " G I V E N "

( D U G U I T , G E N Y , ETC.)
HI. Return to the Problem: Is There a Legal "Given"? Such, rapidly

sketched, according to some of their typical interpreters, 1 are the
1 T h e other interpretations of the " g i v e n , " explicit or implied, can a l w a y s be
traced b a c k m o re or less to one of the types s u m m a r i z e d in the text. T h u s the
" n o t i o n of l a w " ( " t h e r e g u l a t o r y principle charged w i t h defining the social h a r m o n y
in its essence a n d indicating the means to attain i t " ) , a d a p t e d to the " p e r m a n e n t
nature of m a n , " according to J . Bonnecase, is related to G e n y ' s natural l a w , as
stated b y Bonnecase himself, INTRODUCTION (2d e d . ) , no. 187, p. 209; see also id.
nos. 1 1 2 - 1 1 3 , p p . 220-225; no. 184, pp. 283 et seq. Russo' s "social reality, " i n v o l v i n g
n o r m s according to its " n a t u r a l finality," op. cit. n o t a b l y p. 53, is equally in line
w i t h n a t u r a l l a w , w h i c h it is to determine and c o m p l e t e b y transcending i t ; f o r it
Unauthenticated
330 JEAN D A B I N
present theories concerning the nature of the "given" in the law. But
prior to any discussion of the nature of law, the initial question remains:
Is it correct to say that the law — the law as here defined, in the sense
of a societal rule of the state or between states — is given, if only in
part? Is the truth not rather that the law is not at all given, that follow-
ing the logical definition of the "construed" as a work produced by
man, 2 the law is wholly "construed," down to its most substantial
foundation?
Contrary to prevailing opinion, we would here take the part of the
theory of total "construction" and try to prove it, first negatively,
through a critique of the two kinds of conceptions of the "given," and
then in a direct manner, through an analysis of the process of elabora-
tion of the law.
ii2. Critique of the Doctrines of the Popular "Given." As for the

variously shaded theories deriving the "given" from the people, it is
easy to reply that the people as such are not qualified in legal matters, any
more than in any other matters whatsoever·—-philosophical, scientific,
technical — to decide what is or what ought to be: The true, the good,
the just, the useful. Suppose the people have a certain opinion on a
point of law, there is nothing to indicate that that opinion would be
adequate to juridical truth and that the jurist would therefore be
under a duty to accept it as the unobjectionable "given" of the legal
regulation. The law is not a matter of the will, of masses or numbers; it
is a matter of reason. This, by the way, everyone admits, among the
people and even among the legal sociologists: A good many of these
recognize that certain popular tendencies, far from imposing obligation,
themselves call for redress.3
This is not to say that the people will always be wrong, a theory
which would result in unduly rejecting all spontaneous elaboration of
the law in the heart of societies, notably in the form of custom. On the
contrary, it is impossible to deny in a sane people that is endowed with
a certain experience, a rather exact sense of the law, its requirements
and even its opportunities. As the case may be, the so-called popular
embraces not onl y the ethical values b u t all social values w h a t e v e r ; see n o t a b l y id.
pp. 44-45. A s f o r G u r v i t c h ' s " n o r m a t i v e f a c t s , " defined b y him as the rules deriving
f r o m the social environment w h i c h realizes them, and constituted in an immediate
fashion b y the intuition of reason ("intuitive positive l a w " ) , t h e y belong rather to
a sociological conception, y e t w i t h o u t breaking w i t h a certain conception of natural
l a w ; see infra, no. 126, n. 19.
' On the notion of the " c o n s t r u e d ," see supra, no. 98.
" S e e , a m o n g others, P. Esmein, Le droit et ses sources populaires, in BIBLIO-
THEQUE DE PEUPLE (Paris, 1942) 1 9 - 2 0 ; equally, R u s s o , op. at. 53-54.
Unauthenticated
law m a y show itself sometimes inferior and sometimes superior to the

law of the jurists. 4 Y e t interpreting the law as an organ does not mean
creating it as an author. It is inadmissible to assume that the people —
the collective consciousness, the great mass of minds, public opinion
— are, not merely the more or less well inspired organ of, but the
supreme source of, the law, at least as far as the jurist is concerned.
Whatever may be the formal origin of the mode of formation of the law,
it is valid scientifically only by the amount of legal reason it contains.
In the case of many authors, especially Duguit, the contrary doctrine
proceeds from a preconceived method of purely experimental "positive
science" which would forbid one to draw the " g i v e n " of the legal rule
from anything but observable phenomena. And as Dugui t refuses to see
this " g i v e n " in the observable phenomena of statutes, customs, deci-
sions, "simple modes of stating the legal rule," he is reduced to searching
for the authentic " g i v e n " of the legal rule in the social environment, the
state of consciousness of "the great mass of minds." Indeed, on the
"positive" level, there is no other choice. Either the legal rule is
supremely given in the existing law, which one must take as it is, save
for explaining it by its phenomenal causes; or else the legal rule inhabits
an equally observable anterior region, which can only be the state of
consciousness of the people. B u t phenomenon for phenomenon, w h y
stop at the state of consciousness of the people rather than at the ex-
isting law? Because the latter would always tend to conform to that
state of consciousness, which would thus be the first phenomenon de-
termining the other? Y e t popular nonconformity may be encountered
and is in fact often enough encountered. I t even happens that the exist-
ing law maintains itself against popular opinion, indeed, that it triumphs
over and converts it. Where, then, is the ground for any preference? 5
Let us add that while sometimes the state of consciousness of the
mass may be perceived without too much trouble, it is still more often
indiscernible, either because the people are divided in opinion or because
they have no opinion on the problem to be solved. Where, then, lies the
legal rule if not, in the absence of public opinion, on the side of the law
in force, which presents at least the advantage of effective existence? 6
1 T h e r e is thus no deprecation here of the spontaneous elaboration of the l a w
b y the people in f a v o r of the reflective elaboration b y sociologists and jurists; c f .

R u s s o , op. cit. 33 et seq. T h e r e is reason in the people, and spontaneity does not
exclude reason.
in the same sense, H . D u p e y r o u x , Les gvands probletnes du droit, in
ARCHIVES DE PHILOSOPHIE DU DROIT ( 1 9 3 8 ) nos. 1 - 2 , p p . 43-45.
" T h e r e are still other arguments, see R u s s o , op. cit. 20-26, w h o refers especially
to the v e r y frequent phenomenon of l a w b o r r o w e d b y one people f r o m other
peoples, at 24-25, 133-134. On this phenomenon, see also G . del Vecchio, L'idie
Unauthenticated
332 JEAN DABIN
Indeed, Duguit does not remain true to his own point of view. Further
on, and repeatedly, he sets up as the supreme principle of the law, with
no reference to the state of consciousness of the mass, the norm of
"social solidarity," which, though perhaps debatable, is fully objective. 7
11 j. Critique of the Doctrines of Force. T h e law, say the "realistic"

thinkers, is nothing else than the will of the stronger, and assuming
competing forces, the solution will be given by the equilibrium of the
forces. This time the explanation is neat, almost cynical. As the state of
consciousness of the mass, taken by itself, was a cloudy concept, so force
is a tangible reality. One clearly sees where the greatest force is — on
the side which the pressure indicates. But, once again, force m a y well
impose upon the legislator any legal " g i v e n , " whatever pleases the in-
terests or passions which it serves. B y no means does it follow that force
is qualified to " g i v e " to the jurist whatever there is that is valid. T r u t h to
tell, it " g i v e s" nothing, the concept of the " g i v e n " implying, after all,
the idea of a solution endowed with a virtue of its own. N o w force is
content to dictate the solution: Force creates it. Hence there is no more
room for asking if the law includes a part of the " g i v e n " ; the distinction
no longer makes sense. T h e law, synonymous with force, is neither
" g i v e n " nor "construed": It is traced back to an arbitrary pure fact. 8
114. As for Natural Law, the Question Arises Only with Regard to
Juridical Natural Law. If the " g i v e n " of the law could not reside in
facts — the facts of common consciousness or the facts of power — does
one have to discover that " g i v e n " in the " f u n d of moral and economic
verities," "commanding certain directions" which "center upon the su-
preme idea of the objective just," in short, in natural law? 9
L e t us at the outset dissipate an equivocality which risks vitiating the
entire discussion. It is certainly legitimate to attribute validity to the
notions of natural law and justice in order then to deduce therefrom the
rules destined to govern the conduct of man toward others, on the plane
of strictly interindividual relationships as well as on the properly social
plane (family, state, and other groupings). But the question in that case
d'une science du droit universel compare, in JUSTICE, DROIT, ETAT 184-185, and
the studies brought together in 2 RECUEIL LAMBERT Pt. IV, title 1 (La reception
des droits), pp. 581 et seq.
' S e e , e.g., 1 L. DUGUIT, op. cit. § 53, pp. 674-680, . . . See also 2 id. § 8, pp.
54-55·
8 The ideas negating justice have already been sifted by Plato with very pene-
t r a t i n g criticism, w h i c h is s u m m a r i z e d in P. LACHIEZE-REY, LES IDEES MORALES,

SOCIALES ET POLITIQUES DE PLATON 3 7 - 4 9 .
" O r in the "notion of l a w " of Bonnecase. See supra, η. i .
Unauthenticated
is one of the fundamental human rule, that is, the moral rule, which
indeed prescribes respect for the right of another (the subject of com-
mutative justice) 1 0 and also the constituent principles of the regime of
the necessary societies (family and state), the "institutional" part of
morals. In this sense there exists an interindividual natural law, a
familial natural law, and a political natural l a w . 1 1 But the legal rule is
something different from the moral rule. T h e former is the concrete rule
laid down by the state-society for its subjects from the viewpoint of its
own discipline 1 2 — which incidentally in no w a y excludes the realiza-
tion, not merely of an "ethical minimum," as has been said, 1 3 but of the
maximum possible. It is also, first of all, the rule of constitutional and
administrative law concretely organizing the state, the peculiar principle
of that discipline.
T h e question then is, on the specific level of this kind of rule, whether
natural law and justice, which indeed constitute the " g i v e n " of the moral
rule ad alterum, will serve equally as the " g i v e n " of the legal rule. If the
answer is in the affirmative it would have to be admitted that the two
rules start from the same " g i v e n " and, as the moral rule comes first,
that the " g i v e n " of the legal rule is nothing else than that of the moral
rule. Between the two systems no other differences would subsist than
those which result from the diversity of positive determinations. A s for
the substance of the precepts, the first directions, they would be identical,
traceable always to the same idea of natural law and justice. 1 4
115. Nature Furnishes the Jurist with No Juridical "Given," No Nec-

essary Rule. Legal experience as it comes from the general practice of
legislation, case law, and customs, does not confirm that conclusion.
Indeed, it is seen that in certain cases the legal rule does take up the
initial " g i v e n " of natural law and justice, save for subjecting it to certain
adjustments; that in other cases it discards or modifies it, and not only
in the details of determination, but also in a much more radical manner
by reversing the directive, as for instance when the law lets itself be
guided above all by preoccupation with security. Sometimes, indeed, a
10 On the natural character of the moral d u t y of c o m m u t a t i v e justice, cf. ST.
THOMAS, SUMMA, la Ilae, qu. 94, art. 2 ad resp., in fine.

11 On these various applications of the idea of natural l a w, see J . DABIN, LA
PHIIOSOPHIE DE L'ORDRE JURIDIQUE POSITIF nos. 79-108, pp. 3 1 1 - 3 9 5 · T h e concepts

of natural l a w and of justice will be especially studied b e l o w , P a r t I I I .
12 See supra, nos. 8 - 1 3 .
1 3 G. JELLINEK, DIE SOZIALISTISCHE [sozialethische] BEDEUTUNG VON RECHT,

UNRECHT, STRAFE (2d ed. Berlin, 1908) 45-59.
" S e e , e.g., J . - T . Delos, Les caracteres essentiels de la regle du droit positif, in
DROIT, MORALE, MOEURS 2 1 2 - 2 1 4 : . . . ; see also 218-219.
Unauthenticated
334 JEAN DABIN
law consolidates the established or acquired fact, even where such
establishment or acquisition may have taken place contrary to natural
law and justice (idea of security in society). Sometimes it so disposes
and shapes the form of its rule that it may operate surely and with the
minimum of arbitrariness even if natural law and justice must suffer
thereby (idea of legal security). 15 What is this but to say that the
jurist 1 6 has to consult not solely natural law and justice, that he main-
tains a certain freedom of choice with regard to them?
Hence the mandatory "given" becomes optional, that is to say, it
ceases to be a given, a solution, so as to turn into a datum, viz., one of
the elements of the problem. An important and capital element, no doubt,
which could even furnish the "rule," the "principle," as Geny says, but
which by reason of the possible "exception" leaves no less room for
choice, thus destroying the idea of "given." For to choose is to construe,
when the jurist "receives" the principle as well as when he "creates" the
exception. Even in the first case his role is not confined to a passive
reception, as with regard to a pure and simple "given," the object to be
stated and registered; it takes on a truly active, constructive aspect. In
adopting the "given" which he could have discarded, the jurist leaves
the indeterminate, creates the decision and therewith the solution.
The same criticism applies to another frequently used formula which
calls natural law and justice the inspirational sources of the positive
law. 17 T o be inspired by a model is not necessarily to copy it. On the
contrary, that is to preserve freedom to take it as it is, to modify it, or
not to take it at all, according to the circumstances.
Will it be said that even where he appears to be discarding natural
law and justice in order to create an exception, the jurist does not cease
to conform to natural law and justice, which he translates in his own
way, taking account of the needs and requirements proper to the legal
order? 1 8 Notwithstanding its success, this formula badly disguises a
false conclusion. T o apply an exception to a principle is not to translate
it, to be inspired by it, or even to adopt it; it is jolly well to contradict
it, at least in the case under contemplation. The principle remains safe;
but it is illogical to suggest that in decreeing the exception one continues
1 5 On the various applications of the idea of security, cf. G . R a d b r u c h , La stcurite
en droit anglais, in ARCHIVES DE PHILOSOPHIE DU DROIT (1936) nos. 3-4, pp. 88-89.
18 It is understood (see supra, no. 99) t h a t the term " j u r i s t " includes not only the
professional l a w y e r b u t all those w h o , even a m o ng the people, collaborate in m a k i n g

l a w , as in the f o r m a t i o n of c u s t o m a r y l a w .
" S e e , e.g., G. RENARD, LE DROIT, L'ORDRE ET LA RAISON (Paris, 1927) 134: . . .
18 Cf., in this sense, M . D j u v a r a , Le but du droit, in 3 ANNUAIRE DE L'INSTITUT
INTERNATIONAL DE PHILOSOPHIE DU DROIT (1938) 97-104, especially concerning

"legal technique," at 100 et seq. . . .
Unauthenticated
to a p p l y the principle. Further, if the legal order has its o w n needs and
requirements, capable of influencing the content of its rules to the point
of dictating exceptions to the " g i v e n " of the principles of natural law
and justice, that proves that the legal rule, unlike the moral rule, is not
subjected to, nor determined purel y by, this " g i v e n , " that it obeys other
laws.
116. Undue and Illogical Extensions of the Idea of the Natural

Juridical "Given." T r u e , it is claimed one can escape the difficulty b y
embracing within natural law and justice not only the law and justice,
b u t also in a general manner all that is required b y life in society. T h u s ,
the need of security, in society and in the law itself, is ranged among the
requirements of natural law and justice. Is life in society not postulated
b y nature, and hence do not its requirements belong to natural l a w ? O n
the other hand, is there not a social justice, to which particular justice
is subordinate, and hence do not the social requirements of security take
precedence over the particular right? Therefore , when a juridical law
consecrates the idea of security, it still realizes the " g i v e n " of natural
law and justice. In that w a y it is thought to mask the conflicts, if not the
antinomies, of needs and principles which are at the heart of social life;
such as the principle of justice on the one hand, whic h demands respect
for and the triumph of the right, and the principle of security on the
other hand, w h i ch sometimes demands definitive or provisional recogni-
tion (or tolerance — it matters little) of a status quo not conforming to
justice (an u n j u s t state of facts or.even an u n j u s t rule, hoc sensu).19
B u t first it will be observed that respect for justice, even particular
justice, is as essential to society as is the concern with security. A priori,
social justice inclines us more to the side of security than to that of
particular justice: T h e r e remains in each case a choice in the direction
of security or of particular justice. Consequently social justice does not
" g i v e " a n y solution, nor even a n y principle of solution. I t simply com-
mands a search for the best solution, taking everything into account,
from the viewpoint of the general good. A n d it is the statesman-jurist,
not the theorist of natural law and justice, w h o will m a k e the choice. 2 0
Indeed, if the " g i v e n " whic h is invoked does not correspond to a n y
" S e e , e.g., G . RENARD, LA THEORIE DE L'INSTITUTION 48 et seq.; J . - T . D e l o s , Les

buts du droit, 3 ANNUAIRE {supra, n . 18) 40-47 . . .
20
Cf., in t h e s a m e sense, P . Cuche, A propos du "positivisme juridtque" de
Carre de Malberg, in MELANGES CARRE DE MALBERG (1933) 7 6 - 7 9 ; t h e s a m e ,
L'elaboration du droit ρέηαΐ et l'irreductible droit naturel, in 3 RECUEIL GENY
273-274· M. Cuche has not read me well if he believes I ever maintained anything
e l s e ; see Pour une meilleure terminologie, in ARCHIVES DE PHILOSOPHIE DU DROIT
( 1 9 3 1 ) n o s . 1 - 2 , p p . 195 et seq.
Unauthenticated
336 JEAN D A B I N
uniform directive, even an abstract one, if under the sound of a single
name — "natural law," "justice" — it assembles multiple directives, of
contradictory contents, without furnishing a clue to the choice, it is vain
to speak of a "given." This "given," which supplies neither a solution
nor the principle of a solution, is no longer really a "given." With regard
to the "given," there will perhaps be a general method, complex at best,
of elaboration of the law (directive of method), but by no means what
one expected and was promised, to wit, solutions or principles of solu-
tions indicating the way people are to behave, in short, the precept to be
included in the rule (directive of solution).21
ny. Difference Between the Pretended Legal "Given" and the "Re-
vealed Given" of the Theologians. Such is the case, mutatis mutandis,
as regards the "revealed given" of the theologians, which does seem to
have inspired the theme of the legal "given." The "revealed given" con-
sists, indeed, of solutions in the proper sense, verities of dogma and
morals which form the entrusted deposit of Revelation committed to
the care of the church that is their interpreter. Such is not the case as
regards the "given" of natural law and justice in the sense in which it is
desired to understand them, natural law covering all that is postulated
by nature, and justice covering all that is due, in the widest sense, not
only the just but also the useful, the opportune — security as well as
right. As is well known, moreover, the "revealed given" presents itself
not merely as an inspiring principle susceptible to adaptations or excep-
tions; without excluding certain determinations or more explicit state-
ments, it is nonetheless given a priori in a definitive and intangible
fashion. This is what marks the idea of an entrusted deposit. 22
118. Choice of Concrete Examples. Let us make this somewhat ab-

stract discussion clearer by analyzing concrete examples. These will be
taken from Duguit, who invokes them as models of "normative rules"
drawn, according to his theory, from the "state of consciousness of the
great mass of minds." 23 The adherents of the theory opposing ours will
not fail to see in them so many expressions of a legal "given" drawn
from natural law and justice. 24 But whatever the alleged source may be,
21 The same objections militate against the theory of Russo, op. cit., according
to which the "given" of the law would be constituted by the scientifically analyzed
"social reality" . . .
22 These differences are omitted in the parallel drawn by G. RENARD, LA PHILOS-
OPHIE DE L'INSTITUTION 299-3OI.

23 S e e Ι D U G U I T , op. cit. (ßded.) § 10, p p . 109-110.
24 See, as to respect for engagements and reparation of unjustly caused wrong, L .
Unauthenticated
it will be shown that these solutions are in no w a y " g i v e n " to the jurist,
not even b y w a y of general principles susceptible of diverse determina-
tions and exceptions, that they do jolly well belong to the autonomous
constructive activity of the jurist. W e shall deal with the following three
great rules of the Code Napoleon, dominating the law of property inter-
ests: Respect for ownership, freedom of contract, and reparation for
injuries due to fault.
ng. Respect for Ownership. Incontestably the Code Napoleon pro-

tects ownership, at least in principle, but not b y virtue of a "given."
T o begin with, it would be difficult to maintain that the principle of
ownership is given in the state of consciousness of the mass. N o institu-
tion is more strongly debated than ownership, not only in its details but
also in itself, since a party exists called communist, whose program
contemplates a common ownership of the means of production (social-
ization, nationalization). 2 5 Contrariwise, those who hold with natural
law and justice have little trouble in proving that private ownership,
even extended to the means of production, is indeed required both by
the nature of things and by a just consideration of the individual right. 26
Does it follow that the solution is " g i v e n " to the jurist, if only in prin-
ciple and save for exceptions? N o t any longer, or at least not a priori.
There is a divergence between the rule of natural law and justice, which
seeks private ownership, and the rule of legal protection of ownership
by w a y of codes, tribunals, and public force. A t the outset, passage from
the rule of natural law to the legal rule implies a new control and con-
sequently a new judgment. There are no doubt claims that one readily
admits, where hesitation is not permitted, so strongly indicated does
legal protection appear; thus, the principle of private ownership, and
for that matter all elementary applications of the idea of commutative
justice, the right to life, to bodily integrity, to honor, etc. T h e social
order would be in peril if the individual right remained without official
L e F u r , La theorie du droit naturel depuis le XVlie Steele et la doctrine moderne, in

18 RECUEIL DES COURS DE L'ACADEMIE DE DROIT INTERNATIONAL DE LA HAYE (1927)
389. Concerning the precepts of natural l a w a m o n g the ancient writers, cf. GROTIUS,
LE DROIT DE LA GUERRE ET DE LA PAIX (transl. b y B a r b e y r a c , Basle ed. 1768),
Discours preliminaire § V I I I ; J . DOMAT, TRAITE DES LOIS CIVILES chap. V.
23 Will it be said that ownership is consecrated b y all legislations and b y that
token belongs to the jus gentium? B u t the jus gentium, the pretended product of
collective reason, m a y have its opponents, t o d a y as of old
26 T h e "nature of t h i n g s " and " n a t u r a l l a w " are here spoken of in a wide sense,
w h i c h does not exclude the w o r k of reason. B u t according to tradition ownership

belongs to jus gentium rather than to natural l a w sensu stricto, see infra, nos 203-
204, 212.
Unauthenticated
338 JEAN D A B I N
defense on the part of public authority. This does not prevent protection
from being accorded only in so far as the social order demands it, to the
extent and in the form the social order demands, on condition moreover
that this protection be realizable and efficacious — in short, conforming
to the specific juridical laws.
Once this uniformity is recognized, one may well say that it is the
legislator's moral duty — one of natural law and justice — to sanction
the principle of private ownership. But it is not because the moral duty
commands such an attitude of the legislator in regard to the law that the
solution is "given." It is not given by its inherent virtue but solely as
the conclusion of a judgment reached by the jurist in the accomplish-
ment of his proper task. Differences of opinion may always entail more
or less essential differences in the content of the rules, which is a sufficient
foundation for the theory of the autonomy of "positive" law in relation
to the "given" of natural law. In other words, and in brief, apart from
the philosophical and moral conception of ownership, which is the con-
ception of natural law, there exists a legal conception of ownership,
which no doubt borrows from the former but deals with ownership under
a certain aspect only, that concerning the particular ends and proper
means of the legal discipline. 27
120. Ownership Is Far from Always Enjoying the Protection of the

Law. Furthermore, in some situations very legitimately, for reasons of
social order or of legal technique, ownership such as natural law con-
ceives it will not enjoy the protection of the law. Such is the case of
prescription in favor of one who is in possession in bad faith, resulting
in a denial of protection to the unjustly dispossessed owner,28 or the
case of freedom of contract, implying a denial of protection to the owner
unjustly suffering as a result of his contract. Mere "exceptions," it will
be said, to a principle that remains intact and continues to impose
itself as "given" notwithstanding the exceptions — or again mere
"adaptations" of the principle of respect for ownership to the require-
ments of security. But these are logical artifices, verbal arrangements.
The truth is rather that one has to do with a conflict between two
principles equally valid on the level of the law — the principle of respect
for ownership, and the principle of security — a conflict which the
jurist in the particular case resolves by according preference to the
"Especially as to the "superficial" character of the legal conception of owner-

ship, see supra, no. 92.
28 See J.-A. Robilliard, A propos d'un conftit entre le droit civil et la loi de
l'Eglise relatij a la prescription acquisitive, in 1 BULLETIN THOMISTE (1931-1933)
Notes et communications 193-198: . . .
Unauthenticated
principle of security. 2 9 For, it must be repeated, a principle that is given
only save for an "exception" to be determined b y the jurist (or save for
an "adaptation" actually equal to an "exception") may well remain a
principle; it is no longer an [inescapable] " g i v e n , " since it is subject to
examination and possible rejection. A f t e r the jurist's decision as before,
though, the principle of ownership remains " g i v e n " as a principle of
natural law, binding both the subjects, as to their conduct, and the
moralist who construes the moral rule. T h e proof thereof is that the
" g i v e n " of ownership continues to bind one's conscience notwithstand-
ing the defect of legal protection, at least until the pronouncement of
a judge. 3 0
121. Freedom of Contract. T h i s rule [of freedom of contract] means,

in law, that contracting parties are free to " d o as much and by such
contracts as they please," provided that such contracts are lawfully
concluded and contravene neither a law (an express provision) nor
public policy or public morals. N o w it is inexact to claim with Duguit
that the principle of contractual freedom would be " g i v e n " in the state
of consciousness of the mass, since one encounters many a partisan of
the "prescribed contract" or at least of one controlled, either by the
administration or b y a corporative body or b y the judge. It would be
equally wrong to see in freedom of contract a principle of natural law
and justice, if that amounts to interpreting it as a complete immunity
excluding, if only in principle, any intervention b y an authority to verify
the content, motives, or purposes of the contract concluded. A limited
contractual autonomy may avail itself of natural law on the ground of
the importance of individual liberty, which indeed postulates for the
human individual a certain external mastery over his acts and interests.
Y e t freedom of contract must respect not only laws, public policy, and
public morality, but right and justice: Commutative justice which re-
quires equivalence of performances in exchange — just wages, just
prices — and social or legal justice which does not tolerate nuisances
or dangers to the general good; in short, all that is opposed to a liberal
economic regime where pure liberty would be proclaimed as a principle,
and particularly as a principle of natural law and justice. Hence no
29 B y t h e same reasoning m u s t b e u n d e r s t o o d the e x a m p l e of t h e deposit, t a k e n
f r o m CICERO, D E OFFICIIS 3, 25, 95, b y ST. THOMAS, SUMMA, la Ilae, q u . 94, a r t . 4

ad resp., art. 5 ad resp.·, see also IIa Ilae, qu. 62, art. s ad 1 ; q u . 120, art. 1 ad
resp. . . . C f . , . . . DOMAT, TRAITE DES LOIS c h a p . X I , 2 1 - 2 2 .
" ° S e e , g e n e r a l l y in t h e s a m e sense, . . . D e s q u e y r a t , La part d'immuable et de
variable dans le regime des libertis, in L A LIBERTI ET LES LIBERTES DANS LA VIE
SOCIALE, p r o c e e d i n g s of SEMAINES SOCIALES DE FRANCE, 30th session, R o u e n ( 1 9 3 8 )
184 et seq.
Unauthenticated
340 JEAN DABIN
ground of natural law and justice prevents contractual freedom from

being subjected in its exercise to a more or less vigorous control or even
to various restrictions destined to prevent its abuses. T h e contrary is true.
However, concretely, natural law and justice prescribe nothing either
for or against intervention. Legitimate or even commendable as it m a y
appear in theory, intervention involves multiple inconveniences, notably
from the point of view of security in society. Rightly or wrongly, it runs
the risk of shaking, in the consciousness of the less enlightened masses,
the principle of faith in the pledged word; by attacking the stability of
contracts, it runs the risk of introducing an element of disorder in busi-
ness relations. T h u s the principle of freedom of contract, which is in no
way " g i v e n " to the philosopher or moralist, is no more " g i v e n " to the
jurist either. On the level of positive realities which is his, it is for him
to choose between the solution of freedom and that of intervention. A
matter of opportunity, then; and, in fact, he will adopt one or the other
policy according to the circumstances of time, place, and case. 3 1
122. Reparation for Injuries Due to Fault. T h e problem here lies less
in the principle of reparation for injury done to another than in the
conditions of that reparation. T h e injury, we are told, must be the
effect of a fault. Fault as the ground of reparation: Such would be
the norm or direction " g i v e n " to the jurist in his task of elaborating the
legal system of responsibility in part. B u t again it cannot be at all said
that the requirement of fault is admitted b y the mass of minds nor yet
prescribed by natural law, even in principle. On the one hand, the mass
of minds of the twentieth century remains divided between the adherents
of responsibility for fault, or subjective responsibility (this is the tradi-
tional doctrine), and those of responsibility without fault, or objective
responsibility. On the other hand, if all fault b y definition implies falling
short of a rule of conduct, there is occasion to distinguish between vol-
untary fault, implying injury caused willfully, and involuntary fault,
which implies no will to inflict injury. N o w , while philosophers and
moralists, speaking in the name of natural law and justice, attach a strict
obligation of reparation only to voluntary fault, jurists show themselves
more exacting, following an already long tradition: Involuntary fault
alone, committed by imprudence or negligence (quasi-delict), 3 gives rise
31 T h u s in our days w e observe a tendency to admit breach as the general prin-
ciple of rescission of contracts, at least of c o m m u t a t i v e contracts w i t h no aleatory

element; see G. RIPERT, LE REGIME DEMOCRATIQUE ET LE DROIT CIVIL MODERNE
(Paris, 1936) no. 93, pp. 1 7 9 - 1 8 1 ; E . Demontes , Observations sur la theorie de la
lision dans les contrats, i n ETUDES DE DROIT CIVIL A LA MEMOIRE DE H E N R I CAPITANT
(Paris) 171 et seq.
* [ I n the sense of the term in R o m a n l a w . ]
Unauthenticated
to civil responsibility in tort, sometimes even to penal responsibility (as

in homicide or bodily injuries which are especially g r a v e ). A funda-
mental divergence, the meaning of which can only be the following: If
there exists in this case a " g i v e n " for the moralist, at least if it is a
conclusion deduced from natural law, this " g i v e n " does not impose
itself necessarily upon the jurist, whose point of view in matters of
responsibility for torts could not be copied from that of the moralist. 32
Furthermore, natural law itself does not impose as the sole principle
of reparation the requirement of a fault, whether voluntary or involun-
tary. There are indeed cases where natural law and justice command
reparation in the absence of any fault, by applying an idea of risk
creation or again of just distribution of the burdens of common life, as
for injuries caused to private individuals by the execution of public
works, etc. There is here neither an "exception" from nor an "adapta-
tion" of the principle of fault. T h e rule is different, b y reason of the
difference of situations. It is thus wrong to represent the rule of repara-
tion for injuries due to fault as " g i v e n " either to the jurist or even to the
moralist. Reparation for injuries operates b y virtue of diverse principles
between which the jurist chooses according to the cases. In this sense,
the solution he brings to the various cases is not given in advance: It is
"construed," by w a y of casuistry.
SECTION 3 . T H E L A W I s " P R U D E N C E " AND C O N S E Q U E N T L Y CONSTRUED
123. Conclusions Reached Concerning the Legal "Given." T o sum up,

the theory of a legal "given," consisting of an elementary rule of conduct
which would be the subject of purely speculative knowledge, cannot
stand the test either of a rational critique or of the realities of the law.
As for the " g i v e n " of the state of consciousness of the mass, one cannot,
apart from a prejudice in favor of positive science or of a sort of
religion of the folk (Volk), perceive the grounds entitling the mass, not
just to translate or express the rule, for instance by custom, but literally
to create it by a necessary identification of law and opinion. In fact, the
82 T h u s it does not suffice, as to article 1382 of the Code Napoleon, to speak of a
central idea — of security or of justice, according to the interpretations — thought

to be at the center of legal terms such as "huma n act," " f a u l t , " or " r e p a r a t i o n " ; J.
Delos, Les buts du droit, in 3 ANNUAIRE DE L'INSTITUT INTERNATIONAL DE PHILOS-
OPHIE DU DROIT (1938) 38; see also 163. Neither could one characterize legal solu-
tions in the matter of civil responsibility as "even morally exceeding the normal
requirements of individual or social ethics," F. R u s s o , op. cit. 55, initio. . . [Art .
1382 of the Code Napoleon provides as follows: " A n y human act whatsoever that
shall cause damage to another shall oblige him b y whose fault it has occurred to
repair it." ]
Unauthenticated
342 JEAN DABIN
law in force does not always coincide with the state of consciousness of
the mass: Between the two, a struggle prevails from which [popular]
opinion does not always emerge victorious. A s for natural law, one
cannot well understand this " g i v e n " that is obligatory for the jurist but
only "in principle," which leaves intact the faculty to judge of the
exception and consequently to set aside the principle. Actually, the
jurist often makes use of the permission, laying down rules "construed"
according to the requirements of his own order, which is the legal order
and not the order of natural law or of justice. 1
T o meet this critique, the observation is made that the " g i v e n "
always implies a certain conceptual elaboration on the part of the under-
standing intelligence, which is more or less important according to the
subject matter, yet the " g i v e n " that is thus elaborated does not for that
reason merit the name of "construction." 2 A perfectly exact observa-
tion: T h e " g i v e n " elaborated by science still remains a "given," as has
been said. 3 But contrary to what happens for the theologian, the moral-
ist, the scholar, there is in the case of the jurist not a conceptual elabora-
tion of something " g i v e n " — a "revealed given," a " g i v e n " of natural
law, a raw fact — but a veritable "construction," which is not limited
to conceptually elaborating a " g i v e n , " but which elaborates its object
and hence construes it. 4 T h e legal rule is in no w a y " g i v e n " in or by
science, philosophy or morals. In substance as in form and down to its
most essential directives, it is the product of a special elaboration which
is the law's own work. T h u s one can explain w h y the jurist may affix
not only "adaptations" but also "exceptions" to what is claimed to be
the legal " g i v e n " derived from nature: He is the master of his construc-
tion. N o matter how " n a t u r a l " a principle may be morally or socially,
the jurist may have valid reasons, not indeed to contradict it, but not to
let it pass as a rule in his construction. 5
124. The Operations of the Jurist Belong to Practical Reason, Espe-

cially to Prudence. Is this to say that the operations of the jurist in
construing the law (as pragmaticus legum) 6 may not be acts of reason?
1 C o n t r a r y to L . L e F u r , Regies generates du droit de la paix, in RECUEIL DES

COURS DE L'ACADEMIE DE DROIT INTERNATIONAL DE LA HAYE (Paris, 1936) 185. . . .
2 R . - G . RENARD, LA PHILOSOPHIE DE L'INSTITUTION (Paris, 1939) 100, n. 2: . . .
3 See supra, no. 98, text and n. 4.
4 St. T h o m a s compares the legislator to a weaver, COMM. POLIT., bk. I l l , lesson
3, and to an architect, SUMMA, IIa Ilae, qu. 47, art. 12 ad resp., in fine.
5 Cf., in the same sense, D e s q u e y r a t , op. cit. in LA LIBERTE ET LES LIBERTES DANS
LA VIE SOCIALE, proceedings of SEMAINES SOCIALES DE FRANCE ( R o u e n , 1938) 1 8 4 -

191, passim.
6 T h e expression comes f r o m Vico.
Unauthenticated
N o t at all; but they are acts of practical reason. Tending toward a cer-
tain end of practical order, to wit, the good organization of social rela-
tionships, the elaboration of the law depends not on speculative
understanding, scientific or philosophic, but on judgment. More pre-
cisely, as the good organization of social relationships touches upon the
good of human life in general, the action ordered to that end belongs
essentially to prudence, at least for the substance of the rule if not for
its external "make-up." If, according to the ancient definition, the
subject matter of prudence is the discernment and effective realization
of means most appropriate to ends (ea quae sunt ad finem) in the field
of moral things (in operabilibus) , 7 the task of the jurist is that of
adapting to the end of the legal system the means which constitutes the
legal rule. 8
Is it not in view of this duty of his status that the lawyer is called
" p r u d e n t " and that "jurisprudence" is a synonym of law? "Juris-
prudence" or "legal prudence" is one of the species of the moral virtue
of prudence, that which relates to legal activities, to the establishment
of the legal rule and to its application to special cases. 9 For prudential
reason is not confined to the disposition of single cases, to professional
consultation or the decision of a lawsuit. There is the prudence of legal
counsel (the Roman "prudent") and the prudence of the judge, the
latter providing the origin for the [French] technical term of juris-
prudence to designate the work of legal creation and interpretation done
by the courts. But there is also a legislative prudence, concerning the
particular action of elaboration of the general rules designed to govern
individual cases. 1 0 This legislative prudence will guide the operations of
all those who, in whatever capacity, collaborate in the building of the
law; 1 1 it will permit them to judge concretely of means and ends, their
' S e e , in this sense, ST. THOMAS, SUMMA, IIa Ilae, qu. 47, art. 6; also arts. 7 and
8. A s opposed to prudence, w h i c h w o r k s in the domain of h u m a n agere, includinc:
the g o v e r n m e nt of others, art and technique w o r k in the domain of jacere, see
supra, nos. 98 and 99, w i t h notes 4, 5, 7.
8 Cf., in the same sense, ST. THOMAS, op. cit. Ia Ilae, qu. 95, art. 3 ad resp.: . . .
9 C f . F. SENN, LES ORIGINES DE LA NOTION DE JURISPRUDENCE (Paris, 1926)

6: . . . , pp. 17-24, 27-30, 45-48.
10 On political prudence on the part of the rulers, legislative prudence (legis-
positiva), and prudence of government (regnativa), see ST. THOMAS, SUMMA, IIa
Ilae, qu. 47, art. 1 2 ; qu. 48, art. 1 ad resp.) qu. 50, arts. 1 and 2; qu. 57, art. 1
ad 2.
11 If w e speak here of legislation and legislative prudence, it is understood (see
supra, no. 99 and no. 1 1 5 n. 16) that the argument is not limited to law derived
f r o m legislative sources alone. W h a t e v e r its source — legislative, judicial, or custom-
a r y — whether it derives from professional jurists or f r o m life itself, that is, f r o m
the people, the l a w is prudence. T h e r e is a prudence of custom which manifests
Unauthenticated
344 JEAN DABIN
value and their opportunity with regard to the ultimate purpose of the
legal order.
One may ask if civil legislation is a matter of justice or of prudence. 1 2
T h e question is ambiguous, for one must distinguish between the content
of the statute and the act of legislating. But even when the statute
consecrates justice and embodies it in its content, prudence, not justice
or natural law, dictates that decision to it. In the case of the directing
legislator, the statute is a work of prudential reason; 1 3 it is a matter of
justice — of legal justice — only in the case of the subjects, inasmuch
as they are morally bound to obey the law. 1 4
725. To Say "Prudent" Is Not to Say "Arbitrary." F r o m saying that

the law is "construed" wholly and down to its foundations 1 5 it does not
follow that construction can take place in an arbitrary fashion or even
with the freedom of artistic creation, precisely because it is a work of
prudential reason. T o say reason is to say submission to truth in all its
forms, theoretical and practical. T o say prudence is to say, a path to
follow and hence a method. N o doubt there remains room in the concrete
work of elaboration for a. certain proportion of arbitrary will. B u t the
margin is enclosed within relatively narrow limits: Those which trace
the unbreakable " g i v e n " of external realities, on the one hand, and the
more supple " g i v e n " of the method of elaboration, on the other. W e m a y
also note that on reflection the idea of a " g i v e n " law no more excludes
the arbitrary than that of a "construed" law includes it. A l l depends on
the origin assigned to the " g i v e n " : If the " g i v e n " is in the consciousness
of the mass, or a fortiori in the will of the strongest, the law thus given
will indeed exclude the arbitrariness of the jurist who is bound b y that
"given," but not that of the consciousness or will of those who created
the " g i v e n . "
But let us look more closely at the limits imposed upon construction.
120. The Factual Presuppositions of the Jurist's Legal Rule. The
. itself in the spontaneous b u t nonetheless reflective steps of all m e n w h o m a k e the

c u s t o m ; so much so that if custom is not p r u d e nt it will represent bad l a w .
1 2 S e e ST. THOMAS, op. cit. IIa Ilae, qu. 50, art. 1 ad 1. C f . q u . 57, art. 1 ad 2.
" S a v e f o r the d u t y of legal justice incumbent upon the rulers to carry out
w h a t legislative prudence dictates to them.
14 Cf., in the same sense, ST. THOMAS, op. cit. IIa Ilae, qu. 50, art. τ ad τ in
fine: . . .
1 5 It will be seen farther b e l o w h o w it is construed, under w h a t points of v i e w ,
which will bring out the existence of t w o stages of construction, one of a political
and social nature and one of a specifically regulator y or juridical n a t u r e ; see infra,
chap. I I, nos. 131 et seq., nos. 1 9 1 - 1 9 4 .
Unauthenticated
jurist does not draw his rule ex nihilo a and he does not build it up in a
vacuum. Like any rule whatsoever the law is based upon facts. By
"facts," in the widest sense, we understand all realities whatsoever, no
matter of what nature they may be or to what discipline they may
belong, that are capable of interesting the jurist in elaborating his own
system, whether as underlying, substructural facts or as surrounding,
environmental facts.
This definition includes, first, the facts properly so called, that is,
facts of the Is (Sein). These are the facts concerning man, for whom, and
also by whom, the rule exists: Physiological, psychological, economic,
sociological, political, historical ones; facts concerning things and nature,
with which man comes in contact; facts concerning God, the author and
sovereign Lord of man and creatures. All the sciences — sciences prop-
erly so called, metaphysics, theology — thus become "auxiliary sciences"
of law. The truths they propose are for the jurist so many precedent
"given" things which in a certain manner always bind him, whether
they have the character of necessity or belong to the domain of pure
accident. 16
At the outset, the jurist will accept them as they are, being unable
to change anything in them. He will even take them as points of de-
parture of his law, by way of conditions or presuppositions, except for
translating the scientific realities into concepts manageable by the use of
categories, legal presumptions, and other processes of formal legal tech-
nique. 17 In this sense it is exact to say unqualifiedly: Ex facto oritur
jus·, b the facts are sources of law, generative elements of legal rules and
solutions. For instance, that paternity is not susceptible of being estab-
lished directly, at least in the present state of science; 18 that material
things are divided into movables and immovables; that man is endowed
with personality; that he has an instinct of sociability; that in the ranks
of society there are individuals of feeble mind, and of various kinds —
these are inescapable facts, for the jurist as for everybody, which entail
consequences in the field of the legal discipline.
But even where facts depend upon the free will of men, facts of
conduct that the jurist with his law could lay his hands on, these facts
continue to be present and consequently to bind the jurist by reason of
* [ O u t of nothing.]
18 Of course there are disputed verities, disciplines the v e r y legitimacy of which
is contested b y some, such as philosophy or theology . B u t these problems transcend
the competence of the jurist as such.
" S e e infra, nos. 166 et seq.
b [ L a w g r o w s out of facts.]
18 T h e allusion here is to progress that m a y result f r o m certain n e w m e t h o ds of
investigation: b l o od g r o u p tests, hereditary bodil y traits, etc.
Unauthenticated
346 JEAN DABIN
their existence alone. Whether he adapts himself to them or approves

them, or again claims to rectify, to correct or repress them, they are,
and by that token they count. In this sense again the statement is true,
this time in a relative manner: Ex facto oritur jus. N o t because the law
would always have to bow before the facts of conduct, since its mission
is on the contrary to appraise and govern them; but because these facts
can exercise an influence upon the decision to be adopted by the legis-
lator. This is so especially for the facts constituting the social environ-
ment, which represent the surrounding air of forces, ideas, interests and
wants, always moving, sometimes antagonistic, in the midst of which
the law is to evolve. N o w , to the extent that the facts constituting the
environment are dependent upon human freedom, it is clear that the
jurist, before assuming an attitude with regard to them, must endeavor
to comprehend them, which presupposes knowledge and experience of
that social environment. 1 9
i2j. Moral or Technical Precepts and Existing Law as Presupposed

Facts. Nor is this all. T h e facts composing the " g i v e n " that precedes the
law embrace not merely the facts pure and simple which are objects of
speculative science. T h e y also embrace all the rules of action, without
distinction between human activity (agere, agibilia) and technical or
artistic activity (jacere, factibilia). There exists a mass of techniques,
belonging to the most varied fields: T h e techniques of business, of
banking, of insurance; the techniques of building machines, tools and
apparatus; the techniques of ocean navigation and of air navigation;
medical and surgical technique; techniques of aesthetic, scientific,
literary work, and of legislative work, too, etc. For the jurist, the rules,
procedures, and prescriptions of the different arts or techniques are
obviously given as facts. In so far as the law is concerned with technical
fields the jurist is consequently bound b y the " g i v e n " of the technique
which will provide him with the basic elements of his construction. 20
T h e same remark applies to rules of nontechnical human activity:
T h e rule of morals or the rule of already established law (facts of the
Ought (Sollen)). For the jurist, the moral rule is given not only as to
its first principles of natural law and justice but also as to the ultimate
conclusions and determinations therefrom, the product of the work of
10 Thi s is the w h o le bearing meant to be attributed to the m a x i m Ex facto

oritur jus. T h e r e is no question of " c a n o n i z i n g " the facts w i t h o u t more and erecting
them into l a w . T h a t is the equivocal implication of G u r v i t c h ' s idea of the " n o r m a -
tive f a c t , " a purely empirical f a c t . C f . F. R u s s o , op. cit. 50 et seq.
20 See, especially as regards the technique of insurance, M . Picard, L'affaiblisse-
ment contractuel du contrat d'assurance, in 3 RECUEIL LAMBERT § 146, pp. 1 6 1 - 1 6 2 .
Unauthenticated
GENERAL T H E O R Y OF L A W 347
specialists in ethics. Although those conclusions and above all the de-
terminations are themselves in part "construed," what is thus "con-
strued" by the moralist becomes " g i v e n " for the jurist. T h e same holds
for existing law in relation to the work of elaboration of a new rule:
For the construing jurist, the existing law, which is itself in its entirety
"construed," becomes a legal " g i v e n " inasmuch as it is a historical
reality. And it is quite certain that the jurist, in making his rule, could
not detach himself from this historical legal "given, " whether he wishes
to complete or perfect, or even to reform or reverse, the existing law.
B u t take care to note: These latter " g i v e n " factors remain prelegal,
subject to auxiliary sciences, the science of natural law and morals, the
science of the existing law or of legal history. Though they may very
closely touch the elaboration of the law — which precludes their being
called "metajuridical" — yet they do not constitute the legal " g i v e n "
of the rule to be construed. This is obvious for the preexisting law, since
by hypothesis one seeks to modify it; it is also true of the " g i v e n " of the
moral rule, of natural law, and of justice. T h e jurist receives morals and
moral solutions as " g i v e n " at their specific place and level, inasmuch as
they are a moral "given." He does not have to receive them as a legal
"given," that is, as a completely prepared " g i v e n " of his own rule. On
this new level, he will make such use of them as is prescribed by the
rule of prudence related to his special work, the work of the law to be
elaborated. Sometimes, then, prudence will dictate that one sanction the
moral "given," sometimes it will command a different attitude: A refusal
to intervene or a new arrangement of the moral "given. "
128. The Kinds of the "Given" Enumerated by Geny. This is the

error, or probably rather the ambiguity or the misunderstanding, in
Geny's conception: T h e various kinds of the " g i v e n " which he enum-
erates, the natural or strictly real " g i v e n ," the historical "given, " the
rational "given," the ideal "given, " corresponding to the varieties of the
" g i v e n " envisaged here, are preexistent not only to "construction" in
the sense understood b y Geny, but also to the legal rule itself taken in
its substance. These kinds of the " g i v e n " are in reality but preceding
data, each belonging to its species, i.e., scientific, technical, or moral.
T h e y figure among the elements of the problem to be resolved by the
jurist. T h e y do not furnish the solution or even the principle of the
solution, which remains to be chosen and construed in its totality. 2 1
21 This is r e c o g n i z e d by Geny without difficulty, at least for the natural or

s t r i c t l y r e a l " g i v e n " ; see 2 SCIENCE ET TECHNIQUE n o . 1 6 7 , p p . 3 7 1 - 3 7 6 . D o e s h e n o t
h i m s e l f s p e a k of t h e " d a t a " o f p o s i t i v e l a w ? S e e 2 id. h e a d i n g of c h a p . I X , n o . 1 6 6 ,
p . 3 7 1 . S e e , i n a s t i l l m o r e e x p l i c i t m a n n e r , G . RENARD, L E DROIT, LA LOGIQUE ET LE
Unauthenticated
348 JEAN DABIN
True, one invokes the normative character of these very data: " T h e
moral and economic verities" would give "directions," 2 2 "the social life
is stirred by tendencies, it seeks to attain ends" so that "social science,
the study of the positive given, is already to a large part a science of
norms." 2 3 Without failing to understand what there m a y be of "natural
finality" in certain social realities and the consequences following there-
from on the level of the moral and economic conduct of individuals, 2 4
the question — always the same one — is whether the legal rule is
lodged under the same roof. Duguit saw things more clearly when he
distinguished the social norm — economic or moral — from the legal
norm, requiring in the latter the distinctive sign of a particular "re-
action," 2 5 which in our view is the effect of the prudential judgment of
the jurist. T o pass over that judgment, claiming that the norm is given
in the social reality, is to deprive the legal system of all autonomy, all
specific existence.
i2Q. The "Given" of the Method of Elaboration of the Law. But what
is given above all, outside of the precedent facts, is a method of elabora-
tion of the law, consisting of certain principles evolved b y philosophical
reflection or legal philosophy. Different from the solutions, which in
every case are determined b y (legislative juridical) prudence, the
method is given b y science, a science turned toward action since we are
concerned with elaborating the law, but a science made up of general,
universal principles, which prudence has, precisely, to apply to particular
cases. B y definition, the principles of that science bind the construing
jurist in a necessary, absolute fashion, with no possible derogation of
any sort. In the absence of a juridical natural law, there thus exists a
natural legal method, representing the permanent and invariable prin-
ciples that preside over the elaboration of the law. 2 6 This method the
legislator must follow; this method, too, the judge must follow to the
extent that he has to " a c t as a legislator" (see Swiss Civil Code, article
BON SENS ( P a r i s , 1925) 14; L E DROIT, L'ORDRE ET L A RAISON 1 3 9 . . . ; LA THEORIE

DE L ' l N S T I T U T I O N 4 8 - 5 5 , 65-66; LA P H I L O S O P H I E DE L ' l N S T I T U T I O N 3Ο-33, IO3-IO4.
23F. G e n y as quoted above , no. n o .
^ F o r m u l a of F . R u s s o , op. cit. 51.
21 T h i s conception is basic to the notion of natural law , a rule deriving f r o m
the nature of things, that nature being understood moreover in a sense transcending
pure empiricism; see infra, nos. 203-205.
2,1 L . D u g u i t as quoted a b o v e , no. 107.
26 I n this sense — of m e t h o d and not of solution — must apparently be under-
stood the "rational or scientific l a w " o f L E F U R , L E S GRANDS P R O B L E M E S DU DROIT

(Paris, 1937) 181, η. 1 and citations; equally so the " n o t i o n of l a w " of BONNECASE,
I N T R O D U C T I O N A U DROIT n o . 1 3 8 , p p . 217-218 . . .
Unauthenticated
ι ) , c whether in the absence of a formally enacted law or in using such
discretionary powers as the laws leave with him. T h e law is prudence
and consequently, on the part of him who makes laws, it is action. Y e t
neither that prudence nor that action is blind. T h e y are preceded b y
knowledge, particularly knowledge of the field, the end, and the condi-
tions of the action. In this sense, it was possible to write without para-
dox: " T h e law is not a science, yet there is a science of the l a w , " 2 7 of
established law and of the law to be established. T h e jurist who has to
"construe" the rule will begin by respecting the " g i v e n " of the rules that
govern his own activity: T h a t is the first, preliminary duty of legislative
prudence. 28
W h a t , then, are the laws of legal elaboration? This will be studied
systematically in the following chapter.
130. The "Given" of Facts and of Method: The Idea of the "Con-
strued." A last objection confronts us, which will permit us to state
more precisely the import of the conclusions of the present chapter. It
may be formulated as follows: If the prudence of the jurist must be
guided b y the " g i v e n " of the social facts, on the one hand, and the
" g i v e n " of the legal method on the other, is not the margin of indeter-
minacy narrowed down to the point where the pretended "construed" is
ultimately reduced to a " g i v e n " ? T h e observation will seem to be
strengthened if one reflects that among the ways left to the choice of
prudence, some are indicated as preferable by reason of better adapta-
tion, which it is precisely for prudence to discern. N o w is not to discern
that which is more clearly indicated, in effect to know?
W e may answer, first, that the twofold determination, of the facts and
of the method, does not preclude the indeterminateness of the solutions
which, within the framework outlined, are left to the free arbitrament
b y the prudent; further, that despite the existence of better adapted and
therefore preferable means, freedom of choice is far from suppressed,
for it is always a matter "of affairs that imply more or less debate and
counsel." 28 Let us also recall that the arbitrament of prudence is not
arbitrary and that a solution chosen, construed, is not a solution
c [ A r t . ι of the Swiss Civil C o d e provides as f o l l o w s : " T h e statute applies to all
legal questions f o r w h i c h it expressly or constructively provides. If no provision can

be gathered f r o m the statute the judge shall decide according to customary l a w or,
w h e r e such is lacking as well, according to the rule he himself w o u l d lay d o w n as
a legislator. I n so doing he f o l l o w s tried doctrine and tradition."]
* G. Cornil in the s t u d y cited supra, P a r t I chap. I I sec. 1, n. 4.
28 See, in the same sense as concerns mora l prudence, ST. THOMAS, SUMMA,
la Ilae, qu. 47, art. 3 ad resp.: . . . See also art. 6 ad resp., in fine.
29 C f . ST. THOMAS, op. cit. la Ilae, qu. 47, art. 2 ad 3: . . . See also art. 4 ad 2.
Unauthenticated
350 JEAN DABIN
deprived of a real foundation: T h e choice is always reasonable, objec-

tively well founded. W e maintain only that the content of the solution
is in no way given as a truth of speculative science: T o discern it is not
to see it as true but to adjudge it good, opportune and, in this sense,
just. This gives to the conclusions of prudence a character of only
relative certainty. One is never absolutely sure that the w a y chosen b y
the legislator, the norm adopted by him, is the good or only good one,
while a solution given by science would partake of at least approximate,
if not absolute, certainty, which is the appurtenance of the scientific
truths. 30
CHAPTER II
T H E G U I D I N G PRINCIPLES OF T H E ELABORATION
OF T H E L A W
INTRODUCTION
131. The End of the Law and of Its Processes of Realization. In order
to discover the guiding principles of the elaboration of the law, one has
to ask one's self, first, toward what end does the legal rule tend? and
secondly, by what processes is it called upon to realize itself, in its ex-
istence and in its execution? This follows from the idea of construction.
If the law is a work of construction, it could be elaborated, in itself
and in what it orders, only in view of a certain end, 1 in relation to which
it plays the role of means, 2 and thanks to an equipment which has itself
properties of a technical nature. Legal prudence is essentially subject to
these considerations of end and equipment, outside of which the legal
rule, like everything construed, would be deprived of meaning. Nor is any
distinction to be made according to the sources of the law or the capacity
30 See, in this sense, on prudence, ST. THOMAS, op. cit. Ia Ilae, qu. 47, art. 3 ad 2;
on h u m a n laws, la Ilae, qu. 91, art. 3 ad 3, art. 4 ad resp. (secundo) ; qu. 96, art. 1
ad 3. C f . G . RENARD, LE DROIT, L'ORDRE ET LA RAISON 139-140.
1 See, in the same sense, ST. THOMAS, SUMMA THEOLOGICA, la Ilae qu. 95, art. 3
ad resp.: • • . ; equally qu. 96, art. 1 ad resp., initio. C f . JHERING, DER ZWECK IM
RECHT (3d ed. 1898, transl. b y Meulenaere, 1901, under the misleading title
L'EVOLUTION DU DROIT), w h i c h is epitomized b y : " P u r p o s e is the creator of the
entire l a w . " [ T h e first v o l u m e of Jhering's w o r k w a s translated b y I. H u s i k as
THE LAW AS A MEANS TO AN END ( N e w Y o r k , 1 9 x 3 ) . ] Others speak of value
(understood in an o b j e c t i v e sense) ; thus R . B o n n a r d , L'origine de l'ordonnancement
juridique, in MELANGES MAURICE HAURIOU 58 et seq.
2 ST. THOMAS, COMM. POLIT., b k . I V , lesson η: . . .
Unauthenticated
of the persons who participate in legal work. T h e method of elaboration
is the same whether the rule proceeds directly from the statute or in-
directly from the courts b y w a y of decisions, whether it emanates from
specialists, as statute and case law, or simply from the people, as
custom. 3 A l w a y s and everywhere one has to respect the laws of the
work to be accomplished, failing which the work will be bad or defective.
132. The Instrumental Character oj the Legal Rule Differentiates It

from the Moral Rule. Let us note this at once: T h e instrumental char-
acter of the law expresses a fundamental difference between law and
morals. Notwithstanding the classical definition of the good act (con-
veniens medium quo perveniatur ad finern ultimum),3· it would be wrong
to present the moral rule, even the positive moral rule laid down by an
external authority, as a mere means with a view to an end, " a technique
of obtaining our full beatitude," as one author puts it. In reality, the
moral law, natural or positive, confines itself to translating the requests
of the one and only morality, and it translates them as true, without
preoccupation with extrinsic finality. " T h e honesty of an act is one
thing, its 'utility' is another, even that spiritual utility by which it yields
us the supreme beatitude." 4 N o doubt, in conforming to the law, man
will arrive at his happiness: T h e bene vivere engenders the beat a vita.b
But this eudemonism must be rightly understood. W h a t constitutes the
value of morals, and therefore justifies it and makes it binding, is not
immediately the beatitude to which it leads as to its goal, and still less
as to its rewards; the rational and obligatory value of morals resides in
morals itself, inasmuch as it renders explicit what is good and bad with
regard to reasonable human nature, the latter being conceived in rela-
tion to the natural and supernatural end of man. Morals truly pursues
no result, no good, not even the moral good: It juses with the moral
good, expressing its requirements and conveniences.
T h e legal rule on the contrary exists in view of a distinct and superior
end, which it could quite well fail to attain, which could be attained also
in other ways, so that a question may always be raised as to the utility
of its provisions or even of its intervention at all in the particular case.
It has value as a means and in so far as it realizes the end, the end of the
3 There are bad customs, with regard to the end of the law, just as there m a y be
bad statutes or bad decisions. T h e re m a y also be inapplicable customs, due to lack

of adaptation to the technical equipment of application.
" [ T h e convenient means b y which one m a y arrive at the ultimate end.]
4 J. TONNEAU in 5 BULLETIN THOMISTE, no. 9 (1939) 604. See equally A.
VALENSIN, TRAITE DE DROIT NATUREL, vol. 1 : LES PRINCIPES (Paris, 1922)
92-98: . . .
b [ L i v i n g in goodness engenders the h a p p y life.]
Unauthenticated
352 JEAN DABIN
law. The law is utilitarian, morals is not. 5 The legal rule is subordinate
to a system which has itself the value of an instrument: The system of
the temporal public good, the state's end and reason of being — while
the moral rule, deduced from man, returns to man, the supreme value,
to whom it indicates and prescribes the necessary conditions of his
vocation as man.
ι j j . The Moral Rule Is Not Concerned with Processes of Realization.

Nor is the moral rule dependent upon the technique of any equipment
whatsoever of formulation and realization. It is nature, enlightened by
reason, that dictates the duty, and it is everybody's conscience, under
the inspiration of prudence, that on its own account interprets the dic-
tate of nature. 6 Now the voice of nature and the voice of conscience do
not need to reveal themselves through the interpreter of the "formal
sources," the concepts, the words, the processes indispensable to the
manifestation of an external rule given to man by man. On the other
hand, the man who transgresses the laws of morals is responsible for
his shortcomings only before his conscience and God (internal forum)
and not at all before a human tribunal deciding according to certain
indispensable rules of procedure and evidence. From that it follows that
in the field of morals the form never checks the substance, and no
formal condition could arrest or limit the play of the natural law. This
is so even where the precept should have formed the object of a positive
(moral) rule. Never is the subject permitted to argue that due to the
formal imperfection of the positive enactment he may claim to be freed
from any rule. In the absence of the external rule of morality, the
internal rule subsists, preserving its power to obligate.
The legal rule on the contrary exists and binds only within the frame-
work of its context, if not the literal, at least the conceptual, one. Outside
of this context, which circumscribes the precept more or less widely or
by reference to a norm of another kind, moral or technical, the subject
preserves his freedom in law. 7 This, precisely, is why the interventions
5 On the notion of the "purpose of the law," cf. J. Delos, Le but du droit, in 3
ANNUAIRE DE L'INSTITTTT INTERNATIONAL DU DROIT ET DE SOCIOLOGIE JURIDIQUE
(1938) 29-39.
° This is not to say that the natural moral law has no legislator. He is God, the
author of nature, who promulgates His law ex hoc ipso quod (Deus) earn mentibus
hominum inseruit naturaliter cognoscendam [by its very insertion (by God) as
something that may be known by the minds of men], ST. THOMAS, op. cit. Ia Ilae,
qu. 90, art. 4 ad 1.
7 This is not to say — which is another question — that any conflict of interests
not provided for by a law or another formal source would have to remain without
a solution. In the relations among private individuals, at the very least, the judge
may not refuse to judge, see Code Napeolon, art. 4 [which provides: " T h e judge
Unauthenticated
of t h e l a w c a n b e u s e f u l o r e f f i c a c i o u s o n l y o n t h e c o n d i t i o n t h a t they
r e s p e c t t h e l a w s of t h e s t r u c t u r e a n d t h e m a c h i n e r y of t h e l e g a l a p p a r a t u s
b y which they are realized.
S U B D I V I S I O N I. T H E E N D OF T H E L E G A L O R D I N A N C E :
T H E T E M P O R A L P U B L I C GOOD
134. "Lex est Ordinatio ad Bottum Commune." I f l a w is c o n s u b s t a n -

t i a l w i t h t h e i d e a of s o c i e t y , 1 t h e e n d of t h e l e g a l r u l e c o u l d o n l y b e t h e
e n d of t h e s o c i e t y i t s e l f , t o w i t , t h e c o m m o n g o o d . A n d s i n c e i n t h e c a s e
of t h e s o c i e t y of t h e s t a t e t h e c o m m o n g o o d m e a n s t h e p u b l i c common
g o o d , t h e r o l e of t h e l e g a l r u l e i s t o d e t e r m i n e c o n d u c t f r o m t h e v i e w -
p o i n t of t h e p u b l i c g o o d : Lex est ordinatio ad bonum commune?2
T h i s d e f i n i t i o n , i n t h e t r a d i t i o n a l p h i l o s o p h i c a l d o c t r i n e of l a w s or
r u l e s , is a p p r o p r i a t e f o r all k i n d s of r u l e s , i n c l u d i n g t h e m o r a l r u l e . 3 B u t
w h e r e a s f o r t h e m o r a l r u l e t h e c o m m o n g o o d e n v i s i o n e d is t h a t of the
m o r a l h u m a n n a t u r e c o m m o n t o a l l m e n , 4 f o r t h e r u l e s of g r o u p s o r of
s o c i a l d i s c i p l i n e , s u c h a s t h e l a w , t h e c o m m o n g o o d in q u e s t i o n is t h a t
which determines t h e s o c i a l p u r p o s e of the group envisaged, in our
particular case, the public good.5 Politics a n d law thus join in the same
who shall refuse to render judgment on the pretext that the statute is silent, obscure
or insufficient may be proceeded against for denial of justice"]. A t this point, the
question is one of the measure of the legal obligations of the subjects.
* [The law is an ordinance for the common good.]

2 ST. THOMAS, SUMMA, Ia Ilae, qu. 90, art. 4: Lex "nihil aliud, est quam quaedam
rationis ordinatio ad bonum commune ab eo qui curam communitatis habet promul-

gata." [A law "is nothing else than an ordinance of reason for the common good,
promulgated by him who has care of the community."] See also art. 2. This is the
guiding motif of the whole Thomist treatment of the law; it recurs many times as
basic to the argument.
3 See, on the lex aeterna [eternal law] which governs "the total community which
is the universe," qu. 91, art. 1 ad resp.·, qu. 93, art. 1 ad 1; and on the natural
law, which is instituted ad bonum commune naturae [for the common good of
nature], qu. 94, art. 3 ad 1.
4 See, on moderation . . . , ST. THOMAS, op. cit. Ia Ilae, qu. 94, art. 3 ad 1.
Also, man is a political animal, and hence the moral law itself could not disregard
that character. See, in this sense, ST. THOMAS, Ia Ilae, qu. 90, art. 2 ad resp.: . . .
5 See, on human laws, ST. THOMAS, SUMMA, Ia Ilae, qu. 95, art. 4 ad resp.: . . .
Elsewhere the reference is to the "common good of the multitude," qu. 96, art. 3
ad resp.·, the "common good" alone, qu. 95, art. 3 ad resp., in fine', qu. 96, art. 1
ad resp., art. 3 ad resp.·, IIa Ilae, qu. 58, art. 5 ad resp., in fine·, "human utility,"
qu. 97, art. 1 ad resp. and ad 3, art. 2 ad resp.·, "common welfare," qu. 93, art. 3
ad resp.·, qu. 96, art. 6 ad resp. But, as the context shows, this is always the
common good of the commonwealth, the complex of individuals grouped in the
commonwealth (communitas civitatis).
Unauthenticated
354 JEAN DABIN
end. More exactly, inasmuch as politics is the science and art of the
public good, 6 the legal rule is at the service of politics, and the prudence
that presides over the elaboration of the law, or legislative prudence, 7 is
a part of political prudence.
SECTION I . C O N C E P T AND CHARACTERISTICS OF THE

T E M P O R A L P U B L I C GOOD
i j j . Definition of the Adjective "Public": That Which Concerns the

Public. T h e notion of " p u b l i c " good is not less awkward to define for all
its indispensability. This is due to the variety of its aspects and also the
almost inextricable connection of the individual and the social.
First of all, concerning the " p u b l i c " element, we deal with the good
of the members of the state-society when they are taken together, putting
aside the good of the component individuals and groups or even the sum
total of such goods. T h e immediate subject destined to be the beneficiary
of the public good is the public in general, i.e., everybody without
reference to individuals, social categories, and particular communities,
taking account, too, both of the present and of future generations. 1 Just
as there exists a " p u b l i c " opinion, a " p u b l i c " spirit, a " p u b l i c " sentiment,
which are the opinion, spirit, or sentiment of the public, so there exists a
" p u b l i c " interest or " p u b l i c " good which is the interest and good of the
public. T h e " w h o l e " of the public does not, however, constitute an entity
separate from the component individuals or groups, whether in a sub-
stantial or even an accidental fashion; it does not imply, as such, any
unity of order, any moral personality. T h e public simply represents the
mixed, motley crowd, the undetermined and undifferentiated mass of
individuals and groups, the multitude as opposed to the individuals and
groups considered one by one or by adding their mere units.
This public must not, however, be confused with the state itself,
which is the association constituted by the individuals with a view pre-
cisely to the good of the public. T h e state, as an association, is a moral
person; 2 the public, as such, although its good is the end of the state, is
0 O f t e n , politics is t a k e n in the sense of t h e p l a y of political forces , t h a t is,
f o r c e s fighting f o r the possession of p o w e r . I n t h a t case, the l a w clearl y does n o t
serve these forces b u t on the c o n t r a r y has t h e mission to r e g u l a t e t h e m ; see, e.g.,
F . R u s s o , op. cit. I 6 I . B u t this is n o t the p h i l o s o p h i c a l a n d t r a d i t i o n a l d e f i n i t i o n of
politics.
1 O n t h e m u l t i p l i c i t y of the c o m m u n i t y , cf. ST. THOMAS, op. cit., la Ilae, q u . 96,
a r t . ι ad resp.
2 O n the m o r a l p e r s o n a l i t y of t h e s t a t e , see J . DABIN, DOCTRINE GENERALE DE
L'ETAT nos. 63 et seq., p p . 97 et seq.
Unauthenticated
not a moral person. T h u s the expression "public good" is superior to
that of "common good": It not only specifies that the community whose
good is in question is the public, i.e., plenary, community (as opposed
to particular communities), but it also escapes the equivocation result-
ing from the use of the term "community," which may signify either the
unorganized community, i.e., the public, or the organized community,
i.e., the state. T h e public is not the state since the state-society is at the
service of the public; it is the unorganized community or rather, because
the idea of community is superfluous, it is everybody, in the sense of
the global mass of the individuals outside of any idea of organization and
corporation (which finds its realization in the state).
136. The Public Good jrom a Formal Point of View. From the formal
point of view, what the public requires as its own good, what is specifi-
cally the good of all without distinction, is a sum total of general con-
ditions under the protection of which the legitimate activities of every-
one within the public may be exercised and developed comfortably.
Action is the immediate concern of the particular individuals, who are
never relieved of the task of themselves providing, within the limits of
their abilities — isolated or associated — for the necessities of their
lives in all fields (supplementary character of the state in relation to
society). A t least they may rightfully demand of the state, instituted to
this end, that it take care to provide them with the maintenance of
an environment — psychological, moral, legal, technical; conceptions,
mores, institutions — that is propitious to action and that guarantees
the results of action. T h u s the public good, like the public itself, is
essentially intermediary: T h e environment it creates is, for the indi-
viduals and groups who are the substantial elements of the public, a
means by which better to attain their ends. L e f t to themselves, in a
hostile environment or without any framework, they would not arrive
at the "perfect sufficiency of life." 3 T h e y would have trouble in acquir-
ing or guarding their own good. T h e state comes to their aid and serves
them through the public good and all the institutions of "public
services."
/J7· The Constitutive Elements 0) the Public Good: Order, Coordina-

tion, Aid. Interpreted in this fashion, the public good presupposes, in the
first place, the establishment and maintenance of a certain order in
society, generating security and confidence. How would the activities
and the very life of the public be possible if the social surroundings
3 ST. T H O M A S , POLITICS, b k . I, lesson 1:
Unauthenticated
356 JEAN DABIN
were at the prey of violence, brutal or insidious (in the form of abuse
of power), of faithlessness, and of fraud? Here there are general pre-
ceding obstacles, the elimination of which in all appropriate ways falls
to the competence of the state. I t will attain this, particularly, b y the
organization of a police force charged with preventing and repressing
disorder, b y the establishment of tribunals charged with adjudging con-
troversies, and b y the promulgation of fixed rules in the public and
private fields. T o make order, law, justice reign within the community
is the primordial duty of the state, corresponding to the primordial
need of the public. It will be appropriate, too, to inquire how that order,
that law, that justice must be conceived in order to be in accord with
the very idea of the state and of a rule proceeding from the state. 4 For
the moment we confine ourselves to bearing in mind the necessity, felt
b y the public, of a certain discipline inimical to chaos and arbitrariness,
regulative and protective of the rights of each and all.
T h e liberal school a claimed to keep to this stage of negative inter-
vention, 5 refusing to admit that the freedom of the individuals in their
so-called private activities could ever be touched in any manner what-
ever b y the state, whether in the form of regulations or in that of sub-
sidies. But one has become aware that in a complex civilization the
public good has other enemies than external disorder, to wit, the dis-
persion of efforts in unregulated competition. On reflection, the life of
men, of each man in particular and of humanity in general, can be
traced to a perpetual exchange of services, subject to the law of produc-
tivity and of equilibrium. N o w dispersion prevents productivity and
causes a disequilibrium. Hence the necessity of a certain reasoned
coordination, a certain adjustment, which is in the interest of the mass
of exchanges and therefore within the competence of the state which is
set up over the common interest. 6
Finally, private individuals or subordinate groups are often in need
4 T h i s problem will be examined further b e l o w , nos. 145 et seq.

* [In the Continental sense of the term, often f o u n d in Catholic writers, denoting
doctrines of extreme individualism.]
5 According to a f o r m u l a alleged to be inspired b y the doctrine of K a n t in his
FIRST METAPHYSICAL PRINCIPLES OF THE THEORY o r LAW ( 1 7 9 7 ) , the purpose of

the l a w , and therefore of society, is to assure the coexistence of the freedom of
everyone w i t h the freedom of all.
β Does it h a v e to be added that the realization of this program, which after all
implies the collaboration of the subjects, c a n n o t be accomplished w i t h o u t the educa-

tion of the p u b l i c ? M o r a l education, which falls especially to the moral authorities;
technical education (e.g., w i t h a v i e w to coordination in economic matters, or in
matters of road traffic), w h e r e the role of the state will be more direct, if not
exclusive.
Unauthenticated
of more concrete aid open to all "commoners" once they fulfill its condi-
tions. Certain works that are beyond individual capacities, in the
material or the spiritual sphere (communications, sanitation, instruction,
culture, etc.), require the collaboration of the state, which is more
powerful and better equipped than particular individuals in isolation or
grouped in free associations. If a "service" has the characteristic of
necessity or urgency with regard to the public good, the state will even
be qualified to assume its management so as to replace impotent or
insufficient private initiative.
But in any situation, whether presiding over order, coordinating, or
providing aid (sometimes to particular individuals), the state has in
view the particular good of no one, no individual, no category or class.
Even where it protects the rights and interests of individuals and groups
within the community, it is the general, impersonal good of the members
of the community that motivates, or ought to motivate, its proceedings.
138. The Public Good Covers All Human Values of the Temporal
Order. W i t h respect to its content, the public good from its own angle
embraces the totality of values of human interest. Whether one considers
the good of bodies or the good of minds or souls, economic or extra-
economic activities, egoistic or altruistic tendencies, order, coordination,
and aid are always useful, in variable measure and more or less effi-
cacious according to the fields. There is but one exception: T h e religious
good, considered under the peculiarly religious aspect, falls within the
competence of another society, equally public within its sphere, the
religious society. T h a t is w h y one speaks more precisely of the temporal
public good, as opposed to a spiritual or religious public good. T o the
extent, however, to which religion merges with the temporal, the state
regains its competence to maintain a temporal environment favorable
to the specifically religious public and private good. In this sense, there
exists a religious public good of the temporal sphere.
Hence, according to the kind of interest envisaged, the public good
comprises a series of aspects (closely allied, b y the w a y ) , of which the
principal ones are: T h e economic public good, relating to economic life
(production, distribution, consumption of w e a l t h ) ; the moral public
good, relating to moral life (virtues and vices); the intellectual public
good, relating to education and culture; and the physical or physio-
logical public good, aiming at health, hygiene, sports, etc. 7 From another
point of view, one discerns an individual public good devoted to the
' T h e ancient writers distinguished between goods that are honest, useful, and
delectable: the public good covers those three kinds of goods. C f . ST. THOMAS,
S U M M A , la Hae, qu. 92, art. 1 ad resp.
Unauthenticated
358 JEAN DABIN
values that perfect the individual, and beside it a collective, social,

communal public good aiming at the development of the population in
numbers, in quality, and in the spirit of union and sacrifice: This is the
element of the public good which has to do with the collective values,
with the greatness and prosperity of nations.
A t the service of the different categories of the public good the civil
society or state takes its place as the instrumentality to realize them,
which gives rise to a new aspect of the public good — the peculiarly
political public good, relating to the state itself, its constitution, organi-
zation, and functioning. It is indeed evident that the public good will be
the better served the better the group established to this end is able to
fulfill its mission. In this sense, the political society and its good
constitute the first of the elements of the public good, at least in prin-
ciple, in the sphere of execution (if not of intention) .8 Now the efficiency
value of the state implies a series of conditions, of a moral and technical
order. These depend both upon the people, whence the state draws its
substance, and upon the management of the public authority, above all
of the agencies charged with laying down and applying the legal rule. 9
IJQ. Domestic and International Public Good. Mutatis mutandis,

bearing in mind that states are only moral persons and not material
beings and also that they are only ephemeral formations whereas the
individual is made for eternity, one may transfer to the international
order the notions that have just been developed for the domestic order.
There exists an international public good, which consists likewise in a
8 I n the sphere of execution and not of intention, since the state, and therefore
the political public good, is an instrument related to the public good at large, w h i c h
is that of the underlying c o m m u n i t y . A n d on the other h a n d it is quite clear t h a t
in its specifically political action the state remains subject to the general principles
of m o r a l i t y : the end does not j u s t i f y the means.
9 If the l a w must be elaborated as a function of the political regime (in the
sense of the f o r m of g o v e r n m e n t : republic or m o n a r c h y , democrac y or a r i s t o c r a c y ) ,
that is so inasmuch as the political regime as established constitutes one of the
elements of the political public good and therefore of the public good at large. B u t
it w o u l d be w r o n g to take the political regime f o r the directing principle of elabora-
tion not only of the political but of the civil l a w s ; cf., in that sense, MONTESQUIEU,
D E L'ESPRIT DES LOIS, bks. V - V I I . A l s o : S T . T H O M A S , S U M M A , la Ilae, qu. i o o ,
art. 2, referring to Aristotle. W h a t e v e r the regime m a y be, the n o r m of the l a w
is the public good. T h e regime m a y well influence the mode of producing the f o r m a l
sources of the l a w (which is all that is meant b y the text of ST. THOMAS, op. cit.
Ia Ilae, qu. 95, art. 4 ad resp., tertio), but not their content (save inasmuch as the
maintenance of the established regime is one of the elements of the public g o o d ) .
T h e discussion here, b y the w a y , concerns the political and not the social regime,
which m a y legitimately intervene in the determination of distributive justice, based
upon proportional e q u a l i t y ; see infra, no. 234.
Unauthenticated
certain order, a harmonization of efforts, a common aid in all fields
falling within the competence of states, i.e., that public good which they
are obligated to provide, each on its own account, for their individual
members. Equally, in the service of the international public good there
ought to exist an international political organism — preferably a society
of states — playing a role analogous to (not identical with) that of the
state in relation to the domestic public good.
140. Political and Other Values of the Temporal Order. But let us
return to the domestic public good, for which it still is less difficult to
sketch a synthesis than it is for the international public good. T h e exist-
ence of a specifically political public good, which is the good of the state
as an organ, does not preclude politics from having for its objective the
public good in general without any exclusion of fields. T o preach "sepa-
rations" or simply distinctions between politics on the one hand and
economics, morality, culture, health, etc., on the other, on the pretended
ground that these matters are of a private order and therefore do not
fall under politics, is to make a great mistake. First, economics, morality,
culture, health are not exclusively of a private order. T o the extent that
individual activities are outwardly manifested, they impinge upon the
public by way of incidence or radiation; economics, morality, health,
culture, originally and by nature private values, take on a public char-
acter, thus opening the way to the competence of politics, the appointed
guardian of the public good. Furthermore, the separation or distinction
between the political order and other supposed parallel orders destroys
the very concept of politics by abolishing its reason for being. Politics
in effect has no other reason for being than from the angle of the public
good to govern or, if you will, serve the external human activities that
are exerted according to their own objectives, economic, moral, sanitary,
cultural. Politics and its agent, the state, have no meaning but with a
view to order, coordination, and, in short, to propitious environment in
all sectors of the temporal domain.
W h a t is exact — it has already been noted — is that the state does not
have to take charge, either directly or through the intermediary of
organisms dependent upon it in law or in fact, of these different sectors
in such a w a y as to dispossess the individuals and groups thereof, pre-
cisely because its role in principle is only to guide and motivate and not
to manage. T h e state does not have to make reality of economics or cul-
ture any more than of morality or health: These goods are realized only
in and by the individuals. Incumbent upon the state is only the making
reality of politics, which by the means peculiar to politics will permit
the individuals on their account to attain the goods of economics, moral-
Unauthenticated
36ο JEAN DABIN
ity, health, and culture. The state will therefore beware of managing eco-
nomics or culture, which are the business of the individuals and groups
and not of their rulers or officials. But it will have an economic policy, a
cultural policy, a policy of morality and of health, by which it will at-
tempt to diagnose and then to translate into facts the requirements of
the public good in these different fields.
141. Need for a Philosophy of Values to Discern the Requirements of

the Public Good. However, the spheres of human values which the public
good covers are not of equal rank, and thus the state will have to take
sides. A needless choice, if there were always a means to give satisfac-
tion concurrently and fully to economic and moral, corporal and spirit-
ual, individual and collective, especially political and social, values.
Now, whatever has been pretended, in practice these values are often
antagonistic. Who will deny that too exclusive preoccupation with ma-
terial wealth, health, or physical strength conflicts with the true good of
the human person? — that excessive care for the collective values runs
the risk of compromising the legitimate prerogatives of individuals? —
that immoderate devotion to the power of the state as a political organ-
ism is prejudicial to the national economy and, above all, to political
honesty?
Man is one and his destiny unique, so a synthesis is certainly possible,
but only by means of balances and sometimes of breakings which pre-
suppose recognition of a hierarchy of values. Is the spirit superior to
matter? Does the individual human being win out over the collectivity,
people or nation? Does the state exist for society, or vice versa? Where
are the perishable values and those that do not die? For if there are
values that do not die, they must take first place even on earth. The
world outlook (Weltanschauung) is involved, and the choice will neces-
sarily influence politics, its orientations and its concept. The state will
then be seen to pursue a materialist or a spiritualist policy, a collectivist
or a "personalist" policy, a policy which deifies the state or one which
makes it subservient to society. 10 Even where the state, pretending to be
neutral between the doctrines, would affirm that it refuses to choose, it
would not cease to choose, on pain of condemning itself to inaction and
ultimately of negating itself.
10 Aristotle repeatedly, ETHICS, bk. V , and POLITICS, bks. ILL and V , speaks of
cities founde d w i t h a v i e w to wealth, pleasure, liberty, p o w e r . I n the same w a y ,

St. T h o m a s contrasts regimes (i.e., states) oriented t o w a r d the true g o o d , w h i c h is
the c o m m o n g o o d regulated according to divine justice (the honest g o o d ) , w i t h
r6gimes oriented t o w a r d the relative good, i.e., the useful or delectable or even the
g o o d contrary to divine justice, S U M M A , la Hae, qu. 92, art. 1 ad resp.
Unauthenticated
T o be sure, rulers, untrue to the logic of their principles, do not al-
ways follow the policy of their philosophy; and one must congratulate
oneself on that if the latter is false or ruinous. T o be sure, also, from
different ideologies there may sometimes emerge identical solutions (al-
though of different spirit), such as a family policy based sometimes on
demographic, "natalistic" considerations and sometimes on arguments
of morals and law. Hence, on the immediately practical level, men of
realistic sense will meet notwithstanding the divergence of initial con-
ceptions. But the choice cannot be indefinitely eluded. There always
comes a moment when the state is led to pronounce itself, in deeds, if
not in words. In what sense?
142. Our Philosophy of Values. T h e answer, inspired b y reason and

conforming to Christian traditions, may be summarized in three points:
Primacy of the spirit over matter (and b y "spirit" we understand not
only the intellectual values but above all the moral values: Virtue and
character); prevalence of the individual human person over every collec-
tivity; subordination of the state-society to society pure and simple. N o t
that only the spirit should count in man; but the spirit ought never to
be sacrificed to matter, which moreover ought to be regulated and sub-
limated b y the spirit. 1 1 N o t that the individual human person could do
without the various earthly communities, private and public; but these
communities do not constitute ultimate ends, they are themselves, each
in its way, established to perfect the individual persons. 1 2 A s for the
state, it must be maintained in its rank as the servant of the public
good, that is, ultimately of the present and future individuals and
groups who form the public: T h e state exists but by them and for them;
it ought to bestow the effectively produced public good upon them by
w a y of distribution.
143. Primarily Moral Character of the Notion of the Public Good.

This necessity of a connection with a doctrine of man or, as one says
today, a philosophy of (human) values confers an essentially moral
character upon the notion of the public good, whatever philosophy may
be adopted and however immoral it may be. Despite its intermediary
character, the public good is not a merely technical thing because on
all levels it is closely related to a certain conception of human ends.
T h i s is not to say that it knows no peculiarly technical solutions. For
there are many techniques among the matters to which it applies, such
11Cf., in this sense, ST. THOMAS, SUMMA, la Hae, qu. 92, art. 1 : . . .
12T h u s the public good prevails over the private good only w h e n it belongs to
the same order: . . . ST. THOMAS, SUMMA, IIa Ilae, qu. 152, art. 4 ad 3.
Unauthenticated
302 JEAN DABIN
as automobile traffic, organization of markets, factories; and even in

moral matters the corresponding measures of public good may take on
a technical character, as in the fight against prostitution, drunkenness,
gambling, and other manifestations of public immorality. In speaking of
"good," indeed, one speaks not only of ends but also of means more or
less proximate, more or less efficacious in arriving at the ends. N o w the
means, as such, have a technical character. 1 3 Still a technique applied to
the service of man brings into play principles that touch man, his life
and his supreme good.
N o more should one pretend to reason from the formal character of
the elements of the public good. If the public good tends to introduce
order, coordination, and aid in social life, it is clear that these values are
not just "for all useful ends," that they imply a direction which is itself
determined by a philosophy. On the one hand, the public good is neces-
sary — as a means — because order, coordination, and aid are in all
fields the indispensable conditions of the progress of humanity. On the
other hand, all politics hangs on something " m y s t i c , " i.e., something
absolute — an authentic absolute, or something relative built up to an
absolute.
144. Relativity of the Applications of the Idea of the Public Good.

From that double observation no one should conclude that the public
good is not affected with relativity. On the contrary, it is very much so
affected, in its concrete applications of ends and means, by reason of
psychological, historical, geographical contingencies which furnish the
framework and often the subject matter for solutions of the public
good. This poses the problem of a science of the public good, the social
public good, the peculiarly political public good. T o what extent does
such a science exist or is it possible?
N o doubt there exists a general science of the public good which is
devoted to the study of the concept of the public good and is therefore
a philosophical science, the most important part of political philosophy.
T o that science belong the preceding explanations. Penetrating farther,
on the side of determinations, one can also recognize the existence of a
special science of the social and political public good, capable of bringing
up solutions of the public good evolved in the light of experience and
history. Y e t such solutions will always be merely elementary. For in-
stance, it is impossible to say in advance, relying upon scientific conclu-
sions, that the public good requires such and such a form of economic
organization or of political regime, valuable in themselves, always and
1 3 On the distinction between the t w o types of legal "constructions" (viz., of
legal solutions), ethical as against technical, cf. F . R u s s o , op. cit. 44-45.
Unauthenticated
everywhere, without regard to contingencies. T o political prudence
rather than to the science of abstract types must be left the care and
responsibility for the concrete solutions of the public good.
T h e more so as often there is pressure of time, circumstances are
abnormal, wisdom tells one to seek the lesser of evils, which will entail
certain momentary reversals in the hierarchy of values. T h e sphere of
execution will take precedence over the sphere of intention. And if in-
tention is for the greater part cognizable b y science, execution falls
solely to prudence (always reserving the rights of morality).
S E C T I O N 2. T h e TEMPORAL PUBLIC GOOD AS N O R M o r THE POSITIVE

C O N T E N T OF T H E L A W
745. The Temporal Public Good Differs from Morals; Intersections.

B y its peculiar objective, which is to dispose and to command, the role
of the legal rule is thus to order the relationships between men according
to the special and shifting requirements of the public good. 1 This is the
basic difference between law and morals, which contains and entails all
others: While morals prescribes to individual human beings what is the
good of human nature and consequently their own good in the domain of
mores, on the level of reasonable human activity, including the sector
of politics, the law regulates the conduct of individuals, groups, and
states as a function of the end of the state-society (or international
society), to wit, the public good, in all domains of the temporal order,
including the domain of morality. 2 One sees the intersections. On the
one hand, morality becomes a matter of public interest inasmuch as poli-
tics is charged with providing by adequate measures for the formation
of an environment favorable to virtue. On the other hand, the public
1 The following m a y be cited as fine syntheses of the argument: . . . ST.

THOMAS, IN ETHIC., bk. V , less. 2. Also: SUMMA, la Ilae, qu. 90, art. 2 ad resp., in
medio. SUMMA THEOLOGICA, la Ilae, qu. 98, art. 1: T h e end of human laws is the
temporal tranquillity of the commonwealth , at which they arrive b y repressing
external acts which m a y trouble the peaceful condition of the commonwealth ;
the end of divine laws on the contrary is to conduct men t o eternal felicity.
2 C f . Portalis, Discours preliminaire (au projet de Code civil de la Commission),
no. 26, in LOCRE, LA LEGISLATION CIVILE, COMMERCIALE ET CRIMINELLE DE LA FRANCE
(Bruxelles, 1836) 161, col. 2: . . . See also MONTESQUIEU, DE L'ESPRIT DES LOIS,
bk. X X V I , chap. 9, paras. 2-3 (ed. G a m i e r , p. 440). For a more thorough study,
see J. Dabin, Regie morale et regle juridique. Essai de comparaison systematique, in
ANNALES DE DROIT ET DE SCIENCE POLITIQUE ( L o u v a i n , 1936) 135-139. W r o n g l y , R .
Bonnard, L'origine de 1'ordonnancement juridique, in MELANGES HAURIOU 72-74,
assigns as ideal to morals "the fulness of the individual being" and to the l a w " t h e
fulness of the social being" . . .
Unauthenticated
364 JEAN DABIN
good becomes a matter of morality inasmuch as the political nature of
man enjoins him to fulfill his duties as a member of the state and a
collaborator in the public good. 3 But two things remain. First, the deter-
mination of the necessities, utilities, and conveniences of the public good,
in the sphere of ends as in that of means, falls professionally to the state
and not to morals. Second, it is for the state and not for morals to decide
upon the legal solutions most capable of bringing about concrete results
for the public good; for there is a branch of politics relating to legisla-
t i o n — legal politics — which constitutes one of the most important
parts of politics in general.
146. The Norm of the Public Good Governs All Branches of the Law.
The norm of the public good dominates all branches of the law, private
and public, municipal and international. This is an obvious truth for
public and administrative law, whose immediate subject matter is pre-
cisely the political, res publica. On the one hand, the state, its constitu-
tion, its functioning, can be regulated only in accordance with the best
efficiency of the state as an instrument of the public good. On the other
hand, as to the relationships between the state and its members, the con-
tributions and sacrifices which life in the state imposes upon the citizens
can have no other measure than that public good which is their reason
for being and the reason for the existence of the state. Even the distribu-
tion of the public good among the individual members of the state can
take place only under reservation of the principle of the public good,
whose realm extends to distributive justice as well as to legal or social
justice. 4 Similarly, international law is based upon the international
public good, which includes the good of the states themselves taken
together and the good of their individual members in so far as they are
called upon to enter into international relations.
147. Private Law and the Public Good. What is important to empha-
size, however, is that despite appearances the norm of the public good
also presides over the elaboration of municipal private law. T o be sure,
private law is the rule which, governing the relationships between pri-
vate individuals and groups, defines the rights and duties of everyone
with regard to the others. But it does not follow that that definition
should be formed exclusively or even primarily from the viewpoint of
3T h i s is the moral d u t y of legal justice, w h i c h will be studied infra, nos. 235

el seq.
4 On the subordination of distributive justice, w h i c h is particular justice, t o
legal justice, w h i c h is general (relating to the public g o o d ) , see J. DABIN, DOCTRINE
GENERALE DE L ' E T A T , n o . 272.
Unauthenticated
the particular good of the individuals or groups. T h e law that is called
private is private as to the sphere of relationships it governs; it is public,
or rather — to avoid any confusion with the subject matter of public
law or politics — it is social, 5 not only as to its function but also as to its
content. This means, no doubt, that in the regulation of private rela-
tionships the law that is called private will safeguard "public policy
and public morals" (which in a technical sense represent certain ele-
mentary requirements of the public good); that, moreover, it will guard
the interest of third parties (who, as opposed to the parties concerned,
represent the public, frequently interested in particular individual rela-
tionships) ; but still more, that in determining the respective rights and
obligations, the legal rule will be conceived with less regard to the rights
of the immediate parties than to the good of the entire community. T h e
latter is never a third party in regard to any relationship whatever be-
tween individuals, in the sense of an interested outsider; yet it is always
a party, in the sense that the parties to the individual relationship are
also members of this very community.
T h u s the role of the public good in law is not merely to provide a
barrier, reservation, or counterweight to the play of an individual right
created a priori, "save for public policy or the interest of third parties."
Its role is a positively determining one in the sense that for the
jurist the consecration of the individual right, the extent and the mode
of that consecration as regards all, parties and third parties, depend
a priori upon the public good. In a word, the rights of the parties are
determined not b y " m i n e " and " t h i n e " envisaged separately, but by
" o u r s " — which comprises, beyond the parties, the public, the total
community. 6 In his relationships with other individuals as well as with
the state, the individual is taken as a member of the public (the state
is in charge only of the public), and his rights and obligations are regu-
lated in consequence thereof. 7
148. The Social Conception of Private Law and the Concern with
Individual Rights. Will this doctrine be called "socialist" or statist"? 8
5 See supra, no. 88 and n. 6.

eCf. G . RENARD, LA THEORIE DE L'INSTITUTION (Paris, 1930), vol. 1, partie
juridique, and the f o r m u l a b y M a u s b a c h , id. 329, n. 2: . . . Also NATORP, VOR-
LESUNGEN ÜBER PRAKTISCHE PHILOSOPHIE (1925) 453.
7 See, in this sense, ST. THOMAS, SUMMA THEOLOGICA, Ia Ilae, qu. 90, art. 2 ad
resp.: . . . ; ad 1 : . . . ; ad 2: . . . : see also art. 3 ad 3. A n d see Isidore of
Seville, quoted SUMMA, Ια Ilae, qu. 90, art. 2, initio·, qu. 96, art. ι ad resp. C f .
Portalis, Discours preliminaire, no. 17, in LOCRE, op. cit. (Bruxelles ed. 1836) 159,
col. 2: . . .
" C f . , in this sense, J. BONNECASE, op. cit. nos. 153, 155, 156, and especially no.
Unauthenticated
366 JEAN DABIN
Assuredly it is socialism, at least a juridical socialism, if one maintains

that the rule of the jurist is necessarily social, centering on the public
good and not the individual good. It is statism, too, if it is for the state
to make a sovereign appraisal of the requirements of the public good
in matters of the legal rule — and how can that competence of the state
be disputed? B u t neither this juridical socialism nor this statism means
a negation of the individual right or a refusal to recognize it. On the
contrary, the public good demands that recognition: Have not the indi-
viduals been led to band together in the state with a view to safeguard-
ing their persons and property? And how could the public good be de-
rived from what would be evil for the individuals, the component parts
of the public: Totum non est praeter partes.3· Historical experience
accords with social philosophy in testifying that the public good cannot
be realized, cannot be conceived, without having respect for the indi-
vidual right, or b y abolishing the limits between " m i n e " and "thine." 9
One does not in this w a y come back to individualism: It remains true
that the measure of the individual right or, more exactly, of the protec-
tion assured it by the law, is the public good, not the right of the indi-
vidual. And this thesis is not without practical consequences, as will be
seen from the following examples.
14g. The Example of Rent Legislation. All Western [European] coun-

tries after the World W a r of 1 9 1 4 - 1 9 1 8 and without interruption since
then have known "rent legislation," extending leases and limiting the
amount of rent. On account of the critical shortage of living quarters it
was necessary to protect tenants of modest means (or business men)
from being put out on the street at the expiration of their leases, a situa-
tion which would have entailed both iniquities and social disturbances.
T h e solution was obvious: T h e landlords were compelled to extend their
leases beyond the expiration date, with provision for an adjustment of
the amount of rent by a percentage which was much less than that of
the devaluation of money (50 or 100 per cent increase in rent in relation
to 1914, whereas money had depreciated in the proportion of 400 and
more). On all the evidence, this legislation sacrificed the right of the
157. A n d cf. ι A . BOISTEL, COURS DE PHILOSOPIIIE DU DROIT, nos. 40 et seq., pp. 71

et seq.; 2 id. nos. 383 et seq., pp. 159 et seq.
° [ T h e w h o l e does not exist outside of the parts.]
9 T h u s it is not only, as has been said, because "injustice w o u l d disturb the order
of society and entail the danger of r e v o l u t i o n " that the c o m m o n g o o d requires

justice, but in a more essential m a n n er because the v e r y idea of the c o m m o n good
is impotent w i t h o u t justice, apart f r o m any idea of disturbance or revolution. C f .
G . R a d b r u c h , Le but du droit, in 3 ANNUAIRE DE L'INSTITUT INTERNATIONAL DE
PHILOSOPHIE DU DROIT (1937-38 ) SO; b u t see id. 53 in fine.
Unauthenticated
landlord to that of the tenant: From the viewpoint of commutative
justice, on the level of " m i n e " and "thine," the equilibrium was broken.
On the one hand, the landlords lost the free disposition of their prop-
erty; on the other, they did not obtain the just price for providing its
enjoyment. It is possible, even certain, that in the minds of some people
rent legislation took on the meaning of an attack upon property or,
quite bluntly, an election maneuver: D o not the tenants represent the
"little men" and therefore the mass of the electorate?
Y e t objectively the solution was justified, at least in its principle, as
a measure commanded by the public good under the circumstances. T h e
public good, especially concern with public peace and tranquillity, de-
manded the invasion of the right of the landlord, the break in the equi-
librium which actually benefited the tenant. W i t h commutative justice
failing, social justice received satisfaction. 1 0 For social justice may re-
quire the citizens to give up certain things not only for the profit of the
state under the perspective of public law, but also under the perspective
of private law for the profit of other citizens or other social categories,
when these particular sacrifices are indispensable for the good of the
whole community. 1 1
150. The Objection of "Legislation of Circumstance." Will this ex-

ample be rejected as legislation "of circumstance," exceptional and pro-
visional, and by claiming that normally the determination of private
rights would take place on the basis of strictly commutative justice? T h e
objection would not be pertinent. Continually the law has to do with
situations that are sometimes conforming and sometimes contrary to
normality, and its solutions are made up sometimes of principles and
sometimes of exceptions from principles. N o w philosophically neither
the problem nor the method changes: It is always the public good upon
which either the principle or the exception is founded. In normal, i.e.,
calm, times, the public good will be likely to coincide with the consecra-
tion of commutative justice. In abnormal, i.e., troubled, times, and, if
you will, on the ground of the policy of the lesser evil, the public good
will suggest such more or less grave derogations from the rule of com-
mutative justice. 1 2
10 See a n o t h e r , m o r e t e n u o u s e x a m p l e in the case suggested b y J. C a r b o n n i e r in
R E V U E TRIMESTRIELLE DE DROIT CIVIL ( 1 9 4 2 ) 365 ( o b l i g a t i o n of a h i g h e r employee
t o c o n t i n u e hi s s e r v i c e w h i l e t h e e n t e r p r i s e is f o l d i n g u p ) .
11 C f . , c o n c e r n i n g t h e d e f i n i t i o n of j u s t i c e as a m o r a l v i r t u e , CICERO, D E INVEX-
TIONE, 2, S3, 1 6 0 : . . . , and comment by F . SENN, D E LA JUSTICE ET DU DROIT
( P a r i s , 1 9 2 7 ) 4 4 - 4 7 . W e s h a l l r e t u r n t o t h i s p a s s a g e infra, n o . 238.
12 On the distinction between normal and abnormal times, see M. HAURIOU,
PRECIS DE DROIT CONSTITUTIONNEL (2d ed. Paris, 1923) 440-441.
Unauthenticated
368 JEAN DABIN
ißi. Examples from the Ordinary Law of Private Institutions: Pre-
scription. Does one nonetheless want to argue from a starting point in
normal times? It will not be difficult to discover a number of institutions
of private law in the apparently most individualistic codes, where the
solution is to be explained by the predominance of the viewpoint
of social justice ("ours") over the viewpoint of commutative justice
("mine," "thine"). Such is the rule of prescription, already referred to. 13
It has indeed been attempted to reconcile prescription with individual
right through explaining it by a presumption of renunciation: The in-
action of the holder of the right during a sufficiently long lapse of time
would indicate an intention to abandon the right. 14 Historically and ra-
tionally the explanation is factitious. The true reason of prescription lies
in certain necessities or conveniences of social life. It matters for the
public good that at the end of a certain time accounts should be cleared
(liberating prescription or limitation of debts), unused rights in real
property detached from ownership should disappear (extinctive pre-
scription of usufructs and servitudes), illegitimate acquisitions of prop-
erty should become regularized notwithstanding their original defects
(case of acquisitive prescription of ownership and real rights). Yet these
results contradict the individual right, since they operate so as to trans-
fer value without compensation from one estate to another without the
consent of the holder (it is an adage of law and of common sense that
"renunciations are not to be presumed"). Commutative justice could
not approve prescription precisely because the right is by definition im-
prescriptible: It is inconceivable according to law and justice, under-
stood in the philosophical sense, that the thief or usurper could ever be-
come the legitimate owner of the thing he stole or usurped. Res clamat
domino.b The assured right of the owner is nevertheless immolated to
the public good of security in society. 15
Will it be said that in fact the normal function of prescription is to
clarify normal situations by relieving the beneficiary of an often difficult
proof? Incontestably so. But the exactness of the remark does not permit
us to neglect the cases, even though they are exceptional, where prescrip-
tion implements injustice precisely because the law of prescription has
stability and not justice in mind

"See, e . g . , 1 A . BOISTEL, COURS DE PHILOSOPHIE DU DROIT n o s . 244 et seq., pp.
401 et seq.
b [The thing calls for its owner.]
15 F o r a d e t a i l e d defense of this thesis, see J . DABIN, LA PHILOSOPHIE DE L'ORDRE

JURIDIQUE POSITIF, n O S . I39-I4I.
Unauthenticated
152. The Same: Ownership under the Code Napoleon. There are also
other examples where one could not argue that the case is exceptional.
Take the regime of ownership and rights in real property under the Code
Napoleon. The following rules may be taken up at random as inspired
in the first place by a concern with the public good (understood in a
more or less exact manner): The limitation of the number of rights in
real property (article 543), c the prohibition of restraints on alienation, 16
the lifelong character of usufructs (article 617, para. 2), d and the re-
quirement of an increased value of the dominant estate as a condition
for the existence of a servitude (article 686). e N o motive deduced from
respect for everyone's right offers a check to an unlimited variety of
modes of utilizing property. But the legislator believed that socially the
limitation presented advantages of simplicity and clarity, justifying a
restriction upon the freedom of owners to encumber their property with
any detached rights they pleased. Similar considerations of a social order
explain the prohibition of restraints on alienation. They do not in any
way contradict the individual right either on the part of the stipulating
party (since he is master of his property) or on that of the obligor (since
he has given his acceptance). But it appeared to the legislator that the
power of alienation was required by the economic principle of freedom
of circulation of goods in the social interest. From the viewpoint of the
respective rights, there was nothing to postulate the lifelong character
of usufructs or the condition of increased value for servitudes either.
But from a general point of view the legislator refused to admit that as
important a detached right as a usufruct could in perpetuity paralyze
the exercise of the rights of full ownership to the detriment of productive
use of the property; or that the service imposed upon an estate, with
its real and permanent character, should not be compensated by an
augmentation in the value of the benefiting estate. 17
c [ A r t . 543 of the C o d e N a p o l e o n p r o v i d e s as f o l l o w s : " P r o p e r t y rights m a y be
either o w n e r s h i p or a mere right of user or s e r v i t u d e s o n l y . " ]

w A solution e v o l v e d b y w a y of i n t e r p r e t a t i o n ; see PLANIOL AND RIPERT, TRATTE
PRATIQUE DE DROIT CIVIL FRANIÂis. v o l . 3 : Les biens b y M . P i c a r d , n o . 223.

" [ A r t . 617 p a r a . 2 of the C o d e N a p o l e o n p r o v i d e s as f o l l o w s : " U s u f r u c t shall be
t e r m i n a t e d : . . . B y expiration of the time f o r w h i c h it has been g r a n t e d . " ]
β [ A r t . 686 of the C o d e N a p o l e o n p r o v i d e s as f o l l o w s : " O w n e r s are p e r m i t t e d
to establish u p o n their estate or in f a v o r of their estate such servitude s as t o t h e m

seems fit, p r o v i d e d h o w e v e r t h a t the services established shall be impose d neither
u p o n a person n o r in f a v o r of a person, b u t o n l y u p o n l a n d a n d f o r land , a n d
p r o v i d e d t h a t such services shall n o t otherwis e be c o n t r a r y t o public p o l i c y . T h e
use a n d extent of the services thus established shall be g o v e r n e d b y the g r a n t
c o n s t i t u t i n g t h e m or, in the absence of such g r a n t , b y the f o l l o w i n g rules."]
" T h e r e are o t h er examples, such as the rules of accession b y i n c o r p o r a t i o n ,
art. 552. [Sic. A r t . 552 of the C o d e N a p o l e o n p r o v i d e s as f o l l o w s : " O w n e r s h i p o f
Unauthenticated
3 70 JEAN DABIN
Perhaps one will venture to offer this interpretation: Far from de-
riving from a social idea, the above mentioned rules could be but the
affirmation, pushed to a paroxysm, of the individual right of ownership,
which the legislator wanted to be absolutely free, notwithstanding the
owner's contrary will, just as the prohibition of a contract to work for
life is evidence in favor of the absolute conception of the principle of
freedom of the person. But, even neglecting the argument of the produc-
tive use of property, which has nonetheless been invoked, it will be
observed that if the Code Napoleon in fact saw its ideal in free, full, and
unhampered ownership, this ideal was in its eyes justified less by the
right of the owner considered as such than b y the interest of the public
in general. It is too often forgotten that liberalism, unlike anarchism,
presents itself rightly or wrongly as a social doctrine, b y the same token
as solidarism or socialism. T o the liberal, liberty is fused with, and alone
is capable of providing for, the general interest.
153. The Same: Domestic Relations, Succession, Contracts. It is

appropriate to generalize: In all fields of private l a w — the law of do-
mestic relations, of succession, of contracts — one encounters regulations
elaborated directly as a function of the public good rather than of the
pure individual right. For the law of domestic relations, this is not
astonishing. T h e realization of the human and national ends of the
family is radically incompatible with the concept of the right of the in-
dividual as such. T h a t is why, for example, marriage is decreed to be
indissoluble, at least in principle, and the community of life between the
spouses always produces a certain community of property relations, even
the soil carries w i t h it ownership of w h a t is a b o v e and b e l o w . T h e owner m a y

plant and build a b o v e as he shall see fit, save f o r the exceptions established in the
Title On Servitudes or L a n d Services. He m a y build and dig b e l o w as he shall see
fit and d r a w all products that such diggings m a y furnish, save for the modifications
resulting f r o m the mining l a w s and regulations and the police laws and regulations."]
T h e concern w i t h the pure individual right w o u l d demand the coexistence (which
is not at all impossible) of the t w o rights, of the owner of the thing to w h i c h
there is an accession and of the o w n e r of the acceding thing. H o w e v e r , since the
coexistence w o u l d p r o b a b l y entail conflicts and w o u l d hardly be f a v o r a b l e to a
f r u i t f u l utilization of the property, the C o d e in the social interest decrees expropria-
tion of the owner of the accessory thing, w h i c h will increase the principal thing,
t h o u g h with provision for indemnification. T h e same system prevails as regards
injuries caused to p r o p e r ty b y industrial establishments: the right of the owners is
sacrificed, with indemnification provided. Finally, will it be said that justice drives
the l a w of nations to recognize, in an unjust invader, the rights of an occupant, not
only burdensome rights (such as the maintenance of order) b u t also profitable
rights (such as requisitions) ?
Unauthenticated
in case of separation of property, 1 8 etc. T h e same social note appears in
matters of succession. For if descent may be legitimately related to the
descendants' own right (in their quality as members of the family of the
deceased, though), the arrangement of the regime reflects preoccupa-
tions of a familial, social, and even political order. Is not the mode of
dividing estates of interest to the power of the state over its s u b j e c t s ? 1 9
T h e law of contracts until recent times, it is true, was construed in sub-
stance by means of the classical categories of liberty and property
merely tempered b y the laws, public policy, and public morals. But how
can one with these concepts account for solutions such as the mandatory
value of fixed prices? In order to grasp the adequate reason of fixed
prices, one must not hesitate to leave the ancient individualist frame-
work and place one's self in the perspective of a socially organized econ-
omy, where the retailer is envisaged no longer in his purely legal quality
as a contracting party and owner but as invested with an economic
function in the mechanism of distribution of products. 2 0
154. In the Field of Evidence and Procedure. Even rules as technical

as the law of evidence and the law of procedure (at least in civil
matters) are rather often turned from their normal ends and transferred
to the service of a policy which through them as intermediaries pursues
some end of the public good. More or less irrefragable presumptions are
instituted which are but distantly related to the probability of the pre-
sumed facts. Difficulties of proof are artificially raised where the matter
opposes no special resistance to demonstration.
Thus, in the field of filiation, the law multiplies favors to legitimacy,
presuming that the ideal it deems desirable is realized; yet it ignores
adulterous or incestuous filiation, which cannot be acknowledged in its
eyes; and for simple natural filiation it is content with obstacles to
proof. Arguments of a social order (safeguards to the peace of families,
fear of scandal) win out in the probative system over the concern with
an objective and prudent search for the truth. 2 1 Similarly, in the matter
of civil responsibility in tort a tendentious employment of statutory pre-
1 3 See on this last p o i n t R . Savatier, L'evolution du regime de la separation des

biens, in L E DROIT, L ' A M O U R ET LA L I E E R T E (Paris, I Q 3 7 ) 7 0 et seq.
19 C f . C H . B E U D A N T , C O U R S DE DROIT CIVIL FRANQAIS (2d ed. b y R . B e u d a n t and
P . L e r e b o u r s - P i g e o n n i e r e ) , v o l . 5 : L E S S U C C E S S I O N S AB I N T E S T A T b y R . L e Balle
(Paris, 1 9 3 6 ) , nos. 6 2 - 8 5 .
20 C f . R . H O O R N A R T , L A POLITIQUE, DES P R I X I M P O S E S (Bruxelles, 1939) . . .
21 See, on this p o l i c y , J . D A B I N , L A T E C H N I Q U E DE L ' E L A B O R A T I O N DU DROIT

P O S I T I F (Bruxelles-Paris, 1935 ) 89 et seq. A l s o A . R o u a s t , Les tendances individual-
istes de la jurisprudence frangaise en mattere de filiation legitime, in R E V U E T R I M E S -
T R I E L L E DE DROIT CIVIL ( 1 9 4 0 - 4 1 ) 223 et seq.
Unauthenticated
372 JEAN DABIN
sumptions permitted judical decisions to assure an especially favorable
regime of reparation to victims of injuries, motivated no doubt by a
feeling of pity for the victim but also, from the social point of view, by
a policy of preventing injuries: The more severely the authors of acci-
dents — presumed to be at fault or responsible — are treated the more
will they redouble vigilance and precaution. 22 Finally, in the field of pro-
cedure, do we not see the legislator multiply formalities and delays
simply with a view to wearing out actions of which he fundamentally
disapproves but which he is obliged to tolerate, as in matters of divorce
on specified grounds and above all divorce by mutual consent? The
resources of form come to the aid of substance; adjective law concurs in
realizing substantive law, in this case, a substantive law of social tend-
ency, preoccupied more with society in general than with particular
individuals.
155. In Criminal Law. Is it necessary, finally, to remark that the law

of sanctions, especially the penal law, is directly under the dominion of
the public good? The same public good that has to decide upon the
content of the rules is naturally the judge of the form and degree of the
sanctions. If their primary purpose is to assure the effective execution of
the precepts of law, through the evil they inflict and the fear that evil
may inspire, yet sanctions raise a new problem in relation to the prob-
lem of the content of the law. The execution of the law could not be
carried out regardless of consequences or even solely with a view to the
efficacy of sanctions. Excellent rules might be provided with very effica-
cious sanctions which, however, would have a deplorable social effect.
Certainly, there are sanctions that are obvious, issuing logically from
the violation of the rule itself; such is the nullity which "sanctions" con-
tracts made in contravention of a legal prohibition. Such contracts are
ordinarily null and void (with reservations, though, as to the scope of
these nullities), 23 and one and the same judgment — a judgment of the
public good — resolves both the problem of the prohibition of the law
and that of its sanction. But there are sanctions which keep less closely
to the existence of the precept, such as annulments of transactions,
seizures, and above all penalties (which incidentally explains the birth
of the penal law as an autonomous branch). Now it is a distinct judg-
ment — always one of the public good — that will raise the question of
punishment, a judgment dictated by the social gravity of the infraction
22 See on this point J. DABIN, L A PHILOSOPHIE DE L'ORDRE JURIDIQUE POSITIE,

nos. 155-156.
23 Ordinarily; for it may happen that the law upholds the forbidden transaction
and imposes the sanction of a penalty upon the transgression.
Unauthenticated
and the social necessity of a more energetic reaction, yet without over-
looking the rights of the person of the delinquent, who, despite the pun-
ishment, still has the right to be treated humanely. 24
SECTION 3 . T H E T E M P O R A L P U B L I C GOOD AS N O R M OF T H E N E G A T I V E
CONTENT OF T H E LAW
156. The Public Good Often Demands Abstention of the Jurist. It

would be wrong to believe, however, that the intervention of a legal
rule is indicated every time that some attitude conforming to the public
good is to be obtained from the subjects, whether private individuals or
even official functionaries. The public good, the norm of the positive
content of the law, is also and for the same reason the criterion of its
negative content; as the master of the mode of intervention, it equally
decides in each case upon the principle of intervention. 1 Seen from an-
other angle — that of the realization or the incidences of the rule — it
may happen that the requirements of the public good demand of the
jurist a more or less complete abstention. And it is understood that we
have in mind here not at all the effacement of a statute or custom in
favor of the courts, where the judicial source of law is substituted for
other sources, but rather the lack of any legal rule, whatever its source,
a priori or a posteriori, in short, a system of more or less complete free-
dom imposed upon and eventually sanctioned by the judge. Here ap-
pears in full relief the mission of the jurist to prefer prudence to justice,
even social justice. The "prudent" man does not think exclusively of
justice; he seeks what is realizable; failing to obtain the best, he con-
tents himself with less, which is sometimes the lesser evil.
Let us leave aside the assumption of intangible autonomies. There are
indeed spheres of activity, even external activity, where the will of in-
dividuals is the master of decision and action, save for its responsibility
before conscience and God. Universal as the domain of the public good
24 C f . P . Cuche, L'elaboration du droit penal et l'irreductible droit naturel,
in 3 RECUEIL GENY 271-274. C f . ST. THOMAS, SUMMA, IIa Ilae, qu. 66, art. 6 ad
2: . . . ; and see ST. THOMAS, op. cit. IIa Ilae, qu. 85, art. 1 ad 1.
1 T h e definition of law as ordinatio ad bonurn commune, called upon to serve
the "utility of m e n , " as in the passages quoted supra, no. 134 and notes 2 and 5,
means no doubt that in the first place the law will prescribe w h a t the common
good or the utility of men demands, but also that it will abstain f r o m such pre-
scription in cases where the common good and the utility of men w o u l d not benefit
therefrom. Isidore of Seville, approved b y St. T h o m a s , said that the l a w saluti
proficiat, expediat saluti [should "benefit w e l f a r e " or "expedite w e l f a r e " ] , SUMMA
THEOLOGICA, la Ilae, qu. 95, art. 3.
Unauthenticated
374 JEAN DABIN
may be in the temporal order, there are reserved zones prohibited to

penetration b y the public and the state at least in the form of precepts
if not of advice: Those in which the personal destiny of the individuals
in this and in the other world is at stake, in a word, the freedom of voca-
tion in the wide sense. T h i s freedom is not only legitimate but also
necessary. N o reason of the public good could motivate its suppression
or limitation because it stems from the nature of the human individual,
who is not merely a part of a whole but also a being subsisting in and
for himself, and because no attack upon human nature could be useful
to a public good which is also basically human. 2
157. The Dilemma: Freedom or Legal Rule. L e t us remain, then, on

the level of the competence of the state and the public good. It is not a
foregone conclusion that in concrete reality the rule will be a better in-
strument of a solution than the free will of individuals, in whatever w a y ,
incidentally, the latter may proceed, by w a y of material action or of dis-
position (legal transaction), unilaterally or b y agreement. Seemingly,
the rule alone, as emanating from the social a u t h o r i t y — r u l e r s or the
people themselves acting together — is capable of rising to the level of
the good of all while the private will would never go beyond the limited
horizon of the particular interest. B u t if experience condemns the all too
optimistic doctrine of a public good flowing b y a law of fate from the
play of competing freedoms, 3 it would be an exaggeration to claim that,
conversely, freedom could never produce anything but damage to the
public good — often a positive damage, and in any case a negative one
b y the very lack of coordination and discipline which results from com-
petition. In these matters, a priori doctrines, always extreme and sim-
plifying, weigh less heavily than facts, because we are concerned with
registering results and the sole valid method for registering results is
statistics or, if you will, more modestly, experience.
T h e dilemma is thus not one between freedom on the one hand and
the public good on the other; it is one between freedom and the rule,
both possible instruments in the service of the public good. Freedom has
its perils: Disorder or injustice, which are precisely the reason of being
of the rule; but the rule in turn is not without inconveniences. Whatever
the virtues of external discipline may be from the very viewpoint of the
2 As to the relation of the individual h u m a n being to society and the state, see
J . DABIN, DOCTRINE GENERALE DE L'ETAT, nos. 212-216, pp. 342-352.

3 Thi s is the m o m e n t to quote the typical f o r m u l a of E u d o r e Pirmer in the
Belgian C h a m b e r , in i860, in the debate concerning art. 494 of the Penal Code,
repressing u s u r y : " W e w r o n g l y oppose the protection of f r e e d o m ! " Q u o t e d in 2
NYPELS, LE CODE PENAL BELGE INTERPRETE (Bruxelles, 1878) 675.
Unauthenticated
education of freedom, 4 every rule by its inhibiting effect involves a cer-
tain attack upon individual energies. Spontaneous enthusiasm is con-
trolled, contained, broken. T h e excess of discipline kills the spirit of ini-
tiative. T h e fully prepared regulation relieves one of foreseeing and
providing; and in the absence of regulation the disoriented subject falls
into inertia. From another aspect, discipline laid down in advance al-
ways errs through generality, which prevents it from adapting itself to
the particularities of cases, while freedom, mobile and supple, knows
how to invent exactly adjusted solutions. Lastly, let us not forget that
the rule issuing from the will offers this superiority over the imposed
rule, that it adds to the abstract force of the obligation the stimulus of
personal engagement, which doubles its effective value.
158. Sometimes Freedom Ought to be Preferred, but Not Without

Limit or Control. N o w these merits of freedom, in action as well as in
the regulation of action, are not without repercussions upon the public
good. A t some point, freedom may be preferred to intervention even if
in the special case the solution provided by freedom would be less in
conformity with the public good than the solution of the rule. B y hy -
pothesis, the advantages of freedom represent on the whole a more
appreciable element of the public good than what has been given up
for it. More, in the choice to be made between freedom and the rule,
the law will begin by laying down the rule of freedom, at any rate as
long as it has not been shown that in practice the use of freedom turns
generally against the public good. This explains not only the great
principle of modern private law that "all that is not prohibited is per-
mitted," but also the principle of the autonomy of the will in the regula-
tion of private interests. T h e law has greater confidence in freedom than
in itself to define the relationships between particular individuals for
the best interests of each and all. If it formulates the rule, it does not
always impose it, in the sense that it permits liberty to derogate from
it b y the disposition of a will to the contrary: T h e rule of the law is then
but supplementary. 5
Of course, freedom from regulation could not be absolute, without
limit and without control, which would amount to denying the utility
and the very principle of social discipline. A t the outset, it is incumbent
upon the law to insure the expression of authentic freedom or at the
4See, in this sense, ST. THOMAS, SUMMA, la Ilae, qu. 95, art. 1 ad resp. and ad 2.
5On the system of the Cod e N a p o l e o n , see J. D a b i n , Autonomie de la volonte et
lois imperatives, ordre public et bonnes moeurs, sanction de la derogation aux lots,
en droit prive interne, in A N N A L E S DE DROIT ET DE SCIENCE POLITIQUE (Louvain,
1940) 190 et seq.
Unauthenticated
376 JEAN DABIN
very least of a sufficient freedom, for a freedom that is psychologically
null no longer answers to the concept of freedom. Further, there are
matters which are not appropriately treated through freedom, which call
for a common measure, objective and uniform, independent of will in
general and of any particular dissident will. Lastly, even in the field left
to freedom, there will always be room for paring down the abuses and
gaps of freedom by adequate measures whenever freedom, positively or
negatively — through badly regulated competition — would cause to the
public good a damage greater than that which intervention would en-
tail. 6 Even within the framework of a vigorously social conception of
the law, this justifies the very large place accorded to the freedom of
individuals and groups, a principle often denounced as typically indi-
vidualistic although its moderate, balanced application is ultimately as
beneficial to society as to the individuals.
15Q. Beneficial Character of Freedom even in the Domain of Public

and Administrative Law. Nor is this beneficial character of freedom en-
trenched in the sector of private law. It shows itself also in public and
administrative law, where the public good represents the only valid
viewpoint, outside of any consideration of private good. Good manage-
ment of the state does not systematically require a rule any more than
does good management of particular interests. The spirit of initiative
and freedom of decision are as indispensable to rulers, functionaries, and
officials responsible for the public good as they are to private persons.
And hence while in some matter or under some circumstances the public
good may demand the subjection of the holders of authority to a more
or less rigid rule, there will be other cases where the public good will re-
quire that they have a more or less discretionary power, such as, when-
ever the danger of arbitrariness will appear less prejudicial to the public
good than too strict a discipline.
160. The Psychology of the Subjects: Cases Where the Public Good
Is Satisfied Without the Intervention of a Law. The shortcomings in-
herent in the system of regulation are not the only reason for abstention
on the part of the rule. Account must also be taken, to a large extent, of
the psychology of the subjects.
Suppose, first, that ordinarily they spontaneously execute the order
deduced from the public good. The result is here obtained without the
"See L. Josserand, La "publicisation" du contrat, in 3 RECUEIL LAMBERT § 145,

pp. 143 et seq.; G. Ripert, Vordre iconomique et la liberte contractuelle, in 2
RECUEIL GENY 347, and LE REGIME DEMOCRATIQUE ET LE DROIT CIVIL MODERNE
(Paris, 1936) nos. 137 et seq.
Unauthenticated
rule having to show itself. 7 N o w if the legislator makes the claim to in-
tervene, if only to support with a sanction the principle already prac-
ticed in fact, the effect of his step could be radically different from what
he had thought. Instead of confirming the subjects in their attitude, it
may cause a turnabout dictated by a feeling of reaction against meddling
that is deemed intolerable. There are individualistic peoples whose cavil-
ing temperament goes as far as explicit contradiction; there are defiant
peoples who in the course of history have had to suffer many an abuse.
A psychology, perhaps regrettable, which yet imposes itself as a fact
upon the statesman desirous of avoiding mistakes. T h e more so since
the inopportune proclamation of commonly practiced principles risks
awakening the doubt that will end b y ruining them. Contrary to the
well-known saying, there are things that are better left unsaid. 8 B u t
since under certain circumstances freedom has proved itself, w h y not
trust it as long as it continues to merit the trust? T h e codes of law are
not like catechisms or grammars containing the complete enumeration
of what to do and what to avoid. Arranged in them are only the precepts
that it is useful to have promulgated because people would tend to
transgress them; that is, unless the principles in question are so impor-
tant that isolated infractions could not be permitted. For instance, there
is good reason for the legal rule prohibiting murder and theft, although
murderers and thieves are relatively rare. In this case, b y the way, such
a law lays down the precept only by sanctioning it, by way of the penal
law or the law of civil responsibility, since it is useless to announce such
a precept: T h e law does not prohibit murder, it punishes it, this sanction
like every sanction naturally implying a prohibition.
161. The Same: Cases Where the Order oj the Public Good Would
Meet with Resistance. Provision must be made for the converse assump-
tion: T h e people do not understand the requirements of the public
good; they do not practice them and are not disposed to accept them.
This occurs especially where the old human passions of unchastity, in-
temperance, prodigality, cupidity, and pride are at work, against which
the state has the duty to fight, b y reason of their social harmfulness; or
it occurs where the state seeks to introduce ideas of orderly cooperation
7Cf., in the same sense, MONTESQUIEU, CAHIERS, 1716-1755, presented by

B. Grasset (Paris, 1941) 95: "One should not do by laws what one can do by
habits"; "useless laws weaken necessary ones."
"This is one of the reasons w h y the English do not like the system of [Con-
stitutional] "Declarations of Rights": What good is there in proclaiming what goes
without saying? For all that, individual rights are not any the less recognized and
very energetically sanctioned in England.
Unauthenticated
378 JEAN DABIN
in a society of too individualistic leanings. Quid leges sine moribusl a
This still says too little. Disagreement with mores is capable of pro-
ducing results worse than the futility of laws: Troubles of every sort,
economic, social, moral. N o w , no matter how just m a y be the disposition
of a law seen only as such and as to its intention, the role of that law
is not to aggravate a real disorder, which b y hypothesis its precept is
powerless to extirpate, by adding a new and worse disorder. T h e legal
rule ceases to be of any service when, on the whole and balancing its
advantages against its inconveniences, it produces more evil than good. 9
N o doubt the people are at fault when in contempt of a formal order
they continue obdurately in vicious practices or refuse to make legiti-
mate sacrifices of independence. But the authority in turn commits a
political fault when it reacts too late by untimely intervention without
first thinking of converting the mass of misled opinion. 10
T h e dosage of legal requirements does, however, involve degrees.
From the legislator's inability to prescribe the maximum, on account of
the state of opinion, it does not follow that he ought to prescribe nothing
at all. 1 1 He will prescribe the minimum, or, more exactly, the maximum
of what opinion is able to support. For example, divorce once having
entered into the mores, the legislator will not necessarily go so far as to
exclude it. 1 2 Working with the fire, he will only take care to hinder its
abuse and even its use b y a series of precautions tending to restrain and
sterilize the undesirable solution. 1 3
" [ W h a t are l a w s w i t h o u t m o r a l s ? ]
9 Cf. , in the same sense, ST. THOMAS, op. cit. Ia Ilae, qu. 95, art. 3 ad resp.: . . .
Especially concerning the repression of vices, see qu. 96, art. 2 ad resp. and ad 2;
qu. 77, art. 1 ad resp. See also MONTESQUIEU, DE L'ESPRIT DES LOIS, b k . X I X ; equally
Portalis, Discours preliminaire, no. 5, in 1 LOCRE, op. cit. (Bruxelles ed. 1836) 154,
col. 2: . . .
10 G o d Himself has proceeded in this progressive manner, giving the Old Law
to a still imperfect h u m a n i t y , and another more perfect l a w (the L a w of the
Gospel) to those w h o h a d already been led b y the earlier l a w to a greater under-
standing of divine matters, ST. THOMAS, SUMMA, Ia Ilae, qu. 91, art. 5 ad 1.
11 St. Augustine, a p p r o v e d b y ST. THOMAS, op. cit. Ia Ilae, qu. 96, art. 2 ad
3: v .
12 D i v o r c e m a y h a v e entered the mores so deeply that the public, in order to
reserve the possibility of breaking off relations in case of a suppression of divorce,

will forego marriage so as to live in free unions, w h i c h is no d o u b t m u c h worse
than divorce. T h e same difficulty hampers a prohibition of w o r k b y married
w o m e n outside of the home. T h e desire f o r independence — and sometimes the
necessity to supplement the f a m i l y income — m a y turn f r o m marriage t o c o n -
cubinage w o m e n w h o w o u l d nonetheless w a n t to w o r k outside.
13 A s examples of this policy , one m a y also cite the case of numerous rules of
the C o d e N a p o l e o n in the matter of gifts inter vivos, showing the hostility of the
legislator t o w a r d that k i n d of dispositions, w h i c h deprive families of their estates.
Unauthenticated
162. The Intervention of the Legal Rule Is Not the Only Possible
Solution. But let us make no mistake: Silence or tolerance on the part
of the legal rule by no means signifies abstention of the authority. There
are several ways in which the state may usefully promote the public
good. In general, no doubt, it will hardly succeed without laying down a
precept. T h e subjects need to be given commands, and formally the state
is the commanding power. B u t the action of the state by way of com-
mand and power is not always the aptest method. Like the father of the
family, like any authority whatever, the state may confine itself to
encouraging through the grant of advantages or counteracting through
"prohibitive" procedures. As long as morality is preserved (for the end
does not justify the means), the state has the right and the duty — of
political prudence — to choose the means which leads most surely to the
goal. 1 4
T a k e , for instance, the fight against alcoholism, an incontestable so-
cial scourge, injurious not only to the individuals who yield to alcoholic
liquor but also to their offspring and to all of society, since the abuse of
alcohol kills the race. Instead of issuing a prohibition pure and simple,
sanctioned by a penalty if need be, which is the most direct and most
energetic method, the state may intervene b y so many limitative regu-
lations (closing down the sale of drinks for certain hours of the day,
imposing taxes, etc.) or, in a manner no longer juridical, by favoring the
consumption of products competing with alcohol, organizing anti-alcohol
propaganda in its own schools, or allotting subsidies to private anti-
alcohol groups; in these latter cases, the law gives way to general poli-
tics. W h a t about the fight against the high cost of living, another social
scourge, or, more precisely, the practice of exorbitant prices? Apart from
the direct procedure of fixing ceilings, which often remains a dead letter
or results only in producing a shortage of goods, 1 5 various more or less
efficacious procedures are at the disposal of the state to curb the upward
movement: e.g., initiating competition by enterprises managed by the
public authorities or even suppressing private trade (system of public
enterprises (regies) and monopolies). 1 6
T o check the abuses of economic power, the state, instead of itself
combating such abuses in a preventive and repressive manner, may
" On the efficacy of advice in relation to precepts, cf. ST. THOMAS, op. cit. la
Ilae, qu. 95, art. 1 ad resp. and ad 1.
15 N o t to forget the special danger noted b y MONTESQUIEU, DE L'ESPRIT DES
LOIS, bk. X X I I , ch. 19: " U s u r y increases in M o h a m m e d a n countries in proportion
to the severity of its prohibition: the lender indemnifies himself against the risk
of v i o l a t i o n . "
16 Cf. , on the creation of municipal slaughterhouses, French Council of State,
N o v . 24, 1933, SIREY (1934) , 3, 105, w i t h note b y M . Mestre.
Unauthenticated
38ο JEAN DABIN
stimulate the grouping together of the weak who are the victims or,
again, make itself the mediator to bring the parties together. Such has
been the policy of the state of the nineteenth and twentieth centuries in
the field of protection of labor. While it intervened by protective statutes
("social legislation" properly so called), it lifted the barriers to labor
unionism, erected institutions of conciliation and arbitration, and fa-
vored collective agreements and mixed commissions. Such a policy,
which takes advantage of the play of social forces, offers many benefits.
It is economical since it relieves the state of the need for incessant and
often delicate policing; it is in accord with the idea of human dignity
since it leaves to the interested parties the care of defending their own
interests; it aids virtue since it drives toward the recognition of the
bond of solidarity which unites the workers among themselves, on the one
hand, and capital and labor, on the other. In an analogous order of ideas,
we see governments favoring the elaboration and establishment of uni-
form types of contracts in order to introduce certain reforms that are not
yet ripe enough to pass directly into statutes: The state avails itself of
extra-judicial practice as a precursor of the requirement of the law. 17
Finally, if one likes an example now on the agenda, it is quite certain
that the return of woman to the home, which in every regard represents
the social verity, will be attained much less by prohibiting work outside
than by a complex of measures destined to influence the external and
internal, economic and psychological causes that drive mothers to desert
their homes. Do we have to add that most of the time the authority will
be led to put all means within its power to work simultaneously, that
resort to the method of the compelling imperative does not exclude the
use of other, indirect procedures, and vice versa?
163. The Desirable Public Good and the Realizable Public Good. It
follows from these explanations that the public good, the norm of the
positive legal ordinance, is two-faced, that in a certain sense it even
assumes contradictory aspects. Sometimes, the public good commands a
rule which erects its requirements into a precept; sometimes, it demands
freedom, abstention of the rule with regard to these same requirements.
There is the desirable public good, incarnating the ideal, and the realiz-
able public good, depending upon contingencies. Good in its disposition,
the rule may nevertheless produce fruits contrary to the public good on
account of an unfavorable social environment. Now what matters is the
result, the final result, the amount of effectively realized public good.
For the legislator, the question is thus not so much to determine what
" Cf. E.-H. Kaden, Un exemple de la pratique extra-judiciare en Allemagne:
le contrat de bail uniforme, in 1 RECUEIL LAMBERT § 4 1 , pp. 5 1 1 et seq.
Unauthenticated
the subjects owe to the public good as what he is able to obtain from
them by means of his rule. 1 8
164. Public Good and Public Opinion as Factors of the Elaboration of

the Law. In a single glance one grasps the relationship, established in the
system of law, between the notion of the public good and the factor of
public opinion, the "collective consciousness," the "great mass of
minds." Opinion as such is no generator of law because it does not create
the requirements of the public good nor the consequences they involve
with regard to the law. 1 9 B u t if the requirements of the public good
are objective, the conception, true or false, which opinion may form of
these same requirements in turn constitutes a fact endowed with objec-
tive reality. A n d that fact is of interest to the law in so far as the state
of opinion is a factor in the realization of the rule. While a rule in accord
with popular feeling is ordinarily assured of success, a rule disavowed by
opinion is almost condemned to failure. N o w the failure of the rule, sig-
nifying disobedience of the subjects, not only damages the law but also
affects the public good itself, so that an alternative is raised: Either
abstention of the rule, renouncing the benefit it ought theoretically to
procure, or inefficacious intervention with its fatal consequences for the
prestige of the authority. 2 0
In reality, it is true, the dilemma rarely takes so trenchant a form.
T h e failure of a rule is never complete; or even if complete, it does not
always entail loss of the prestige of authority. T h e necessity of a choice
remains, the more so as, outside of practical efficiency, the truth of a
rule, the ideal it translates, also has its peculiarly social interest. In the
eyes of righteous people, and even of others, the silence of the law, pass-
ing for indifference or complicity, is capable of engendering a scandal at
least as damaging to the prestige of the authority as the lack of success.
But no matter what the difficulty of the choice in special cases, it was
sufficient to mark the exact place of opinion among the component ele-
ments of the legal synthesis. Opinion, in fact, conditions the elaboration
of the law; it is the principal factor of success or failure of a legal rule,
which requires effective execution in terms of its own nature and accord-
" F o l l o w i ng Isidore of Seville, St. T h o m a s teaches that a l a w must be necessary,

useful, and beneficial to the public g o o d, SUMMA THEOLOGICA, la Ilae, qu. 95, art. 3
ad resp. and ad 1.
" S e e supra, no. 1 1 2 .
20 C f . MONTESQUIEU, CAHIERS 96: " O n e must k n o w the prejudices of his
century well so as neither to shock them too m u c h nor to f o l l o w t h e m . " " O n e
must do nothing b u t the reasonable; b u t one mus t be v e r y careful not to do
e v e r y t h i n g t h a t is reasonable."
Unauthenticated
382 JEAN DABI N
ing to the essential vow of the public good. 21 Before a legal requirement
of a nature to shock opinion can be established in an efficacious manner,
it will be appropriate to await the conversion or neutralization of such
opinion. Normally, the social action of education, exerted together by
the state and by private initiative, will precede properly legal action.
By the name of public opinion we understand of course a consistent
and compact social force. Often the alleged opinion is only that of a
minority of writers whose theses find no echo in the public, or still again,
the pretended opinion is divided into hostile currents and counter-
currents. Nothing then prohibits the authority from taking advantage
thereof and, by a bold decision, dictating the solutions it deems well
founded. Its very intervention will often have the effect of rallying the
indifferent, the undecided, and even some from the opponents.
165. The "Problem 0} Interventionism" Does Not Arise in Morals, at

Least Not in Natural Morals. B y all these traits, again, the legal rule is
distinguished from the moral rule. There is no "problem of interven-
tionism" in morals. Whereas for the public good the question of the real-
ization and consequently of the utility of the rule is absolutely capital,
the moral good exists and is binding independently of any consideration
of success or opportunity. It is true that the moral legislator will guard
against prescribing for the people a degree of perfection that would be
above their strength. In the purely positive portion of the rules, and even
in the conclusions deduced, through the rational work of the moralists,
by starting from the requirements of nature, care will be taken to adapt
his precepts to the contingencies, foremost among which is the level of
conscience or of moral formation of the mass. 22 Such is the margin of
"legislative prudence" in the domain of morals. But as to the first pre-
cepts resulting from the natural law itself in its immediately given
terms, 23 they are what they are and they oblige everyone coming into
this world, notwithstanding the opinion of the people, notwithstanding
the legislator of morals himself, whose role is but to translate the
"given" of nature without altering it by any modification or curtailment
whatsoever. 24
21 This very reservation of human laws as regards things they are not capable
of governing in an efficacious manner is the work of an eternal law, says ST.

THOMAS, op. cit. Ia Ilae, qu. 93, art. 3 ad 3. In other words, this impotence is part
of the divine plan.
22 See St. Thomas as cited supra, n. 9, applying to human laws in general, moral
and juridical.
23 On the distinction between virtue in general, prescribed by nature, and the
specifications of virtue, which are not always prescribed by nature, cf. ST. THOMAS,
SUMMA THEOLOGICA, la Ilae, qu. 94, art. 3 ad resp., in fine.
21 On the prescriptions added to the rule of natural law ad humanam vitam
Unauthenticated
S U B D I V I S I O N II. T H E M E A N S : T H E T E C H N I C A L E Q U I P M E N T OF T H E
LAW1
INTRODUCTION
166. The "Formal Realizability" or "Practicability" oj the Law. L i k e

any rule of social discipline, the law calls for effective realization, in the
sense that its precepts are intended to pass into the conduct of the sub-
jects or at least the general mass of them. This necessity, as above in-
dicated, suggested consultation of the state of public opinion, whose
eventual hostility could entail the failure even of a rule excellent in it-
self: T h a t is the assumption, which has just been examined, of a lack of
"material realizability" of the law. 2 But outside of that assumption,
which concerns the substance of the precepts (of end and of means), the
powerlessness of a rule may be due to other reasons, which concern the
very form of the precepts (case of the "formal realizability" of the
law) . 3 T h e legal rule is indeed subject to application. This is to say not
merely that it ought to be obeyed, but also that it needs to be carried
into execution through the intermediary of external organs, which are,
besides the subjects themselves, the officials and the judges. T h i s is the
consequence of the societal character of the rule. Different from morals,
the law does not confine itself to prescriptions while leaving to each
person the mastery and responsibility of application of the precept to
his case. On the contrary, this application may open the w a y to action
and prosecution; it is guaranteed b y material sanctions, of which the
mechanism is not automatic; it calls forth or m a y call forth proceedings
which must find their decision before a human tribunal.
167. The Theoretical Value of the Rules Is Distinct from Their "Prac-
ticability•." T h u s the truth of the law, resulting from its adequacy to the
end of the public good, does not suffice to fulfill the ideal of the good
rule. In addition, the law must be applicable, practicable, manageable,
b y corresponding to the peculiarly technical conditions of carrying it
into execution. 4 T h e two orders of ideas, complementary in fact, are
utilia [useful to human life], see ST. THOMAS, op. cit. la Ilae, qu. 94, art. 5 ad resp.
and ad 3.
1 Term used b y G . RENARD, L E DROIT, I A JUSTICE ET LA VOLONTE ( P a r i s , 1924)
87, 123, 124.
3 The formula of the distinction between two sorts of "realizability" is b y

Ι J H E R I N G , E S P R I T DU DROIT ROMAIN (transl. b y M e u l e n a e r e ) , sec. 4, p p . 51-52.
4 We may recall the passage from St. Thomas, supra, no. 164, n. 21.
Unauthenticated
384 JEAN DABIN
nonetheless logically and really distinct, though this has sometimes been
disputed.® The theoretical value of a rule may well be conceived outside
of its "practicability": An impracticable rule is not at all an intrinsically
bad rule, and an intrinsically good rule is not necessarily practicable.
Essential as the formal legal technique is in that it assures the penetra-
tion of the law into life, it does not by that token constitute a part of
justice, either the justice of the philosopher or the justice of the jurist
(which is ours). For the technical side of the law is governed not by the
idea of "substance of the law" but by the idea of rule, of discipline. In-
dependently of any content, it is because the law is the rule of social
discipline that it ought to be practicable and therefore managed with a
view to that practicability.
Now the two elements often enter into competition, the practicability
of the rule postulating certain sacrifices or, as they say in sugared terms,
certain "adaptations" of the solution in substance deduced from the sole
consideration of the public good. No doubt, the law as the jurist en-
visages it does not dwell in the state of the disembodied ideal. By defini-
tion and by function it is applied to living matter, at least to normal life,
ut in pluribus accidunt,a6 if not to altogether singular cases. But the
formal realizability of the law answers to a different concept, which is
that of application in lived life, i.e., of effective execution, of the living
applications of the idea of justice. Even related to life, a rule does not
become applicable, realizable, from our point of view, except on the
condition that it respect certain specific principles of a technical nature
governing the applicability of rules.
What are these principles?
SECTION I . T H E DEFINITION, OR LEGAL CONCEPTUALISM
168. Inconveniences of an Insufficiently Defined Law. The first factor

of the practicability of the law consists in sufficient definition. An unde-
fined or insufficiently defined law is not at all practicable in that its
application will occasion hesitations and controversies which generate
insecurity. Subjects and judges will ask themselves what exactly is the
rule, and even if there is a rule. Now insecurity in relations, from what-
5 T h u s M. D j u v a r a , Le but du droit, in 3 ANNUAIRE DE L'INSTITUT INTERNATIONAL
DE PHILOSOPHIE DU DROIT (1938) 102-104, especially the conclusion at p. 104: . . .

T h e same tendency to "minimize" the distinction is found in F. R u s s o , op. cit.
passim, especially p. 3 1 : . . . ; pp. 61 et seq., and conclusion at p. 108.
° [ A s it happens in the majority of cases.]
" ST. THOMAS, op. cit. la Ilae, qu. 47, art. 3 ad 2.
Unauthenticated
ever cause it may stem — above all, where that cause is the uncertainty
of the law — is a grave evil which paralyzes activities and leads to stag-
nation. Speaking socially, the total absence of any rule where one is
necessary, or a rule imperfect in the substance of its disposition, is often
preferable to an uncertain rule. Those solutions have at least the merit
of clarity, and at worst certain arrangements will permit paring them
down, while uncertainty adds to the disorder of conduct a more
monstrous disorder, to wit, the disorder in the very ordinance that pre-
tends to make order rule. 1
169. Lack 0} Definition on the Part of the Formal Sources of the Law.
A lack of definition of the law may be found, first, in the formal sources,
the assumption being that the existence of the rule is in doubt, either
because in the regime in force the problem of sources may not be re-
solved or because the authorized sources may themselves suffer from
the vice of indeterminacy. 2 It is the great advantage of the system of
statutory sources to do away with these perplexities. On the one hand,
the statute by the sole fact that it is the rule enacted by the authority
in the state is necessarily preeminent over the other sources, at least in
principle; on the other hand, the statute is born at a precise moment in
time, it is published and easy to prove. 3 True, there remain the difficul-
ties of interpretation. But the doubt in this case bears upon the content
of the rule and no longer upon its existence, an assuredly lesser evil
which by the way is inevitable and common to all sources. Yet the
system of the statutory rule is not the universal and only one. Certain
countries or certain branches of the law know hardly anything but cus-
tomary law, as among little developed peoples or in international law.
Or again a cumulation of sources is established, including statutory, cus-
tomary, and case law, where primacy does not always belong to the
statute. In any event the statute, the work of an essentially limited
human reason and foresight, is by itself incapable of assuming the whole
task of legal regulation. Case law and possibly custom have a role to
play supplementing the statute. Now case law, which proceeds by suc-
cessive stages and by the haphazard bringing of suits, remains uncertain
1 Cf., in the same sense, the qualities of the positive law according to Isidore of
Seville, approved by ST. THOMAS, SUMMA THEOLOCICA, la Ilae, qu. 95, art. 3,
initio: . . . , and ad resp., in fine: . . . Also G. Radbruch, La sicuriti en droit
anglais, i n ARCHIVE S DE PHILOSOPHIE DU DROIT ( 1 9 3 6 ) n o s . 3 - 4 , p p . 8 6 et seq.
2 On the social necessity of setting the law apart among the rules of social life,
c f . F . R u s s o , R E A L I T E JURIDIQUE ET REALITE SOCIALE 164-170.
* It is of course assumed that the laws are "well made," which is not always the
case.
Unauthenticated
386 JEAN DABIN
for a rather long time while its often laborious formation is continuing. 4
A s for custom, issuing from habitual usage recognized as law, the diffi-
culty is to discover it in both of its elements, the usus and the opinio
juris.
N o doubt it would be vain to hope to banish such wavering lines alto-
gether, the more so since against its advantage of security the statute
presents the inconvenience of a frozen edge which embarrasses the
adaptation of the law to the transformations of life and the singularity
of special cases. But, short of complete security, nothing prohibits tend-
ing to the maximum of security compatible with suppleness, b y sub-
mitting to the statutory system such matters as call primarily for
treatment b y a precise rule. Neither is a division excluded between pre-
rogatives of the statute, on the one hand, and of custom and case law,
on the other, the latter being enabled to create precise solutions within
a certain framework previously outlined by the statute. I t is the task
of the legal sociologist to search for the fields of application of the vari-
ous sources of the law and the modalities of their cooperation. 5
ι jo. Indeterminacy of the Applicability of the Law in Time or Space.

Another cause of perplexity in the realm of the formal sources comes
from the very frequent indeterminacy of the extent of the applicability
of the rule in time and space.
Where there are two laws successive in time of which the second is to
abrogate or modify the first, what are the respective spheres of applica-
tion of the two rules? Notwithstanding the probably superior quality
of the new, juster, better adapted or more practicable statute, the secu-
rity of social relations demands respect for rights acquired under the
rule of the old statute. B u t the notion of "vested right," seemingly clear,
becomes obscured in the presence of facts, acts, or situations that are
permanent, at least in their effects. Hence the utility of special "transi-
tional provisions" other than the essentially vague norm of the "transi-
tional" or "intertemporal" law that is called the non-retroactivity of
statutes.
A s for space, the question, by reason of the multiplicity of states and
the competition of national statutory systems, is what is the competent
4 On the disadvantages of elaboration of the l a w b y the courts, see R. Savatier,
Le gouvernement des juges en matiere de responsabilite civile (history of art. 1384,

§ i , in fine [of the C o d e N a p o l e o n ] ) II, i n 1 RECUEIL LAMBERT § 37, p p . 461-466.
[ A r t . 1384, § ι provides as f o l l o w s : " O n e is responsible not only for i n j u r y w h i c h
one causes b y one's o w n act, b u t also for that which is caused b y the actions of
persons f o r w h o m one is responsible or of things w h i c h one has in one's c u s t o d y . " ]
5 O n t h i s p o i n t , c f . 3 F . G E N Y , SCIENCE ET TECHNIQUE, n o . 1 9 9 , p p . 83-84.
Unauthenticated
rule in the case of a legal relationship made up of elements belonging to
different nationalities: T h e place where the relationship was formed,
the place where the property is located, the nationality or the domicile of
the parties. T h i s is the problem of the so-called conflict of customs,
statutes, or laws. N o w the answer is not identical in all countries, and
even in each country it is far from unanimous concerning either particu-
lar solutions or the general method of solution. Almost entirely left to
writings and decisions (and to the struggles of national interests), this
branch, conflict of laws, is debated in greatest uncertainty. Despite that
anarchy, conflicts should not necessarily be resolved to the advantage of
the law which in reason presents a superior title to competence; for it
may happen that the rationally competent law represents a very uncer-
tain source compared with its competitors. Thus, from motives of pure
practicability, one could in the field of contracts [relating to property]
adopt the law of the place of the location of the property, which is easier
to determine than that intended [by the parties] under the principle of
autonomy, at least where the parties did not express their choice. 6 With-
out entering into an examination of that view, one could not in any case
reject it on the ground that it is without pertinence to an exact legal
philosophy.
171. The Lack of Precision of the Law in Its Formal Content. T h e

insufficiency of definition may be found, further, in the very context
of the law as transmitted by the sources. T h e rule exists, undeniable in
its existence and applicability, whatever its origin, statutory, judicial,
or customary; but its terms are indecisive, to the point where it escapes
easy and sure management. Let us note that this is not a lack in the de-
termination of the " w a y s and means," of the multifarious measures —
processes, procedures, sanctions of every kind — called upon to put the
central idea of a system into operation, such as an incomplete organiza-
tion of guardianship, of the policing of warehousing, or of the system of
proof. These insufficiencies, which affect the substance of the law, in-
volve a lacuna in the law rather than a defect in definition. W h a t leaves
something to be desired in such a case are the "constructive rules," the
" w a y s of the law," as Duguit says; the institution in its organic, system-
atic import remains incomplete. In the case of indeterminacy we are dis-
cussing here, on the contrary, the institution may be complete; but the
concepts figuring in the rule — whatever they are, of purpose or means
— without being incomprehensible to the mind through obscurity of
thought or language, are not drawn in lines firm and recognizable
" S e e H . B a t t i f o l , n o t e , i n SIREY ( 1 9 3 5 ) 1 , 257, e s p . a t p . 25G, c o l . 2, a n d p . 260,

col. i .
Unauthenticated
388 JEAN DABIN
enough for the practical end of putting the rules into application. In a
word, the vice is in the conceptual mold, the external configuration of the
law.
Sometimes it affects the portion of the rule indicating the hypothesis,
or the conditions of application of the disposition. Such would be the
rule that would place under the clearly determined regime of guardian-
ship individuals "incapable of managing their affairs by themselves"
(how is that incapacity to be defined or discerned in practice without too
much risk of error for each individual?), or again the rule that would
condemn to a clearly determined penalty of imprisonment individuals
guilty of "acts contrary to public peace" (how· is the "contrariety to
public peace" to be defined or discerned in practice without too much
risk of error for each act?). 7 Sometimes and more rarely the lack affects
the portion of the rule enouncing the disposition, the precept or sanction.
Such would be the rule that would lay down a penalty against the author
of a determined act without any precise statement of the nature or dura-
tion of the penalty. The conditions of application of the rule are well
determined; but the solution is in every case left to the judge, charged
with arbitrating ex aequo et bono, according to equity, reason, or ex-
pediency. So the rule offends neither against the public good nor against
justice, on the contrary; neither does it incur the blame of containing
a lacuna, save precisely for the lacuna of indeterminacy of its concepts,
attributable to the inexperience of the legislator who has neglected to
construe them in manageable form, or to the resistance of a matter
naturally rebellious against being put into such form.
172. Examples: The Injustice of Usury or Illicit Speculation. Take

the fight against the injustice of usury, at least in certain kinds of com-
merce and at certain periods.8 Quite apart from the reactions of opinion
among those concerned — often on the part of both the sellers desirous
of enriching themselves and the buyers desirous of acquiring goods at
any price—-the difficulty lies in having a Protean injustice, which
varies essentially with economic and social circumstances, with localities,
and with weeks and sometimes days, circumscribed in a concrete
manner, otherwise than by a philosophical formula. There is no doubt
' O n e can imagine (and "revolutionary" periods have effectively instituted)
other examples: laws forbidding criticism of acts of the government, prohibiting
luxury, or prohibiting women from taking up any work proper to men. What is
"criticism," "luxury," or "work proper to men"? Cf. MONTESQUIEU, DE L'ESPRIT
DES Lois, bk. X X I X , chap. 16.
8 We have in mind commerce in things indispensable to life (food, shelter), and
abnormal periods where no natural regulatory mechanism is functioning. Also,

"usury" is taken in a wide sense, not limited to loans at interest.
Unauthenticated
from the viewpoint of the public good: T h e civil and even penal re-
pression of usury, which is a social scourge, would be legitimate and
probably, taking everything into account, opportune. But to characterize
the injustice of usury by the tests of the "illegitimacy," the "excessive-
ness," or even the "abnormality " of the gain, as several recent statutes
and cases have decided, is actually to renounce the furnishing of a
criterion. In order to be able to grasp that injustice it would be impor-
tant to state its measure, to indicate the limit, beyond a certain figure,
which realizes the illegitimacy, the excessiveness, the abnormality, hie
et nunc? N o w one is content with a verbal definition, by which the
notion to be defined is reproduced in different terms: It is clear a priori
that the injustice of usury is something illegitimate, excessive, and, let
us hope, abnormal. Still the educational argument must be kept in mind,
which may make it advisable for the legislator to inscribe upon his books
the duty of contractual justice, thus conferring thereon the sanction of
his moral authority. But as long as the precept has not been rendered
practicable through clear formulation it will very closely resemble, if
not a "scarecrow," 9 at least a mere invitation to moderation.
173. Examples (Continued): Grave Insult as a Cause for Divorce.

Another actual case of this difficulty is that of the "grave insult" which
has been made a "determined" cause of divorce b y the Code Napoleon.
E v e n if one takes account of the text which refers to a direct insult " b y
one of the spouses against the other" (article 2 3 i ) , b it seems the legisla-
tor could not have used an expression at once more exact and more loose
to indicate the idea that is truly basic to the institution of divorce as he
conceives it. For what renders the breaking of the conjugal bond legiti-
mate under the doctrine of the Code and hence deserves to be a cause for
divorce is in effect any shortcoming of a certain gravity in any duties
whatever, moral or legal, that issue from marriage. Such a shortcoming
does constitute an insult leaving the injured spouse with a grievance and
a complaint. But was not such a formula bound to lead to an excess of
abuses in practice? And if the legislator intended to authorize divorce,
which he considered a necessary evil, only as an ultimate remedy -— this
is the case for the Code Napoleon — one m a y measure the distance
* [Here and n o w . ]
"The word is u s e d b y M. RIPERT, L E REGIME DEMOCRATIQUE ET LE DROIT CIVIL
(Paris, 19.16) no. 147, p. 291. In the United States there exist g o v e r n m e n t a l c o m -
missions charged w i t h regulating the rates of p o w e r companies. B u t they h a v e been
f a c e d w i t h the difficulty of determining the " f a i r r e t u r n " on the " f a i r v a l u e " of the
enterprises. T h e y h a v e not succeeded, and still less h a v e the courts, in setting up
exact principles, so that the a t t e m p t at regulation is nearly frustrated.
b [ A r t . 231 of the C o d e N a p o l e o n provides as f o l l o w s : "Spouses m a y ask f o r
Unauthenticated
390 JEAN DABIN
which in practice may separate the ratio legis from the effective result.
Whereas divorce was not to occur but for a "determined cause," the
pretendedly determined cause of the "grave insult" with no other precise
term functions in fact as an indeterminate cause for divorce. 1 0 For want
of a clear determination, the mechanism of security does not work. T h e
system of divorce, in whatever restrictive features it has, ends in failure.
One will hold the interpreter responsible for this: W h y should a rule
calling for strict interpretation be indefinitely extended? B u t the inter-
preter is what he is, inclined to loose and tendentious interpretations. It
is for the legislator by added precision to prevent the abuse which may
be made of his formulations. 1 1
174. Examples {Continued.): The Aggressor in Public International

Law. A s a final example of delicate if not impossible definition m a y be
cited that of the war of so-called "aggression." It will be recalled that
there was discussed in Geneva the "outlawing" of the state guilty of
aggression with regard to another state, member or nonmember of the
League of Nations. An excellent idea, fully conforming to the require-
ments of public international order, although in the state of national psy-
chologies the realization of the idea could have seemed chimerical. B u t a
definition of the aggressor had to be "construed." T o what acts, attitudes,
or steps was the characteristic, aggression, to be attached? On the one
hand, there are disguised w a y s of attacking or preparing an attack, and
these disguised ways, which fall under a professional technique, are
legion. On the other hand, there are acts of apparent aggression whose
real signification is far from always corresponding to the appearance,
subjectively or even objectively. Consequently, this is an equivocal
matter, full of clouds and detours; the experience of these last few years
has shown it only too well. N o w , to be valid, the definition of things b y
the jurist as constructor must satisfy the double condition of truth and
practicability. First, the chosen characteristic must effectively reveal the
divorce from each other on the grounds of physical violence or grave insults by one
against the other."]
10 S e e Ι M . P L A N I O L , T R A I T E ELEMENTAIRE DE DROIT CIVIL ( 1 2 t h e d . ) n o . 1 1 5 8 . O n
grave insults under art. 955, no. 2 [of the Code Napoleon; see infra, n. 22], cf.
S a v a t i e r i n R E V U E TRIMESTRIELLE DE DROIT CIVIL ( 1 9 4 0 - 4 1 ) 307-308.
The general formula of the German Civil Code ("profoundly shattering the
11
marital relation") is hardly more satisfactory, with the difference that the legislator
has not claimed to "determine" the grounds for divorce. [Sec. 1568, par. 1 of the
German Civil Code provides as follows: " A spouse may sue for divorce when the
other spouse by grave violation of matrimonial duties or by dishonorable or im-
moral conduct has been guilty of so profoundly shattering the marital relation that
the [complaining] spouse cannot be expected to continue the marriage."]
Unauthenticated
idea it claims to translate, at least in the majority of cases. Second, it
must be easy to identify, without in every case necessitating inquiries
and discussions which would enervate the force of the rule by retarding
its application. 1 2
775. Special Difficulty of Definition of Qualitative Values. A great

many things are better understood by not being defined; such are the
values of the spiritual and moral order, which are of a qualitative kind.
In the more or less concrete evaluation, feeling decides there with more
penetration and refinement than the logical reason armed with its
always crude categories. T h a t is why these' sorts of things, as has been
noted, 1 3 are less docile and pliable than quantitative values in conform-
ing to the legal rule, because they are almost indefinable and in part
incommunicable. This matters little for the moral rule, whose working
requires no application in the mechanical and external sense: Con-
science and God will make their appraisal freely and without any inter-
mediary. But as to the law, a social discipline, socially applied and
sanctioned, the rules which rely upon the sole appraisal of the inter-
preter, whether subject or judge, are not without danger. Intelligence,
guided and in a certain manner bound by the categories, takes less risk
of going astray than judgment, which is always more or less subjective,
especially in certain periods in the life of peoples when the justness of
feeling is even more "off its axis" than the logic of minds. 1 1
T a k e the repression of obscene shows, an incontestable cause of
public immorality. H o w make the distinction between the show which
is obscene and that which is not? A question of fact, no doubt, rather
than of definition. B u t what will the feeling of the judge be? One
tribunal will show itself indulgent, another one, rigorous; without a
criterion that can be grasped, precision is impossible. T h e problem —
of political prudence — then is to find out where the lesser evil lies:
In the indeterminacy of a rule which in practice is exposed to erring by
12 Under the G e n e v a P r o t o c ol of 1924, the state which w o u l d refuse to submit
the controversy to a pacific procedure was to be deemed the aggressor. Other

projects made their appearance in w h i c h an effort w a s made to enumerate direct or
indirect acts of aggression. A problem of the same order arose before the D i s a r m a -
ment Conference w h i c h assembled under the auspices of G e n e v a : that of distinguish-
ing between offensive armaments subject to prohibition and defensive ones which
w o u l d be authorized.
14 On the danger of arbitrariness of the judge, see ST. THOMAS, op. cit. Ia Ilae,
qu. 95, art. 1 ad 2: . . . On the dangers of the system of directives (standards) in
particular see J. M a u r y , Observations sur les modes d'expression du droit: regies et
directives nos. 10 et seq., in INTRODUCTION Ä L'ETUDE DU DROIT COMPARE, I RECUEIL
LAMBERT § 35, pp. 425 et seq.
Unauthenticated
392 JEAN DABIN
excess or by deficiency, thus casting confusion into a branch of socially
useful activity, or in the license accorded to the producers of indecent
shows to corrupt their public with impunity. An exact comprehension of
the hierarchy of values will doubtless lead to preferring the second
alternative: So much the worse for the socially useful activity of the
theater if its functioning is in a certain manner linked to the demorali-
zation of the people. One will nonetheless regret the absence of a cate-
gorical definition allowing a reconciliation of all legitimate interests and
affecting only the really obscene shows. 15 This is by no means to say,
though, that the obstacle is insurmountable. The jurist has the duty
unceasingly to perfect his instruments and in the light of science and
experience to search for the formula adhering as closely as possible to
truth while providing the maximum of practicability.
176. The System of Broad Definitions: Advantages and Inconveni-

ences. Typical and necessary as it may be, the definite character of
legal rules is on the whole a matter of the golden mean and, for each
rule to be elaborated, a matter of the special instance. Definition thus
is required only to a certain degree — that below which the rule, being
decidedly too loose, is unmanageable. Moreover, definition is not with-
out inconvenience. A law too exactly defined, above all by features of
pure form, is an incomplete law, for it leaves outside of its grasp factual
situations which are not formally provided for although they are in sub-
stance identical. 16 Besides, it is often ill adapted, in the absence of a
margin for singular cases in derogation from the norm. It provides an
adjustment only for the situation envisaged, and provided that the
individual case in no way deviates from that assumed situation. But
social life, infinitely multifarious, complex, changing, could not be re-
duced to a collection of assumptions a priori for which the law would
have to provide as many uniform solutions. Instituted to discipline the
living subject matter, the law is bound to espouse the plasticity of
life — as far as the requirements of security permit. Hence in every
age, and especially in our epoch which is smitten with realism in the
social as in the natural sciences, the favor accorded to the method of
broad definitions, whose suppleness permits all cases, foreseeable or not,
16 In vain would one claim to ask for an answer from natural l a w ; cf. P. CUCHE,
CONFERENCES DE PHILOSOPHIE DU DROIT: LE MIRAGE DU DROIT NATUREL (Paris,
1928) 30-32. Natural law offers only the very first principles of morality; see
infra, no. 204.
18 A significant example is that of the repression of usury in loans of sums of
money . . . On the realistic character of the penal law as compared with the
conceptual formalism of private law, cf. L. Hugueney, note in SIREY (1942) 1,
149 (I 2), on Crim., Oct. 9, 1940.
Unauthenticated
to be embraced and yet allows each one to be granted its appropriate

treatment.
777. Examples: Public Policy; Article 1382 of the Code Napoleon.

T h e most striking illustration of this method in private law is that of
"public policy." There we have a notion which, except in certain of its
applications, is nowhere defined either by statute or b y case law or by
custom. One understands at one stroke that public policy synthesizes
the essential normative principles of social and political life; but noth-
ing is revealed as to the determination of these essential principles. N o w
the röle of "public policy" in the law is of capital importance, not only
as one of the criteria of the so-called mandatory laws, derogation from
which is prohibited, but also in itself as an insurmountable barrier to
the autonomy of wills: Everything is permissible for the will of the
subjects short of encroaching upon "public policy." 1 7 Of this "public
order," which is more or less variable with time and place, the judge
ultimately is the arbiter, under the sole control of the highest court, the
interperter of "public policy" in the absence of a statute. How, indeed,
could it be permitted that, outside of the very incomplete cases where
the statute has come to state precisely such and such a requirement of
"public policy," the subjects would be free to contravene any principle
whatever of "public policy," even if it be an unwritten, unforeseen one?
T h e principle of a certain law, though it is itself required b y the public
good, is obliged to give w a y to a superior principle of public policy, to
wit, the maintenance of the social and political life based on respect for
all the values composing "public policy." 1 8
Another example of a broad definition is furnished by article 1382 of
the Code Napoleon: " A n y human act whatsoever that shall cause
damage to another shall oblige him b y whose fault it has occurred to
repair it." " A n y human act whatsoever," provided it is injurious and
also faulty, by infraction of no matter what rule of morals, law, social
manners, or (mechanical or social) technique: Unlike other bodies of
legislation, the Code neither enumerates nor specifies in any manner the
faulty activities or abstentions. " T o repair": T h e statute indicates
neither the mode nor the extent of the reparation, an amount of money
or other value of replacement. T h u s the rule confines itself to setting up
the general and abstract principle of reparation of injuries due to fault;
" O n "public policy," see J. Dabin, Autonomie de la volonti et lots imperatives,

ordre public et bonnes mocurs, in ANNALES DE DROIT ET DE SCIENCE POLITIQUE
(Louvain, 1940) i g o et seq.
1 8 T h e same remarks apply to the notion of bonnes moeurs or public morality;
see observations by Savatier in REVUE TRIMESTRIEIXE (1940-41) 303-30s.
Unauthenticated
394 JEAN DABIN
it is the judge who will work out the determination of the principle
according to the cases. Thereb y is guaranteed the fullness of applica-
tion of a rule judged to be true and useful in its very generality and
whose functioning would be hampered by a system of more or less
strict definition.
iy8. Examples in the Field of Public and Administrative Law. T h e

same method prevails, even much more widely, in public law, constitu-
tional and administrative, for the norms guiding legislative, executive,
and administrative activities. If the public authority incontestably has
no right or jurisdiction save along the line of the public good, 1 9 it is
impossible to have the line of conduct to be followed in every case fixed
in advance in a rigid fashion as one would for private relations. Public
life, especially the life of administration, is filled with unforeseen situa-
tions which must be pared down and provided for b y exactly adapted
solutions. 20 Hence the resort to broad rules within the frame of which
the authority can move at ease with the reservation of an eventual
control of the legality of its decisions. 21
iyg. But Not All Matters Lend Themselves Equally to Broad Defi-
nitions: The Penal Law. However, to proceed b y "directives" does not
fit all matters without distinction. There are those matters where the
need for security prevails over the considerations of truth and expedi-
ency, as in every case where the law provides for penalties, forfeitures,
or other measures punitive in character. 2 2 In a society respectful of the
rights of man, it would be intolerable to have the most precious human
goods — life, honor, liberty — depend upon the free appraisal of one
10 On the degree of the impact of the l a w u p o n politics, see supra, nos. 95-96.
20 One m a y generalize and extend the conclusion to rules w h o s e subject is any
a u t h o r i t y w h a t e v e r , public or p r i v a t e (such as the head of the f a m i l y ) . . .
21 A n eventual c o n t r o l ; the control is not a l w a y s actually established, e.g., the
control of the constitutionality of statutes and even in some countries of the legality
of administrative rules.
22 E.g., the ingratitude of the recipient of a donation giving rise to revocation of
the g i f t ( C o d e N a p o l e o n , art. 955) or the unworthiness of t h e heir giving rise t o

exclusion f r o m succession (art. 7 2 7 ) . [ A r t . 955 provides as f o l l o w s : " A g i f t inter
vivos m a y be revoked on the ground of ingratitude only in the followin g cases:
( 1 ) If the donee has encompassed an attack u p o n the life of the d o n o r ; (2) If he
has become guilty of violence, delicts, or grave insults against h i m ; (3) If he refuses
to give him a l i m o n y . " Art. 727 provides as f o l l o w s : " T h e f o l l o w i n g are u n w o r t h y
to inherit and are thus excluded f r o m succession: ( 1 ) H e w h o shall be convicted
of h a v i n g killed or attempted to kill the deceased; (2) H e w h o has brought an
accusation of a capital offense against the deceased w h i c h shall be a d j u d g e d to h a v e
been slanderous; (3) T h e heir w h o , being of age, and advised of the murder of the
deceased, shall not h a v e reported it to the agencies of justice."]
Unauthenticated
or several men, even if these be qualified public functionaries such as
the judge or administrator. Nulla poena sine lege. Odiosa sunt restrin-
gendaThe rule must determine both the fact which occasions the
penalty and the nature of the penalty. 2 3 This follows from the prin-
ciple of a government of laws. 24 So, again, in the field of contract, where
the principle of scrupulous observation of engagements has its necessary
counterpart in a scrupulous definition of the respective rights and obli-
g a t i o n s — by the contract, by usages, or by s t a t u t e — - w h e r e the secu-
rity of the creditor calls correlatively for the security of the d e b t o r 2 5 So,
equally, in the field of procedure or in matters of form not only are the
stages indicated that are to be gone through and the formalities that are
to be complied with, but also the details of the procedure and forms
are clearly designated from a conceptual point of view.
180. The Jurist Does Not Cease to Search jor the Strict Definition.
Precision in the law answers to so natural a tendency that even in
matters subject to the regime of directives, judges and lawyers exert
themselves to banish the vagueness of concepts by introducing notes of
specification. So a division of labor is established at the end between the
statute which from above formulates the "directive" and the other
sources, closer to the concrete, which with lesser, and also variable,
authority set forth its applications in detail. In the case of article 1382
[of the Code Napoleon] ,d we then see the catalogues of factual acts and
the listings of damages: It is "established doctrine" and "established
by cases" that some kind of attitude is reprehensible either from the
moral or social point of view or from that of technical skill; or that some
sort of injury to persons or property, material or moral, opens the way
either to a certain amount of money damages or to a certain mode of
c [No punishment without a law. Burdens must be restricted.]

23 T h i s is n o t t o s a y t h a t t h e p e n a l l a w k n o w s o n l y r i g o r o u s l y d e f i n e d concepts.
T h u s , in offenses b a s e d on h a b i t u a l practices ( u s u r y , e t c . ) , the l a w does not define
t h e n u m b e r of a c t s c o n s t i t u t i n g a h a b i t ; c f . A . L e b r u n , n o t e i n DALLOZ CRITIQUE
(1941) Jurisprudence 78 et seq., especially at 80-81. Sometimes, h o w e v e r , the law
fixes a number; see t h e B e l g i a n L a w of Social Defense of 1930, a r t . 25, p a r a . 2,
w h e r e three infraction s are required " a s constituting a persistent t e n d e n c y to delin-
q u e n c y . " O n the other h a n d , there are m a n y psychological concepts in penal law
w h i c h a r e n o t s u s c e p t i b l e o f d e t e r m i n a t i o n a pnori, such as malice.
24 H o w e v e r , a g o v e r n m e n t of l a w s has not a l w a y s existed; see s o m e references
in G. del Vecchio, Essai sur les principes generaux du droit § VI, in JUSTICE,
DROIT, ETAT 140, η . 2. T o d a y , t h e p r i n c i p l e is a g a i n c o n t e s t e d n o t o n l y i n p r a c t i c e
b u t also in t h e o r y .
25 C f . , i n t h i s s e n s e , J . M a u r y , Observations sur les modes d'expression du droit:
regies et directives n o . 12, i n 1 RECUEIL LAMBERT § 35, p . 426.
Λ [ S e e supra, no. 177.]
Unauthenticated
396 JEAN DABIN
reparation such as the publication of the judgment of reparation in the
newspapers.26 Another famous example, drawn from administrative
law, is that of the French Council of State, e rendering decisions, making
determinations, regulating its own discretionary power within the frame-
work of the good of the service, by means of more or less strict direc-
tives or categories. 27 The human mind, as much as social life, thirsts
for precision. If the rule does not provide it, the mind creates it; the
directive evolves into a rule. 28
181. Cases Where the Law is Obliged to Renounce All Definition.

There are, however, matters where the law is constrained to renounce
any definition whatever and, for that reason, any intervention: That is,
when the very science of these matters speaks reservedly. The realities
which are basic to the rules always have a scientific character in the
sense that, "given" by life, they are in the first place subjects of scien-
tific knowledge. Through the intermediary of science, grasped and
defined by science, they reach the jurist. 29 Now it may happen that
scientifically the matter is not clarified, that the science furnishes the
jurist neither with a directive nor with anything certain as given. A
typical case is that of medical fault: Despite the general competence
to judge any fault whatsoever in no matter what field, which the statute
grants the courts, they ordinarily refuse to pronounce upon the fault
committed by physicians and surgeons, at least where it is properly
medical or surgical, relating to the very technique of the medical or
surgical art. 30 Medical science is not always in agreement as to the
value and expediency of a treatment or a surgical operation: Grammatici
28 A s concerns the calculation of injuries, see the tables in Ι PIRSON and DE

VLLLE, TRAITE DE L A RESPONSABILITE CIVILE EXTRA-CONTRACTTJELLE (BrUXelleS, 1935)
nos. 186-219, passim,, pp. 416-529.

β [ T h e supreme tribunal of administrative l a w in France.]
27 See on this point M . H a u r i o u , Aux sources du droit, in CAHIERS DE LA NOUVELLE
JOURNEE no. 13 (1933) pp. 147 et seq.

28 See, in the same sense, J . M a u r y , op. cit. nos. 1 6 - 1 7 , · Η 1 RECUEIL LAMBERT
§ 35, PP- 428-430.
20 It is understood that "science" is taken here in a w i d e sense, meaning not only
the sciences properly so called b u t also philosophy and the technologies; see supra,
nos. 126-127 . B u t one must leave aside history, whose subject is the existence of
singular, purely contingent facts, w h i c h poses a question of proof that the jurist
will eventually resolve b y a legal p r e s u m p t i o n ; one must also leave aside morals,
f o r the perplexities of the moralist cannot prevent the jurist f r o m giving to p r o b -
lems a specifically legal solution deduced f r o m the sole requirements of the public
good.
30 See the exposition in 2 R . SAVATIER, TRAITE DE LA RESPONSABILITE EN DROIT
FRANgAis (Paris, 1939) nos. 777 and 790.
Unauthenticated
certant,f How then should the legislator or the judge take sides on the
questions disputed among scholars in the field? Simple prudence pro-
hibits the jurisprudent from venturing into regions where the science —
which by hypothesis is alone competent — hesitates to make its pro-
nouncement. The impossibility of a scientific definition upon which to
base a sure solution thus condemns the jurist to an attitude of ab-
stention. 31
In other such cases, it is true, the jurist intervenes instead of abstain-
ing, but he does so without taking sides, as in the matter of artistic and
literary protection. Incontestably, from the social viewpoint as well as
in reason, only work of an artistic character confers rights upon its
author. A work lacking artistic character is without interest for the
jurist as well as for the public; it is not worth the trouble of an effort
at protection. But the difficulty consists in judging the artistic character
of a work. The "canons" differ and the principles of aesthetics are even
more vacillating than those of the medical art: De coloribus non dis-
putandumß Y e t the jurist intervenes in the particular case because a
refusal of intervention would have the inadmissible result of depriving
the author of the true work of art of protection; he would suffer un-
justly from an indifference based on principle. That is why the law
keeps to a purely empirical criterion for the determination of the work
of art: The work that presents itself with the pretension, whether or not
justified, of constituting a work of art, legally belongs to art. On the
basis of this criterion, the law extends its protection to any creation
whatever, artistic or pseudo-artistic, leaving to the aestheticists and the
public the task of separating the grain from the chaff.
182. Summary 0} the Technical Processes of Definition: Simplifica-

tion. The processes of definition used by the law for purposes of "prac-
ticability" are more or less radical. On principle and in a general fashion
the jurist uses simplification, neglecting the exceptional cases, little
embarrassed by shades of meaning, preferring to cling to the superficial
and obvious aspect of things. In this respect, one may compare the
definitions, given respectively by the jurist and the scholar in the field, of
the notions of "worker" or "salaried employee," which are basic to
social legislation or laws on associations, or of the notion of "defects in
consent" [vices du consentement], as grounds for the avoidance of legal
acts. Whereas the sociologist endeavors by minute and complicated
* [The grammarians differ.]

"This abstention is not, however, a refusal to judge or denial of justice as
proscribed by Code Napoleon, art. 4 [see supra, no. 133, n. 7] . . .
* [One should not argue about colors.]
Unauthenticated
39» JEAN DABIN
analysis to depict the characteristic traits of the diverse social types of
the " w o r k e r " or the "salaried employee," the jurist simply decrees 3 2
that for him the " w o r k e r " is a man whose occupation is manual labor,
at least principally, while the work of the "salaried employee," on the
contrary, is principally of an intellectual nature. 3 3 Whereas the psychol-
ogist and the moralist endeavor to depict the numerous factors of mental
deficiency capable of influencing the validity of acts, the corresponding
chapter of legal psychology distinguishes itself by a rigid and poor
"schematism" where only certain elementary, narrowly designated de-
fects find acceptance.
N o doubt modern law becomes more and more preoccupied with
psychology and sociology, and the inherited categories of the [Roman]
Institutes have become happily more supple through the contact with a
more exacting and refined science. 34 But, whatever one may do or want
to do, the legal definition will always remain more or less approximate,
expeditious, and summary. T o grasp the phenomena in their logical or
historical entirety and continuity, and a fortiori to penetrate into the
3 2 I n the absence of the legislator, w h o has not pronounced u p on the p o i n t ; see
the [Belgian] L a w on the C o n t r a c t of W o r k of M a r c h i o , 1900, art. 1, and L a w on

the C o n t r a c t of E m p l o y m e n t of A u g u s t 7, 1922, art. 1.
33 R i g h t here is one of the rocks of all "pluralistic" legislation w h i c h diversifies
statutes according to social categories or classes, viz., the difficulty of a definition

of types b o t h exact and c o m m o d i o u s enough. See on this point J. DABIN, DOCTRINE
GENERALE DE, L ' E T A T , ΠΟ. 2^1, P. 438.
" T h u s it is appropriate to take account of the introduction in m a n y special
s t a t u t o r y provisions of new and more supple categories in matters of legal p s y c h o l-
ogy, such as the notion of the abuse of the weaknesses, passions, wants, or ignorance
of the contracting p a r t y . See, e.g., sec. 138, para. 2 of the G e r m a n C i v i l C o d e
[ w h i c h provides as f o l l o w s : " I n particular, any legal act shall be v o i d b y w h i c h a
person through exploiting the plight, the light-mindedness, or the inexperience of
another shall cause pecuniary gains to be promised or afforded to himself or to a
third p a r t y f o r a consideration w h i c h they exceed so f a r in value as to be conspicu-
ously disproportionate in the circumstances"] and art. 1907 ter of the Belgian Civil
C o d e ( R o y a l Ordinance no. 148 of M a r c h 18, 1935) [ w h i c h provides as f o l l o w s :
" W i t h o u t prejudice to the application of the provisions protecting incompetents or
relating to the validit y of contracts, w h e r e the lender, abusing the w a n t s , w e a k -
nesses, passions, or ignorance of the borrower , stipulates f o r such interest or other
advantages as manifestly exceed the normal interest and the coverage of the risks
of the loan, for the benefit of the lender himself or of another, the judge upo n the
request of the borrower shall reduce his obligations to the repayment of the
b o r r o w e d capital and p a y m e n t of statutor y interest. T h e reduction shall apply to
past p a y m e n t s of the borrower, provide d that his request is made w i t h i n three
years f r o m the d a y of a n y such p a y m e n t . " ] See generally on the tendency of con-
t e m p o r a r y l a w to become "socialized," and in this sense "individualized, " G.
R a d b r u c h , Du droit individualiste au droit social, in ARCHIVES DE PHILOSOPHIE DU
DROIT ( 1 9 3 1 ) nos. 3 - 4 , pp. 387-398-
Unauthenticated
essence of things is not, and never will be, the forte of the jurist, be-
cause his task is not to establish scientifically correct definitions but to
elaborate applicable rules, and the practicability of the law seeks rela-
tively simple, manageable definitions. 35
183. Some Artifices oj Simplification. T h e tendency to simplification

is shown in particular in the employment of certain means which mani-
festly have no other role than to cut short any wavering in the applica-
tion of the law. Such are the means of prescribing figures, for concepts
representing quantitative values, and the means of enumeration of
species, for concepts representing qualitative values. For instance, when
the jurist decrees that the period of prescription is thirty years, that
figure is fixed by reason not of its truth, for it is arbitrary, but of the
certainty which it confers on the rule of prescription by lapse of time.
When the law draws up the list of transactions subjected to forms of
some sort or other, or that of dangerous, obnoxious, or unsanitary estab-
lishments subjected to administrative authorization, it sacrifices the
fullness of the idea, expressed generically, to the convenience of particu-
lar cases. 36
Still further, where there is the problem of a precise determination
that is deemed both indispensable as a guarantee against interpretative
aberrations and unrealizable by the normal device of "reduction to the
quantitative," the jurist does not hesitate to replace the inconvenient
concept with a substitute less exact in substance but more easily
grasped, ordinarily with its indicia or its sign. Thus, the age, or dura-
tion of the physical existence, of the individual (a quantitative value
susceptible of statement in figures from the date of birth) is taken for
the irrefragable sign of mental maturity, justifying full freedom and
legal capacity; the real estate character of a transaction (according to
the nature of its object) is taken for the irrefragable sign of the degree
of seriousness of the acts, justifying a reinforcement of the system of
protection afforded those lacking legal capacity; the standard of living
of the taxpayer, disclosed by certain indicia (kind of dwelling, servants,
etc.), is taken for the irrefragable sign of the importance, always hard
to evaluate, of his income from the viewpoint of revenue. 37
Under the law of large numbers — or of probability — it is doubtless
35 C f . in a rather different sense F. R u s s o , op. cit. 65 et seq., 99 et seq., 109-110,
192 et seq.
38 On the process of "reduction to the q u a n t i t a t i v e " b y statement of figures or
enumeration, see J. DABIN, LA T E C H N I Q U E DE L ' E L A B O R A T I O N DU DROIT P O S I T I F 121
et seq.
37 In systems of taxation based u p o n external indicia. H o w e v e r , even in systems
based on controlled tax declarations or returns, the process remains; save f o r the
Unauthenticated
400 JEAN DABIN
permissible to suppose that in the particular case the sign f a i t h f u l l y

translates the underlying reality. B u t the moment the contrary is pos-
sible and, on the basis of an irrefragable presumption, the proof of that
contrary is inadmissible, the substitution amounts to a conscious and
deliberate sacrifice of the truth at least for those assumed cases which
deviate from quod plerumque fit.h F o r the others, contrariwise, whic h
form the m a j o r i t y , the rule will w o r k w i t h a sure aim, in a quasi-
automatic fashion and without negating truth. Such is the advantage of
a judiciously calculated misstep: I n the m a j o r i t y of cases it combines
the advantages of the truth of the law and of its practicability. 3 8
SECTION 2. T H E A P T N E S S FOR PROOF OF THE F A C T S T H A T A R E

SUBJECT TO A R U L E
184. The Social Necessity of Proof. A second factor of the practicabil-

i t y of the law consists in the aptness for proof of the facts established
as conditions of application of rules. 1 L e t it be noted that this is a dis-
tinct factor of the definition: T h e conditions of application of rules can
be perfectly defined in their concept without thereby solving the problem
of proof. In order that the rules find their application it does not indeed
suffice that their conditions of application are actually realized: T h a t
effective realization must also be proved, that is to say, objectivel y
shown b y elements engendering conviction either in the p a r t y bound to
p e r f o r m or, in case of contest, in the organs of application of the law.
T h e bound p a r t y w h o knows that the conditions are realized no doubt
can — and most of the time he is under a d u t y to — perform spontane-
ously; but in the absence of spontaneous performance the necessity of
proof enters the arena, and it must be maintained b y any social organi-
zation on pain of installing an "impressionistic," partial, arbitrary
justice. T h e private or public p a r t y w h o demands the application of a
legal rule or, in other words, the operation of the sanction after violation
of a rule, thus has the burden of establishing the existence in the par-
ticular case of the conditions of application of the disposition m a d e b y
the rule. N o r m a l l y , this burden of proof is upon him and he will dis-
risk of a control which is, moreover, often not very effective, taxation is based on
the declaration alone which takes the place of the indicia.
h [What occurs in most cases.]
88 On the process of substitutions of concepts, see J. DABIN, LA TECHNIQUE DE
L'ELABORATION DU DROIT POSITIF 1 4 4 et seq.

* 0 N t h e t e c h n i q u e o f p r o o f , s e e J . D A B I N , L A TECHNIQUE DE ÊLABORATION DU
DROIT POSITIF 77 et seq.
Unauthenticated
charge it b y his own strength alone or with the more or less active aid
of the judge; 2 if he fails, his claim must normally be rejected.
185. The Difficulties Inherent in Proof. However, not all facts are
equally apt for proof. There are among them some which escape
demonstration due to the lack of sufficiently sure means of investigation. 3
How in that case is one to avoid embarrassment? N o doubt the law may
supply the deficiency, not only b y requiring a certain formality or by
preconstituting proof (where the matter lends itself thereto), but also
by setting up simplifying presumptions. Thus, the statute relieves the
child of a married woman, conceived during marriage, of the proof of
paternity, which is the condition of application of the obligations and
effects of paternity. In its eyes, and consequently in the eyes of all, the
woman's husband is the father of the child, at least until proof to the
contrary by the party who contests the paternity. 4 Still, in order
rationally to justif y the presumption, it must be supported by proba-
bilities. T h e law can presume, even rebuttably, only what is normal.
Otherwise the presumption degenerates into a fiction: T h e legislator
presumes what he desires or likes rather than what is; he prejudges and,
to that extent, he rebels against reality, he resorts to fiction.
B u t usually the matter defies legal presumptions; varied and singular
reality obeys no constant factor, which explains the exceptional charac-
ter of the presumptions of the law. T h e duty of proof reappears. N o w
let us assume it is impossible to produce proof, if not always in an
absolute manner, at least in the forms of its production in court, before
the organs of application of the law. For example, the facts to be proved,
though external or externalized, are of such a nature as to occur without
witnesses, leave no traces, lend themselves to disguise; or they are
' T h i s depends upon the legal system. Some procedural law s allot an active part
to the judge in the conduct of even civil proceedings; others establish in principle
the system of judicial passivity (inaptly so-called " n e u t r a l i t y " ) .
* W e confine ourselves to this assumption, w h i c h is the most frequent one. B u t
there are also cases where the proo f of the f a c t (or the method of investigation)
w o u l d be too scandalous. This explains the elimination in French civil l a w of i m -
potence as a ground f o r the nullity of marriage or even f o r an action disavowing
paternity, C o d e N a p o l e o n , art. 313, initio [which provides as follows, as amended
b y the Belgian A c t of M a r c h 20, 1927: " T h e husband m a y not d i s a v o w the child
b y alleging his natural impotence ; he m a y not even d i s a v o w him on the ground of
adultery unless the birth has been concealed f r o m him, in w h i c h case he is allowed
to submit all facts tending to show that he is not the f a t h e r . " ] B e t w e e n the scandal
of proof and the scandal of silence of the l a w , the l a w chooses silence.
* W e are talking here only of simple presumptions admitting proof to the c o n -
trary ( j u r i s tantum), f o r irrebuttable presumptions (juris et de jure) regulate no
question of proof . . . See J. DABIN, op. cit. 241 et seq.
Unauthenticated
402 JEAN DABIN
covered by professional secrecy, a value deemed superior to the manifes-
tation of the truth; or again, where the matter involves an appraisal of
the significance, the bearing or the influence in casua of certain subtle
facts (which is still to be proved), the estimation of facts cannot be
made. T h e jurist then has no other resource than to eliminate these
facts as conditions of application of the rule and, in the case where they
would have to form its sole condition, — as for penal repression or for
taxation — to sacrifice the very rule called upon to govern them. I t is
logically and socially impossible to base any regulation, command, or
proceeding upon facts which b y their nature or by reason of an unfavor-
able environment escape all control.
186. Sometimes These Difficulties May Lead to Total Abstention by

the Law. Such is the attitude adopted universally b y legislatures, even
in countries with brutal " b i r t h " policies, with regard to Neo-Malthusian-
ism. 5 Independently of the demoralization of which it is both a result
and an agent, Neo-Malthusianism constitutes an essential social evil,
synonymous with the extinction of the race, of society, and of the state.
On the other hand, the concept does not offer any difficulty in its defi-
nition: It is known what Neo-Malthusianism is and in what practices it
consists. T h e sole obstacle resides in proof. T o mark the facts of propa-
ganda, circulation of equipment or abortion does not go beyond the
possibility of inquiry: 6 It is enough if the prosecutors and courts dare
to act. But how can contraceptive activities, too, be tracked down? T h a t
is w h y the law at the outset renounces the struggle, at least under the
direct form of prohibitive intervention. T h e same obstacle of proof,
added to that of definition, will hamper the repression of usury. T h e
usurer uses simulation and dissimulation ("palliated u s u r y " ) ; his vic-
tims, both ashamed and grateful, refrain from complaining, which
renders proceedings delicate. In civil law, the legislator refuses to take
account of misrepresentation as a cause of nullity of marriage, in part
because in such a matter the constitutive elements of misrepresentation
are hard to grasp, to estimate and to prove. 7
• [ In the case.]
5However, PLATO, LAWS, bk. V I , 783 d et seq., provided for inspectresses of
marriages. . . S e e P . L A C H I E Z E - R E Y , L E S JDEES MORALES, SOCIALES ET POLITIQUES DE
PLATON (Paris) 216-218.
"On propaganda, see French L a w of July 31, 1920, DALLOZ PERIODIQUE (1921)
4, 167.
7 Fear of fraud has led to limiting to descendants the persons entitled to family
allotments; see Rodifcre, Pour quelles personnes les allocations familiales sont-elles
dues? DALLOZ HEBDOMADAIRE, Chronique (1939) 25.
Unauthenticated
ι8γ. The Law Eliminates the Element Resisting Proof. Elsewhere, the
jurist discards the element resisting proof in the complex of facts basic
to the disposition of the law, retaining only the circumstances capable
of discovery. Thus, the legislator of revenue law is seen first proclaim-
ing his intent to strike at certain operations "speculative in character"
(in the sense of productive of benefits), then he is abandoning this
condition as too delicate of proof, so as finally to tax the operations
taken in their materiality, leaving out the element of speculation. T h e
latter subsists only on the logical plane, by virtue of a legal construction,
as the irrefragable presumption of speculation; from the rank of a con-
dition of application, speculation is pushed back to the level of a reason
or motive, incapable b y that token of influencing the working of the
precept: Finis legis non cadit sub praecepto.b 8 Again, in imposing
liability for injury resulting from multiple causes among which there is
a fault, the more or less decisive character of the fault in relation to the
other causes of the injury is neglected. T h e individual at fault is made
responsible, and in full, since his fault has contributed to producing the
injury, if only partially or even mediately. T h i s solution, which is called
"equivalence of conditions," may seem unjust since it does not respect
distributive justice in distributing the burden of the injury. But it is
justified by saying that it is " t h e only one that appears susceptible of
resolving the problem of the causal relation in practice." 9 In other
words, the theoretically true law yields to the practical consideration of
proof.
T h e same surrender is noticeable in numerous rules of civil law, and

sometimes of penal law, where there is a disregard of the psychological
state of the acting person, of the intention with which he acted, his good
or bad faith, and so forth. For as long as the psychological inquiry is
practicable (and with the reservation that no harm be done those
parties or third parties who could have legitimately relied on the appear-
ances created), it is no doubt desirable. But from the moment it meets
obstacles of proof, renouncing psychology is not at all turning to a
materialist objectivism; it is merely showing a sane realism, conscious
of the practical ends of the law.
b [ T h e end of a l a w does not fall w i t h i n its precept.]

8 T h e case chosen as an example is that of a Belgia n L a w of June 14, 1937, as
construed b y the [ B e l g i a n] C o u r t of Cassation in decisions of M a r c h 6, 1940, w i t h
conclusions of the [ B e l g i a n ] A d v o c a t e General H a y o i t de T e r m i c o u r t , PASICRISIE
(1940) I, 140; of N o v e m b e r 12, 1940, PASICRISIE (1940) I, 290; etc.
8 2 H. DE PAGE, TRAITE ELEMENTAIRE DE DROIT CIVIL BELGE (2d ed.) no. 958,
p. 904. B u t see G . M a r t y , La relation de cause ά effet comme condition de la re-
sponsabiliti civile, in REVUE TKIMESTRIELLE DE DROIT CIVIL (1939) 685 et seq.
Unauthenticated
404 JEAN DABIN
SECTION 3 . T H E CONCENTRATION OF LEGAL M A T T E R
188. Reduction of the Mass oj Rules through Classification. A third

factor of the practicability of the law consists in a certain dose of reduc-
tion and concentration of legal matter. Although this factor has less
(and more remote) importance than the two preceding ones, it is none-
theless interesting inasmuch as concentration facilitates the management
of the law.
In pure logic and according to pure justice, even social justice, each
particular case should have its particular solution modeled upon the
case. Whether it be taken from the viewpoint of the individual or of
society, justice is always individual, measured by the individual case.
But this "individualization" which is possible for the internal forum is
not practicable for the external forum. Rules, that is to say, general
dispositions, are necessary, formulating the hypothesis in a general
manner, on the basis of a presumption of conformity of the single cases
to the norm, and also the solution in a general manner, notwithstanding
the more or less noticeable differences between the cases. 1
That first, and also most essential, simplification is still insufficient:
The sum total of the rules must itself not exceed a certain limit. Hence,
in particular, the classifications of hypotheses and [legal] solutions
under certain common predications, erected into so many principles of
division. The role of classifications in the law is to diminish the number
of the rules so that the interpreter does not feel overwhelmed with an
excess of scarcely differentiated prescriptions. Indeed, the more abundant
the rules, foreseeing and disposing in a special manner of indefinite
quantities of hypotheses, the heavier the instrument to be moved and
the harder to find the rule applicable to the particular case.2 Thus are
to be explained the cut and dried classifications that are intended as
exhaustive: Things are movable or immovable, acts are for valuable
consideration or gratuitous, rights are property rights or non-property
rights, interests are public or private; intermediate or mixed cases are
1 Cf. in this sense, S T . T H O M A S , S U M M A , la Ilae, qu. 96, art. 1 ad resp.: . . .
Equally, art. 6 ad resp. {in medio) and ad 3. But see, as to the ground derived
from the common good, our observations above, no. 57.
S l s it sufficiently well known that in America the Law s of N e w Y o r k cover
2751 pages for 1911, 1377 pages for 1912, and 2220 pages for 1913? T h a t the deci-
sions of the courts in the United States cover probably 12,000 to 13,000 volumes as
of 1928? T h a t a million decisions are summarized in the AMERICAN DIGEST?
( A c c o r d i n g t o R . V A L E U R , D E U X CONCEPTIONS DE L'ENSEIGNEMENT JURIDIQUES: LES
FACULTES FRANCHISES DES SCIENCES SOCIALES, LES ECOLES PROFESSIONNELLES DE DROIT
AUX ETATS-UNIS (Thesis, L y o n , 1928) 137-138.
Unauthenticated
perforce placed in one of the two classes. 3 Similarly, the [legal] solutions
are divided into limited classes: T h e systems of protection for those
lacking legal capacity are divided into representation and assistance
or authorization; the nullities sanctioning irregular acts are absolute or
relative. Each one of these categores entails a more or less inseparable
set of [legal] consequences.
N o doubt, once again, perfection lies in the golden mean. T o o simple
classifications will produce an inadequate and therefore unjust law.
Here again the realistic, scientific spirit of contemporary jurists is in-
clined to render the heads of classification more supple so as to bring
law closer to life, which is wholly in gradations. B u t the requirements
of the manageability of the law oppose their veto to an excessive mul-
tiplication of headings, which if carried to an extreme would have the
effect of ruining the utility and even the principle of classifications.
So, too, even where the jurist sees fit to introduce shadings into his
divisions, he ordinarily does so by the detour of exceptions, which is a
w a y of maintaining the rigid classification at least as a principle. Some-
times the jurist goes farther: In the same manner in which he bends
definitions by substitution or amputation, he forces classifications either
by extension to categories foreign thereto or by inversion of the natural
order of attachment. Thus, the classification of movables and immov-
ables is extended to contractual rights and copyrights, or certain mov-
ables, the so-called "immovables b y destination," are attached to the
class of immovables. Whatever the value in the particular case or even
the expediency in general of such alterations, they always tend to the
same result, to wit, an economy, at least an apparent one, in the tremen-
dous profusion of legal rules. 4
189. The Process of "Legal Constructions." T o the same concern with

concentration relates the so-called process of "legal constructions." B y
this is understood a systematization of the law by way of dialectics,
starting from a simple idea whose corollaries then radiate over the entire
matter so as to unify and often to fecundate it. 5 For systematization on
3 On half onerous, half gratuitous mixed contracts, cf. M . BOITARD, LES CONTRATS
DE SERVICES GRATUITS 159-160, 1 7 1 - 1 7 5 .

* On the process of classification, see J . DABIN, LA TECHNIQUE DE L'ELABORATION
DU DROIT POSITIF 163 et seq. Also, regarding classified types of conflicts of laws,
P . LEREBOURS-PIGEONNIERE, PRECIS DE DROIT INTERNATIONAL PRIVE (3d ed.) no.
219, p. 253.
E " L e g a l construction " thus has nothing in c o m m o n with the " c o n s t r u c t i o n " of
the l a w in the sense determined before, nos. 98 et seq. L e g a l construction proceeds

f r o m given rules w i t h a v i e w to systematization, while the construction of the law
w o r k s out the rules themselves.
Unauthenticated
4o6 JEAN DABIN
the basis of the real explanation is not always satisfactory to the mind,
by reason of the often fugitive or complex character of the ratio legis;
the latter mingles considerations of law and fact, of reason and ex-
pediency, not to forget history, which by its accidents or survivals so
powerfully influences the content of the law. Hence the recourse to an
ideal principle — a popular notion or a juridical category — more or
less close, more or less artificial in relation to the real explanation, but
whose synthesis-value brings simplicity and clarity into the diffuse mass
of rules. Such is the idea that the heir continues the person of the de-
ceased, or the idea of a mandate, tacitly conferred by the husband upon
the wife, to manage the affairs of the household. Let us add that the
idea, playing the role of the hypothesis in science, constitutes a means
of developing the law in that it may suggest solutions on new points not
foreseen by the existing rule. If, then, materially construction does not
result in diminishing the sum total of the rules, if it even happens that
by its fecundating power the idea augments their number, reduction
nevertheless operates intellectually, by virtue of the unifying principle
of which the rules are henceforth but logical determinations or corol-
laries.
But it must be said at once that the process of constructions is
dangerous, precisely to the extent that the idea, withdrawing from the
social, moral, and legal realities which condition the law, risks sacrificing
the law's substance to a factitious unity. The logical coherence of the
rules is a facility for the interpreter and also for the subjects·—and
therefore in certain respects a secondary quality which could not prevail
over the essential, to wit, the truth, expediency, and immediate prac-
ticability of the law. 6
IQO. Preserving a Just Measure in Evaluating "Practicability." So,

too, if, following Jhering, Geny, and the theorists of technique in the
law, the idea of practicability has been insisted upon, particularly under
the aspect of the definition of the concepts and their aptness for proof,
this is not intended to create the impression that concern with such
practicability should block all efforts toward the theoretical ideal, which
is the rule conforming to the public good in accordance with the possi-
bilities of the environment. First, it has been intended only to establish
a principle, to wit, the necessity of considering in the law the practica-
bility of the rules. The examples have been chosen only to document
this, by way of underscoring the obstacles without claiming them to be
altogether insurmountable even in the cases cited. It has been remarked,
6 On "legal constructions," see J . DABIN, op. cit. 186 et seq.
Unauthenticated
moreover, that the principle of practicability was subject to compromise.
A lesser practicability might suffice where the intrinsic virtue of the
precept, supported by the moral authority of the legislator, would be of
a nature to convince the subjects. Still more: Every consideration of
practicability must be effaced where the silence of the law would take
on the appearance of a scandal, a social evil more serious than the lack
of practicability. Further, it must not be forgotten that the imprac-
ticability of today can disappear tomorrow or find its remedy, thanks to
the progress of science in the definition of its concepts, to the perfecting
of the technique of proofs, to a more logical distribution of the subject
matter of the law. Thus, for instance, the uncertainty in the field of
medical fault may give way to surer appraisals; resort to statistical
procedures may lead to a more exact measurement of social facts; the
discovery of the so-called "blood-group test" has permitted us to cir-
cumscribe, if not to eliminate, the mystery of paternity; the system of
organic laws and codifications diminishes the inconveniences of the
multiplicity of rules, etc.
CONCLUSIONS ON T H E LEGAL M E T H O D AND COROLLARIES
S E C T I O N I . D U A L A S P E C T OF T E C H N I Q U E I N T H E L A W
iqi. As to Substance, a Social and Political Technique; as to Form, a

Logical Technique. At the end of this detailed exposition of legal method,
we have in hand the somewhat experimental proof for the thesis which
has previously been developed a priori, that everything in the legal rule,
whatever its source, including custom, is construction and, in this sense,
a work of technique. As will have been noted, this technique is of a
twofold kind. First, as to substance, that is, as to the content of the
rules, the appropriate technique is of a social and political nature. Of a
social nature, because the subject matter and the aim of the law are to
order the social relationships between individuals and groups and be-
tween states. Of a political nature, because that ordering must take
place under the inspiration and within the framework of domestic and
international politics. Then, as to form, the appropriate technique is of
a logical nature, indeed of a special logic, to a peculiarly utilitarian end,
to wit, the practicability of the rules.
iQ2. It Is a Mistake to Reduce Technique in the Law to the Sole Idea

of Practicability. Geny may be criticized for having neglected the dis-
tinction between these two compartments and to relate the whole tech-
Unauthenticated
408 JEAN DABIN
nical side of the law to the idea of practicability. 1 Is it not for social
science,2 or rather for politics, which governs the social, to decide upon
all that concerns the public good, upon the value and the expediency
of the measures, legal or otherwise, which it may require, recommend,
or support? Interpolated between the natural law as conceived by
Geny, reduced to a minimum of economic or moral principles which
provide the basic ideas, and the working out of a practicable form, there
is the phase of organic and adapted development of the first principles,
no doubt the most important and the most typical phase of elaboration.
This is where the law is essentially subordinate to social science and
politics, where all those who contribute to building it up work as
sociologists and political scientists. It is agreed, also, that the expression
"technique" is not well chosen to designate this task. It is valid •— and
has here been accepted 3 — only in a quite relative sense, as opposed to
science. In reality, as has been explained,4 the determination of the
content of the law, being a matter of governing others and therefore
of moral action, belongs not to a technique, nor to an art, but above
all to one of the kinds of prudence, political prudence, and still more
especially, juridical prudence. It is this juridical prudence that makes
the choice between legal solutions — in the spheres of ends, of means,
of sanctions, of proofs 5 — without excluding the concurrence, in a sub-
ordinate rank, of a certain social and political art.
The practicability of the law, on the contrary, raises no other prob-
lem than that of a certain "fashioning" of the rule under its conceptual
aspect, which renders it apt for application first by the subjects and
then by officials and judges. Now this problem as such is foreign to
social science and politics, which no doubt dominate the practicability
of the law as a principle but leave the task of realizing it to the tech-
nician of regulatory form. Hence the term "formal legal technique" or
"legal technique properly so called," to designate this latter phase of
construction of the law: Formal technique, since it concerns only the
'As to this criticism, see J . D A B I N , L A T E C H N I Q U E DE L'ELABORATION DU DROIT

POSITIF 3 4 8 ; in the s a m e sense, F . R u s s o , R E A L I T E J U R I D I Q U E ET REALITE SOCIALE
3 1 - 3 2 , 61 et seq.
2
"Social science": sometimes we shall speak of "sociology," using the two terms
synonymously.
3
See supra, nos. 98, 99.
4
See supra, no. 124.
B
Upon suggestions which appear well founded, J . - P . Haesaert, La technique
juridique, in ARCHIVES DE PHILOSOPHIE DU DROIT ET DE SOCIOLOGIE JURIDIQUE
(1939) nos. 1 - 2 ; F. Russo, op. cit. 69-70, the matter of sanctions and of proofs is
here detached from formal legal technique so as to attach it to political and social
technique; see J . DABIN, op. cit. 58 et seq.
Unauthenticated
working out of a practicable form — plain legal technique since it owes
nothing immediately to sociology and politics. And this time the expres-
sion is adequate, for it is no longer a matter of acting (in the moral
sense) but one of making (in the technical sense).
Incontestably, too, sociology and politics outrank the working out of
the form, at least in the sphere of intention: Before thinking of render-
ing his rule practicable the jurist must endeavor to construe it as socially
good and expedient. Substance prevails over form, and the value of the
rule over its execution. T h a t is w h y no one will complain of a frankly
bad rule (if not an imperfect one) being in addition impracticable:
Granted that the legislator's prestige must suffer thereby, the latter
corrects the former. But it is understood that the discovery in the law
of a social and political viewpoint underlying the formal viewpoint of
practicability leaves the law as something construed, even at the social
and political level, and that at this level it is still a matter of technique
(in the sense of prudence) and not of science.
193. The Law Is Not Solely Social Science. Recently, however, in a

remarkable work already often cited, 6 one has claimed discovery of the
basis for a contrary position. Whereas Geny, noting the part of technique
in the law, perceives it only from the narrow angle of practicability and
not of sociology and politics, our author, F . Russo, 7 contrariwise under-
lines wonderfully the role of sociology in the law (he omits any mention
of politics) but tries to view it only from the aspect of science and not
of technique. Without denying that the law adds something to social
reality, especially an element of structure, he in effect maintains that the
law is essentially a science, not only b y the content of its dispositions,
but also down to its practicability, which itself belongs to social science
rather than to a properly legal or regulatory technique. T h u s almost the
entire law would be given, a " g i v e n " of social science, and technique
would have lost almost all its standing. B u t that thesis contradicts the
process of the elaboration of the law as it has just been retraced. T h e
law is, and can only be, construed, and in this sense is a work of tech-
nique, because it is the product of the combination in variable propor-
tions of the diverse points of view which must all come into balance in
the composition of the rules. N o one of these points of view, taken in
isolation, imposes in advance a solution as given by science, nor
a fortiori the satisfactory equilibrium of these points of view. It is easy
to show that.
' S e e supra, no. 81 and notes 9 and 10; no. 104 and note 26; no. 106 and note
32; no. h i , note 1 ; no. 116, note 21; no. 128 and note 21.
7 F. Russo, Realite juridique et RiALiTE sociale (Paris, 1942).
Unauthenticated
4io JEAN DABIN
In the first place, to determine what the public good may require,
advise, or tolerate regarding legal rules in such and such circumstances
of environment and cases is not a matter of a statement, even upon
reflection, about an anterior social reality, the subject of scientific or
philosophical knowledge. It is a matter of practical, prudential reason,
starting from facts and principles and evolving therefrom the conclusions
which the public good effectively requires under the circumstances. No
doubt, as Russo observes, social reality is not limited to purely empirical
facts (although these constitute no negligible part of it and, too, are
susceptible of being traced back to laws). Studied more deeply, some-
times in the light of a science superior to empirical science, to wit, social
philosophy, social reality manifests tendencies and orientations, it un-
folds values and norms.8 But, first, supposing they are authentic, 9 these
values are of diverse kinds, moral, economic, psychological, properly
technical, and often they compete; then, most of the time, they are true
only in a general and abstract sense; finally, even admitting that they
furnish certain solutions to the sociologist and moralist, there still re-
mains the proper task of the jurist, which is to appraise to what extent
the transmutation of these socially good solutions into legal rules is of
such a nature as to augment the real sum total of the public good.
194. The Jurist Knowingly Deforms the Real Through His Technique.
Nor is this all. T o determine after that first choice if the solution posi-
tively advantageous to the public good is practicable, and eventually to
amend this solution so as to make it practicable, from the standpoint of
definition or of proof, is less than ever a matter of science; it is exclu-
sively a matter of technique. True, Russo objects that the technical
procedures used by the jurist to render the law practicable "did not
radically modify the social reality which served as the basis for legal
elaboration, but impressed upon it only certain deformations which left
its essential content unaltered." 1 0 But the moment the deformation is
recognized there is the avowal of a difference between the legal method,
which deforms, and the scientific method, which endeavors not to de-
form. The jurist simplifies, structuralizes, presumes. In a sense, he does
8 See F. Russo, op. cit. notably p. 55: " T h e effort of knowledge of social
realities can be accomplished only through affirming finalities and values." In other
words, social science must find its completion in a social philosophy.
® See Russo himself, op. cit. 54, according to whom there is a distinction between
the constitution of the value and the judgment upon the value. In many cases "the
judgment of value will only too late detach the values from their primordial con-
n e c t i o n w i t h t h e f a c t s , " GURVITCH, L'EXPERIENCE JURIDIQUE 1 2 5 .
10 F. Russo, op. cit. 103, as to conceptualism, and immediately following (second
paragraph of his text) as to presumptions.
Unauthenticated
not at all go against the real: Simplification, structure, presumption,

keep within the area surrounding reality. Y e t to the extent that the real
undergoes a deformation, even a nonessential one, the definition of the
jurist is more or less removed from that of the scholar.
Russo further objects that the scholar, too, uses concepts and pre-
sumptions: " I t is not rare that even in the exact sciences one is content
with probable data obtained b y indirect means when faced with the
impossibility of making a direct observation." 1 1 B u t the question is
not one of knowing if one uses certain procedures; it is one of knowing
under what conditions and to what end one uses them. N o w there is this
capital difference, stressed at the outset of our observations about the
problem of the " g i v e n " and the "construed" in the law, 1 2 that the
scholar does not cease to keep his eye on science, that is, the exact and
complete knowledge of reality; that, if he uses approximative — and
deformative — procedures, he does so for want of better instruments
and owing to the actual state of technique in his science. T h e deforma-
tion performed b y the jurist, on the contrary, has no necessity from the
scientific point of view. So it happens that the reality fully grasped by,
or at least within the grasp of, science is deformed b y the legal rule,
which comes to simplify or alter the very conclusions of scientific ob-
servation. Thus, it is the motive of the deformation that is decisive. T h e
scientific deformation proclaims the powerlessness, at least for the mo-
ment, of the scholar; it calls forth correctives which he hastens to
apply to the matter. T h e legal deformation as such is a technical device,
a procedure sought in order to attain the practicability of the law. N o w
then, to sacrifice scientific truth, no matter how little, to purely practical
ends is not scientific, it is technical.
S E C T I O N 2. R E L A T I V E C E R T A I N T Y AND V A R I A B I L I T Y OF T H E L A W
195. As Products of Prudence Legal Solutions Have Only Relative

Certainty. Such being the nature of the legal discipline — prudence, art,
and technique from beginning to end — how could one be surprised by
the character of merely moral or even relative certainty that adheres
to the so-called positive legal solutions? Exactly to appraise the situa-
tions of fact that give rise to regulation, to discern the concrete require-
ments of the public good in its relationships with the legal rule, to
recognize the state of public opinion, to measure the degree of practica-
11F. Russo, op. cit. 104.

Unauthenticated
412 JEAN DABIN
bility of the solutions and give them their exact measure — these are so
many questions that cannot be solved summarily with certainties of a
mathematical or scientific order. Aristotle has written, with the approval
of St. Thomas Aquinas, that "in such matters attention must be paid
to undemonstrable propositions and opinions of experts, elders, and
prudent men, no less than to demonstrated verities." 1 If, then, there
exist solutions of law which offer themselves with a sufficient character
of certainty in the eyes of people of judgment, there are many others
which are open to argument, founded upon more or less probable
opinions.
IQ6. The Different Causes of Variation of the Law. The analysis of

legal method allows us on the other hand to understand better why the
law is indeed necessarily variable with times and places, and also why
the competent authority must change the law, not only when it is bad or
imperfect from the outset but also when its dispositions have ceased to
be in accord with those of the directing elements of elaboration, whose
nature is to change.
The law is called upon to undergo change, first, by reason of the
variations in the subject matter of regulation. Ex facto oritur jus.3·
Every rule no doubt imposes its form upon a preexistent matter; but
the latter reacts upon the form inasmuch as the rule is bound to impress
upon the matter the form appropriate thereto. 2 More precisely, relations
and ways of conduct are subjected to a law only in dependence upon
the constitution of the matter, which thus imposes its "given" — the
"given" of inescapable fact — upon the law. Therefore, if the "given"
of the matter is diversified or modified, the resulting legal solutions will
feel its repercussions. 3
The second cause of variation lies in the public good, the fundamental
norm of the legal system, the requirements of which are changeable in
space and in time. 4 While one may discover common principles of the
common good, of a philosophical, scientific, or technical order, valid for
any society, whatever may be its historical physiognomy (climate, soil,
the physical, intellectual, and moral aptitudes of its members), 5 with
1
ST. THOMAS, SUMMA, la Hae, qu. 95, art. 2 ad 4 ; also citations supra,
no. 130, note 30.
" [ L a w arises out of facts.]
2 See supra, nos. 126, 127.
3 S e e , in the same sense, ST. THOMAS, op. cit. Ia Hae, qu. 97, art. 1 ad 2·. . . .
See also qu. 95, art 2 ad 3.
4 See, in the same sense, ST. THOMAS, op. cit. la Hae, qu. 97, art. 1 ad 3 : . . .
5 T h i s is the problem of a "science" of the public g o o d , suggested supra, no. 144.
On the universal and the national in the l a w , cf. F. R u s s o , op. cit. 1 2 9 - 1 3 2 ; G . del
Unauthenticated
respect to applications of these principles, Pascal's whimsical remark

may justly be employed: " T r u t h on this side of the Pyrenees, error on
the other." T h e different political groups have their particular traits,
which necessarily influence the applications. Thus, the requirements of
the public good are not the same in rudimentary societies as in those of
refined civilization. Again, in a society of the agricultural type, the
public good of agriculture represents a more considerable value within
the total public good than does the industrial public good, and vice versa.
Reflecting this diversity, the law will take on a primitive or peasant
stamp here and an urban, commercial, industrial stamp there according
to the character of the population embraced within the state. T h a t state
itself, charged with the task of the public good, is more or less "strong,"
more or less well organized and equipped, politically speaking, so that
its interventions in the field of the law cannot surpass the level of its
powers of command and execution.
Essentially variable, too, are the reactions of public opinion with
regard to the rules: Favorable in a certain environment and in a certain
epoch, hostile elsewhere or in other times. N o w this variation in
reactions must entail different and sometimes contradictory legal
regimes — on the one hand liberal or tolerant, on the other more or less
regulated, and regulated in more or less divergent ways. T h e state of
opinion, moreover, weighs upon the "practicability" of the law (in the
formal sense) in so far as the difficulties of definition or of proof may
be aggravated by the refusal of the public to collaborate in the practical
application of the rules.
igj. The So-Called "Conservative Function" oj the Law. Such are the
reasons w h y the law, the so-called positive law, is not always and
everywhere the same: T h e subject matter changes, the public good and
the relationship between the law and the public good change, public
opinion is modified. 6 N o part or branch of the law escapes this rule, not
even the most fundamental provisions of public or private law, though
admittedly the foundations are ordinarily of greater stability than the
superstructures. So when social changes or, a fortiori, social upheavals
Vecchio, La communicabilite du droit et les doctrines de G.-B. Vico, in 2 RECUEIL
LAMBERT § HI, pp. 591 et seq.
" T h i s is the basic theme of Montesquieu's w o r k , DE L'ESPRIT DES LOIS, the

design of w h i c h is laid out in bk. I, chap. 3 (ed. G a m i e r , pp. 8 - 9 ) . C f . b y contrast
the criticism of bk. X X I X of the ESPRIT DES LOIS i n 1 CONDORCET, OEUVRES (ed.
A r a g o ) 378: . . . Also the extracts f r o m the preparatory w o r k for the Cod e N a p o -
leon, reported in 1 TAULIER, THEORIE RAISONNEE DU CODE CIVIL 251-253. But
Condorcet confuses speculative truth and practical t r u t h ; on this distinction, see
ST. THOMAS, op. cit. Ia Hae, qu. 94, a r t . 4.
Unauthenticated
414 JEAN DABIN
occur, the law is logically and normally obliged, if not to be taken in
tow by the movement, at least to revise its attitude in the light of the
new fact. 7 That is why it is inexact or at the very least equivocal to
speak of a "conservative function of the law." 8 The law has neither to
conserve itself, in the sense of maintaining the legal status quo, nor to
fight against life, once the change (supposing that it depends on the will
of men) offers nothing socially reprehensible. It would be better on the
contrary to speak of a duty of adaptation and thus of renewal of the
law. 9
It is true, the organs authorized to interpret and apply the laws do
not always have the competence to modify it, to the ends of readapta-
tion. In this sense, their mission is to conserve the rules of enacted law
and to maintain them against deformations as well as against violations
pure and simple. But, to begin with, the maintenance of enacted statutory
rules does not necessarily involve the stagnation of the whole law. The
readaptation may be the work of other modes of expressing the law than
statutory enactment. Above all, it is for the legislator himself to reform
his statute, to improve it where it is imperfect, to bring it up to date
where it lags behind life. It is also true that any mutation of the law, to
the ends of perfecting or of readapting it, must be governed by the
norm of prudence.
IQ8. Necessity of Prudence in Change. At the outset, prudence com-

mands one to conserve what one has gotten as long as one is not sure of
the value of what one will get. Any change, concerning the future, in-
volves an unknown: What will be the real effect of the new law? Better
or worse than the old? The most probable calculations may be destroyed
by the intrusion of the famous "imponderables." It is true that risk is
inherent in action and the fear of risk would prevent any change. But
the risk to be run does not dispense with prudence, at least in calculating
the chances of success. 10
Prudence further commands one to remember that any change in the
laws, even when justified in itself, provokes a crisis and consequently
an evil: Juridical habits are disturbed; business arrangements are
frustrated; more or less respectable, and in any event vested, interests
are affronted. And the crisis will be the graver the more the rules in
' S e e , in this sense, ST. THOMAS, op. cit. Ia Ilae, qu. 97, art. 1 ad resp.: . . .
8 See G . RENARD, L E DROIT, LA JUSTICE ET LA VOLONTE (Paris, 1924) 211 et seq.
9 On stability and m o v e m e n t in the l a w , cf. F. R u s s o , op. cit. 147-150, 183.
10 C f . MONTESQUIEU, CAHIERS 120: " S u c h is the nature of things t h a t abuse is
v e r y often preferable to coercion, or at least that the good once established is

a l w a y s preferable to the better t h a t is not established."
Unauthenticated
question are fundamental, endowed legally or factually with "constitu-

tional" value. 1 1 Hence, as always, the question is one of balancing assets
and liabilities, discounted advantages and expected disadvantages of
the change. If the disadvantages outweigh the advantages, one will have
to stick to the status quo, notwithstanding its insufficiency or shortcom-
ings. Although perfection is the ideal to be attained, it is not always
expedient to try to realize it hie et nunc,h in spite of all obstacles: Often
in practice the better is the enemy of the good. T h a t is why the laws will
be changed only in case of " v e r y grave and absolutely obvious utility"
or of "extreme necessity" in order to abolish a manifest injustice or any
injurious rule. 1 2 Even on this assumption, prudence may advise certain
arrangements, certain temporizations or "transitional measures," so as
to attenuate the brusqueness of the shock and to get our minds used to
the novelty.
1 1 T h i s is the e x p l a n a t i o n of the s y s t e m of " r i g i d c o n s t i t u t i o n s ," w h e r e a m e n d -
m e n t of so-called constitutional p r o v i s i o n s is s u b j e c t to a special p r o c e d u r e m o r e

c o m p l i c a t e d t h a n the o r d i n a r y [legislative] one. O n this process, see J . DABIN,
DOCTRINE GENERALE DE L'ETAT nos. 99 et seq., p p . 151 et seg.
b [ H e r e and n o w . ]
" T h i s is the f o r m u l a of ST. THOMAS, op. cit. Ia Ilae, qu. 97, art. 2. See, in the
same sense, Portalis , Discours preliminaire, no. 5, in 1 LOCRE, op. cit. (Bruxelle s ed.
1836) 154, col. 2; 155, col. i . I t m u s t be a d d e d , t o o , t h a t life t o d a y changes a n d
r e n e w s itself m u c h m o r e r a p i d l y t h a n it used t o a n d hence r e a d j u s t m e n t of the l a w
will be m o r e f r e q u e n t .
Unauthenticated
PART THREE
N A T U R A L LAW, JUSTICE, A N D T H E LEGAL RULE
INTRODUCTION
igg. Statement of the Problem. Truth to tell, the question of the rela-
tionships between natural law and justice, on the one hand, and the law,
on the other, has already repeatedly been touched upon. At the outset
of our exposition, we have encountered the thesis that the study of the
concept of law should begin with the idea of justice rather than with
the idea of the rule, a method that anticipates the solution in affirming
the fundamental identity in content of law and of justice. 1 Later on, in
dealing with the problem of the "given" and the "construed" in the law,
we have been led to contradict the conception of a natural legal
"given," or natural law, defined as the objectively just, which would
represent the substantial element of the legal regulation.2 Finally, treat-
ing of the method of elaboration of the law, we have evoked and
analyzed the concept of the public good 3 which, while altogether distinct
from natural law and justice, cannot fail to have close ties to these
latter concepts: Can one conceive of the public good turning its back
on natural law and justice? But these ties, evident a priori, are now to be
examined more closely. The problem arises as follows: What place do
the concepts of natural law and justice occupy within the "complex" of
the law? If they are located neither at the starting point nor at the
center of the system, how and on what ground do they figure therein?
What is their role as factors in the elaboration of the law in the previ-
ously defined sense of a rule laid down by the civil society? 4
200. Objective Value of the Ideas of Natural Law and Justice. It is

useless to discuss these problems unless one begins by recognizing a
meaning in the concepts of natural law and justice as norms of reason,
endowed with objective value. True, some claim that men — individuals
and collectivities — in their behavior would not let themselves be guided
by any ideal principle detached from their passions and their self-
interest.5 Especially in their relationships with others they would obey
1 See supra, no. 2.
2 See supra, nos. 1 1 4 et seq.
3 See supra, nos. 134 et seq.
1 See supra, nos. 8 - 1 3 .
" T h i s is an allusion to the systems of H o b b e s , Nietzsche, and others. C o m p a r e
Unauthenticated
only the "law of the jungle": Homo homini lupus.3· T h e statutes and
customs making up the positive law would indeed be but the product of
the physical or economical superiority of the actual holders of power or,
at least, the expression of the balancing of antagonistic forces in a
determinate moment of history. 6 T o others, natural law and justice do
indeed exist as either idea-forces driving humanity, or as an ultimate
aid against the established law; but that ideal would be only a " m y t h "
or at least a gratuitous hypothesis. 7 N o w , if that is so, everything comes
tumbling down at once: Natural law and justice, undoubtedly, and also
the norm of a public good prevailing over the individual interest, and
the very principle of a subjection of the law that is called positive to a
rational method of elaboration. T h e established law is what it is, nothing
more; it is valid by itself, b y the power of those who have laid it down.
T h e despotism of the legislator rules and replaces the despotism of the
individual.
T h e vast majority of men, however, ignorant or thoughtful, are
communicants of the cult of natural law and justice, and they believe
therein as a reality of the philosophical and moral, if not of the peculiarly
scientific, order. Unfortunately, save for a unanimity in principle as to
the ethical character of the two concepts, disagreement prevails among
specialists as to the exact definition of each. T h a t is w h y a comparative
study as broached here must logically begin with an attempt to point up
the paralleled concepts. These concepts are also so important in the
sphere of the moral sciences that the jurist should not regret the time
devoted to their analysis, even independently of their role on the prop-
erly legal plane.
CHAPTER I
T H E C O N C E P T OF N A T U R A L LAW
SECTION I . T H E TRADITIONA L C O N C E P T I O N
201. Natural Law as a Norm of Human Conduct. According to the

most generally accepted use of the term in our time, the noun " l a w " in
t h e theories a l r e a d y r e f u t e d b y P l a t o , as set f o r t h in P. LACHIEZE-REY, LES IDEES

MORALES, SOCIALES ET POLITIQUES DE PLATON ( P a r i s ) 3 9 - 4 9 .
* [ M a n is a w o l f t o his f e l l o w m a n . ]
* See supra, no. 109.
7 I n this sense, see a m o n g o t h e r s the t w o p a m p h l e t s b y H. DE PAGE, L'IDEE DE
DROIT NATUREL ( B r u x e l l e s , 1 9 3 6 ) a n d DROIT NATUREL ET POSITIVISME JURIDIQUE

(Bruxelles, 1939).
Unauthenticated
4i8 JEAN DABIN
the expression "natural law" is taken in the sense of a certain rule of
conduct with man as its subject and imposed in a categorical fashion
upon his activities, and not of a scientific law or a technical rule. That
is why we exclude at once the idea of a natural law constituted by eco-
nomic laws, 1 which are scientific laws and are also capable of technical
utilization; and we exclude also the idea of a natural law common to men
and animals (inasmuch as man is an animal) 2 or common to all crea-
tures, both animate and inanimate. 3
202. "Jus Naturale" and "Lex Naturalis" Are Synonymous Terms.

However, the subject matter of the rule of human conduct which con-
stitutes natural law is not specified a priori: Jus naturae and jus naturale,
on the one hand, and lex naturae and lex naturalis, on the other, are
interchangeable terms.
It is true that sometimes the terms "natural law" and "natural right,"
on the model of the plain words "law" and "right," are taken to mean
the naturally just. Thus, St. Thomas Aquinas, in dealing with the virtue
of justice, defines justice as the virtue which has as its object the lawful
right of another (jus suum),4 which lawful right may be natural (jus
naturale) or positive (jus positivum) ,5 "Lawful " there signifies what the
[Continental] jurists call the subjectively lawful or legal right, as op-
posed to the objectively lawful, objective law or norm of law.® However,
at the end of the same article, St. Thomas evokes a jus divinum which,
similar to the jus kumanum, decrees precepts concerned with morally
good things {bona) and prohibitions concerned with morally bad things
(mala), wherefrom it follows that the jus divinum in question is nothing
else than the lex divina (this term is also found there). 7 In the following
article, trying to classify the jus gentium, St. Thomas considers hy-
1 See, in this sense, E . LAMBERT, UN PARERE DE JURISPRUDENCE COMPARATIVE
(Paris, 1938) — o r even Geny's definition paraphrased above, no. n o , which is
concerned with a "fund of moral and economic verities," though "principally"
moral ones.
2 See, e.g., ULPIAN, DIG. I, I, I , 3. C f . S T . T H O M A S , S U M M A , Ia Uae, qu. 94,
art. 2 ad resp., art. 3 ad 2. On the jus naturale common to men and animals, see
F . S E N N , D E LA J U S T I C E ET DU DROIT 5 9 - 7 3 .
8 See S T . T H O M A S , S U M M A , la Ilae, qu. 91, art. 2 ad 3: The law being a matter
of reason, only what participates in eternal law in the reasonable creature properly
merits the name of law.
4 ST. THOMAS, op. cit., Ia Ilae, qu. 57, art. 1.
S ST. THOMAS, op. cit. Ia Ilae, qu. 57, art. 2. In the same sense, see also CICERO,
DE INVENTIONE 2, 53, 161: . . . ; also 2, 22, 65.

"See ι A. C O L I N AND C A P I T A N T , C O U R S ELEMENTAIRE DE DROIT CIVIL FRANQAIS
(9th ed. by Juliot de la Morandiere) no. 1, p. 1.
7 ST. THOMAS, op. cit. Ia Ilae, qu. 57, art. 2 ad 3.
Unauthenticated
potheses of adjustment altogether foreign to any lawful right of another,
such as the adjustment (commensurationem) of the male to the female
to the ends of procreation, and still further the idea of a jus naturale
common to men and animals (there is no duty of justice between
animals), 8 so that jus naturale and jus positivum end up by merging
into altogether general concepts of lex naturalis, lex divina, lex humana.
T h e same, by the way, goes for the term jus civile, which embraces all
dispositions whatever of the civil law and not only those concerning
justice. Finally, in dealing with laws as rules, St. Thomas prefers to use
the term lex naturalis but, in the same context, also happens to make
use of the term jus, not only as one of the possible objectives of the legal
rule (the law of the just) but also as synonymous with the rule apart
from its content. 9 All this justifies the assertion of one of the most
authoritative commentators upon Thomistic thought: "Conforming to
the usage of the time, St. Thomas employs these two terms indiffer-
ently." 1 0 T h e usage of that time, incidentally, has been maintained
through the ages — in the modern period by the theorists of the " l a w of
nature and of nations" s c h o o l 1 1 as well as by D o m a t ; 1 2 in the con-
temporary period, in the majority of treatises on moral philosophy and
natural law.
203. Characteristics of Natural Law: A Norm That Issues jrom

Nature, Universal and Immutable. On the other hand, as the adjective
" n a t u r a l " indicates without too great ambiguity, the rule of human
conduct that is called natural law is deduced from the nature of man as
it reveals itself in the basic inclinations of that nature under the control
of reason, 1 3 independently of any formal intervention by any legislator
whatsoever, divine or human. Natural law is thus distinguished from
another law, which is called "positive" (or "voluntary, " or " a r b i t r a r y " )
and is supposed to have been established by the will of God or of men.
Natural law, furthermore, dominates positive law in the sense that, while
positive law may add to natural law or even restrict it, it is prohibited
" O n the discussions about this subject in antiquity, see F. SENN, op. cit. 70-73.
" S e e S T . T H O M A S , S U M M A , la Ilae, q u . 95, a r t . 4 : . . .
10 O . L O T I N , L E DROIT NATTIREL CHEZ S T . T H O M A S ET SES PREDECESSEURS (Bruges,
1926) 52 and notes 34 and 35.
" A s follows from the statements paraphrased below, no. 208 and notes 2 and 3.
12 D O M A T , TRATTE DES LOIS, c h a p . X I , 9 initio, 3 3 in fine; L E S LOIS CIVILES DANS
LEUR ORDRE NATUREL, P r e l i m , b k . , t i t l e I , s e c . I , 2 a n d 3 .
" T h i s is not the place to set forth the process of knowing the rule of natural
law, notably the mechanism of the anguish of conscience. Let us note only that,
like reason, it is also "natural" in man; see ST. THOMAS, SUMMA, la Ilae, qu. 94,
art. 4 ad resp. and ad 3.
Unauthenticated
420 JEAN DABIN
from contradicting it. 1 4 How could the legislator, or at least the human
legislator, 1 5 have the power to rebel against the " g i v e n " of human
nature?
From the characteristics of human nature flow the characteristics of
natural law. As human nature is identical in all men and does not vary,
its precepts have universal and immutable validity, notwithstanding
the diversity of individual conditions, historical and geographical envi-
ronments, civilizations and cultures. As, on the other hand, nature
cannot deceive itself nor deceive us, its precepts, inasmuch as they are
authentic, have a validity that is certain, suffering neither doubt nor
discussion. 16
204. First Principles and Secondary Precepts. As to the extent of the

" g i v e n " of nature and of what must therefore be referred to natural
law, views are divided. T h e traditional school reserves the name natural,
with the characteristics of universality, immutability, and certainty
inherent in that quality, to altogether general and necessary "first prin-
ciples," distinguishing them even from "secondary precepts" or "par-
ticular conclusions quite close to the first principles." 1 7 Other inter-
pretations, of later date, include within natural law not only the first
principles, but the more or less close conclusions evolved from the first
principles by way of rational argumentation. 1 8 So there exists, histori-
cally at least, a "minimalist" conception of natural law, limited to the
strict and direct " g i v e n " of the inclinations of nature, and another,
"maximalist" one, extending to the solutions that are the proper work
of reason in starting from the natural " g i v e n , " 1 9 without, however, any
" See ST. THOMAS, op. cit. Ia Ilae, qu. 94, art. 5 ad resp. and ad 3.
15 For the divine legislator, the question is disputed whether God Himself could
change or abrogate a law of nature whose author He is. In Catholic theology the
answer is negative.
" T h i s is the idea indicated by Cicero in his famous definition, DE INVENTIONE
2, S3, 161, and 2, 22, 65: Natura jus est quod non opinio genuit sed quasdam
innata vis inseruit [Law by nature is what has not been produced by opinion but
inserted by some innate force],
" S e e ST. THOMAS, op. cit. Ia Ilae, qu. 94, art. 5 ad resp., with reference to
art. 4, art. 6 ad resp.\ qu. 95, art. 2 ad resp., art. 4 ad resp.
18Per rationis inquisitionem [ B y inquiry of reason], said ST. THOMAS, SUMMA,
la Ilae, qu. 94, art. 3 ad resp., in fine. This extensive interpretation is found not
only in the authors of the seventeenth and eighteenth centuries (Grotius, Domat,
or Puffendorf) but also in some modern treatises on natural law, as, e.g., J.
LECLERCQ, L E C O N S DE DROIT NATUREL, I : L E S FONDEMENTS DU DROIT ET DE LA SOCIETE
(2d ed.), no. 11, pp. 58-60.
19 Cf. J. LECLERCQ, op. cit. no. 11, p. 56, according to whom natural law is all
that the social nature of man involves, neither more nor less . . .
Unauthenticated
clearly traced boundary lines between the successive zones of first prin-
ciples, secondary precepts, and their more or less close conclusions.
T h e disadvantage of the strict conception evidently is to reduce the
concrete content of natural law to rather vague generalities, which gives
rise to the objection (an unjust one, incidentally) of useless verbalism;
the dangers of the broad conception lie in lending the validity of natural
law, that is, absolute authority, to solutions endowed with truth merely
relative to the cases. T h e present tendency is toward the minimum con-
ception. 20 On the one hand, one fears being unable to account for the
"legitimate variation" of positive rules. On the other hand, one mis-
trusts logical apriorism in the domain of the moral and social sciences.
205. Subject Matter of Natural Law: The Totality of the Duties of

Man. A s regards the subject matter of natural law, or equally of the
natural legal rule with which it is synonymous, it embraces all orders of
duties imposed b y nature, and consequently not only the duty of justice
{suum cuique tribuere) a or, more broadly, the duties ad alterum,b but
also the duties toward God, the duties toward oneself, the duties deduced
from the idea of the family (giving rise to the concept of natural family
law), the duties of the political order, incumbent upon subjects as well
as upon rulers, at home and abroad (natural political l a w ) . Adopting
another principle of division, St. Thomas Aquinas classifies "the natural
inclinations from which the order of the precepts of natural law flows"
as follows: An inclination, common to all substances, toward the con-
servation of their being according to its proper nature; an inclination,
common to men and animals, toward the union of the male and female,
the education of the youth, and similar things; an inclination, proper
to man, toward the goods conforming to his nature as a rational being,
such as the desire to know God and to live in society, which impels
him to avoid ignorance, not to do wrong to his neighbor with whom he
must maintain relations, and other things of that kind. 2 1 It is not hard
to recognize in that classification the principles corresponding to the
totality of the duties of man: Toward himself, toward his family,
toward God, toward his neighbor, toward society.
206. Tendency to Emphasize the Duties "Ad Alterum." Contrary to

what is sometimes said, even the theorists of the "state of nature"
20 S e e , i n t h i s s e n s e , n o t a b l y 2 F . G E N Y , SCIENCE ET TECHNIQUE EN DROIT PRIVE
POSITIF n o s . 159 and 176; also H. C A P I T A N T , INTRODUCTION Λ L'ETUDE DU DROIT
CIVIL (4th ed.) no. 9, pp. 35-36.
* [To render to each his own.]
b [Toward another.]
A ST. THOMAS, SUMMA, la Ilae, qu. 94, art. 2 ad resp., in fine.
Unauthenticated
422 JEAN DABIN
guarded against excluding the social duties from their natural law. I t did
not escape them that human nature is not only individual, that it is also
social and political. Under the name of the "state of nature" they merely
proposed (on the dialectical level, incidentally) to disregard all posi-
tively established economic, social, and legal institutions proceeding
from the actual and concrete functioning of the diverse particular so-
cieties. 22 M o r e than that, one observes a tendency, precisely in the "law
of nature and of nations" school, to put into clear relief, side b y side
with the "rational nature," the "sociable nature" of man, with the duties
ad alterum, both interindividual and properly social, which follow from
it. 23 N o doubt the natural law, or its rule, continues to extend over all
orders of duties, including the duties toward God and toward oneself;
but the emphasis is upon the duties which life in society imposes. Are
we to see in this insistence (rather uncertain, to be sure) the bait for a
deviation from the first idea of natural law, which would slide imper-
ceptibly from the plane of moral and social science, where it had first
been installed, to the adjoining plane of specifically legal science?
SECTION 2. I s T H E R E A JURIDICAL N A T U R A L L A W ?
207. The Ambiguity of the Concept of Natural Law. For here at last
is the ambiguity which has not ceased to befog the concept of natural
law from the d a y the state began to legislate: T o what sort of regula-
tion is the natural law related? T o the regulation which, aiming at the
moral perfection of men, obligates them before their conscience and
before God to practice the good and avoid the bad, in short, the moral
rule? Or to the regulation of societal origin, laid down b y (domestic or
international) public authority with a view to the temporal public
good (of individuals or states), in short, the legal rule? Or again to both
sorts of rules cumulatively, whether they are considered as distinct at
" S e e , i n t h i s s e n s e , PUFFENDORF , L E DROIT DE LA NATURE ET DES GENS [De jure

naturae et gentium] (transl. b y Barbeyrac, Basle ed., 1771) [English transl. b y
C. H. and W. A . O l d f a t h e r , i n SCOTT'S C L A S S I C S OF INTERNATIONAL L A W (1934)],
bk. II, chaps. II and III, § X X I I and η. 1 b y Barbeyrac § X X I V . In general, con-
c e r n i n g t h e c o n c e p t i o n o f t h e " s t a t e o f n a t u r e , " s e e P H . M E Y L A N , J E A N BARBEYRAC
(Lausanne, 1937) 189 et seq., 202 et seq.
23 S e e , i n t h i s s e n s e , G R O T I U S , L E DROIT DE LA GUERRE ET DE LA PAIX [De jure
belli ac pads] (transl. by Barbeyrac, Basle ed., 1768), Discours preliminaire
[Prolegomena], §§ V I I I - I X ; PUFFENDORF, op. cit., bk. II, chap. III, § X V , art. 3,
and bk. I, chap. VI, § X V I I I . Generally on the law of nature school, see PH.
MEYLAN, op. cit. 189-190. T h e same exclusively social conception of natural law
in J. LECLERCQ, op. cit. no. 15 (general plan of the w o r k ) .
Unauthenticated
least in form or taken for inseparable at least up to a certain point? In
a word, is natural law the directing principle of morals or of law?
The question no doubt was less important practically in periods of
not very complex civilization when the civil law was most often content
with the role of servant and executor of morals. But in our times, with
the threefold phenomenon of the increase of wants, above all material
wants, the development of technology, and the emergence of the masses,
the civil law is led to formulate many requirements which bear no more
than an indirect relationship to morality. Hence the present interest of
the problem as to the order of regulation to which the rule of conduct
called natural law belongs.
208. Historically, Natural Law Provides Principles of Moral Conduct.

With terminology, as has been seen,1 offering no ground for argument
either way, since the words "law," "right," and "rule" may refer indiffer-
ently to the moral rule and the juridical or legal rule, the answer is
supplied by history: What one has always sought of "natural law" is
principles of moral conduct, it being understood that man is a social and
political being and that morally he has social and political duties. Natu-
ral law, the Schoolmen tell us, dictates to man what he must do to arrive
at the ultimate end of human life, that is, happiness; it is the rule and
measure of peculiarly human actions; its first principle and first precept
is that one ought to practice the good and avoid the bad. 2 The tradi-
tional teaching is echoed by the "law of nature and of nations" school.
According to Grotius, for instance, the law "obliges to what is good and
praiseworthy and not merely to what is just, since law, according to the
idea we attach to it here, is not confined to the duties of justice but
also embraces what makes up the subject matter of the other virtues." 3
Hence this definition: Natural law "consists in certain principles of
right reason, which causes us to know that an action is morally honest
or dishonest according to its necessary agreement or disagreement with
a rational and sociable nature." 4 The connection is clear: Natural law
figures among the first notions of moral philosophy or general ethics in
the chapter on laws, side by side with the theory of human acts; and the
treatises of natural law, where the applications of the rule of natural
law to the different matters are set forth and discussed, are nothing else
than treatises on special ethics.
2 Se e ST. THOMAS, SUMMA, la Ilae, q u . 90, a r t . 1 ad resp. a n d ad 1, a r t . 2
ad resp.; qu. 94, art. 2 ad resp.
' GROTIUS, op. cit. b k . I, c h a p . I, § I X , 1.
* GROTIUS, op. cit. bk. I, chap. I, § X. See generally on the law of nature school,
P H . M E Y L A N . op. cit. 52: . .
Unauthenticated
424 JEAN DABIN
20Q. Natural Law and Special Morals. I t matters little, moreover,

that the morality of acts requires an element of right intention, without
which there can be neither good nor virtue in the actor. Only the objec-
tive materiality of the precepts, outside of the dispositions of the soul, is
here considered. Materially, then, natural law and special morals dictate
the same rules, found the same institutions, or, according to the restric-
tive conception of the Schoolmen, natural law furnishes special morals
with its first principles. Indeed, no difference has ever been established
between interindividual natural law and interindividual morals, be-
tween the natural law of sexual union, generation, and education, and
family morals, between political natural law and political morals, save
that, in speaking in strict terms, natural law, expressing the requirements
of nature, represents the source from which the solutions of morals in
those various matters are derived.
Nor is there any distinction between two parts in morals: A morals
of rules of action, which would be morals properly so called, and a
morals of institutions, or "institutional morals," which would govern
the relations dominated by a peculiarly social idea and which would be
called " l a w . " N o t only would such an interpretation be novel, involving
a rejection of the expressions " f a m i l y morals," "political morals," and
even "social morals"; not only would even the formal dissociation of
law from morals run the risk of leading to their separation; but the dis-
tinction is also really factitious and, despite appearances, superficial.
Morals indeed governs everything human, including the human that is
social, directly and without any interpreter. And if, with regard to the
social and in view of the human, morals is called upon to establish insti-
tutional structures of an objective and to a certain degree formal nature 5
— such as the one and indissoluble marriage, marital authority, and
state power — these structures, which b y the way can be traced back to
rules of conduct, 6 have the same moral and natural character as the
dispositions that directly command, forbid, or advise. One can thus con-
clude in the clearest manner that natural law is nothing else than the
moral rule taken in its homogeneous totality, without exclusion of any
matters, but is limited to indicating their basic nature, in anticipation
of developments provided by the positive moral rule and b y the scientific
work of the moralists.
210. Relationships between the Natural Moral Rule and the Legal
Rule. T o be sure, natural law in the sense just defined, i.e., as the natu-
5 In this sense, and in this sense only, we have spoken above, no. 114, of an
"institutional part of morals."

β See supra, no. 46.
Unauthenticated
ral moral rule (at least as to first principles), is not unrelated to law, in
the sense of the rule established by the state. Under the name of "human
l a w " St. Thomas shows us the civil law coming to the aid of natural law
"in order by force and fear to compel perverted and ill-disposed men to
abstain from evil, at least so that in ceasing to do evil they leave others
in peace." 7 On the other hand, the civil laws are called upon to complete
natural law, either by way of conclusions derived from the first prin-
ciples (as in the case of the jus gentium) or b y w a y of concrete deter-
mination of the first principles (as in the case of the jus civile properly
so called). For instance, the law of nature prescribes that he who shall
commit an offense shall be punished and the civil law defines the kind
of penalty. 8 T h e same analysis is found in the authors of the law of
nature school: T h e role of the civil law is to sanction natural law, in
particular in so far as it prescribes what is just. Is it not the first end
of the state, and therefore of the law set down b y the state, to guarantee
"the peaceful enjoyment of one's rights"? 9 It is natural law, moreover,
which either on the ground of the necessity of political society (man is a
"political animal") or on the ground of the "social contract" (the faith
of promises) gives the civil laws their foundation and justifies the sub-
jects' duty of obedience. 1 0 Finally, everybody admits that civil laws
contrary to natural law are bad laws and even that they do not answer
to the concept of a law. 1 1
211. But These Relationships Entail No Confusion of the Disciplines.

B u t what conclusions are to be drawn from these necessary ties of de-
pendence and derivation of the civil law with natural law?
Let us note first of all that the phenomenon is not peculiar to the civil
law. All positive rules, institutions, and prescriptions whatsoever, human
and even divine, in some manner depend upon and derive from natural
law. N o doubt the civil law does so, both private and public, municipal
and international law; but so too, in the religious and ecclesiastic do-
main, do the canon law (as regards, say, the worship to be rendered unto
7 ST. THOMAS, SUMMA, Ia Ilae, qu. 95, art. 1 ad resp.

8 ST. THOMAS, op. cit. Ia Ilae, qu. 95, art. 2 ad resp.
' GROTIUS, op. cit. bk. I, chap. I, § X I V , 2. See also PUFFF.NDORF, op. cit. bk.
VII, chap. I X , § VIII, and especially bk. V I I I , chap. I, §§ I - V , passim; Vattel,
Dissertation on the question: La lot naturelle peut-elle porter la societe ä la per-
fection sans le secours des lois politiques? in 1 LE DROIT DES GENS PAR VATTEL (ed.
by Pradier-Fodere, Paris, 1863) 35 et seq.
" S e e , e.g., GROTIUS, op. cit. Discours priliminaire § X V I I : . . . ; see also
§ XVI.
" S e e , e.g., ST. THOMAS, op. cit. Ia Ilae, qu. 92, art. 1 ad 4; qu. 93, art. 3ad 2;
qu. 95, art. 2 ad resp., initio; qu. 96, art. 4 ad resp.·, IIa Ilae, qu. 60, art. 5 ad 1.
Unauthenticated
426 JEAN DABIN
God in application of the natural virtue of religion) and above all the
positive moral laws laid down by the competent authority — God and
the Church — the role of which is to render precise and complete the
"given" of the moral rule of nature.
Thus, the civil law cannot claim a monopoly in natural law as the
principle of its special discipline. On the contrary, natural law is neces-
sarily found at the base of every regulatory norm of human conduct,
such a norm being conceivable only along the line of nature. But whereas
the influence of natural law is direct in the case of morals, it is only
indirect in the case of the civil law. And this is logical. Morals alone is
placed immediately and exclusively upon the plane of human nature;
its solutions alone, as to its first principles, possess the universality,
immutability, and certainty which characterize the requirements of na-
ture ; the moral rule alone can be called natural in this sense. As for the
other disciplines regulative of conduct, they partake of nature only
through the intermediary of morals and only in their principles, not in
their positive solutions.
What does it matter, after all, that the civil law borrows a number of
its precepts from natural law? From this it follows neither that natural
law would cease to belong to the category of morals so as to become
the primary "given" or the nucleus of the civil law, — nor that the civil
law would have lost its proper nature so as to become the lining or the
"supplement" of natural law. Notwithstanding interpenetrations or
mutual aid, their essences will remain distinct as long as the differences
of their ends and functions subsist. Now, if the end and the function of
natural law, rendered explicit, developed, and fecundated by moral
science, are to define the good and the just in conformity with the
"given" of nature, the end and the function of the civil law are to con-
tribute to the public good, which no doubt in large part comprises the
defense and safeguard of the good and the just (reserving however
possibilities of environment and technique) but also many other meas-
ures besides, aiming at "things useful to human life," invested by human
reason and not given by nature. 12
2i2. Extension of the Concept of Natural Law: "Natural Jurispru-

dence." It is true that often the concept of natural law is stretched to
include precisely these "useful" things, foreign as such to the category
of good and just, which permits assigning a "given" of natural law to
12 Cf. S T . T H O M A S , op. cit., I a Ilae, qu. 94, art. 5 ad resp. and ad 3, who attaches
to positive law the solutions, added to natural law, ad humanam vitam ulilia
[useful to human life] . . . , ad bene vivendum, to the morally good life, qu. 94,
art. 3 ad resp., in fine . . .
Unauthenticated
the entire civil law, even in those of its dispositions which more or less
closely relate to "usefulness to human life." For instance, Grotius sug-
gests a "natural jurisprudence," common to all times and places, de-
tached from anything dependent upon an arbitrary will, a science cap-
able of forming a complete body where one could find treated laws,
tributes, judicial duty, conjectures (or presumptions of will), proofs,
presumptions, etc. 1 3
T h a t link does indeed bridge the hiatus. Natural law no longer repre-
s e n t s — or no longer solely or principally represents — the first prin-
ciples of morality, of the good, the just; it represents — or equally rep-
r e s e n t s — the first principles of civil legislation in the concern for all
values whatsoever with which the latter is charged, that is, not only the
moral values but also the properly economic or social values, even if
they be of a technical nature and in themselves morally indifferent.
According to that conception, it is natural law, in the sense of the natural
civil law, that will tell the jurist to what extent and in what manner he
ought to intervene with his rule, or at least will offer him the first prin-
ciples of his ordinance, in the same manner as natural law in the moral
sense offers to the moralist the first principles of his special morals. 1 4
In that way one arrives at placing under natural law not only the insti-
tution of private ownership, although "differences in wealth are not
imposed by nature," 1 5 but even much more contingent solutions, such
as the institution of prescription, the rules of evidence, and the like,
13 GROTIUS, op. cit. Discours preliminaire § X X X I I . As for the conception of

"immutable or natural laws," cf. DOMAT, TRAITE DES LOIS, chap. X I , and the com-
ment by R.-F. VOETZEL, JEAN DOMAT, 1625-1692 (Thesis, Nancy, 1936) 180 et seg.
According to Domat, the natural laws have been gathered in the Roman law,
which represents "written reason," at least in general, TRAITE DES LOIS, chap. X I ,
19. Other authors will speak of "natural legal reason," the "natural juridical"; see,
e.g., G. del Vecchio, Essai sur les principes gineraux du droit §§ 9 and 11, in
JUSTICE, DROIT, ETAT 1 5 7 a n d 170.
" T h e great work of Puffendorf is entitled: LE DROIT DE LA NATURE ET DES GENS
OU S Y S T E M E GENERAL DES PRINCIPES LES P L U S IMPORTANTS DE LA MORALE, DE LA
JURISPRUDENCE ET DE LA POLITIQUE [THE LAW or NATURE AND OF N A T I O N S , OR
G E N E R A L S Y S T E M OF T H E M O S T I M P O R T A N T P R I N C I P L E S OF M O R A L S , JURISPRUDENCE,
AND P O L I T I C S ] . According to D O M A T , T R A I T E DES LOIS c h a p . XI, 34, the natural
laws are found both among the "laws of police" (i.e., the law of the state) and
among the "laws of religion" (comprising, according to him, rules relating to faith
and morals, worship and church discipline, in short, the moral laws and the canon
laws). The same vacillation appears in Portalis, Discours priliminaire au projet de
Code civil, in 1 LOCRE, op. cit. (Bruxelles ed., 1836) 156, col. 1 ; 159, col. 1 ; 160,
col. i .
16 As to private ownership, see ST. THOMAS, SUMMA, la Ilae, qu. 94, art. $ ad 3;
GROTIUS, op. cit. bk. I, chap. I, § X , 4; PUFFENDORF, op. cit. bk. II, chap. ILL,
§§ X X I I and XXIV.
Unauthenticated
428 JEAN DABIN
designed to bring about, sometimes with certain sacrifices of justice, 16
the security of social relations, which is incontestably "useful to human
life." 1 7
213. But This Extension Contradicts the Original Concept of Natural

Law. But this broader interpretation rests upon a double contradiction.
What did natural law mean originally? A rule inscribed in human na-
ture, aiming at the absolute good and just, at honesty. What does the
"new style" natural law mean? A quite different concept: A rule in-
vented by man, aiming at things useful to human life in a given social
state. No doubt the nature of man is rational and therefore inventive of
useful things; it is sociable and therefore concerned about things useful
not only to the individual man but also to the society of men. Y e t origi-
nally it was intended precisely to place in opposition to each other inven-
tive reason and nature, and an express distinction was made between
the good and the just, on the one hand, and the useful, on the other. The
social was not excluded; on the contrary — but in the social the search
continued to be for the absolute good and just and not the contingent
useful. That the useful itself, once established, opens up the rule of the
good and the just, binding as to the consequences of such establish-
ment, 18 changes nothing in the situation. Thus, prescription and the
other rules of security in society remain what they are, to wit, useful
and invented solutions, although natural law enjoins us to submit to
them — as to every decision made by authority and for the public good.
That the useful involves nothing contrary to natural l a w 1 9 is obvious
but does not justify any confusion. To natural law belongs what is pro-
vided by it by precept or by faculty or permission, and not what at the
outset escapes its concept, such as the category of the useful.
Will it be said that in the social domain at the very least the useful
rejoins the just and the good, and hence natural law? Social and political
morals indeed command the rulers to make provision for everything,
and the subjects to act always according to the public good, even prior
to any intervention of positive law. 20 Now the public good, which itself
" S e e supra, nos. 115, 149-153.
" A s to prescription, see GROTIUS, op. cit. bk. II, chap. IV, § I X ; PUFFENDORF,
op. cit. bk. II, chap. III, § X X I I , and bk. IV, chap. X I I , §§ I, V I I - I X ; also
DOMAT, TRAITE DES LOIS, chap. X I , 8. It is a question, incidentally, whether all
peoples have applied acquisitive prescription.
18 C f . GROTIUS, op. cit. bk. I, chap. I, § X , 4: . . . Cf. ST. THOMAS, SUMMA,
la Ilae, qu. 94, art. 5 ad 3.
" C f . GROTIUS, op. cit. bk. I, chap. I, § X , 3: . . . In the same sense, ST.
THOMAS, op. cit. Ia Ilae, qu. 94, art. 5 ad 3. For a criticism of this viewpoint, cf.
PUFFENDORF, op. cit. bk. II, chap. III, § X X I I .
20 We shall come back to this point in speaking of legal justice; see ittjra, no. 23G.
Unauthenticated
is a means or intermediary good finally ordered for the good of the in-
dividuals, covers all that is useful to the community. From this it follows
that a morally indifferent attitude may acquire obligatory value, in the
name of social justice, upon the basis of utility alone: T h e socially use-
ful good merges with the just, moral, honest good. But this argument
neglects a capital point: T h a t the useful in the special case is prescribed
not simply as useful but first as just, moral, honest. It is just, moral,
honest, and therefore a matter of natural law, that the rulers fulfill the
duty of their station, which is to dispose of everything with a view to
the public good, that is to say, of general utility. I t is just, moral, honest,
and therefore a matter of natural law, that the subjects, members of the
social whole, collaborate in that general utility. T h e useful becomes the
just only because previously the natural, human just did command devo-
tion by everybody, rulers and subjects, to the community. 2 1 Also, natu-
ral law uses restraint here: It leaves to the inventive reason of the rulers
and subjects the task of discovering the socially useful solutions and atti-
tudes. Thus, the distinction between natural law and useful invention
does not yield in any way.
Those premises, then, are overthrown when, under color of "deriva-
tion" from natural law or simply of " c o n f o r m i t y" to natural law, the
rules of positive law consecrating solutions of social utility are annexed
to natural law as issuing definitively from the rational and social nature
of man.
214. The Extension Contradicts the Concept of the Legal Rule. N o t

only the concept of natural law, in the sense of a rule proceeding from
nature, is found altered and overthrown in the system under criticism.
It has been shown previously in what way the conception of a natural
law of a juridical kind, dictating to the civil legislator the content of his
precepts at least in a general way, violated the very concept of the civil
law. 2 2 It is contradictory to speak of "natural jurisprudence" because
"jurisprudence," down to its most general rules and their aims — not
only the useful but also the good and the just — is a matter of prudence,
and prudence is a matter of rational appraisal according to the cases
and not a matter of inclination of nature. Even if it is assumed, for
example, that natural law prescribes to the civil law the punishment of
every offense, 23 at least of every offense against the social life which is
21 In the same w a y , incidentally, as beneficence continues to belong to the
category of morals although the benefactor endeavors to be useful to another (the
useful g o o d ) or to give him pleasure (the delectable g o o d ) .
22 See supra, nos. 1 1 4 et seq.
23 C f . ST. THOMAS, SUMMA, Ία Hat, qu. 95, art. 2 ad. resp., in fine, . . . ;
GROTIUS, op. cit. Discours preliminaire, § VII, . . .
Unauthenticated
430 JEAN DABIN
the first concern of the civil law, it remains for the prudential j u d g -
ment to decide not only upon the mode of repression b u t also upon its
social utility in the particular case. If it is said in reply that in deciding
to refrain from repression in the particular case the civil law confines
itself to restricting natural law without makin g a change in it, 2 4 it is to
be observed that precisely there lies the proper role of the jurist estab-
lishing the civil l a w : T o discern w h a t of natural law it is appropriate
to retain and w h a t to omit, according to the requirements of the public
good. 2 5 T h u s , natural law does not dictate a n y decision to the jurist
except negatively, to bring out no precept contrary to moral natural
law, and affirmatively, to regulate everythin g as a function of the pos-
sible and realizable public good, the first principle of political natural
law.2®
2iζ. Moral and Political But No Juridical Natural Law. T o sum up.
First, there exists a moral natural law whic h is fundamenta l to the moral
conduct of individuals as well as to the positive moral rule, and in every
domain including the social domain (social morals) and without distinc-
tion between outward and inner acts. T h i s rule of itself obliges only in
the internal forum and not before the state, its police and its courts.
Second, there also exists a political natural l a w which, based upon the
political instinct of man, establishes political society and all that is
essential to it, especially the public authority and the civil law, the latter
being considered not in its concrete dispositions b u t in its principle and
its method of elaboration. T h i s political natural law is undoubtedly de-
pendent upon moral natural law because morals governs everything
human. B u t it is in turn the starting point of a new system of properly
social (indeed, societal) institutions and rules, inspired b y the idea of
the public good (at once moral, utilitarian and technical) and govern-
ing only the outward acts of man as a member of the group. T h i r d , there
exists no juridical natural l a w in the sense of solutions or even mere
directives given in advance to the authority charged wit h the establish-
ment of the civil law according to the public good. N o doubt there are
principles commonly accepted in the laws of the countries of the same
level of civilization: Jus gentium or "general principles of l a w . " B u t one
could not without a m b i g u i ty and danger credit natural l a w wit h prin-
ciples which, on the one hand, are v e r y heterogeneous, since one finds
there commingled rules of morals, of common sense, and of social utility
— and which, on the other hand, lack the characteristics of necessity
24
Cf. ST. T H O M A S , op. cit. Ία Ilae, qu. 94, art. 5 ad resp.
25
See supra, nos. 131 et seq. and citations.
"Cf. Vico, D E TJNO UNTVERSI JURIS PRINCIPIO ET FINE UNO, c. LXXXIII: . . .
Unauthenticated
and universality inherent in the idea of nature. T h e practice of civilized
countries, even supported by wisdom and experience, is not synonymous
with natural inclination. 27
216. The Dualism of "Natural Law — Positive Law" Replaced by

"Morals — Law." If these views are correct, they yield an important re-
sult concerning the statement of the problem here under discussion. One
must no longer speak of relationships between natural law and positive
law (at least when by positive law one understands, as is customary, the
law of the jurists, the civil law, and not the positive moral law or rule).
One must speak of relationships between morals, not only natural but
also positive, and the civil law, that is to say, the law. T h i s statement
does correspond to reality. On the one hand, what makes its appearance
throughout natural law is indeed morals. 28 On the other hand, the law
has relationships with kinds of values other than the ethical values. 2 9
B y comparison, the traditional statement errs both by lack of precision
and by confusion. I t does not bring out with precision that natural law
above all signifies morals. A t the same time, that statement leads us to
believe that natural law covers all values whatever of interest to the
jurist.
CHAPTER II
T H E C O N C E P T OF JUSTICE
SECTION I. T H E EXISTING CONCEPTIONS; ESPECIALLY, ON THE

CONCEPTION OF ARISTOTLE AND ST. THOMAS AQUINAS
2iJ. The Modern Conception oj Justice as a Specifically Social and

Juridical Value. For one trying to analyze the relationships between
natural law and justice, on the one hand, and the law in the sense
of the civil law, on the other, the concept of justice, too, calls for
clarification.
" S e e , contra, on the "general principles of law," which he understands in the

sense of "data of natural law or of naturalis ratio" (at p. 156), G. del Vecchio,
Essai sur les principes geniraux du droit, in JUSTICE, DROIT, ETAT 114 et seq., esp.
ISS et seq.
28 See, contra, F. Geny, La latcite du droit naturel, in ARCHIVES DE PHILOSOPHIE
DU DROIT (1933) nos. 3-4, p. 8, n. 1. . .
28 Cf., in this sense, F. R u s s o , op. cit. 44-45.
Unauthenticated
432 JEAN DABIN
Perhaps, despite certain appearances, the difficulty of a clear view

is even more considerable for the concept of justice than for that of
natural law. T h e latter has at least a sufficiently determined technical
character and is enclosed within certain traditional limits. If it occasions
misunderstandings, it is not impossible to find again the currents of doc-
trine from which the divergent interpretations proceed. A s regards jus-
tice, on the contrary, whose name is invoked b y all — b y the m a n of the
world, ignorant or cultured, private or public, as well as b y the special-
ists of the various moral sciences, philosophers, moralists, jurists, his-
torians — how is one to discover the guiding thread which will show the
p a t h of the acceptable interpretation?
R e a d i n g some legal philosophers, it would seem as if the concept of
justice was indissolubly tied to the notions of society and of laws. Con-
sulting only their particular discipline, those authors look at justice
only across society and across the laws. Justice to them is the substance,
the aim, the ideal of the law, law being understood as positive legal
organization. Such is, for instance, the point of view of G e n y :
The legal rules aim necessarily, and I believe exclusively, at realizing jus-
tice, which we conceive at the very least under the form of an idea, the idea
of the just . . . At bottom, the law finds its proper and specific content only
in the notion of the just. This primary, irreducible and indefinable notion
seems essentially to imply not only the elementary precepts of doing wrong
to no one (neminem laedere) and rendering to everyone his own (suum cuique
tribuere), but also the deeper thought of an equilibrium to be established be-
tween conflicting interests with a view to assuring the order essential to the
maintenance and progress of human society. Now this notion is easily dis-
tinguished from the notions of the beautiful and the true, which answer to
quite different concepts, and even from that of duty and the good, which
suggest the rules either of religion or of morals. 1
T o D e Tourtoulon, justice forms the substance of the l a w ; but this

heterogeneous substance is composed of three elements: A n individual
element, the suum cuique tribuere (individual j u s t i c e ) ; a social element,
the changing foundation of prejudgment s upon whic h civilization re-
poses at any given moment (social j u s t i c e ) ; and a political element,
which is based upon the reason of the strongest, represented in the par-
ticular case b y the state (justice of state) ?
I n turn, G u r v i t ch in a certain fashion opposes justice to the moral
ideal.
Unlike the moral ideal, which always goes beyond the value of realization,
1 F . G E N Y , SCIENCE ET TECHNIQUE, n o . 16, p p . 49-50.

2 P . DE TOURTOULON, LES TROIS JUSTICES (Paris, 1 9 3 4 ) .
Unauthenticated
justice is called upon to realize itself by the institution of an effective equi-
librium between the claims of some and the duties of others. Justice, as a
transition between the pure qualities and a certain degree of quantity, as a
substitution of general rules and common types for the absolute individuality
of the moral ideal, as a schematic stabilization of its creative movement, in
short, as a logicalization of the moral ideal, precisely establishes security and
"the social order" as indispensable means of guaranteeing the realization of
that ideal. Thus, peace, security, established order, are immanent in justice,
which requires the positiveness of all law.3
218. According to Tradition, Justice Is Primarily a Moral Virtue. B u t

that lesson of a justice conceived as a specifically social and juridical
value, which, without excluding morals (or even the moral ideal), tem-
pers it b y an admixture of factors foreign to morals (social prejudg-
ments, positiveness and efficiency, reason of state), is not the primary
lesson of justice. W e are here witnessing the same slipping from the
moral to the legal plane as in the matter of natural law (moral natural
law degenerating into juridical natural law), 4 with the aggravating cir-
cumstance that juridical justice becomes synonymous no longer even
with the essential legal solution of an equilibrium between the interests
( G e n y ) , but simply with the formal elements which preside over the
elaboration of the rules, in short, with the legal method ( D e Tourtoulon,
Gurvitch). W e do not say that that method is badly developed and, in
particular, that juridical justice does not require peace, security, estab-
lished order, positiveness, efficiency; witness our preceding exposition. 5
W e only observe that before there were organized societies and laws to
govern them there was some justice, and today there still exists some
justice which is not necessarily that of the laws. In the practice of
peoples as in the history of doctrines, justice is first a moral virtue, bring-
ing into play the moral perfectioning of the subject without necessarily
implying life in political society. T h e latter may well add specifications
or even new orientations, of a properly social character, to the duty of
moral justice; 6 it does not bring justice into being, either as its efficient
cause or as a condition of its existence. In short, justice is contemporary
not with the idea of political society and the civil law but with the idea
of the good, of which it constitutes one of the essential categories, one
3 G. G u r v i t c h , Droit naturel ou droit positif intuitif? in ARCHIVES DE PHILOS-

OPHIE DU DROIT ET DE SOCIOLOGIE JURIDIQUE (1933) nOS. 3-4, p. 70. Also G.
GURVITCH, L'IDEE DU DROIT SOCIAL ( P a r i s , 1 9 3 2 ) 93 et seq.; L'EXPERIENCE JURIDIQUE
ET LA P H I L O S O P H I E P L U R A L I S T E DU DROIT p . 226.
' T h i s point will be made more precise in dealing w i t h legal or social justice;
see infra, nos. 235 et seq.
Unauthenticated
434 JEAN DABIN
among the highest: No man can claim to be good and honest unless he
respects justice "with firm and enduring will." 7
2IQ. Justice in the Broad Sense of the Good and the Just. What, then,
is the place of justice within the frame of morals, and what is its proper
object?
Here one finds several accepted meanings. In the widest sense, justice
merges with morality itself: It corresponds to the fulfillment of all duties
prescribed by honesty, without distinction of domain or virtue, in the
private life of the individual or family and in social life, public or politi-
cal. In this sense, the honest man, the good man, the saint, are "just."
This meaning appears not only in the Scriptures, where the just man is
the one obedient and faithful to the law, the whole law (natural and
positive, moral and legal) ,8 but also in some philosophers, pagan or Chris-
tian, ancient or modern,9 and even in the Digest [of Justinian] under
the introductory title, De justitia et jure. Having noted that the name
jus derives from justitia, Ulpian indeed defines jus, after Celsus, as ars
boni et aequi3· (Dig. ι, i, x, princ.). Similarly, Paulus: Jus pluribus
modis dicitur: Uno modo cum id quod semper aequum et bonum est jus
dicitur, ut in jus naturale, altero modo quod omnibus aut pluribus in
quaque civitate utile est, ut est jus civileb (Dig. ι , ι, ι, i ) . Thus, jus
embraces not only the aequum but also the bonum, that is, the moral
good; 1 0 at any rate, the aequum is inseparable from the bonum. Further
on, the same Ulpian, after having defined justice by the jus suum cuique
tribuere,0 enumerates the following praecepta juris: honeste vivere,
alterum non laedere, suum cuique tribuered (Dig. ι , ι , ίο, i ) . Thus the
first precept of the law is honesty, that is, observance of the moral law.
And even if it is noted that "frequently a definition is characterized first
by the statement of the wider field to which the object to be defined
7 Cf. ST. THOMAS, SUMMA, IIa Ilae, qu. 58, art. 3 ad resp., art. 10 ad 1.
8 The "just men" of the Old Testament, St. Joseph the "Just," "justification"
of the sinner, etc.
" O n this subject, see G. DEL VECCHIO, JUSTICE, DROIT, ETAT, Part I : La justice
(Paris, 1938) §§ 2-4, pp. 5-19, with citations.
* [The art of the good and equitable.]
11 [We speak of law in several ways: in one w a y when we call law that which is
always equitable and good, as in natural l a w ; in another way, that which is useful
to all or to most people in any commonwealth, as in civil law.]
10 F. SENN, DE LA JUSTICE ET DU DROIT 29, translates bonum into common
good, which is taken for the end of justice. But this interpretation rests on no
argument. Bonum, without further specification, signifies above all the moral good.
0 [To render to each his own right.]
d [Precepts of law: to live honestly, not to injure another, to render to each
his own.]
Unauthenticated
belongs so as to arrive at the statement of the field proper to that
object," 1 1 it still remains that justice is an integral and specially noble
part of the honestum.12
N o t that the Roman lawyers ignored the distinction between law and
morals; as Paulus remarks, grappling with a practical case for which
he seeks a solution: Ν on omne quod licet honestum este {Dig. 50, 17,
144, princ.): There are things the law permits or tolerates which do not
conform to honesty. 1 3 But the problems of law, justice, and legal enact-
ment were discussed in the first place by the philosophers, who envisaged
them from the viewpoint of the good of the soul (morality) and also
from that of the good of the city or state (politics), for in classical
antiquity particularly one did not conceive of an honest man who would
not at the same time and first of all be a good citizen. 1 4 T h e lawyers in
their legal philosophical definitions were content to reproduce the
teachings of the masters of philosophy without seeking to correct or
amend them from the point of view of their own discipline.
220. Justice in the Strict Sense of the Virtue Attributing to Everyone

His Right. There is, however, a narrower meaning of justice, yet still a
moral one, which limits that virtue to the domain of relations with an-
other. According to a classification inherited from the Stoics, the hones-
tum is composed of four principal parts: Justice, prudence, moderation,
and fortitude. Unlike the latter three, which are defined b y being re-
lated to the very person whose passions they tend to regulate and
measure, justice has its proper function in ordering the conduct of man
in matters relative to another. Justice essentially supposes that there be
another (alietas); only metaphorically can one speak of injustice toward
oneself. 1 5 Hence the two classical definitions — that reported by Ulpian:
Justitia est constans et perpetua voluntas jus suum cuique tribuendif
(Dig. ι , i , 10, princ.), and that given b y Cicero: Justitia est habitus
animi, communi ultilitate conservata, suam cuique tribuens dignitatem g
11 F. SENN, op. cit. 40-41 and n. 1. But in the particular case it is a matter not
so much of a definition by proximate generic kind and specific difference as of an

enumeration of the precepts included in justice.
12 F . SENN, op. cit. 41-42.
' [Not all that is permitted is honest.]
" A l s o PAULUS, DIG. 50, 1 7 , 1 9 7 : . . .
14 C f . P . L A C H I E Z E - R E Y , op. cit. 3 0 et seq.
"See F . SENN, op. cit. 3 9 - 4 3 , a n d η . 1 a t p . 43. A l s o ST. THOMAS, op. cit.
IIa Ilae, qu. 57, art. 1 ; qu. 58, arts. 1, 2, and 1 1 ; qu. 106, art. 3 ad 1.
' [Justice is the constant and perpetual will to render to each his own right.]
' [Justice is the habit of the mind which, reserving common utility, allots to
each his own worth.]
Unauthenticated
436 JEAN DABIN
(De inventione 2, 53, 160). Justice attributes to everyone his right, his
dignity. 1 6 But at once two questions arise. W h o is to be understood by
that other one or everyone (cuique)? W h a t is that right (or that dig-
nity) (jus, dignitatem) which is his (suum) and on that ground is due
to everyone? Later, the meaning of the reservation communi utilitate
conservata will be studied. 1 7
221. The Wide Interpretation of the Debt of Justice (the Stoics,

Cicero). Following a first interpretation, which represents, as Senn puts
it, "the great traditional lesson of justice," 1 8 from the Stoics to the
Fathers of the Church, passing through Cicero and the lawyers, justice
would embrace all that is due to another, without distinction between
equal situations and unequal situations, and even where it would be
impossible for the debtor to render the equivalent of what he owes —
and without any distinction between the so-called " l e g a l " debt, that is,
the debt capable of being exacted, and the merely " m o r a l " debt, which
is not susceptible of exaction. In this sense, one will put under justice
not only the duty of not injuring and that of respecting the cuique suum
between equal and independent persons, but also a series of other virtues
implying a debt toward other beings, even if placed upon different
planes: Religion, b y which man renders unto God the homage and
worship he owes H i m ; piety, by which we venerate and serve all those
united to us b y blood as well as our country; gratitude, by which bene-
fits are recognized and repaid; vindication, by which any violence or
injustice coming from another is rebuffed; respect (observantia), which
is incumbent with regard to men superior in merit or dignity; and lastly
truthfulness, which says what is and which keeps promises. 19 All these
virtues, above the diversity of the respective conditions and circum-
stances where they intervene, in effect realize the aequum, that equality
or proportional adjustment to the claim of another which is the essen-
tial characteristic feature of justice. If the parties are unequal in dignity,
16 Synonymous terms, according to F. SENN, op. cit. 19-20. See, however, 1
G. RENARD, LA THEORIE DE L'INSTITUTION 25-29, especially η. 1 at p. 28, according

to whom Ulpian referred to individual justice and Cicero to institutional justice.
Other substantially similar definitions by Cicero may be found in G. DEL VECCHIO,
JUSTICE, DROIT, ETAT 37, η . 3.
" See infra, no. 238.
18 F. SENN, op. cit. 5-7, 47. Also, by the same author, Des origines et du contenu
de la notion de bonnes moeurs (in Rome), in 1 RECUEIL D'ETUDES SUR LES SOURCES
DU DROIT EN I/HONNEUR DE FRANQOIS G E N Y S3 et seq., esp. 57, 60-63.
" T h i s is Cicero's list in DE INVENTIONE, 2, 53, 161 and 2, 22, 65, certain ele-
ments of which are taken up in DIG. 1 , 1 , 2 (Pomponius: religion and pietas) and
ι , I, 3 (Florentin: vindicatio). Texts and comments may be found in F. SENN,
op. cit. 21-32.
Unauthenticated
as in religion, piety, respect, the debt will be adequate to that inequality
of the persons; if the debt cannot by its nature be exacted, if need be
by compulsion, as in gratitude, vindication, truthfulness, it remains
nonetheless a veritable debt, required by the formal principle of equal-
ity of proportion.
222. Distinction between the Principal Virtue (Justice in the Narrow

Sense) and the Annexed Virtues {Aristotle, St. Thomas Aquinas).
Following another interpretation, developed by Aristotle and resumed
by St. Thomas Aquinas, it would be appropriate to introduce certain
classifications in the category of justice in the general sense of a virtue
rendering to everyone his due, 20 which would bring out essential particu-
lars omitted in the somewhat amorphous systematization of the preced-
ing interpretation.
In justice, as in the other virtues, St. Thomas distinguishes "integral
parts," which are the "true and principal" justice, 2 1 and "potential
parts" or annexed virtues, which in essentials answer to the concept of
justice but get away from it on one point or another 2 2 T h e "potential
parts" or annexed virtues of justice are divided into two groups: On the
one hand, religion toward God, piety toward parents and country, re-
spect for superiors; on the other, truthfulness, gratitude, vindication,
liberality, and affability or friendship. 2 3
Upon what points do the annexed virtues of justice fall short of the
principal virtue? T h e y approximate and even realize it inasmuch as they
aim at rendering to another his due following the principle of a certain
equality. But that realization is imperfect, sometimes on the score of
equality, as for the annexed virtues of the first group, and sometimes on
the score of the debt, as for the annexed virtues of the second group. 24
22j. Annexed Virtues Which Fall Short of Justice on the Score of

Equality. On the score of equality: How are we to render to God, to our
2 0 S t . T h o m a s gives several definitions of justice; b u t among them he admits
and declares good t h a t of the DIGEST, see SUMMA, IIa Ilae, qu. 58, art. 1.
21 ST. THOMAS, op. cit. Ha Ilae, qu. 80, single art. ad resp. and ad 4.
22 W e do n o t speak of equity in the sense of iirteliceta, defined b y Aristotle as
" t h e correction of a l a w b y reason of its generality," because this equity intervenes

in moderating all positive l a w s w h a t s o e v e r, not onl y l a w s understood w i t h a v i e w
to the c o m m o n good and creating a d u t y of legal justice, b u t also all others, in-
cluding the law s of positive morals. C f . St. T h o m a s , op. cit. qu. 120.
See ST. THOMAS, op. cit. IIa Ilae, qu. 80, single a r t . ; qu. 81, prol. It will be
noted that St. T h o m a s reproduces the enumeration and definitions of Cicero
textually, save for the last t w o virtues w h i c h , b y the w a y , he adds to the list w i t h
a certain hesitation; see the citations b e l o w , no. 225 and n. 39.
24 See ST. THOMAS, SUMMA, IIa Ilae, qu. 80, single art.
Unauthenticated
43» JEAN DABIN
parents, to our country, the equivalent of what is their due? No doubt it
is a duty of justice for the creature to render to his Creator the homage
of his entire submission and his worship. God has rights over man since
He is his author and, being God, could have created him only for His
glory. The gratuitous love He bears for His creature, the plan He has
conceived to associate him with His innermost life, change nothing in
that fundamental position of dependence. In this sense, the duty of reli-
gion is a duty of justice toward God. 25 But, precisely on account of that
dependence, how could man return to God what would be equal to
what comes to him from God? The more so since what he would thus
return to Him would not have ceased to belong to God, beginning with
the very principle of his activity which God continues generously to
dispense to him every day by sustaining him in being. It is true that man
has been created free, free even not to render homage to God. But, on
the one hand, that freedom rests, in an indirect and indeed mysterious
manner, within the free grant of the Sovereign Lord of all things; on the
other hand, the total homage of that freedom to which man is in justice
obliged does not constitute an equivalence. "And that is why the divine
law is not properly jus but jas;h for God it suffices that we should fulfill
with regard to Him what we are able to." 26
The same argument in a lesser degree applies to piety toward one's
parents and one's country. From our parents, from our nation we have
our being and our whole physical, intellectual, moral formation. 27 How
can we make our acts of reverence and assistance equal to the great-
ness of the benefits received? T o this imperfection in equality is added,
in the case of parents, an imperfection in the matter of being "another":
Between parents and children, because of the fact of generation and edu-
cation, the distinctness of persons is not absolute. The son has "some-
thing of his father," he is "somehow a part" of him physically, intel-
lectually, morally. Now in so far as this solidarity exists and in the
matters in which it ought to be taken into account, 28 there is a short-
On the virtue of religion, see ST. THOMAS, op. cit. IIa Ilae, qu. 82 et seg. . . .
23
h[The Roman term fas designates a divinely pronounced law as distinguished

from jus, the ordinary term for law and right.]
M ST. THOMAS, op. cit. IIa Ilae, qu. 57, art. 1 ad 3; qu. 80, single art. Cf. F.
S E N N , op. cit. p . 26, n . 2.
27See generally on parents and country as the principles of the individual's
existence, ST. THOMAS, op. cit. IIa Ilae, qu. 101, arts. 1, 2, 3, passim. Especially
on one's country, see IIa Ilae, qu. 101, art. 3 ad 3: . . . In the same sense, also,
G . DEL V E C C H I O , J U S T I C E , D R O I T , E T A T 63-64.
28As human individuals, father and son obviously remain distinct and, on this
plane, their relations belong to justice properly so called; see ST. THOMAS, op. cit.
IIa Ilae, qu. 57, art. 4 ad 2.
Unauthenticated
coming in the perfection of justice, for there is perfect justice only be-
tween men independent of each other by nature (if not b y function). 2 9
Lastly, the respect due to persons of dignity (and, b y extension, to
every greatness: Of virtue, of spirit, of age) is likewise not capable of
being lifted to the level of their quality, b y reason of the quasi-paternal
role of all authority. 3 0
224. Annexed Virtues Which Fall Short on the Score of the Debt
(Moral, Not Legal, Debt). T h e shortcoming in respect of perfect justice
may in the second place be found in the character of the debt. Some-
thing is due and the equivalence can indeed be realized; but the claim
of the creditor is consecrated merely b y morals (debitum morale) and
not by the rule of positive law (statute or custom) {debitum legale), so
that the creditor is left without the right to obtain execution. Again,
this lack of the possibility of exaction seems to follow less from the lack
of consecration b y the law than from the very nature of things which
intends debts of this kind to remain merely moral debts. T h e y are none-
theless due in the most rigorous manner: T h e man who does not recog-
nize them is no longer an honest man. B u t how can he who has received
a benefit be forced to the duty of gratitude? N o t only does that duty
lack a precise content, but also the intervention of compulsion would
deprive it of all moral value and of its very meaning as a gracious act.
B y definition, the debt of gratitude is among those which can only be
discharged freely. 3 1 T h e same goes for the act of (private) vindication
which, riposting to an unjust evil, must proceed from an act of free
determination if it is to remain a virtue. 3 2 T h e reasoning is identical as
to truthfulness, as a debt to another, and faithfulness to promises, a spe-
cial form of truthfulness: As such, neither the manifestation of truth to
one who has the right to know it, nor the fulfillment of what has been
promised engenders any debt that m a y be exacted b y another. Disloy-
alty is not injustice, and the disloyal person, the liar or breaker of prom-
ises, is merely called dishonest. 33
Finally, in the last rank of debts connected with honesty is placed a
group of virtues belonging to civility rather than decency, contributing
" S e e ST. THOMAS, op. cit. IIa Ilae, qu. 57, art. 4 in its entirety; qu. 58, art. 7
ad 3: between parents and children, husband and wife, master and slave, there is
only an "economic" (i.e., familial) justice.
""See ST. THOMAS, op. cit. IIa Ilae, qu. 102, art. 1.
81 See ST. THOMAS, op. cit. IIa Ilae, qu. 106, art. 1 ad 2; art. 4 ad 1 ; art. S
ad resp.; art. 6 ad resp. and ad 3.
" See ST. THOMAS, op. cit. IIa Ilae, qu. 108, art. 2 ad resp. and ad 1.
" S e e ST. THOMAS, op. cit. IIa Ilae, qu. 109, art. 3 ad resp. Also, touching upon
the properly social viewpoint, infra, no. 257 and n. 11.
Unauthenticated
440 JEAN DABIN
to a certain rounding out of honesty without, however, being indispen-
sable to it. Such are liberality, affability or friendship, and virtues of the
same nature, which Cicero passes over in silence on the ground that
"they have little of the reason of debt." 34 At this extreme, though, the
analogy turns almost into an antithesis. Thus, affability, a debt of pure
honesty, has its principle far more on the side of the person bound to
treat another suitably than on that of the opposite party who might
have some right thereto. 35 Thus, again, liberality, far from giving an-
other what belongs to him, as justice does, gives him of one's own 36
and does so in consideration of the good of one's own virtue rather than
of the good of another. 37 The difference is so much stronger than the
resemblance that St. Thomas hesitates at the end: Et ideo liberalitas a
quibusdam ponitur pars justitiae, sicut virtus ei annexa ut principali.1 38
22ζ. Justice in the Strict Sense Must Be Defined by "Aequalitas"

Rather than by the "Aequum." Whatever may be the objections in de-
tail which these analyses may raise, the Aristotelian-Thomistic effort to
pull the concept of justice together within narrower bounds deserves
approval because it is inspired by a distinction that is not at all facti-
tious but is founded upon reality. 39 Without overlooking the bond that
unites the annexed virtues with justice, without depreciating their moral
value, superior to that of justice as far as scruple or "inwardness" are
involved, or their peculiarly social value, by reason of the sociability
they promote, 40 the virtue that renders to everyone his right or his dig-
nity deserves to be defined, in the strict sense, not merely by the loose
idea of equity {aequum et bonum) but by the mathematical idea of
equality (aequalitas). In this sense, justice equalizes the attitude of the
subject to what is the rigorous right of another individual or collectivity,
a right covering and protecting an innate or acquired good, which for its
holder is in a certain manner his own, whence it follows that he may
exact respect for it if need be by force. If this "his own" is lacking, there
is no right that can be exacted, no equality to be realized, and therefore
" ST. THOMAS, op. cit. IIa Ilae, qu. 8o, single art.; qu. 117, art. 5 ad 1, in fine.
86 See ST. THOMAS, op. cit. IIa Ilae, qu. 114, art. 2 ad resp.
M S T . THOMAS, op. cit. IIa Ilae, qu. 117, art. 5 ad resp.
" S T . THOMAS, op. cit. IIa Ilae, qu. 58, art. 12 ad 1.

' [And therefore liberality is by some taken for a part of justice, as it were, a
virtue annexed to it as to the principal one.]
88 ST. THOMAS, op. cit. IIa Ilae, qu. 117, art. 5 ad resp., in fine.
89 T h i s is w h y 1 L. DUGTJIT, T R A I T E DE DROIT C O N S T I T U T I O N A L (3d ed. Paris,

1927) § 11, pp. 120-122, expressly takes up the Thomistic definitions of commuta-
tive justice and distributive justice; see supra, no. 107. Also J. BONNECASE, LA
NOTION DU DROIT EN F R A N C E AU X I X E SIECLE ( P a r i s , 1 9 1 9 ) 104-105.
" S e e on this point R. Bernard, Appendix II, in ST. THOMAS D'AQUIN, SOMME
THEOLOGIQUE. L E S VERTUS SOCIALES ( t r a n s l . b y J . - D . F o l g h e r a ) 434.
Unauthenticated
no justice. If there exists "his own," but without any possibility of
equalization on account of the basic inability of the debtor, the debt
will no longer be one of justice, since it remains outside of the equality
postulated by justice. This is not to say that it could not give rise to legal
effects, e.g., in the form of the "natural obligation," or even directly to
a civil obligation. T h a t is another question, which concerns the determi-
nation of the content of the civil law and not the definition of justice. 4 1
226. In the Case of Justice, the "Just Mean" Constitutive of All

Virtue Is Real or Objective. From this it will be seen what is mistaken
in the conception of some modern authors, 42 according to whom justice
would be an equilibrium tending to harmonize antagonistic interests.
Justice is not just any equilibrium. T h a t equilibrium has its principle
and its rule, which is equality: I t matters that each of the interests pres-
ent be given exactly what is coming to it, neither more nor less. In this
consists the famous "just m e a n " peculiar to the virtue of justice. This
just or golden mean is objective (medium ret secudum se)taken from
the side of the other person and his objective right, while the just or
golden mean of the other virtues lies in each subject himself and is deter-
mined in purely rational fashion (medium secundum rationem quoad
nos) . k 4 3 Moderation and fortitude rectify, measure, and proportion the
passions of man, which are internal, according to the indications of
(moral) prudence in the particular case, which may yield solutions vary-
ing with the ways of life, vocations, and dispositions of people. Justice,
on the contrary, rectifies, measures, and proportions the "outward oper-
ation," that is, the acting of the subject person, b y a right which is found
in another, whatever its object may otherwise be (res, personae, opera)}
which therefore demands satisfaction b y the sole fact that it exists, out-
side of any consideration of circumstances or dispositions relating to the
debtor: Et ideo medium justitiae consistit in quadam proportionis ae-
qualitate rei exterioris ad personam exteriorem m (that is, to another) 44
41 I t seems t h a t this confusion lies at the origin of the mistrust s h o w n b y F . Senn
w i t h regard to the T h o m i s t i c doctrine of justice . . . see op. cit. 47, η. 1 in fine,

p. 54 . . . See also infra, nos. 25q et seq.
" S e e , a m o n g others, the definition b y G e n y , reported supra, no. 217.
' [ T h e mean of the m a t t e r according to itself.]
k [ T h e m e a n according to reason w i t h regard t o us ]
" S T . THOMAS, SUMMA, IIa Ilae, qu. 58, art. 10. A l s o art. [ q u . ] 57, art. 1 ad
resp.; qu. 58, arts. 8 and ς ; qu. 60, art. 1 ad 3, initio; qu. 61, art. 2 ad 1.
1 [ T h i n g s , persons, w o r k s . ]
m [ A n d therefore the mean of justice consists in a certain equalit y of p r o p o r -
tion of an external thing to an external person.]

4 4 S T . THOMAS, op. cit. IIa Ilae, qu. 58, art. 10 ad resp. See also art. 1 1 , ad resp.·,
q u . 6 1 , art. 3 ad resp.
Unauthenticated
442 JEAN DABIN
227. Confusion to Be Avoided in Interpreting the Concept of the
"Real Mean." Y e t the objectivity of justice must be rightly understood,
and it must by no means be exaggerated by always tracing it back to an
equality "of thing to thing," calculated by a "purely arithmetical pro-
portion." 45 One would thereby disregard not only the person subject to
the virtue, which is required by the medium rei, but also the "other"
one, as if what is due him could never be proportioned to the individual
personality of the other and therefore never vary according to persons.
In reality, what is due will be established from thing to thing where this
is indeed involved in the matter. Thus, he who has received a thing on
the ground of deposit or of loan ought to restore that thing or its value;
similarly, in exchanges the rights of the parties are measured by the
value of the things exchanged, which is objective. But in other matters
what is due will be proportioned to the subjective condition of the
creditor. The grounds and qualities vary and so, consequently, do the
rights and the duties correlative to the rights. What is due to one accord-
ing to equality is not necessarily due to another according to the same
equality. Thus the objective just mean is far from always coinciding
with arithmetical proportionality. The proportionality of justice will
sometimes be arithmetical and sometimes geometrical, the mean not
ceasing for that reason to be objective. 46 This is brought out by St.
Thomas in a concrete example. T o the objection that the just mean is
called rational because it varies relative to persons and that the same
phenomenon is to be observed in justice, where he who strikes a king is
not punished with the same penalty as he who strikes a private person,
St. Thomas replies: That the proportion not being the same in the
injury, the penalty could not be the same under the two assumptions,
which proves indeed, he adds, that the difference lies in the things
and is not merely rational. 47 Moreover, is not so-called distributive
justice, which as a special form of justice is bound to reproduce the
general definition of justice, subject to a principle of merely geometrical
proportionality? 48
Let us not forget either that, even in the case where the equality is
one of thing to thing, justice brings into relation human persons. What
is due someone is "his own," that is, a good that depends more or less
closely upon the person of the creditor. What the debtor owes in turn is
45 The formulations of ST. THOMAS, IIa Ilae, qu. 58, art. 10 ad resp. . . . and
Aristotle, cited there, . . . to the contrary are valid only (subject also to explana-
tions) for one of the kinds of justice, the most typical to be sure, commutative
justice; see qu. 61, art. 2 ad resp.
" E r r o n e o u s l y : SENN, op. cit. 47, n. 1, and p. 52. . . .
" S T . THOMAS, op. cit. IIa Ilae, qu. 58, art. 10 ad 3.
" S e e ST. THOMAS, op. cit. IIa Ilae, qu. 61, art. 2 ad 2: . . .
Unauthenticated
an act, the rendering of a thing or service, or an abstention, which
engages the person of the debtor. On the other hand, the value of goods,
including that of merchandise, could not be appraised fundamentally
except by reference to their human value, as means for a man to pro-
vide for his wants of every sort, so that the equality of justice, even
where it is arithmetical, remains of a moral nature.
SECTION 2. T H E T H R E E K I N D S OF JUSTICE
228. Enumeration and Classification. Aristotle and St. Thomas did not
confine themselves to distinguishing justice from the annexed virtues.
Pursuing their analysis, they divided justice into three kinds, according
to the kind of quality of the other persons concerned.
When these are private persons (or acting in such quality), the justice
which links them is called "commutative." When the persons in ques-
tion are a collectivity and its members, especially the state and its citi-
zens, justice is called "distributive" as to what is due from the collec-
tivity to its members, and "legal" as to what is due from the members
to the collectivity. As opposed to legal justice, where the immediate
object is the collectivity, commutative justice and distributive justice,
with their immediate objects being particular private persons, are called
particular. But distributive justice, though particular, is nonetheless like
legal justice of the collective and societal t y p e — a n d where the state
(or the society of states) is concerned, of the political type — since it is
based upon the organized collectivity, while commutative justice, as
such, belongs to the individual or interindividual type. 1
22Q. Commutative Justice; Its Possible Subjects: Physical or Moral

Persons. The simplest, most elementary form of justice, and apparently
the only one aimed at in the definitions of Cicero and Ulpian, 2 is com-
mutative justice. Indeed, for this to make its appearance it suffices that
there be two human beings, considered individually, whether or not be-
longing to the same state (two fellow citizens or two persons of different
nationalities) or even (a theoretical assumption) participating in no
state, no community, such as Robinson Crusoe on his island confronting
a second immigrant. Still, as has been seen, 3 it is necessary that between
1 See generally, as to these distinctions, ST. THOMAS, op. cit. Ha Hae, qu. 58, art.
S ad resp. and art. 7 ; q u . 61, art. 1.
' S e e supra, no. 220 and n. 16 . . . [ O n ] the definition of Cicero . . . see infra,
no. 238.
Unauthenticated
444 JEAN DABIN
these two human beings there be no physical solidarity, as in father and

son, nor even family solidarity, as in husband and wife, for such soli-
darity partly frustrates the quality of being another person. 4 It matters
little, though, whether the parties to the relationships are physical or
moral persons. From the viewpoint of the debt, if not from that of
morality, 5 commutative justice on the active and passive sides binds
collectivities as well as individuals, with no distinction between private
and public collectivities nor between the domestic and the international
levels. Thus, the relationships between individuals and public collec-
tivities, even those of which they are members as long as in the rela-
tionship they do not figure in their quality as members, 8 fall under
commutative justice; so do the relationships between independent col-
lectivities, such as two private societies or two states.
Still it is necessary that the collectivities under contemplation belong
to the category of organized societies, and on that account enjoy moral
personality, without which justice would lack an active or passive sub-
ject of a right. Outside of moral personality, indeed, either the collec-
tivity is nothing or it is but a collection of individuals, physical persons
who themselves are the subjects of rights. I t follows that the family,
which is not a moral person, could not as such be a party in the rela-
tionship of justice, whether with regard to those called its members or
with regard to outsiders: Only the physical persons who are members of
the family — spouses, parents, children, other relatives—-ca n hold
rights and obligations, obviously taking account of that family state
which determines a special personal status for them, in their reciprocal
relationships (idea of familial justice) as well as in their relationships
with third parties and with the state. 7
2jo. The Object of Commutative Justice: The "Suum" in Its Diverse

Forms. T h e object of the right of another in commutative justice is
what belongs to each one from the outset and is coming back to him in
consequence of some commutation. 8 W h a t belongs to each one from the
outset: His physical and moral being, the properties of his being, his
relations and qualities of every sort, familial, economic, commercial,
the material or spiritual works of which he is the author, the external
1 This is not to say that offenses among members of the same family would be
of lesser gravity than injustice against a stranger, for attacks against solidarity
are graver than attacks against the relation to others.
" A s to this distinction, see ST. THOMAS, op. dt. IIa Ilae, qu. 61, art. 4 ad 2.
7 See supra, no. 10, n. 7.
8 As to different kinds of exchanges regulated by commutative justice, cf. ST.
THOMAS, op. cit. IIa Ilae, qu. 61, art. 3 ad resp.; also qu. 62, art. 1 ad 2.
Unauthenticated
goods to which he has acquired a right of ownership or of use. This im-
mediate suum has an absolute character: It imposes itself upon the re-
spect of all and gives rise only to an obligation of abstention, sanctioned
in case of violation by a right to restitution or reparation (this is the
neminem laedere). However, in the case of delivery of a thing to another
under a limited title (loan for use, deposit, etc.), the respect for the
suum implies the personal obligation of restitution of the thing to its
owner.
T h e suum also comprises what, without belonging to another from the
outset, is coming to him ultimately through the workings of commuta-
tions (communications and contacts), voluntary and involuntary ones.
Such is the thing or service due on the ground of exchange, or on the
ground of reparation of injury inflicted, or on the ground of compensation
for enrichment without cause at the expense of another, in short, choses
in action (jura in persona) representing the equivalent of the original
suum? Unlike the latter, the choses in action engender a right only
with regard to a determinate person, the beneficiary or author of the
commutation, bound by the positive obligation to reestablish the broken
equality (this is the tribuere cuique).10 Curiously enough, commutative
justice derives its name from this second assumption, probably because
it is based on action while the first resolves itself into an abstention. B u t
it is clear that the second assumption is the logical consequence of the
first: There would be no room for rendering to another what is coming
to him if before any commutation he were not the master of certain
rights in which he could not be touched, without his consent, b y anyone.
It is understood, too, that the concepts of right (jus) and even of be-
longing or mastering (suum) have a meaning only relative to another,
representing the eventual opponent.
2ji. In Commutative Justice, Equality Is Determined as of Thing to

Thing. If that is the object of commutative justice, it must be concluded
that in this kind of justice equality is taken to be one of thing to thing,
or in Aristotle's terms, that its real mean is determined according to an
arithmetical proportion of a purely quantitative nature. T h e creditor of
justice has a right to what belongs to him or is coming to him simply
because the thing is his, and it is his regardless of any consideration of
his personal quality. 1 1 Consideration of the person will intervene only
* On restitution in case of violation of c o m m u t a t i v e justice, see ST. THOMAS,
op. cit. IIa Ilae, qu. 62, art. 1 ad resp. and ad 2.
10 On the integral parts of the virtue of justice, cf. ST. THOMAS, op. cit. IIa Ilae,
qu. 79, art. 1.
11 ST. THOMAS, op. eil. IIa Ilae, qu. 61, art. 2 ad resp. and ad 2; art. 3 ad resp.,
in fine; art. 4 ad resp., in fine.
Unauthenticated
446 JEAN DABIN
where the condition of the person produces a difference in the things,
and St. Thomas again takes up the example of the injury: The injury
to persons is more or less grave according to the condition of the injured
person. However, even in this case the proportion remains arithmetical
because the condition of the person is an element that is to qualify the
injury (cond itio personae jacit ad quantitatem ret).a12 Contrariwise,
the condition of persons becomes altogether irrelevant where the ques-
tion, for instance, is to determine what the user of the thing of another
ought to restore or what the buyer [of a thing] ought to pay.
232. With Distributive Justice the Societal Plane Is Reached. With

distributive justice, which is particular like commutative justice, one
reaches the societal plane, and especially, with the state-society, the
political plane. Not that there could be no question of distribution be-
tween particular independent individuals or groups. Such a distribution
is encountered every time there is an undivided whole and one proceeds
to divide the capital or the profit, as in the case of the division of the
product or benefits of work done in common, on the basis of a contract
of partnership or collaboration. But these cases of distribution are gen-
erally attached to commutative justice, and rightly so, for we are con-
cerned here ultimately with nothing else than rendering to each his own
according to a rigorously arithmetical proportion: The divided equiva-
lent of his undivided quota, the equivalent in money or in kind of his
share in the collaboration. 13 For distributive justice to emerge in its
specific form, it must be envisioned in the relationships between a society
forming a body, on the one hand, and its members, on the other, the
latter being taken at the outset not as particular individuals but as mem-
bers of the body. 14 Although the concept of distributive justice may be
set into the frame of any society whatever, private or public, domestic
or international (provided it forms a body), 1 5 it is ordinarily viewed in
the framework of the domestic political society, the state. There, it is
the pendant to legal justice, which with its typical characteristics 1 is
encountered only in the supreme, eminently legal society that is consti-
tuted by the state.
' [The condition of the person matters for the quantity of the thing.]
12
ST. THOMAS, op. cit. IIa Ilae, q u. 6 1 , art. 2 ad 2.
13
Cf. the old adage: "Equality is the soul of sharing," meaning a mathematical
equality which tolerates no violation.
14
See ST. THOMAS, op. cit. IIa Ilae, qu. 61, art. ad resp.
15
Cf. ST. THOMAS, op. cit. IIa Ilae, qu. 61, art. 1 ad 3, in fine, where the prin-
ciple is applied (wrongly) to the familial society.
" On these characteristics, see infra, nos. 235-239.
Unauthenticated
233. The Subject Matter of Distributive Justice: The Various Kinds
of Distributions. T h e subject matter of distributive justice consists of
the various kinds of distributions which every social body is called upon
to effect among its members. First, where the society is one with pur-
poses of self-interest, established with a view to the good of its members,
this means distribution of the social benefits. T h a t in turn means, in the
case of the state, participation in the advantages of the public good re-
sulting from the action of the state and its services, protection of rights,
aid to interests, etc. 1 7 Then, distribution of the functions and employ-
ments that are at the disposal of the body, which indeed acts only
through individuals. Lastly, allocation of the contributions of every
nature that are indispensable to social life, for the body lives only b y
what its members bring in to it. N o w these distributions, active and
passive, could not take place except according to a principle of equaliza-
tion as to the rights and faculties of everyone, which is a rule of justice.
In confronting the society with his claim for his just part in the social
benefits, the member claims what is due him as his own in his quality as
a member. N o doubt before distribution those benefits are the property
of the social body which has produced them, while in commutative
justice the good due is from the outset the personal property of the
creditor, directly or b y equivalent. 1 8 B u t since b y hypothesis the body
exists only for its members, the benefits it produces are rightfully due
its members under its statute. It cannot without injustice retain them
or divert them from their destination or distribute them in a partial
manner; and thus, "when something of the common goods is distributed
among the members, every one of them receives in a w a y what belongs
to him." 1 9 T h e solution is identical as regards the burdens: When the
society claims a heavier contribution from one of its members than is in
justice incumbent upon him, it violates, if not the member's own right
(which would transfer us to the terrain of commutative justice), at least
his right to the just distribution of the burdens.
234. Difference between Distributive Justice and Commutative Jus-

tice. However, the position of the member with regard to the social body
is not the same as that of one independent individual with regard to
another. First, his right is by definition that of a member, that is, of a
part in relation to a whole, and therefore his right in distributive justice
remains entirely subordinate to the requirements of the good of the body
in its entirety. Thus, if the good of the body demands it, the benefits of
" O n the public good and its constituent elements, see supra, nos. 135 et seq.
" S e e ST. THOMAS, op. cit. IIa Ilae, qu. 61, art. τ ad ζ: . . .
" S T . THOMAS, op. cit. IIa Ilae, qu. 61, art. 1 ad 2 . . . C f . qu. 62, art. 1 ad 3.
Unauthenticated
448 JEAN DABI N
private corporations are withheld from distribution and applied to the
reserve fund or in other ways; 2 0 among candidates for public offices, the
ablest will not always be preferred; in revenue assessments, fiscal justice
may be moderated. In a word, distributive justice is directly subject to
legal justice, which expresses the supreme right of the body. 21
Furthermore, the right of the member with regard to the body could
logically be measured only according to an equality proportional to the
"dignity," the rank of the member in the body. Now the ranks in the
body are not equal. "That is why in distributive justice the mean is not
taken according to an equality of thing to thing but according to a pro-
portion of things to persons, so that if one person is superior to another
what is given to him ought to exceed what is given to the other. And that
is why Aristotle says such a mean is one according to a geometrical pro-
portion, where equality is a matter not of quantity but of proportion." 22
What then is the determining principle of the hierarchy? It is multi-
farious and also depends upon the diversity of social and political
regimes. In modern states, among the criteria of distributive justice
there must be counted, besides merit and services rendered, weakness,
meaning not only physical weakness, which has always been entitled to
a privilege, 23 but also economic weakness. Is it not legitimate that in
the political community the weakest benefit from special protection and
aid from the state? 24 As to justice in imposing burdens, equally gov-
erned by the rule of proportionality, the determining principle is that of
ability to contribute to what is required, so that the more fortunate will
contribute a larger amount than the less fortunate. Thus, actively and
passively, the shares of everyone are calculated by a measure individual
to each. But since the calculation always takes place under the same
principle, the equality constitutive of justice is maintained.
255. Legal Justice: Its General Concept. The third and most complex
form of justice is legal justice.
Conversely to distributive justice, which moves from the society to
the members, legal (or social) justice goes from the members to the
" O n t h e m o d e r a t i o n w h i c h is to b e i m p o s e d in d i s t r i b u t i o n , cf. ST. THOMAS,

o p . cit. IIa Ilae, q u . 6 1 , a r t . τ ad τ.
21See ST. THOMAS, op. cit. la Ilae, qu. 96, art. 4 ad resp.: . . •
22ST. THOMAS, op. cit. IIa Ilae, q u . 6 1 , a r t . 2 ad resp. See also a r t . 4 ad resp.,
in fine.
23 T h u s , as f o r m i n o r s , lunatics, a n d f e e b l e - m i n d e d persons.
24 See in this sense L e o X I I I , E n c y c l i c a l Rerum Novarum: "Quocirca mercen-

arios, cum. in multitudine egena numerentur, debet cura providentiaque singulari
complecti respublica" [ A s the w a g e - e a r n e r s are n u m b e r e d in an i n d i g e n t m u l t i t u d e ,
the s t a t e o u g h t t o s u r r o u n d t h e m w i t h s i n g u l a r care a n d p r o v i d e n c e ] .
Unauthenticated
society, especially, as the word "legal" indicates,25 the political society.
Legal justice, though, is a moral virtue in what concerns man if not
groups, because "it is impossible that a man be good if he is not propor-
tioned to the common good." 26 Is it not the vocation of man to live and
perfect himself in and through political society? The holder of the right
here is not indeed the community or the public in general, but the state,
which is both the organization that encloses the national community
(civic or political viewpoint, corresponding to the aspect of the politi-
cal public good) and that same community in its corporate form (social
viewpoint, corresponding to the aspect of the social public good). 27 The
debtors of legal justice are the private individuals and groups, who are
bound in their quality as members, whatever their rank in the state —
rulers or ruled — to render to the social whole what is coming to it on
the part of its members. The "ordination for the common good," which
is the object of legal justice, is thus traced back to respect by the mem-
bers for the strict right of the community against them. This ordination
of the parts to the whole is the community's due as a right that may be
exacted.
236. What the Citizen Owes the State as Organization. To the state
as organization the citizen owes in the first place what is necessary to its
existence, its independence, the constitution and good functioning of its
organs: Revenue, military service, a certain participation in public
functions, in short, the "aid and subsidy" which the state, a moral per-
son, can draw only from its members who are physical persons. To the
state the individual citizen further owes the exact and faithful discharge
of his functions if he is ruling, and obedience to the laws and legitimate
orders of the authority if he is ruled. These are so many properly social
requirements, valid for any private or public society whatsoever.
2
37- What the Individual Owes the Community Organized in the
State: "Generality" of Legal Justice. But this is not all. It is even in
some respects secondary if one takes into account that the state organ-
23 T h e thought of Aristotle and St. T h o m a s is indeed concerned here not w i t h
laws in general b u t w i t h the positive l a ws of the state.

26 ST. THOMAS, op. cit. la Ilae, qu. 92, art. 1 ad 3.
" S t . T h o m a s assigns the bonum commune as the end of legal justice; see
n o t a b l y ΙΊα Ilae, qu. 58, art. S ad resp. B u t , first, this c o m m o n good is the good
of an organized c o m m u n i t y , since the question is one of the w h o l e and the part,
loc. cit. and art. 7 ad 2, or of the prince and the subjects, qu. 58, art. 6 ad resp.
Furthermore, this organized c o m m u n i t y is that embracing the multitude, art. 6,
o b j . 3, or in short, the s t a t e ; see also art. η ad 2·. bonum commune civitatis. T h e
bonum commune thus is the g o o d of the c o m m u n i t y integrated in the state, in-
cluding both the extra-political g o o d of that c o m m u n i t y and its political good,
Unauthenticated
450 JEAN D A B I N
ization is but a means in the service of the community. To the com-
munity of the individuals associated in the state the individual member
owes, besides, the adjustment of his private conduct, the submission of
his particular good to the common good of the public as defined above
in its elements of order, coordination, and aid, radiating over the univer-
sality of values of the temporal order.28 This is what differentiates the
state from private societies. The latter pursue but special, particular,
limited ends. Their members are parts of the whole, and have duties
toward the whole, only for these special ends; otherwise, they retain
their independence. In the case of the state, on the contrary, whose end
is absolutely general, merging with the good of all in the various sectors
of the temporal, the individual member is wholly ordained, as regards
the temporal, to the community of the members of the state. It is not
enough that he fulfill his civic, political, societal duty toward the state
organization. He must also fulfill his social duty, in subordinating all
that pertains to him, in his personal activity and his property, to the
good of the society grouped in the state. 29
In a sense one may say that the individual in the state is never done
with doing his duty morally, since after having "contributed" to the
maintenance of the state and submitted to the laws he remains in justice
bound to take the supreme rule of the public good for the norm of his
outward life and even his thoughts and wishes 30 on the plane of the
temporal. This is expressed in the remark that legal justice is a general
virtue (hence its other name, general justice). Through its subject
matter it comprises the exercise of all the virtues-—undoubtedly the
virtues ad alterum (particular justice, both commutative and distribu-
tive, and annexed virtues, including liberality), 31 but also the other
virtues, religion and virtues concerning the person himself who is their
subject (moderation, fortitude, prudence). Indeed, due to the phenom-
enon of interdependence of the "private" and the "public," clearly the
exercise of any virtue whatsoever is more or less useful to the public
good (referibile ad bonurn commune ad quod ordinat justitia) ,b as every
vice, every moral fault whatsoever has more or less injurious reper-
cussions upon the public good. 32 Yet legal justice remains distinct from
w h i c h is the good of the state as an instrument for the realization of the extra-
political c o m m o n good.
28 On the notion and elements of the public good, see supra, nos. 135 et seq.
29 See ST. THOMAS, op. cit. I a Ilae, qu. 96, art. 4 ad resp., cited supra, n. 21.
" O n inner passions, cf. ST. THOMAS, op. cit. IIa Ilae, qu. 58, art. 9 ad 3.
81 On the annexed virtues of justice, see supra, nos. 222-224.
b [ R e f e r a b le to the c o m m o n good, as to w h i c h justice ordains.]
10 See ST. THOMAS, op. cit. IIa Ilae, qu. 58, art. 5 ad resp. C f . Ia Ilae, q u . 92,
art. ι ad 3.
Unauthenticated
the particular virtues inasmuch as it commands them and ordains them
for what is its proper object, to wit, the public good. 33
2j8. In What Legal or General Justice Remains Special. And this

"ordination" is not confined to a mere acceptance. N o t only does legal
justice prescribe the acts of all the virtues, even where they have the
private good as their immediate objective; not only does it require one
to put those virtues to the direct service of the public good; 3 4 but also
it happens that it influences the determining elements of the virtuous
just mean. This is so at least for the virtues where the just mean is
"real," external to the person who is their subject, 3 5 that is, the two
particular justices, the commutative and distributive. Indeed, it is
according to the public good and in taking account of the parties re-
maining members of a w h o l e 3 6 that the extent of the right of the par-
ticular private person toward the particular private person will be fixed
in commutative justice, and of the citizen with regard to the state in
distributive justice. 3 7 As expressly stated in the definition of Cicero
(perhaps under the influence of Aristotle), the attribution to everyone
of his dignity takes places only communi utilitate conservata. which may
eventually entail certain sacrifices of one's own right on the altar of the
public good. 38 It happens likewise very frequently that legal justice
commands or prohibits acts which do not directly touch any particular
right or interest, which as such do not fall under any virtue or any vice,
and which have moral value exclusively b y their reference to the good
of the total community. These are, in short, technical values — values
of social technique — which their end alone endows with morality. In
this case, as in the case of the properly societal duties, 39 legal justice
33 See ST. THOMAS, op. cit. IIa Ilae, qu. 58, art. 6 ad resp. and ad 4.
34 See ST. THOMAS, op. cit. Ia Ilae, qu. 96, art. 3 ad resp. and ad 3. . . .
85 On the "real m e a n , " see supra, no. 226.
""See ST. THOMAS, op. cit. IIa Ilae, qu. 61, art. 1 ad resp.
" On the necessary subordination of distributive to legal justice, see supra, no.
234. As f o r c o m m u t a t i v e justice, it m a y be added that the state, w h i c h is in part
the author of rights inasmuch as it guarantees their acquisition and conservation,
is on that ground qualified to limit them as a function of the public good.
88 F o r comment on this f o r m u l a, see F . SENN, op. cit. 44-47 and notes.
" I t is impossible to claim, as has sometimes been done b y an exaggerated

application of the idea of " g e n e r a l i t y " of legal justice, that the p a y m e n t of a tax
constitutes as such a liberality t o w a r d the state, though belonging to legal justice
b y its relationship to the c o m m o n good, inasmuch as the state is the necessary
instrument of the c o m m o n good . . . On the contrary, restitution or reparation
can hardl y be thought of w h e r e the violation of legal justice consists of a refusal
to a d j u s t one's private conduc t to the public good. In such a case only the sanctions
of punishment or nullity are involved .
Unauthenticated
452 JEAN DABIN
ceases to be general so as to find again a special subject matter, proper
to itself, directly ordained for the good of the whole.
2JQ. Meaning of the Adjective "Legal" in the Expression "Legal

Justice." True, it is for the state to determine the obligations of its sub-
jects not only toward itself as an organization but also toward the asso-
ciated community of which it is the responsible manager. And that is
why this justice is called "legal." 40 But it would be wrong to conclude
that legal justice coincides with obedience to the rules of public law,
revenue law, private law, penal law, and so forth, which determine those
two sets of obligations. The l a w s 4 1 are indeed far from covering the
totality of the requirements of the public good. For multifarious reasons
of expediency or regulatory technique, the legislator is often obliged to
abstain or keep out, even in the domain of properly societal obligations.
For instance, the state, not daring to demand its full impost, will appeal
for voluntary contributions in the form of government bonds. N o w then,
where the requirements of public justice show themselves without am-
biguity, the subject is bound by legal justice, notwithstanding the silence
or discretion of the law. Where the latter expresses but a part of legal
justice, the moral virtue of legal justice takes charge of the rest.
Contrariwise, where the law satisfies the public good, nothing prevents
the subjects from going beyond their duty of legal justice and showing
themselves generous toward the community in their services and goods.
On the part of its members, the state may in justice demand only what
the public good requires. As to what goes beyond that measure, the right
common to the particular virtues ad alterum, especially liberality,
resumes its dominion in favor of collectivities as well as of private
individuals.
SECTION 3. T H E NATURAL JUST AND THE POSITIVE JUST
240. The Right of Another Is Sometimes Natural and Sometimes

Positive. A last question arises which, to be sure, concerns justice in
general but for which the solution will appear easier after the study of
the diverse kinds of justice.
The object of justice is the right of another individual or collectivity.
What, then, brings about the determination of that right, qualitatively
and quantitatively? T h e Schoolmen answer that the right — the ques-
40 See ST. THOMAS, op. cit. Ha Ilae, qu. 58, art. 5 ad resp., in fine; also the
remark supra, n. 25.
" B y " l a w s " are here understood all positive rules, whatever may be their
formal sources.
Unauthenticated
tion turns on the right of another and not the-law, as in the expression
"natural l a w " 1 — that the right of another is sometimes natural and
sometimes positive. It is natural when, not only in its principle but also
in its measure and form, it is fixed by the very nature of things as
resulting from the relationship under contemplation, outside of any
intervention of the will of man as private person or public authority.
It is positive when, in its determination if not in itself, it results from
the will of man proceeding according to the diverse modes of agreement,
of judgment or arbitral award, of custom or statute. 2 Where it issues
from agreement, judgment, or arbitral award, the positive determination
is particular, valid solely for the individual case; where it issues from
custom or statute, it has general validity for all cases.
241. The Distinction Recurs in All the Kinds of Justice. Contrary to

certain appearances, the two sorts of the just, the natural and the posi-
tive, are encountered in all the kinds of justice. In matters of commu-
tative justice, it is nature that at once determines the right of everyone
with respect to his life, his works, his legitimate property, the restitu-
tion of the thing deposited or the amount of money loaned. There is no
need at all in these cases for any arrangement of will whatever to state
the exact measure of the right of the one and, correlatively, the obliga-
tion of the other. Contrariwise, it is an agreement of the parties or a
judgment, more rarely a custom or a statute (system of taxation), that
determines the price of things or services or the amount of reparation
due.
In matters of distributive justice and legal justice, although normally
the determination of the rights of private persons against the state and
of the state against private persons is the work of the state itself, espe-
cially of rules of law, it may nevertheless occur that nature brings about
the determination. Thus, nature, even in the absence of a law, accords to
every citizen the right of protection by the police and the right of access
to the courts (a matter of distributive justice); nature, even in the ab-
sence of a law. obliges the citizen to defend his country even at the
sacrifice of his life (a matter of legal justice). One will therefore avoid
confusing the hypothesis of the legal just with the category of legal
justice. There is a legal just whenever rules of law determine the just,
even in matters of commutative justice, while legal justice is that kind
of justice which lays down the rights of the state against the citizen,
whether or not they be determined b y a rule of law.
' O n this initial distinction, which is not a l w a y s observed, see supra, no. 202.
' S e e in this sense ST. THOMAS, Ha llae, qu. 57, art. 2 ad resp.; qu. 60, art. 5
ad resp.
Unauthenticated
454 JEAN DABIN
242. Positive Determination Is Not, However, Arbitrary. Neverthe-

less, where positive determination intervenes it is not purely arbitrary.
In matters of commutative justice the standard of values, whether from
the point of view of exchange or of reparation, is established according
to complex considerations of morals, economics, sociology, among which
common estimation ranks high. Similarly, in matters of distributive
justice, the appraisal of claims in the division of benefits, advantages,
and burdens of collective life takes place according to objective and im-
partial criteria. Finally, in legal justice, again, the requirements of the
public good under the circumstances furnish the principle of the solution.
T h i s means that if the contractual just, the judicial just, the customary
or statutory just deviate from the bases of the natural just as outlined
here, they are far from collaborating toward justice, they institute in-
justice. One must not therefore proclaim, with Fouillee: T o say con-
tractual is to say just — nor indeed with the Legists: a T o say statutory
is to say just. T h e contract or the statute states the just only inasmuch
as it determines the just; neither could create it against the natural just
or even at the margin thereof. 3
It is true that there exist, in addition to things that are commanded
because they are just (praecepta quia bona), things that are just be-
cause they are commanded (bona quia praecepta):4 B u t this does not at
all mean that the precept in itself would have the power to engender the
just. If it creates justice it is always because in some manner it deter-
mines a preexisting just. A s such, the object of the precept was b y
hypothesis indifferent to justice; hence the necessity of the legal com-
mand to make it obligatory. But the command in turn could not be
brought forth except because that object was, b y hypothesis, "referable
to justice." T h i s is properly the case of legal justice under the aspect
where it is called "general": T h e act foreign to particular justice or even
to any virtue is invested with the character of justice inasmuch as it is
required b y the public good and on that ground prescribed b y a rule of
law. 8 It is also true that it is for legal justice eventually to modify the
natural equality of the two particular justices, the commutative and
distributive, so as to bend them to the supreme norm of the public
• [ T h e term Legists denotes those w h o base rights and obligations upon the
existence of a lex in the sense of an enacted l a w or a positively established legal
rule.]
" C f . generally ST. THOMAS, SUMMA, IIa Ilae, qu. 57, art. 2 ad 2·, especially on
justice in exchanges, q u . 77, art. 1 j j 1 [ C f . ] an observation b y J . T o n n e a u
in 5 BULLETIN THOMISTE (1938) 447.
4 ST. THOMAS, op. cit. IIa Ilae, qu. 57, art. 2 ad 3. . . .
s On the " g e n e r a l i t y " of legal justice, see supra, nos. 237-238.
Unauthenticated
good.® B u t there again the rule of law which breaks the equality by no
means acts as having power over natural justice. I t only translates a
superior justice, equally natural in its superiority, implying the sub-
ordination of the particular good to the general good and, therefore,
of the justice due to private individuals to the justice due to the
collectivity.
243. The Margin of Indeterminacy in Justice. T o sum up, the legal

just never is anything but the determination, by a rule of law, of the
natural just, that is, of the right of another in the three forms of com-
mutative justice, distributive justice, and legal justice. N o more in
matters of legal justice than of commutative or distributive justice is a
rule of law the creator of justice: T h e law confines itself to rendering the
content of justice more precise according to contingencies. Y e t it must
be recognized that legal justice leaves a much more considerable margin
of indeterminacy than does commutative or even distributive justice, so
much so that it takes its name from the determination which the law
brings to it. But what makes up the subject matter of legal justice is the
society instituted with a view to realizing the public good, whose role is
the discovery and promotion of the concrete requirements of that public
good. T h e concept of the public good is " g i v e n , " but its applications are
not. 7 More, it still remains to make an appraisal how far these applica-
tions ought to pass into the law. And this is the whole problem of the
law, which confronts us with a justice properly juridical, the content of
which does not necessarily coincide with legal justice. If the public good
has its requirements so does the civil law, and these are not the require-
ments of every law whatsoever.
CHAPTER III
T H E "GIVEN" OF N A T U R A L LAW A N D OF JUSTICE IN T H E

E L A B O R A T I O N OF T H E L A W
244. Restatement of the Problem. W e are now in a position, after this

long preamble, to define the exact role of the two factors of natural law
and justice in the elaboration of the law.
T o sum up. Natural law represents the category of the moral rule; and
although the concept is technically limited to the first principles of

Unauthenticated
456 JEAN DABIN
morality, that limitation is without interest to the jurist, who is bound
to accept all of morals as given, not only in its first principles but in the
subordinate conclusions and determinations evolved by moral science
and eventually by the positive rule of the moral law. T h a t is w h y here-
after natural law will be spoken of in the sense of the moral norm, and
vice versa. As to justice, it represents one of the principal rules of
morals, that which regards the right of another to be respected and
satisfied, either that of particular private persons (particular justice:
Commutative and distributive) or that of the public community (legal
justice), the latter form of justice outranking the particular justices
which are subordinate to it as the parts are to the whole.
N o w the elaboration of the law proceeds by considering, first, the
public good of the community under contemplation, 1 and secondly, the
resources and "possibilities" of the implementation of the law. 2 T h e
question proposed, then, reduces itself to the study of the relationships
between natural law (i.e., morals) and justice, on the one hand, and the
social-political element of the public good and the technical element of
regulation, on the other. Furthermore, nothing new is to be expected of
this comparison, for the principles have been set forth in the chapter on
the method of elaboration of the law, and we are concerned with nothing
more than putting certain aspects thereof into fuller relief. 3
SECTION I . M O R A L I T Y AND T H E T E M P O R A L P U B L I C GOOD
245. There Could Be No Public Good Against Morals. A first point

could arouse no controversy: A legal rule positively contrary to morals
must be condemned as contrary to the public good. For notwithstanding
the difference of the concepts, there is no conceivable divorce of the
demands of morals from the requirements of the public good. There is
no public good against morals because morals governs man and the
public is composed of men. B y what route or detour could that which
would be bad for man be transformed into a good for the public? It is
irrelevant in this regard that the public good is but an intermediary
good, consisting simply in an environment favorable to the action of
individuals and groups. H o w could that environment be useful to man,
not only from the moral but also from the material point of view, if it

8 For a more detailed study of the utilization of moral data (natural law and
justice) i n t h e e l a b o r a t i o n of t h e l a w , see J . DABIN, L A PHILOSOPHIC DE L'ORDRE
JURIDIQUE p o s m r nos. 121 et seq., pp. 431 et seq., nos. 129-187, pp. 456-632.
Unauthenticated
is the result of measures reproved by morals? T h e advantage will be
but illusory or fugitive, and ultimately it is man who will pay the price
of immoral policies. It also matters little that the public good has purely
temporal or even material and technical aspects. Morals does not
reign solely over virtue, or rather, everything is a matter of virtue, in-
cluding the activities of the purely temporal, material, and technical
order. More, the first condition of the public good in all domains is
respect for the moral rule, both of precept and of counsel, in the choice
of means as of ends. And there is no room for distinctions according to
the orders of relations. Whether the relationships involved are of the
private or of the political order, on the domestic or on the international
plane, any legal rule that violates morals at the same time violates the
public good. N o solution is politically good that would be morally bad:
A n immoral or amoral conception of politics is a politically false con-
ception, always for the reason that politics is human and all that is
human is, if not moral, at least subject to morals.
A s concerns justice especially, a conflict with the public good is even
less conceivable inasmuch as justice, in the form of legal justice at any
rate, is defined by the public good: Justice is what is demanded by or
conforms to the public good, always reserving the rights of morality in
general. Therefore, all that is laid down b y the law in conformity with
the public good is at once in conformity with justice. This conformity,
moreover, is presumed to exist, for it is the prerogative of authority to
benefit from "previous obedience": 1 Until proof to the contrary the
authority is deemed to be right.
246. Examples and Cases of Application. In applying these principles

it can be said, in the first place, that the law cannot command what
morals forbids, nor can it forbid what morals commands. T h e classical
example, although it concerns a precept for a particular case and not a
statutory rule, is that of Antigone. Creon's edict forbidding the burial
of the corpse of Antigone's brother was immoral and unjust as contrary
to pietas (tvaißtia) toward the dead of the family and the infernal gods
(Sophocles, Antigone, verses 745, 749, 924). But there are other his-
torical or imaginable examples: L a w s enforcing sacrifices to false gods
or prohibiting worship of the true God; laws requiring apostasy, dueling,
abortion, euthanasia; laws prohibiting acts of liberality inter vivos or
by will. T h e contradiction does not have to be immediate. It suffices that
the law by its disposition tends to discourage the virtuous act in setting
up impedimenta (formalities, delays, taxes) or to encourage the vicious
'See M. H A U R I O U , PRINCIPES DE DROIT P U B L I C (2d ed. P a r i s , 1916), Appendix

804, 806.
Unauthenticated
458 JEAN DABIN
act in setting up advantages (prizes, remissions). It also suffices that the
law turns away from action which morals merely counsels, or that it
impels toward the commission of what morals calls imperfection: In each
of these ways the moral ideal is being checked. Other laws are immoral
by contradicting the principles of "institutional morals," being that part
of morals which governs the natural social structures; 2 such are the laws
admitting a free union instead of or besides marriage, or those ignoring
the authority of parents over their children. Finally, there are the laws
that are immoral by attacking the principles of political morals: Op-
pressive laws which under the pretext of the good of the community or
the state deprive individuals, nationals or aliens, of their essential lib-
erties, such as the right to marry or not to marry; or partial laws which
violate distributive justice to the detriment or in favor of a fraction of
the public (party, class, race, or any social category whatever).
Most of the time, no doubt, the legislator enacting an immoral rule
believes it to be moral. But it also happens that he thinks he will be able
to attain a certain goal of the public good, for instance, an addition of
power for the state, without having to concern himself with the moral
value of the means, or by persuading himself that every useful means
is necessarily moral. This, precisely, is the amoral or immoral concep-
tion of politics in its repercussion upon the law.
24j. Confusions to Be Avoided in Appraising the Immoral Character

of Laws. But one must understand the assumption correctly, and not
qualify as "contrary to morals" a policy or a law that would not merit
that reproach. Everything permitted by morals, whether as being in-
different by its object or on the ground of a capacity for choice left to
the individual, need not necessarily receive the consecration of the law.
It is the right and the duty of the legislator to declare illicit the morally
indifferent act which under the circumstances would be prejudicial to
the public good. B y virtue of that very prohibition, the morally indif-
ferent act becomes morally bad, for the act contrary to the public
good, denounced as such by a law charged with watching over the public
good, is from the outset an immoral act.® In the same way, a capacity
to act which morals sanctions but which under the circumstances would
be prejudicial to the public good could be legitimately suppressed by a
law, and that suppression would be binding even in conscience.
On stronger grounds, one must not call legislation immoral that
would regulate the rights of everyone toward other private persons, or
s
O n "institutional morals," see supra, nos. 1 1 4 and 209.
' S e e supra, no. 242.
Unauthenticated
toward the state as functioning for the good of the total community
rather than of the right of everyone taken in isolation. There will per-
haps result from such regulation some diminution of the right of the one
correlative to an augmentation of the right of the other. But there is
nothing immoral in that modification, because morals itself prescribes
the subjection of the particular good to the general good (moral virtue
of legal justice); 4 provided, however, that the law leave the particular
person favored by its disposition free to renounce the advantage or in
other ways to reestablish the equilibrium. For the solutions of the public
good are not incompatible with practicing the virtues of moderation and
equity; the contrary is true. 5
248. The Law Is Not Bound to Consecrate Every Rule of Morals. Is

this to say that, everywhere and always, where morals commands or
forbids, the law is under an obligation to follow and sanction the pre-
scription of morals? N o t at all. T h e prohibition of contradicting does not
involve the obligation of sanctioning; and the public good, which is not
compatible with any kind of immoral law, does not necessarily require
the intervention of a law in order to compel respect for morals. N o doubt
every virtuous act is useful, every vicious act is harmful, not only to its
author but to the entire community, inasmuch as it contributes to the
formation of a public environment either virtuous or vicious. Such an
environment could indeed result only from the acts of particular indi-
viduals, who always originate what is public. B u t the question is not
whether the practicing of every virtue and every vice influences the
public. T h e question is whether it is good for the public that every virtue
give rise to a legal imperative, every vice to a censure or repression. N o w ,
in the first place, morals imposed under threat of compulsion no longer
is morals. Objectively, materially, the precept will perhaps be obeyed
and morals, in this sense, satisfied. B u t by reason of the compulsion and
inasmuch as the obedience is due only to the compulsion, the observance
of the rule has lost all moral value. Hence one may ask if a law serves
the public good when its intervention has the effect of sacrificing the
subjective to the objective element in morals, in short, of suppressing
morality under color of saving morals.
24g. The "Discipline of the Laws" and Virtue. T o be sure, one may
invoke the necessity of a "discipline" for the perfection of virtue, and
* See supra, no. 238.

6 This preoccupation may even be translated into law by the laying down of a
"natural obligation"; on this point, see J . Dabin, La Philosophie de l'ordre

juridique posiTiF nos. 186 a n d 187, pp. 628 a n d 632.
Unauthenticated
460 JEAN DABIN
the educational action of laws which would engender a habit favorable
to the spontaneous fulfillment of duty. 6 But that is a matter of experi-
ence, depending upon the mentality of peoples. In fact it often happens,
especially in our modern times, that the result of the intervention is
rather negative. When virtue claims to impose itself by force, if only
by the force of a law, it runs the risk of arousing a state of mind hostile
to the law and to virtue, which is a pity both for morality and for
legality: In such a case, a moralizing law becomes in all respects de-
moralizing. 7 No doubt, again, the effect of every law, including every
civil law, is to render men good not only inasmuch as they obey that
law (for it is virtuous to obey a just law) but also inasmuch as it im-
poses upon them what the public good prescribes.8 But it does not
follow that a law, or at least a civil law, is qualified to repress all vices
and to command actions fulfilling all virtues. It is incumbent upon moral
laws to render man good as regards all virtues because their competence,
in matters of virtue, is direct and general. As to civil laws, "bearing upon
the governance of commonwealths," 9 their moralizing effect is limited
to the virtue which concerns the public good, to wit, legal justice. Civil
laws render men good as regards the virtue of legal justice, the require-
ments of which they show them and make more precise, at least to the
extent of what they are in a position to obtain from the subjects and
therefore to impose upon them. Thus civil laws do not even render men
good as regards the totality of legal justice; they render them good as
regards that justice only according to the possible, taking account of the
moral level of the people, 10 the state of public opinion, and the principle
of efficiency proper to the civil law. Again, what matters from our point
of view is less the effect of a law than its end; or, if one prefers, the
effect can be legitimately pursued only within the framework of the end.
Now the end of civil laws is not immediately to moralize man; it is to
procure the public good, that is to say, an environment, an intermediary
good, and moreover an effective public good, therefore, one calculated
by the standard of realities. 11
" See in this sense ST. THOMAS, SUMMA, Ia Hae, qu. 95, art. 1 ad resp. . . .
C f . qu. 92, art. 1 ad 1, referring to Aristotle: . . .
' T h i s is well noted b y St. Augustine in a passage reported in SUMMA, la Hae,
qu. 91, art. 4 ad resp. (quarto). See also the citation infra, n. 9.
8 See ST. THOMAS, op. cit. Ia Ilae, qu. 92, art. 1 ad resp.
' St. Augustine, quoted and a p p r o v ed b y ST. THOMAS, op. cit. Ia Ilae, qu. 96,
art. 2 ad 3 : . . .
1 0 O n this last point, see ST. THOMAS, op. cit. Ia Hae, qu. 96, art. 2 ad resp.·,
IIa Ilae, qu. 77, art. 1 ad resp.
1 1 See in this sense, on the whole, ST. THOMAS, op. cit. Ia Ilae, qu. 96, art. 3
ad resp.·, qu. 98, art. 1 ad resp. E q u a l l y , B a r b e y r a c , Discours sur la permission des
Unauthenticated
250. The Law and the Ideal Type of the Family. T h e same maxim
must guide the laws in the elaboration of the legal regime of the natural
groups, particularly the family. For instance, institutional morals is not
content with just any marriage implying a certain stability, as a rule
for the union of sexes; its ideal is that of the one and indissoluble mar-
riage, which alone perfectly realizes the individual and familial ends of
marriage. But how can one expect the laws to escape from realities where
the mores are not, or not yet, at the height of this ideal — to proscribe
polygamy among polygamous peoples, to restore the indissolubility of
marriage among peoples accustomed to divorce? Has the Church not
taken centuries to make the barbarian peoples accept its matrimonial
legislation, 1 2 to abolish slavery (encouragement of emancipations), to
extirpate the scourge of private wars (institution of the Truce of God) ?
Before commanding in an imperative manner b y its legislation, the
Church recommended, preached, educated, often compromised with
the "hardness of hearts."
251. The Capacity of Morals for "Ordination to the Public Good."

T h e problem of the relations between law and morals finds its definitive
answer in the following formulation: T h e jurist will retain only those of
the rules of morals whose consecration or confirmation by the law will
in fact under the circumstances be found useful to the public good and
practicable with regard to the technical equipment of the jurist. On the
one hand, none of the divisions or parts of morals, none of its rules or
its virtues, is excluded from the possibility of consecration; on the
other, the latter will take place only as far as the public good in the
particular case will derive an advantage from it and the technique will
oppose no obstacle to it. T h e capacity for "ordination" to the public
good in its different forms — political public good where the state is
concerned, social public good where the community embraced within
the framework of the state is concerned — this is the first essential
condition of the "subsumption" of morals into law. 1 3 This first condi-
tion, indeed, implies the second, relating to technique, for a rule tech-
nically inapplicable and hence useless will very rarely be advantageous
to the public good. It will have been noted that the criterion is not only
conformity to the public good of the attitudes to be required of the
lots, in 2 PUFFENDORF, LES DEVOIRS DE L'HOMME ET DU CITOYEN (transl. b y B a r -

beyrac, new ed., A m s t e r d a m , 1756) 291 et seq. Also PH. MEYLAN, JEAN BARBEYRAC
203-204.
12 On this patience of the C h u r c h , see A . ESMEIN, LE MARIAGE EN DROIT CANON-
IQUE (2d ed. b y Genestal) , 2 vols, passim.

13 See ST. THOMAS, SUMMA, la Ilae, qu. 96, art. 3 ad resp., in fine: . . . On this
distinction between the political and the social, see supra, nos. 138 and 237.
Unauthenticated
462 JEAN DABIN
subjects, but also and above all conformity to the public good of the
intervention of a law prescribing for the subjects such attitudes, even
if these conform to the public good. Besides the content of a law, the
very principle of its intervention must therefore be considered.
SECTION 2. JUSTICE AS THE N O R M A L M A T T E R OF THE L E G A L R U L E
252. The Moral Precepts Susceptible of Consecration by the Law.

W h a t , then, are the moral precepts that may be ordained for the public
good by the intermediary of the laws? Here political prudence comes
in, and especially legislative prudence, whose role is precisely that of
discerning solutions most adequate to the circumstances of times, places,
and cases. Although these solutions are variable in concrete cases, it is
not impossible to assign to the work of prudence, if not an inflexible
method, at least a marching order of general though provisional value.
Among the rules of morals, the jurist constructing civil laws will at
the outset introduce a distinction between the rules governing relation-
ships with others and the rules regarding duties toward God and toward
one's self. On the one hand, the duties toward God and the duties
toward oneself exist independently of any form of social life; on the
other hand, the legal rule is a social rule, and therefore one presuppos-
ing other persons. It is clear that the public good, the end of the legal
rule, is more directly concerned with the relationships between men
than with the relationships of man with God or his conduct toward
himself. These latter spheres of duties can affect the public only in-
directly, incidentally. 1 N o w logic commands one to apply one's self in
the first place to what makes up the direct and immediate subject
matter of the law, unhampered b y any ulterior view of the "incidental"
matter.
In the second place, the jurist will distinguish among the moral rules
governing the relationships among men those implying something due
which is capable of exaction: T h e debt of justice in its three forms,
commutative, distributive, and legal, and also the debts that may be
called familial, between spouses, between parents and children, and
between relatives, in which the necessary institution of the family con-
sists. As for moral prescriptions other than those of justice, the measure
of interest the jurist accords them will depend on the degree of their
proximity to justice: A closer interest for the annexed virtues of justice,
by reason of their analogy to the principal virtue; a more remote inter-
Unauthenticated
est where the ground of the debt decreases or disappears, as in the case
of beneficence and liberality.
253. Justice as the Precept Most Obviously Fit for Consecration.

On several grounds, justice is somehow the natural subject matter of
the legal system. First, because fulfillment of the moral duty of justice
is most indispensable to the public good. A s for injustice among private
persons, it is in reaction to this "common evil" that the concept of a
public good was born in which the first element is order and peace
guaranteed by the force of the community organized in the state. A t all
times justice has been placed in the first rank of that ratio qua societas
hominum inter ipsos et vitae quasi communitas continetur,a 2 T h e state
would fail in its mission, the public good would not be realized, if
justice between individuals was not respected. 3 W h a t about legal
justice and distributive justice? Here the question does not even arise.
Legal justice is the virtue most necessary to the public good precisely
because its object is the public good (of the state or of the public). It is
in legal justice that law and morals meet so closely as almost to merge.
Is not the object of the moral precept of legal justice that which is fixed
b y a law? T h e same goes for distributive justice. T h e state may well
produce the most abundant public good and yet its effort will turn into
civil war, that is, public evil, if it distributes it contrary to equity.
Neither is it conceivable that a civil law could depart from dis-
tributive justice, because the latter is the moral norm to which the
rulers, the authors of the civil law, are subject in their professional
capacity.
It is true that the two justices, commutative and distributive, which
refer to the particular good, are like every particular virtue subordinate
to legal justice, which is qualified to regulate the content thereof, that is
to say, the particular right of everyone, according to the requirements
of the public good. B u t that subordination is not the work of civil laws.
It results, as has been said, 4 from morals itself, which demands the
subordination in the temporal order of the particular [private] good to
the public good so that on this point the harmony between the two
rules is complete.
* [ R e a s o n b y w h i c h society a m o n g men and, as it were, the c o m m u n i t y of life

is held together.]
2 CICERO, DE o m e n s 1, 7, 20; still other passages are reported b y F. SENN,
op. cit. 46, η. i .
" S e e ST. THOMAS, op. cit. la Ilae, qu. 96, art. 2 ad resp., in fine: . . . ; also
ad i. See also la Ilae, qu. 95, art. 1 ad resp., . . . ; la Ilae, qu. 98, art. 1 ad resp.,
. . . ; Ha Ilae, qu. 77, art. 1 ad resp.: . . .
Unauthenticated
464 JEAN DABIN
254. Exceptional Rectification of the Two Particular Justices on the
Ground of Legal Justice. Yet it would be a mistake to believe that the
solutions given by commutative and distributive justice on the basis of
the individual right alone would always or even frequently call for
rectification on the ground of legal justice. Not only is there no neces-
sary opposition between the public good and the particular justices, but
such opposition is also relatively rare. The public good in application
will on the contrary demand respect for the particular justices.5 It must
not be forgotten that individuals are the beginning and the end of the
state and the public good — that one must therefore start from them
as one must finally revert to them. That is why on the methodical level
the jurist constructing the law will at once proceed to the solutions of par-
ticular justice: Commutative for the relationships among private per-
sons, distributive for what is due to the citizens from the state, thus
consecrating the particular right a priori according to the title of each
one considered individually. Nor will any rectification whatever be
operative on the ground of the public good except where proof has been
made beyond any doubt that the consecration of the right of the indi-
vidual according to the standard of particular justice either involves
positive damage to the public good in the special case or does not permit
the attainment of an advantage remotely compensating the evil inherent
in any rectification of justice.
Therefore, when it is recommended that the jurist take justice in its
three forms for the basic matter of his rules, it is appropriate to make
this more precise by the following complementary distinction. In the
relationships between private persons, the justice primarily to be con-
sidered is commutative justice; in what concerns the rights of citizens
against the state, it will be distributive justice — the domain of legal
justice being provisionally limited to the obligations of the citizen
toward the state (societal justice). Legal justice as general justice
which governs the other virtues, including the two particular justices,
will be called upon only secondarily, after demonstration of the insuffi-
ciency of the solutions of the particular justices with respect to the
public good. Ordinarily, the public good is best served when every one
of the members of the public sees what constitutes his own right conse-
crated in the most exact manner.
2
55- Special Structural Adaptability of Justice for the Legal Rule.
Justice is the preferred matter of the legal order for a second reason,
which has to do with its particular structure. Indeed, justice is distin-
guished by the characteristics of objectivity, externality, and clarity,
6
See supra, no. 148.
Unauthenticated
G E N E R A L T H E O R Y OF LAW 46s
which render it eminently adaptable for the legal imperative. On the
one hand, unlike the virtues which relate to the passions, justice gov-
erns the action of the subject relative to the right of another.6 Now to
decree respect for the right of another, and at the same time to assure
the execution of that precept, is undoubtedly less difficult than to fore-
see and prescribe the environment conducive to virtue in the matter of
passions. No civil law could reach them except in acts that translate
them outwardly, 7 whereas operative action — of commission or omis-
sion— alone suffices to satisfy justice, at least materially. Moreover,
the object of justice, to wit, the right of another, is a thing given in
external reality, while the virtues regulating the passions have their seat
in the subject himself. B y reason of this objectivity, the solution of
justice has general validity, like the legal rule, obligating everybody
uniformly, without distinction according to the subject who is under
obligation, while the just measure in respect to passions is a matter of
the special case, depending upon individual situations and circum-
stances.
On the other hand, unlike the other virtues ad alterum, justice shows
the peculiarity of clear determination as to persons and things. Its
beneficiary is the determinate person, individual or collectivity, in
whom the right exists; the debtor is either everybody or such and such
an individual or collectivity. Similarly, the object of the right is deter-
mined or determinable: Such and such a thing, service, or attitude; that
alone is someone's due because it alone is "his own." Now again this
clarity lends itself to the logical and precise mechanism of the legal rule.
True, the determination is far from being as perfect in the two justices
of the political order, legal and distributive justice, as in commutative
justice. There is some leeway in the appraisal of what is due to the
state and the public (legal justice) or what is coming to each one in
the distribution of the public good (distributive justice). 8 Nevertheless,
the principles according to which prudence must make the concrete
determination are outlined in an objective manner. It is indeed the
reason of being of the state and of the laws to lay down terms for the
original indeterminacy of all that falls within the political.
256. Like the Legal Duty, the Duty of Justice Is Capable of Exaction.
Justice is the obvious matter of the legal order for a third reason, to
On the "real mean" proper to justice, see supra, no. 226.
" On the incompetence of the law in the matter of inner acts, see supra, nos.
65-69.
8
Even in commutative justice, the determination of the right of another is
more delicate when the value at stake is of a moral, non-pecuniary kind; see
supra, no. 93.
Unauthenticated
466 JEAN DABIN
wit, that the debt of justice is capable of being exacted. Because its
object is the right of another and that right of another is its holder's
own, he has the right to exact respect for it if need be by force. Morally,
by its nature, justice implies the right to repel unjust aggression: This
is the case of vindication which may be permissible and sometimes is a
virtue, according to the circumstances. 9 Now, similarly, by its nature
the legal rule is capable of exaction and proceeds by way of compulsion:
What is required by the public good or decided upon in conformity with
it calls for being carried out, voluntarily or by force. Thus when the
law takes over on its account the moral precept of justice, the compul-
sion with which it accompanies it does not constitute an innovation.
Especially as regards commutative justice, the consecration of a law
does nothing but replace the very insufficient (and for the public good
deadly) mode of private compulsion with the regulated mode of public
compulsion. The change touches only the form of compulsion and not
its principle. Contrariwise, the moral duties incapable of exaction are
as such repugnant to compulsion, which is foreign to them and even
denatures them. Beneficence and liberality imposed by compulsion re-
main benefits materially; they have lost their character of virtuous
acts. It requires precisely a basis in legal justice to render legitimate a
command which makes them — on this new ground — capable of
exaction.
257. The Law and the Annexed Virtues of Justice, Especially Faith
in Promises. B y the very reason of their participation in justice, the
annexed virtues of justice, 10 at least those among them which embody
more fully the objective structure of justice, participate in the aptness
of their principal virtue for legal consecration. What we have here
especially in mind is faith in promises. Not only does the party who
violates his promise offend the other contracting party to whom he owes
his pledged faith, but also all social life is impossible if promises made
are not kept at all. Confidence and credit have their sole basis in faith;
and faithlessness in promises is undoubtedly as damaging to the public
good as are attacks against the right of another. 11 From that side, the
situation is clear: The intervention of the laws to sanction faith in
promises is not only justified but required. From the side of formal
realization of the intervention, the situation is no less clear. The object
of faith in promises can be "grasped" quite as much as the object of
8 See ST. THOMAS, op. cit. IIa Ilae, qu. 108, art. 1 ad 4 : the p u r e l y personal
insult m u s t be b o r n e p a t i e n t l y si expediat — a c c o r d i n g to the circumstances.
10 O n the v i r t u e s annexed to justice, see g e n e r a l ly supra, nos. 222-224.
" S e e ST. THOMAS, op. cit. IIa Ilae, q u . 109, art. 3 ad 1: . . . See also qu. 1 1 4 ,
art. 2 ad 1.
Unauthenticated
the debt of commutative justice — even more so, for the promise has
formally determined it. T h e only difference is in respect to exaction.
Contrary to what is due in justice, what is promised to another is not
coming to him as something that belongs to him, directly or by equiva-
lent; hence the strict exaction of justice cannot enter the arena. 1 2 Y e t
faith in promises is so much required b y the public good that one
should not be astonished to see the laws confer upon it the capability
of exaction which it does not of itself possess. In that manner, the moral
debt of honesty, which engenders faith in promises, is transformed into
a legal debt, which may henceforth be exacted on the ground of legal
justice.
258. The Law and the Constituent Principles of the Family. Lastly,
among the moral principles whose place is marked in the law, there are
to be counted the constituent rules of the family, the rules which define
the family as an institution. Family relationships — between spouses,
between parents and children, even between relatives — bear a double
aspect according to whether they are viewed from within or from with-
out. Seen from their inner or intimate side, family relationships belong
above all to that part of morals which governs sentiments and acts
resulting from sentiments. In the first rank of these sentiments we find
love, a special love of familial character, which is further differentiated
according to the diverse psychological and moral categories of conjugal
love, paternal and maternal love, filial love, fraternal love, etc. B u t the
law is powerless with respect to the duty of love and even, to a degree,
the duty of familial piety inasmuch as it involves love. 1 3 Contrariwise,
with regard to the traits b y which the family is set apart as an institu-
tion and which belong to the institutional part of morals, the power-
lessness of the law disappears. 1 4 It is not impossible for a law to decree
that only the legitimate union, that is, marriage, shall be endowed with
legal effects; that this union shall be one and indissoluble, at least in
principle; that it shall entail reciprocal duties of cohabitation, faithful-
ness, aid, and support; that parents ought to give their children during
their formative period nourishment and education; that children in turn
are under the obligation of docility; that the family group shall have a
head, the husband and father, charged with authority — and respon-
sibility — toward his wife and children, — all this according to the
moral conceptions prevalent in the people under contemplation.
T o what extent do the constituent principles of the law of domestic

12Sec supra, no. 224 and note 33.
13Concerning familial piety, annexed to justice, see supra, no. 223.
" On this distinction, see supra, no. 94.
Unauthenticated
468 JEAN DABIN
relations approach the type of justice? In the absence of justice toward
the family as a body (because the family, while forming a group and a
community, is not a moral person), 15 it is not forbidden to speak of a
sort of justice between spouses, which gives them rights that may be
exacted from one another, or a sort of justice between parents and
children, which makes them creditors (or debtors) of education, nour-
ishment, docility, etc.1® But this matters little from our point of view.
It is enough that the constituent principles of the family evidently
concern the "public." Now it may be affirmed beyond doubt: The
family concerns the public good at least as much as it concerns justice,
as clearly and as closely. Is the family not one of the bases of the social
and political order of a country? Is it not the root of life, and thus of
peoples and states? Does one not find it omnipresent, actively and
passively, with regard to the particular individuals who are subjects of
justice? That is why the law will at once come to the aid of the familial
institution, as it comes to the aid of individuals in commutative and
distributive justice, and of the state and the public in legal justice.
25g. Yet the Normal Order of Consecration Is Subject to Derogation.

It is granted, again, that these interventions of the law take place not
directly in favor of justice, or in favor of the family, but inasmuch as'
these values — and their legal protection itself — effectively realize the
public good in the circumstances, and on the condition also that the
intervention should not be technically incapable of realization. Such
being the point of view of the jurist, it is possible that the marching
order outlined above in a theoretical manner, starting de eo quod
plerumque fit,b must undergo certain derogations in practice. Thus
some moral rules that would normally require the consecration of the
law might have to go without it, while others which normally would not
require it would have to obtain it.
There could be no question here of drawing up a systematic list of
these exceptional cases, their general theory having been presented.
Let us confine ourselves to some suggestions, limited to the law of
private relations, since in the relationships of the political order the
rule of the law itself undertakes, by order of morals, to determine the
requirements of legal and distributive justice.
260. Cases Where the Law Abstains from Consecrating Justice. It has
already been observed, with supporting examples, how commutative
" S e e in this sense G. del V e c c h i o , La justice § 12, in JUSTICE, DROIT, ETAT, p p .
62-63.
* [From what happens in most cases.]
Unauthenticated
justice (and equally so its annex, faith in promises) often enough had
to withdraw before more or less urgent considerations of the social
order: Economic, political, psychological (such as the concern for
security). 1 7 Even in morals, general justice normally prevails over
particular justice. But there is another set where the law foregoes
sanctioning commutative justice. Either it refers for the determination
of their respective rights to the regulation agreed upon between the
interested parties although this may not always conform to natural
justice. 1 8 Or again it leaves the field free to individual activities, where
these usually work spontaneously in the direction of justice, 1 9 or where
political prudence or the insufficiency of legal equipment makes it advis-
able to tolerate them wholly or in part even though they are unjust. 2 0
261. Cases Where the Law Goes Beyond the Framework of Justice.
Also, contrariwise, the law pushes beyond commutative justice, sanc-
tioning moral rules other than the rule of justice. It draws first of all
upon those virtues ad alterum, annexed to justice, where the debt is
but moral: N o t only fidelity to the pledged word, which is as indis-
pensable to social life as is strict justice, but also, for instance, gratitude
and sometimes beneficence and liberality. 2 1 So-called "social legisla-
.ion" is full of precepts imposing obligations upon employers to which
on the part of the workers no strict right corresponds and which often
fall within gratuitous assistance. 22 But these virtues are eminently
"social," more social in certain respects than justice. For if justice is
the necessary condition of life in society in rendering to each his own,
the social virtues, by their disinteresed altruistic character, positively
tighten the social bond. Hence it will be seen that the law, concerned
with concord and fraternity among the members of the group, is led to
promulgate statutes "of social solidarity," where the required attitudes
become a matter of legal justice by reason of their "ordination" for the
public good. 23 Furthermore, social relations do not exist solely between
17 See supra, nos. 147 et seq.·, also nos. 1 1 4 - 1 2 2 . This is w h y certain natural law-
writers such as MEYER, INSTITUTIONES JURIS NATURALIS 92 et seq., 104 et seq.,
speak of combining natural l a w with the conveniences of the general good.
18 See supra, nos. 1 5 6 - 1 5 9.

22 T h i s is so e v e n if one accepts the idea of the [industrial] enterprise as a com-

m u n i t y or institution. E v e n within the frame of that conception there are acts of
assistance b e y o nd the requirements of c o m m u n a l or institutional justice, because
the enterprise integrates men into its system only as workers, employees, collab-
orators, and not men as men.
23 See in the same sense F. R u s s o , op. cit. 54, in fine, and 55, initio. F or an ap-
Unauthenticated
47° JEAN DABIN
equals: A t their basis is authority. T h a t is w h y the law prescribes

obedience to authorities not only in the state b u t also in the p r i v a t e
groups, in the first p l a c e the f a m i l y . A l t h o u g h obedience is b u t an
annexed virtue of justice, 2 4 it will be seen that laws come to the aid of
the hierarchies which m a k e up the organic unity of social life.
B u t the law does not entrench itself in the field of the virtues ad
alterum. Stepping b e y o n d the circle of justice and the social virtues, it
represses some shortcomings in duties toward one's self (e.g., the
attempt at suicide, drunkenness, certain alienations of essential rights
or liberties), some shortcomings in duties toward God (e.g., blasphemy,
sacrilege, p e r j u r y ) , or again acts of cruelty to animals. W h y ? N o t be-
cause commutativ e justice would be involved, b u t because these offenses
affect the public, causing trouble or d a m a g e in the social environment. 2 5
L a s t l y , b e y o n d justice and even morals, one will h a v e to indicate the
innumerable measures of prudence laid down b y the law to the end of
preventing the violation of the moral precepts it has taken up and
sanctioned. Such are the regulations designed to police traffic, industry
and labor, and commerce, whose aim it is no doubt to facilitate the
activities of traffic, industry, commerce, b u t also to protect the rights of
the persons engaged in those activities against encroachments. N o w
these preventive measures, though in part ordained for justice, are in
themselves means indifferent to justice.
262. "Just Laws" and Laws Consecrating Justice Are Not Synony-
mous. F i n a l l y , one will h a v e to guard against confounding just laws and
laws which consecrate justice. A l a w is just when it prescribes w h a t is
within its röle to prescribe. In this sense, a just law is a law a d j u s t e d to
its end, the public good, and to its proper means of realization, in short,
a law conforming to the legal method. T h i s , the rule of natural law
being unaffected, is the regula rationisc in matters of positive law. 2 6
N o w while ordinarily a just law is a law which consecrates justice, this
is not a l w a y s so. T h a t is all the difference between the l a w y e r ' s justice,
which is a matter of prudence, and the moralist's justice, w h i ch is a
matter of truth or science.
plication, cf. A. Rouast, Le risque projessionnel et la jurisprudence jranfaise, in 3

R E C U E I L G E N Y 228 et seq.
21 On obedience, see ST. T H O M A S , S U M M A , IIa Ilae, qu. 1 0 4 , arts. 1 and 2.
23 See in this sense, on suicide, ST. T H O M A S , op. cit. IIa Ilae, qu. 59, art. 3 ad 2 ;
on moderation, la Ilae, qu. 94, art. 3 ad 1.

0 [The rule of reason.]
28 Cf. ST. T H O M A S , S U M M A THEOLOGICA, la Ilae, qu. 95, art. 2 ad resp.: . . .
See also qu. 95, art. 3 ad resp., in fine: . . .
Unauthenticated
TABLE OF STATUTES
BELGIUM L a w of July 31, 1920: 402

Civil Code (Code Napoleon),
GERMANY
Art. 313: 401
1907 ter: 398 Reich Constitution, 1919 (Weimar)
See also France, Civil Code (general): 44, 204
Law on the Contract of Work, 1900, Art. 2: 216
Art. 1: 398 48: 76, 110
9: 313-314 119: 175-176
120: 176, 179
11: 313-314
137: 211
Law on the Contract of Employment,
152: 172
1922,
153: 86, 155, 167
Art. 1: 398
154: 183-184
Law of Social Defense, 1930,
155: 155, 182
Art. 25: 39s 156: 153
Law of June 14, 1937: 403 Civil Code, 179
Penal Code, Sec. 138: 398
Art. 494: 374 950: 161
FRANCE
1568: 390
1666: 79
Declaration of the Rights of Man and
Code of Civil Procedure,
of the Citizen, 1789: 102, 153
Sec. 888: 87
Civil Code (Code Napoleon) (general):
288-289, 337-341, 375, 378, 413 Juvenile Courts Act, 1923: 179
Art. 4: 142, 352-353, 397 Reich Y o u t h Welfare Act, 1922: 179
203: 314-315 Sec. 62: 79
231: 389-390 63: 79
313: 401
ITALY
450: 286
469: 286 Civil Code,
472: 286-287 Art. 401: 276
543: 369 Charter of Labor (Carta del Lavoro),
552: 369-370 93
617: 369 Penal Code, 1926: 189-190
686: 369
727: 394 SWITZERLAND
908: 288 Civil Code,
955: 390, 394 Art. 1: 142, 218-219, 348-349
1134: 249, 284
1382: 341, 393-395 U.S.S.R.
1384: 386 Penal Code, 1926: 189-190
Unauthenticated
INDEX
(The references are to pages)
Absolutism, 102 Atomism, 13, 16, 19

Abstraction, 24, 3 1 , 32, 35 Aubry, 307
Activism, 58 Auerbach, 89
Ad alteram. See Human Relation; Austin, 44
Duty Authoritarianism, 243, 327
Adjective law, 87, 147, 153, 198-201, Authority, 7, 29, 105, 1 1 7 , 152-153, 186,
219-221, 28s, 307, 3117 352. 3 7 1 - 189, 210, 231, 241, 243-244, 246-
372. 395. 401 248, 252, 259-263, 271-272, 279-
Administrative decision, 282-284, 294 281, 292, 394, 428, 430, 470
Administrative law, 109, 147, 153, 201, Autonomy, 14, 84, 169-170, 204-205,
262-263, 269-270, 3 1 1 , 333, 364, 249, 304-305, 310
376, 394, 396
Aesthetics, 5, 1 1 , 50, 76, 82, 85, 91, Bachofen, 62
137-139, 1 5 1 , 397 Bacon, 1 1 4 , 152
Agency. See Contract; Public officer Bamberger, 181
Agnosticism, 58-59 Barbeyrac, 422, 460-461
Ahrens, 15, 40 Barion, 212
Aid, 356-359, 362 Battifol, 387
Alsberg, 120 Baumgarten, 70-71, 88, 1 1 2
Analogy, 38 Bebel, 179
Anarchism, 80, 85, 99, 100, 152, 153, Beccaria, 165, 1 9 1 - 1 9 5
215, 259, 370 Belgium, 278, 374
Angelus Silesius, 51, 100 Bentham, 44
Angerthal, 70 Bergbohm, 6-9, 40, 66
Anraths, 58, 154 Bernard, R., 440
Anschütz, 125 Bernhard, L., 106
Anthropology, 50, 52, 242 Berolzheimer, 63
Antinomism, Antinomy, 58-59, 84, 88- Beudant, 371
89, 1 0 7 - 1 1 2 , 1 1 8 - 1 2 0 , 136, 190, Bible, 51, 52, 58, 59, 81, 1 1 7 , 126-129,
195-197, 200-20:, 204, 335, 338- 134, 143, 144, 197, 254, 290, 294,
339 378, 434
Arbitrariness, 119, 135, 196, 206, 236, Bierling, 41, 66
303, 344, 400, 454 Binder, 57, 71, 73, 75, 82, 98, 160, 214
Aristotle, 74-75, 258, 260, 281, 282, 284, Binding, 66, 147, 186
292, 412, 431, 437, 440, 443, 445, Biography, 145
448, 449, 451, 460 Birdwood, 93
Arnold, 39, 41 Bismarck, 119, 125, 186, 191, 194
Art, 50, 54, 82, 83, 85, 92-94, 96, 1 3 7 - Boeckh, 141
139, 177, 199, 203, 298, 318, 319, Böhmer, 181
344, 346, 391-392, 397, 4 1 1 Boistel, 235, 366, 368
Aryan tribal law, 40 Boitard, 300, 405
Ascoli, 87 Bonnard, 248, 276, 281, 324, 350, 363
Association, 16, 35-37, 159-160, 236- Bonnecase, 255, 285, 286, 292, 299, 306,
237, 255, 261, 296, 299, 300, 302, 322, 324, 327, 329, 332, 348, 365-
304, 309, 354, 397-398 366, 440
Unauthenticated
474 INDEX
Brethe de la Gressaye, 239, 261 Christianity, 13, 20, 23, 126-130, 134,
Brinz, 159 207-212
Β rod, s i Church, 1 1 3 , 197, 207-212, 229, 237,
B r o d m a n n , 33, 41, 83 294-295, 336, 426, 4 61; see
Brunetti, 276 also Catholic Church; Evangelical
Bruns, G., 6 Church
Bruns, V., 217, 219 Cicero, 45, 322, 339, 367, 420, 435-437,
Brunstäd, 164 442, 451, 463
Burckhardt, J., 92, 112, 123, 152 Citizen, 102, 453, 464
Burckhardt, W., 270-271, 310 Civilization, 3, 2 1 ; see also Culture
Buschauer, 183 Civil law, as positive secular law, 229,
Business Regulation, 1 4 - 1 5 , 104, 147, 239, 423-431, 433, 455, 460, 462,
152, X54-ISS. 172, 389 463, 465; see also Positive l a w ;
P r i v a t e l a w ; R o m a n law
Calvinism, 211 Civil society. See State
Canon law, 175-176, 238, 425-427 Class, 15, 21-22, 55, 64, 89-90, 104, 105,
Capital, Capitalism, 20, 165, 158, 1 7 1 - 122, 165, 182, 189, 206, 235
174, 179 Classification, 38-39, 404-405
C a p i t a n t , H., 250, 289, 418, 421 Codex J u r i s Canonici, 1 7 5 - 1 7 6 ; see also
Capitant, R., 229, 245, 251, 269-274, Canon law
276-278, 281, 283, 284 Codification, 30, 63
Carbonnier, 287, 367 Cognition, 18, 37, 54, 60, 69
Carnegie, 184 Cohen, H., 9, 21-22, 40, 69
Carre de Malberg, 243 Cohn, L., 57
Case, individual, 10, 18, 32, 75, 150, Colin, 289, 418
196, 282, 284, 384, 386, 392-393, Collectivity, 35-37, 92, 95-96, 106, 265,
404-405 316, 360-361, 444
Case law, 243-247, 253, 264, 288, 3 2 3 - C o m m a n d . See Imperative
324- 331. 333, 351, 38S-386 Commercial law, 293-294
Casti connubii, 175-176 C o m m o n good, 163, 166-167, 240, 3 5 3 -
Cathrein, 7, 40, 70 355, 449; see also Public good
Category of thought , 14, 25, 33, 77-78, C o m m o n law, 159, 181, 294
147-148, 156, 160 Communion, 238, 241, 244, 246, 290
Catholic Church, 97, 106-107, I 2 5 , 175, Communism, 65, 104, 123, 337
207-208, 212, 216-217, 237, 238, C o m m u n i t y , 6, 1 4 - 1 5 , 18, 20, 21, 29,
241; see also Church 80, 89-90, 95-97, 105, 158, 174, 177,
Catholicism, 7, 70, 106-107, 117, 128, 179, 207, 235, 237, 355; see also
129, 207-208, 212, 420 Legal c o m m u n i t y
Causality, Causation, Cause, 9, 29, 33, organized in the state, 449-452
35, 54-55, 65, 67, 83, 188, 268, Comparative law, 39-40, 60, 141, 321
269, 318 Competency, 269-271, 276, 285
Celsus, 138, 434 Compulsion, 1 7 - 1 8 , 40, 59, 84, 86-88,
Certainty. See Legal certainty 99, " 4 , 177, 203, 208, 221, 233,
Cervantes, 53 234, 239, 242, 250-267, 298, 299,
Change, 4 1 2 - 4 1 5 326-327, 437, 439, 459-460, 465-
Charitable foundation, Charitable trust, 467
159-160 forms of, 256-257
Charity, 88, 197 private and public, 259-261
Charles Martel, 117 punishment and, 255-256
Chicane, 136 rules without , 258
Chose in action, 164, 168, 445 sanction and, 254-255
Unauthenticated
INDEX 475
Concept 297, 300-302, 304, 307, 3 1 3 , 3 1 5 ,
a priori, 77-78, 1 5 2 - 1 5 3 , 156, 160-161 338-340, 368, 3 7 0- 3 7 1 , 380, 395,
cultural, 88, 107, 203 397-398, 404, 405, 453-454· See
f o r m a l , 68-69 also Social c o n t r a ct
f o r m a t i o n of, 6, 16, 23, 26, 30, 3 4 - 3 7 C o n v e n t i o n . See M a n n e r s ; Rule
general, 72-73, 77-78 C o o r d i n a t i o n of efforts, 356-359, 362
legal, legally relevant, 30-32, 34, 3 6 - Copernicus, 25, 27
39. 66, 71, 77-78, 148-149, 1 5 2 - 1 5 3 , Cornil, 268, 326, 349
156, 203-204, 387-397 C o r p o r a t i o n , 16, 159-160, 237, 243, 249-
of reality, 203 250, 261, 298, 305, 312, 447-448;
prejuridical, 35, 77-78, 148-149 see also Occupational c o r p o r a t i o n
scientific. See Prescientific t h o u g h t C o r p o r a t i v e relation, 303, 309, 3 1 1 - 3 1 2
teleological, 34-36 Correction, 188-190
Conceptualism, 38, 68 Cosmopolitanism, 1 3 - 1 4
Concordat, 216-217 Court
C o n d o r c e t , 413 ad hoc, h i
C o n d u c t , 81-82; see also C o n s t i t u t i o n ; administrative, 109, 201, 244, 262,
Legal rule 379, 396
external and internal, 78-80, 88; see i n t e r n a t i o n a l , 264
also I n n e r a c t ; I n t e n t of guardianship, 79
Conflict of laws, 1 1 3 , 213, 3 3 1 , 386-387 supreme, 262-263
Conflict of values. See A n t i n o m i s m trial, 87
Conscience, 50, 57, 76, 78, 81, 84-85, see also J u d i c i a r y
88-89, » 5 , 118, 1 3 3 - 1 3 6 , 177, 241, Courtesy, 89, 100
254, 265, 279-281, 290, 294, 329,
Crime, Criminal act, 35, 52, 75, 80,
339, 352, 382, 419, 430
116, 188
Consciousness, 17, 63-65, 90, 258, 3 2 5 -
Criminal law, 21, 3 3 - 3 5 , 80, 82, 109,
327, 329, 331-332, 337, 339-342,
147, 184-189, 220, 254, 272, 278,
344, 381, 415
287, 291, 292, 3 1 1 , 34 1, 3 7 2 - 3 7 3 ,
Consent
377, 388, 392, 394-395, 402, 403,
to p u n i s h m e n t , 184 -185
452
t o t h e d e a t h penalty, 1 9 1 - 1 9 4
Criminal offender, 84, 1 1 5 - 1 1 6 , 1 1 9 -
See also R e c o g n i t i o n ; Social c o n t r a c t
120, 184-185, 186-189
Conservatism, 62, 104-106, 154, 162,
Criminology, 140, 196
175-176, 413-414
Critical philosophy, 4, 6-10, 18, 24, 60,
C o n s t i t u e n t a u t h o r i t y , 261-262
71
C o n s t i t u t i o n , 19, 1 1 3 , 124, 216, 243,
Cuche, 108, 259, 335, 373, 392
249, 263, 3 1 1
law of, a n d law of conduct, 270-271 Culpability, 74, 79, 82, 89, 116, 178,
of society, 236-238 187
C o n s t i t u t i o n a l law, 87, h i , 201-204, C u l t u r a l law, 60
246-248, 253, 261-263, 3 1 1 , 333, C u l t u r a l philosophy, 14, 20
394 of law, 69-70
C o n s t r u c t i o n . See Legal constructio n C u l t u r a l science, 3, 10, 24-28, 35, 37,
C o n s t r u c t i o n of t h e law. See C o n s t r u e d 39-40, 50
C o n s t r u e d , the, 1 2 1 , 3 1 8 - 3 2 0 Culture, 3, 1 1 , 1 8 - 1 9, 22, 24-25, 26-28,
t h e l a w as, 318-350, 4 07 - 4 1 1 , 416 30, 32, 36, 50-52, 70, 73, 78, 88,
C o n t r a c t , 33, 87, 103, 116, 1 2 3 - 1 2 4 , 153, 92, 94, 96, 120, 203 2 1 7 - 2 1 8 222-
168-172, 174, 175, 1 7 7 - 1 7 9 , 203, 223, 357, 359-360; see also F a c t ,
209, 249-250, 255, 260, 276-277, cultural
282-285, 287-288, 293-294, 296- C u s t o d y , 188-190
Unauthenticated
476 INDEX
Custom, 28, 78, 87-90, 93, 113, 237, 241, Deterrence, 187-189
242, 298 Dialectics, 63, 95-96, 171, 405
as source of law. See Customary law Dictatorship, 76, 104, 106, 110, 189
contrary to statute, 252-253 Diehl, 161
Customary law, 38, 87, 110, 113, 201, Dikoff, 301
218, 241, 243-247, 264-266, 298, Dilthey, 41
323-324, 330-331, 333, 334, 341, Diplomacy, 220
351, 373, 385-386, 453 Directing law, Directive, h i , 274, 391,
394-396
Dabin, 225-470, 229, 231 , 237, 238, 240, Discipline
245, 248, 250, 265, 270, 2 74, 279, in private groups, 260-261
281, 283, 286, 309, 333, 335, 354, in society, 236-238, 241, 244, 246,
363, 364, 368, 371, 372, 374, 375, 247, 250-251, 260, 271-272, 283,
393, 398-401, 405, 406, 408, 418, 285, 290-291, 296, 305, 374-375,
456, 459 384
Dannenberg, 186 Dispensation, 281-282
Dante, 223 Disposing law, Disposition, 272-273,
Darmstaedter, 84, 172, 206 278
Darwin, 327-328 Divine l a w , 59-60, 128, 207-208, 382,
Daumier, 139 418, 420
Death penalty, 75, 187, 189, 190-195, Divorce. See Marriage
197, 256 D j u v a r a , 319, 334, 384
Decentralization, 243, 247-248 Dogmatism, 29
Decision. See Administrative decision; Dohna, 58, 68
Judgment D o m a t , 283, 299, 337, 339, 419, 420,
Decree. See Government b y decree 427, 428
Deduction, 38-39, 75, 77 Domestic law. See Conflict of laws;
Deecke, 164 International law
Definition Domestic relation. See F a m i l y ; M a r -
broad, 392-396 riage
lack of, 384-392 Domicile, 307
processes of, 397-400 Dostoevsky, 139, 194, 208
renunciation of, 396-397 Drath, 155
Defoe, 443 Droit, 230-232; see also Legal right;
D e f o u r n y , 282 Objective law
Dehmel, 49 Dualism
Dehn, 129 between philosophy and empirical
Delos, 236, 239, 285, 333, 335, 341, 352 science, 4, 16, 29, 56
Del Vecchio, 72, 73, 81, 131, 235, 236, in legal philosophy, 53-55, 59, 67-68,
238, 239, 242-243, 249, 267, 269, 70
275, 276, 278, 314, 331-332, 395, in legal science, 27-28, 29, 39-40
412-413, 427, 431, 434, 436, 438, Duguit, 154, 232, 257, 258, 260, 286,
468 306, 309, 323-326, 329-332, 336,
D e M a n , 65 339, 348, 387, 4 4 °
Democracy, 47, 99-103, 162, 165, 182, D u Pasquier, 233, 249, 251, 255, 257,
212, 243, 247 258, 264, 267, 268, 270, 273, 274,
Demo-liberalism, 102-104 284, 306, 310
Demontes, 340 Dupeyroux, 242, 248-251, 281, 282, 322-
Despotism, 99, 100, h i 323, 331
Desqueyrat, 339, 342 Duquesne, 327
Desuetude, 252-253 Dürkheim, 327
Unauthenticated
INDEX 477
Duty, 240 Esmein, P., 330
cultural, 85 Esposito, 127
moral, 14, 23, 35, 81-86, 91, 113, Essence, 51, 52, 71, 76, 77, 126, 314,
ιι9-120, 466 321-322
of man towards God, 294-295, 421- Estate, 183; see also Occupational cor-
422, 470 poration ; Succession
of man towards himself, 295-297, Ethics, 5, 11, 12-23, 29, 50, 55, 72, 84,
421-422, 476 91, 92, 166-167, !98, 2io, 360-
social, 296-297, 421-423 36i, 398, 421-423
see also Legal duty jurisprudence and, 35, 113
law and. See L a w , morals and
Ecclesiastical law, 207-212, 238, 294; social, 73, 85
see also Canon law ; Church war and, 220
Economics, 14-15, 20, 25, 29, 30, 32, see also Morals
64-65, 101, 103-104, 161-162, 164- Ethnology. See Anthropology
168, 171-174, 180, 289, 293, 303, Eudemonism, 351
3 U - 3 1 3 , 325-326, 329, 357, 359- Evaluation, IO-II, 17, 49-53, 65-66, 69,
360, 371, 418, 448, 454 73, 76, 79-8O, 85, 223
Education, 79, 90, 109, 174-176, 179, of law 53-59
291-292, 305, 316, 357, 3S9-360 legal, 56-57, 60, 71-72, 79-80
Effect. See Causality; Legal consequence of war, 220-223
Effectiveness, Efficiency, 83, 114, 118, Evangelical Church, 106-107, 211-212;
205, 229, 243, 251, 256, 372, 433, see also Protestantism
460 Event. See Fact, historical
Eisner, 93 Evolutionism, 53
Elaboration of the law. See Method Exaction. See Compulsion
Eitzbacher, 29, 41 Executive, 76, 245, 262
Emanatism, 7 Executive measure, 76, 110
Emge, 57, 68-69, 74, 112 Executive order, regulation, 113, 248,
Empirical reality. See Reality 283
Empirical science. See Science Existence, 11, 29, 33-34, 51, 53-54, 63-
Empirics. See Reality; Science 66, 71, 83, 114, 149, 285
Empiricism, 4, 8, 10, 66, 67, 70-71, 349 Expediency 35, 46, 74, 91, 108-112, 1 1 8-
Enactment, 7, 8, 59-61, 84, 117, 141, 119, 130, 133, 186-190, 196, 198-
205, 247 199, 394, 406, 452
Encyclicals, 162, 166-167, 175—176, 448
Enforcement. See Compulsion Fact, 4, 6, 10, 109-110, 112, 169, 178,
Engels, 63-65, 122-123, 177 204-205, 281, 306, 330, 332, 344-
England, 377 348, 349, 410
Enlightenment. See Despotism; Natural as source of law, 345-346
L a w ; Reason concerning God, 345
Enumeration, 324, 399 cultural, 52, 70, 76, 146-147, 203
Epistemology, 9, 25, 27, 28, 31, 32, 37, economic, 345
60, 66, 68 existential, 345-346
Equality, Equalization, 32, 64, 74-76, historical, 11-12, 24, 25, 192, 318,
100, 102-105, 109, h i , 154, 156- 345
157, 182, 187, 190, 196, 206, 209, legal, 77-78, 187, 203
358, 436-438, 445-448, 454-455 mental. See Fact, psychological
of spouses, 175, 176, 178-179 natural, 3, 11, 22, 143, 173, 318, 345
Equity, 75, 104, 139, 196, 440 of conduct, 345-346
Esmein, Α., 461 of the case, 33
Unauthenticated
478 INDEX
political, 2 3 , 3 4 s of organization, 6 4 , 2 0 6
prelegal, 3 4 7 of ownership. See Ownership, private
provable, 4 0 0 - 4 0 2 of science, 1 9 9
psychological, 3 6 , 7 6 , 7 8 , 8 3 , 1 1 2 - of testation, 1 8 0 - 1 8 1
1 1 3 , 1 1 6 , 1 9 5 , 289-290, 292, 300, of will, 1 4 , 3 5 , 4 6 , 1 7 7
345, 376-377 Freund, 1 7 8
rule of action as, 3 4 6 - 3 4 7 Friendship, 8 0 , 1 7 7 , 2 8 9 - 3 0 1 , 4 3 7 , 4 4 0 -
scientific, 3 1 9 , 3 4 s 441
social, 1 7 3 , 3 0 8 - 3 0 9 , 3 4 9
Faith. See Good f a i t h ; Promise ; R e -
ligion G a p in t h e law. See L a c u n a
Family, 15, 7 9 , 173-179. 1 8 0 - 1 8 3 , 2 3 2 , Geiler, 3 0 1
237» 2 5 5 , 2 6 1 , 2 8 7 - 2 8 9 , 2 9 6 , 2 9 8 - Generality, 8 , 1 1 , 1 7 , 2 2 , 3 2 , 3 6 , 3 9 , 7 2 ,
299, 3 0 2 - 3 0 5 , 3 0 7 ,3 1 1 , 3 1 4 - 3 1 S , 149-150, 451, 454
333, 3 6 1 , 370-371, 378, 380, 3 9 4 , of equity, 7 5
4 0 1 , 436-439, 444, 458, 4 6 1 , 4 6 2 , of justice, 7 5 , 1 0 8
467-468, 470 of law, 6 4 , 7 6 , 1 0 8 , 1 9 6 , 2 8 1 - 2 8 4
Fascism, 9 3 , 1 0 2 , 1 0 6 , 1 8 8 - 1 8 9 , 1 9 0 of legal justice, 4 4 9 - 4 5 1
Fashion, 8 9 - 9 0 General part, 2 6 , 4 6 , 1 5 1
Fathers of the Church, 4 3 6 General theory of law, 4 , 3 3 - 3 4 , 3 9 - 4 0 ,
Federalism, 2 1 6 , 2 4 7 - 2 4 8 65-66, 7 1 , 147, 227-270, 321
Fehr, 1 3 7 Geny, 5 4 , 1 2 1 , 2 4 2 , 2 4 7 , 2 5 2 , 2 5 8 - 2 5 9 ,
Feminism, 174 263, 318, 323, 325, 328-329, 3 3 2 -
Ferri, 1 8 9 , 1 9 0 336, 347-348, 3 8 6 , 4 0 6 - 4 0 9 , 4 1 8 ,
Feudalism, 155 4 2 1 , 431-433, 441
Feuerbach, L., 7 1 Germanic law, 3 1 , 3 6 - 3 7 , 1 2 2 , 1 3 2 , 1 5 2 ,
Feuerbach, P. J . Α., ii8, 1 8 4 , 1 8 7 162, 196-197
Fichte, 1 4 , 1 7 , 1 2 5 , 1 6 5 - 1 6 6 Germany, 7 6 , 1 1 7 , 1 2 5 , 1 8 6 , 2 0 4 , 3 0 1
Fiction, 3 5 , 1 5 9 - 1 6 0 , 1 6 5 , 1 6 9 - 1 7 0 , 1 9 2 - Gierke, 1 5 - 1 6 , 3 1 , 36-37, 4°, 41, 137,
193, 401 159
Figner, 9 2 Gift, 1 8 2 , 3 0 0 , 3 2 8 , 3 9 4
Finalism, 1 4 7 - 1 4 8 Girola, 2 4 5
Fischer, 2 3 Given, the, 6 , 4 9 , 5 2 , 5 4 , 7 7 , 1 2 1 , 1 7 3 ,
Florentin, 4 3 6 318-320, 382, 455
Fontane, 7 9 , 1 1 8 empirical, 2 9
Force, 1 1 5 , 2 5 7 , 2 5 9 , 3 0 3 , 327-328, 3 3 2 , legal, 3 1 8 - 3 4 2 , 3 4 4 - 3 5 ° , 4 0 9 - 4 1 1 , 4 1 6 ,
λ 416-417 426-427
Formalism, 8 , 1 5 , 1 8 , 1 9 , 2 1 , 2 2 of nature, 4 2 0 - 4 2 1 , 4 2 6
legal, 2 8 , 3 1 , 3 6 - 3 7 , 131, 147-148, popular, 3 2 5 - 3 2 6 , 3 3 0 - 3 3 2
392 psychophysical, 3 0 , 3 6
of L a w , 1 8 , 2 2 , 3 1 , 2 0 8 , 2 9 2 - 2 9 3 , 3 9 2 revealed, theological, 3 3 6
Fortune, 1 6 4 Givord, 2 5 6
Fouillee, 4 5 4 Glasbrenner, 9 7
France, 7 2 , 3 7 9 , 3 9 6 Glungler, 7 2
France, Α., 1 3 9 Goethe, 5 3 , 5 9 , 7 2 , 9 9 , 1 1 7 , 1 1 8 , 1 3 1 ,
Freedom, 1 3 , 1 7 , 1 9 , 8 6 - 8 7 , 9 4 , 9 9 - 1 0 2 , 132, 134, 137, 142, 143, 145, 146,
104, 105, 139, 159, 302, 305, 346, 162-165, 168, 184, 191, 223
352, 373-381, 4 3 8 Göll, 1 3 0
of circulation of goods, 3 6 9 Good. See C o m m o n g o o d ; Public good;
of contract, 1 6 8 - 1 6 9 , 1 7 1 - 1 7 2 , 3 3 8 - Value
340 Good faith, 7 9 , n o , 2 9 2 , 4 0 3
Unauthenticated
INDEX 479
Government, Hippel, 57
b y decree, 282 Hirzel, 137
b y prerogative, 1 1 1 , 155, 201-202, Historical materialism. See Materialism
282 Historical school, 3 - 4 , 10, 15, 60-63, 66,
f o r m of, 97, 243, 261, 358 121, 323, 326-327
of laws, 122-123, 153, 155, 185-190, Historiography. See History
201-206, 282, 284, 395 Historism, 10-12, 23, 53, 62, 65, 125
Gratitude, 436, 437, 439, 465 History, 3, 6, 7, 1 0 - 1 2 , 18, 19, 24-25,
Greece, 23, 100, 115 32, 40, 50, 63, 71, 88, 90, 94, 97,
Griess, 70 104-105, 120-125, 140, 150-151,
G r i m m , 137 218, 219, 223, 242, 259, 297, 318,
Groeber, 117 321, 396, 406, 412, 423
Grotius, 265-266, 337, 420, 422, 423, of ideas, 4, 145
425, 427-429 of philosophy, 145
G r o u p . See Association ; C o l l e c t i v i t y ; of sciences, 39
Society philosophy of, 120-125
Guardianship, 79, 285-287, 304, 388 see also L e g a l history
Guggenheim, 264 Hobbes, 142, 145, 416
Guilt. See C u l p a b i l i t y ; W a r guilt H o l d v o n Ferneck, 27, 33, 41
G u n d o l f , 145, 174 Hollenberg, 133
G u r v i t c h , 73, 81, 154, 159, 229, 238, Hölscher, 70
239, 241, 262, 324-32S, 33°, 346, Holstein, 208, 211
410, 432-433 H o m e r , 55
Gutberlet, 7 H o o r n a r t , 371
G u t e r m a n , 94, 99, 117 Horace, 47
Gysin, 171 Huber, 54, 121, 172
H u g u e n e y , 392
Haensel, 82 Humanities, 3
Haesaert, 408 H u m a n i t y , 14, 8 6 , ' 2 1 4
H a u p t m a n n , 94 H u m a n order, 277, 279, 280
Hauriou, 159, 236, 285, 367, 396, 457 H u m a n relation, 233-234, 240, 289,
H a y o i t de Ternicourt, 403 296-297, 298-305, 308, 318, 4 3 5 -
Health, 357, 359 436, 457, 462
Hebbel, 160 temporal, 298
H e c k , 328 temporal, of a spiritual nature, 298-
Hegel, 3, 6, 9, 13-23, 31, 62-63, 65, 67, 301
68, 71, 93, 98-101, 123, 124, 145, see also Interindividual relation;
1 7 1 . i85 Social relation
Hegler, 147 Husserl, 71
Heimann, 196-197 Hypostasis, 6, 7, 8, 12, 27, 32, 96, 158,
Heinsheimer, 130 219
Hellenism, 19 Hypothesis
Heller, 215 as element of the legal rule, 267-268,
Henrich, 233 275-276, 388, 404-405,
Hensel, 2 in science, 406
H e r r f a h r d t , 57-58
Herrigel, 2 Ibsen, 107, 134
Hertling, 7, 70 Idealism, 3, 17, 131
Herzl, 95 Identity
H e t e r o n o m y . See A u t o n o m y of l a w and state, 202-204
Hildebrand, 314 philosophy of, 62-63
Unauthenticated
48ο INDEX
Ideology, 54-55, 64-65, 96-107 215, 222, 26ο, 298, 300, 303, 306,
Imperative, 241 328, 329
categorical, 83, 199, 275-279 economic, 55, 64-65, 311
conditional, hypothetical, technical, equilibrium of - s , 329, 441
199, 275-279 extra-economic, 311
individual, 281-284 general, 98, 370
legal, 18, 38, 82-86, 88, 112-114, 149, legal, 185
234, 266, 271-284 of society, 241
Imperfect law, 258, 263, 264 private and public, 274-275, 354
Imperialism, 327 Interindividual relation, 235, 236, 289-
Individual, 13, 15, 16, 18-21, 23, 34-37, 291, 303, 309, 311-312
73. 76, 78, 82, 90, 92-94, 105-106, International law, 87, n o , 113, 118,
116-117, 156, 159-160, 165, 184- 212-219, 227, 238, 261, 263-266,
185, 187-188, 191, 213, 217, 236, 269, 310-311, 316, 317, 364, 370,
265, 303, 309, 316, 354-356, 358- 385, 390-391
361, 363-366, 373-374· 444, 447, denial of, 214-215, 218, 219
464, 465 reality of, 218-219
concept of the, 99-101 International relation, 303, 305, 309-
Individual case. See Case 3 1 1 , 315-316
Individualism, 12-14, 16, 17, 21, 92-96, Interpretation,
98-104, 156-160, 162-167, 169, 171, juridical, statutory, 38, 141-146, 149,
174, 176-181, 183-185, 188, 191, 206, 293, 320
193-194, 212-215, 218, 327, 356, philological, 141, 142, 145
366, 371, 376 rational, 144
social, 103, 154, 156-157. See also Intuition, 54, 70-71, 75, 329
Social theory of ownership Irrationalism, 47, 67, 68, 100, 104, 106
Individuality. See Individual; Indi- Is. See Causality; Existence; Reality
Isay, 54, 109, 133
vidualism
Isidore of Seville, 365, 373, 381
Individualization, 149-150, 190, 196,
Italy, 72, 93, 97, 106
281-284, 404
Induction, 38-39, 72, 77
Jellinek, G., 17-18, 27, 29, 30, 34-36,
Inheritance. See Succession
40, 41, 57, 84, 93, 112, 113, 117,
Inner act, 289-297; see also Intent;
139, 141, 158, 201, 204-205, 215,
Motive
333
Institution, 18-19, 21, 159-160, 168,
Jellinek, W., 110, 115, 117
174, 207, 236-237, 241, 284-289,
Jeze, 229, 269-271, 322
301, 424, 430
Jhering, 15, 27, 29-32, 34, 36, 38, 39,
family as, 467-468
41-42, 66-68, 86, 115, 123, 134-145,
rule as, 237, 284-285
198, 321, 350, 383, 406
state as, 284-285 Josserand, 288, 293, 376
see also Legal institution; Social in- Judgment, 33, n o , 138, 196, 200-201,
stitution 219, 282-284, 453-454
Integration, political, 105, 162-163, 185 execution of, 87, 256
Intellectualism, 9, 20-21, 135-136 nullity of, 200
Intent, Intention, 35, 148, 220, 290, see also Evaluation; Logical judg-
292-294, 403. See also Inner act; ment
Motive Judiciary, 38, 74, 119-120, 244-246,
Interdependence, 36-37 256, 293, 317, 348-349, 373
Interest, 16, 20, 86, 88, 95, 97-98, 101, government by, 201
106, 116, 133-134, i 7 2 , !8Ο, 192, independence of, 198-199
Unauthenticated
INDEX
J u l i a n , 247 K a d e n , 3 0 1 , 380
Jurisdiction. See C o m p e t e n c y Kahl, 209
J u r i s p r u d e n c e , 34, 35, 1 1 3 , 227-228, K a n t , 3, 9, 1 2 - 1 5 , 1 7 , 18, 21, 3 1 , 44,
246, 343 53, 56, 60, 68-69, 7 1 , 8 1 - 8 3 , 85,
as science, 3 7 - 3 9 94-95, " 7 , 119, 123, 134-135, 145,
as technology, 37 1 8 4 - 1 8 5 , 1 9 1 , 1 9 3 - 1 9 4 , 196, 212,
ethics a n d , 35 2 1 4 - 2 1 5 , 275, 356
l a w a n d , 38 K a n t o r o w i c z , 45, 47, 53, 57, 70, 1 4 1 ,
of concepts, 38, 68 148
of interests, 328 K a r n e r , 29, 42
philosophy a n d , 29, 86 K a u f m a n n , Ε., 68, 96, 152
social t h e o r y of l a w a n d , 27-29, 39 K a u f m a n n , F., 71
see also Legal science Kellogg P a c t , 221
Jus, 2 3 1 , 438 Kelsen, 57, 70, 7 1 , 83, 1 1 7 , 1 2 3 , 148,
Jus gentium, 337, 418, 430-431 149, 152, 188, 202-204, 2 1 3 , 216,
Jus naturalis, 4 1 8 - 4 1 9 229, 2 5 1 , 277-278, 281, 322
Justice, 4, 2 1 - 2 2 , 35, 46, 52, 6 1 , 64, 70, Kirchmann, 150-151
73-76, 78, 85, 88, 90-91, 104, 103, Kistiakowski, 27, 29, 3 1 , 42
107-112, 118-120, 122-123, 130- Kleist, 86, 1 3 4
133, 139, 153, 154, 157, 1 8 6 - 1 8 7 , K n a p p , 27, 42, 71
190, 196-198, 200, 204, 206, 209, Knollys, 93
227, 230, 2 3 1 , 235-236, 266, 326, Kohler, J . , 63, 3 2 1
328-329, 332-341, 344, 356, 416- Köhler, 210
418, 423, 428, 4 3 1 - 4 5 6 , 462-470 K o h l r a u s c h , 29, 33, 35, 42
annexed virtues of. See Justice, Kornfeld, 135
principal a n d annexed virtues of Koschaker, 3 2 1
c o m m u t a t i v e . See Justice, kinds of K r a u s , 214
concept of, 73-74 Krause, 1 5
debt of, 436-437, 439-44°, 465-466, Kultur, 3, 50; see also Civilization;
469 Culture
distributive. See Justice, kinds of
divine, 360 L a b a n d , 34, 36-37, 42
kinds of, 74-75, 107, 1 2 2 - 1 2 3 , 153, L a b o r , 250, 3 1 3 , 3 1 5 , 380, 397-398
154, 1 5 7 , 1 8 6 - 1 8 7 , 209, 236, 333, L a b o r law, 147, 1 5 2 , 1 5 4 - 1 5 5 , 1 7 2 , 2 5 o
337, 339, 344, 358, 364, 367-368, Lachieze-Rey, 332, 402, 435
403, 404, 440, 443, 452-456, 459, Lacroix, 266
460, 462-464, 468-470 L a c u n a , 38, 2 1 3 , 219, 244, 288, 3 1 7 ,
legal. See Justice, k i n ds of 387-388
legal rule a n d , 462-470 L a g a r d e , 19, 214
m o d e r n conception of, 4 3 1 - 4 3 3 Laissez faire, 1 0 1 , 186
n a t u r a l and positive, 452-455 L a m b e r t , 246, 418
principal and annexed virtues of, 4 3 7 - Language, 25, 83, 1 3 7 - 1 3 8
440, 450, 462-463, 466-470 Larenz, 47, 57, 70
public good a n d , 457, 462-463 Lask, 1-4 2, 49, 50, 5 1 , 54, 61, 70, 77,
t r a d i t i o n a l conceptions of, 433-443 110, 130, 232
Justizstaat, 201 Lassalle, 14, 3 1 , 63
Justinian Lasson, 8, 9, 18, 36, 40, 63
Digest of, 73, " 5 , 247, 309, 418, Laun, 84
434-437 Law
I n s t i t u t e s of, 1 7 3 , 309, 398 abstention of the, 3 7 3 - 3 8 2 , 452
J u s t w a r , 220-223, 264 abstract character of, 1 8 - 2 1 , 28
Unauthenticated
482 INDEX
antinomies in, 107-112 generality of, 64, 76, 108, 196, 281-
art of the, 318-350 284
arts and, 137-139 general theory of, 33-34, 39~40, 44,
as construed or given, 318-350 65-66, 71, 147, 227-470, 321
as creation of man, 22, 51-52 idea of, 52, 69-70, 73-77, 90, 100,
as formative factor of concepts, 30 107-112, 123-124, 147, 153, 186,
as subject of art, 318-350 187, 190, 195-198, 204, 206
as subject of legal science, 27-29 instrumental character of. See L a w ,
as subject of science, 318-350 equipment of
as subject of technique, 318-350 jurisprudence and, 38
change of, 412-415 life and, 132, 289, 384, 386, 39 2 ~393,
civil society and. See L a w , state and 405
compulsion and, 17-18, 250-266 logic and, 38, 288-289
concept of, 6, 17, 23, 52, 66, 69-70, man of the, 130-136
72-78, 88, 110, 147, 152-153, 1S6, manners and, 235-237
204, 206, 227, 229-317, 353-354. material of, 54, 120-123, 4 1 2
373 methodology of, 26
concept of, defined, 12, 76, 234, 353- morals and, 1 7 - 1 8 , 21-22, 78-87, 84,
354 235, 262, 279-281, 333, 363-364,
conservatism of, 413-414 456-463
content of, 7, 85-86, 90-91, i i o - i n , nation and, 316
203-204, 324, 363-382 obligation of, 6 - 7, 9, 18, 81-83, 233,
culture and, 25, 27-29, 52, 94, 120 244
custom and, 87-90 outwardness of, 6-7 , 9, 17, 18, 78-84,
decomposing function of, 31-32 88, 127-128, 208, 279-281, 290-297,
denial of, 99 3 " , 315
economics and, 312-313 philosophy of the, 3-23
effectiveness, efficacy of, 114, 118, political views of, 98-109, 116
205, 229, 243, 251, 372, 433 politics and, 262, 3 1 5 - 3 1 7
elaboration of, 147-148, 234, 244, positiveness of. See Positive law
318-415 power and, 109, 243-250
elaboration of, guiding principles, practicability of, 31, 37-38, 383-384,
350-407 400, 404, 406-409, 413
end of, 30, 85-87, 90-97, 107-108, public good and, 353-387
116, 350-351, 353-382, 432-433 public opinion and, 381-382
enforceability of, 1 7 - 1 8 , 250-266 pure theory of, 71
equipment of, 350-353, 383-407, 4 6 1 - purpose of, 30, 90-97, 107-108, 116,
462 197-198, 200
essence of, 321-322 reality and, 27, 32-34, 37, 410-411
essentiality of, 126-130 reasonableness of, 6
ethics and. See L a w , morals and recognition of, 1 1 4 - 1 1 6
religion and, 207-212
evaluation of, 53-59
religious philosophy of, 52, 61-62,
execution of, 250-267
existence of, 243, 320-321· 126-130, 207
Tightness of. See Justice; Natural law
externality of. See L a w , outwardness
sanction of, 85-86; see also Sanction
of
science and, 318-350, 396-397, 4 i ° -
fact and, 109, 306
411
form of, 91, 120-123, 206
formalism of, 18, 22, 31, 208, 292- science concerned with, 6, 140-141
293, 392 sense of, 1 1 5 - 1 1 6 , 131-136, 330-331
Unauthenticated
INDEX 483
social character, societal character of, Legal history, 28, 39, 40, 60, 141, 145-
27. 2 3 9 - 2 4 0 148, 196, 3 2 1 , 347
social theory of, 27-29, 34, 39, 103- philosophy of, 120-125
104, 1 4 1 Legal imperative. See Imperative
source of, 7, 8, 77, 201, 243-250, 3 4 5 - Legal institution, 17, 148, 190-197, 201,
346, 3SO-3SI. 358, 385-386 203, 220, 285-286
s t a t e a n d , 40, 94, 1 9 8 - 1 9 9 , 2 01 - 2 06 , Legal interest. See Interest
2 3 S - 2 6 7 , 2 7 9 - 2 8 1 , 2 97 - 2 98 , 3 0 8 - Legality, 77, 81, 83, 117, 119, 166, 171,
309, 3 1 5 - 3 1 7 216-217
subject matter of, 289-317 Legal machinery, 285, 325
technique and, 318-350 Legal meaning. See Meaning
technique of, 407-411, 4 52, 461-462 Legal method. See Method, especially,
traditionalism of, 18 Method of elaboration of the law;
universality of, 212-213, 219 Methodology
v a l i d i t y o f , 38, 6 0 - 6 1 , 68-69, 8 4 - 8 3 , Legal object, 66, 78, 156
8 7 - 8 8 , 1 1 0 - 1 2 0 , 2 00- 2 01 , 465 Legal obligation, 233, 244, 305-308. See
value of, s-6, 12-23, 24, 53-59. i ° 7 - also Legal duty
112 Legal order, 14, 15, 18, 34, 36, 66, 77-
Law of nations. See International law 78, 108, 1 1 3 - 1 1 4 , 1 1 7 , 124 , 1 5 7 , 186,
Law of nature and of nations school, 195, 198, 204, 205, 2 1 2 - 2 1 3 , 2 1 5 ,
70, 419, 422, 423, 425; see also 2 1 9, 227, 3 1 7 , 3 3 5
Natural law Legal person, 19-21, 31, 35-37, 66, 78,
Laws of nature, 9, 11, 25, 29, 74, 198, 1 5 6 - 1 6 0 , 182, 187, 217, 235, 266,
268-269, 299 3 06- 3 08 , 3 1 1
Leader, Leadership, 72, 105, 327 Legal philosophy, 3-42, 46-224, 140,
League of Nations, 217, 218, 264, 390- 3 2 1 , 3 2 2 , 34 8
391 as cultural philosophy, 52
Le Balle, 371 as evaluating view of law, 53-59,
Lebrun, 246, 247, 252, 395 71-72, 129-130
Leclercq, 230, 258, 420, 422 as science, 3-12, 24
Le Fur, 233, 336-337, 342, 348 as theory of value of the law, 5
Legal, 239, 261 as theory of typical values, 9, 22
Legal capacity, 19, 157. 287-289, 297, divisons of, 24, 69
399. 405 method of, 3-12, 53-59
of w a r , 220-221
Legal certainty, 32, 108-112, 118-120,
1 3 0 - 1 3 3 . 1 5 2 - 1 5 3 . 186, 190, 198,
subject matter of, 24, 69
200, 204, 205, 2 1 3 , 4 1 1 - 4 1 5
theories of, trends of, 12-23, 59-7 2
Legal community, 94 Legal politics, 10, 140
Legal compulsion. See Compulsion Legal policy, 56, 1 1 1 , 279
Legal concept. See Concept Legal precept, 76, 90, n o , 271-281
Legal consequence, 33, 35, 77, 178, 184- Legal principle, 288, 334-335. 342, 367
1 8 5 , 203, 258
Legal profession, 200, 206, 344
Legal construction, 38, 141, 146-149, Legal prudence, 343-344. 349~35°, 4°8
286, 4 05-4 06
Legal reality. See Reality
Legal duty, 35, 77-78. 84-86, 113, 114, Legal relation, 17, 31, 32, 37, 66, 77-78,
100, 148, 1 5 4 , 178, 199-200, 235,
1 5 5 , 204, 209, 232, 270, 285, 305-
3 0 1 , 3 0S - 3 08
308, 3 6 4 - 3 6 6
to contract, 172 Legal right, 32-34, 40, 67, 77-78, 86,
n o , 130, 1 3 3 - 1 3 4 , 148, 1 5 5 . 160,
unenforceable, 87-88
203-204, 209, 2 3 1 - 2 3 3 , 285, 3 0 5 -
see also Legal obligation
308, 3 6 4 - 3 6 6 , 368, 404, 4 1 8
Legal fact. See Fact
Unauthenticated
484 INDEX
Legal rule, 7, 38, 76, 77, 84-85, 90-91, Leo X I I I , 448
1 1 3 , 1 4 9 - 1 5 0 , 196, 206, 2 1 9, 2 3 0 - Lerebours-Pigeonniere, 405
2 3 1 . 2 3 5 - 2 8 9 , 2 97 - 2 98 , 303, 305, Lessing, 58, 59, 90
306, 308, 3 2 4 - 3 2 5 , 3 3 3 , 3 4 6 - 3 4 7 Levy, E., 171
addressee of, 281-284 Levy-Ullman, M., 297
as general rule, 281-284 Lex, 231, 353-354, 454
as imperative, 271-281 Lex imperfecta', see Imperfect law
as rule of conduct, 269-271 Lex naturalis, 418-419
derogatory, 288, 416, 419, 453 Liberalism, 99-103, 123, 124, 153, 162,
elements of, 267-281 165, 177, 185-188, 202, 356-357,
freedom and, 374-381 37°
natural law and, 422-431 Liberality, 440, 463, 469
normative and technical, 323 Liberty, 100, 104, 105, 244, 285, 296,
without compulsion, 250 3 1 2 , 3 3 9, 3 7 0
Legal science, 3-4, 8, 15, 16, 21, 53-54, civil, 64, 102
6 1 , 65-66, 71, 112—113, 138, 321, see also Freedom
347, 349 Liepmann, 34-35, 42
as science, 23-40 Liszt, S3
as systematic cultural science, 26-27, Litt, 105
52, 149-151 Living together, 76, 77, 79, Si, 82, 108,
ethics and, 35 116-117, 277
law and, 3 8 Locke, 131
legal philosophy and, 71, 72, 77, 140 Logic, 11, 29, 33, 34, 39, 50, 69, 76, 82,
logic of, methodology of, 23-40, 140- 85, 91, 285, 288-289, 404, 407
151 of law and legal science, 30, 38-39
prescientific thought and, 30 of legal philosophy, 68
psychology and, 34-35 see also Method; Methodology
sciences concerned with law and, Logical judgment, 5, 27, 318
140-141 hypothetical, 269
subject matter of, 114, 140 scientific, 38
Legal significance, 32 Lotin, 419
Legal situation, 32, 306 Lotze, 28
Legal subject. See Legal person L o v e , 80, 1 6 3 - 1 6 4 , 1 7 7 - 1 7 8 , 2 08 - 2 1 0,
Legal system, 39; see also Legal order 2 9 1 - 2 9 2 , 3 1 4 , 3 1 5 , 467
Legal transaction, 33, 172, 248, 285, Löwenstein, 82
287, 291-294, 397-399, 404-4 05 Ludwig, 79
Legal value, 68, 73, 193, 431 Luther, 79, 1 2 8 - 1 2 9 , 14 4 , 207, 209-211
Legal wrong, 66, 82, 115, 201
Legislation, 7, 9, 19, 54, 62, 121, 1 4 1 - Maine, 44, 123-124
1 4 2 , 1 5 5 , 167, 196, 202, 2 4 1 , 244, Majority, 47, 101-105, 185
2 4 7 - 2 4 8 , 344, 3 4 5 , 4 1 4 Malthus, 402
of circumstance, 367 Mandatory law, 310, 393
see also Statute Manigk, 58
Legislature, 38, 76, 245, 247, 262-263, Mann, 75
317, 344 M a n n e r s , 87-90, 2 3 3 , 235, 2 4 0- 2 4 2 , 244,
Legist, 454 254, 265, 299, 303, 3 1 5
Legitimate government, Legitimism, 23, Mannheim, 54, 104
105, 1 1 3 , 1 2 5 , 1 3 9 Marek, 141, 157
Legitimity, of human relations, 304 Marcus, 74
Leibniz, 144 Marquardt, 271
Leist, 40, 42 Marriage, 87, 172-179, 2 8 5 - 2 8 9, 292,
Unauthenticated
INDEX 48s
304, 3°3. 3 1 4 . 37o-37i> 401, 402, m o r a l i t y a n d , 456-462

406, 424, 458, 461 n a t u r a l law a n d , 456-462
dissolution of, divorce, 17s, 178-179, technical e q u i p m e n t of law, and,
255, 372, 378, 389-390 383-4"
Marschall v o n Bieberstein, h i , 118 philosophical, 4, 16, 23, 35, 39, 56-57
M a r t e n s - E d e l m a n n , 178 systematical, 40
M a r t y , 300, 403 teleological, 30-32, 3 4 - 3 3
M a r x , 9, 28-29, 32, s s , 63-65, 103, 1 2 2 - typological, 28
124, 156, 157 M e t h o d o l o g y , 3, 9, 14, 16, 1 9 - 2 1 , 24, 25
Material, of law, 26
a n d idea, 54, 76, 1 7 2 - 1 7 3 , 412 of legal science, 23-40
ρ relegal, 30-32 of philosophy, 23-24
Materialism, 63-65, 1 2 1 - 1 2 3 , 294, 325, of philosophy of law, 3 - 1 2 , 68
327-328, 332 of science, 24, 25
M a t h e m a t i c s , 3 2 - 3 3 , 133, 231 of t h e social, 26
M a u r y , 391, 395, 396 M e u m a n n , 42
M a u s b a c h , 70, 36s M e y e r , 269
M a y e r , Μ . Ε., 35, 42, $7, 68, 70, 98 M e y l a n , 422-423, 461
M a y e r , Ο., 147 Mezger, 58
Meaning, 4, 5, 10, 11, 21, 28, 29, 3 1 , Michelangelo, 54
32, SO-52, 57, 73, 76, 88, 1 1 2 - 1 1 3 , M i l i t a r y , 76, 222-223
149, 220, 222, 224 M i l i t a r y law, 3 1 1
cultural, 24-28 M i n o r i t y , 104
intended a n d objective, 1 4 1 - 1 4 5 Moeller, 132
legal, 32-34 , 3 5 - 3 6 M o h a m m e d a n countries, 379
n o r m a t i v e , 27 Moliere, 223
pure, 28 M o m b e r t , 161
M e a n s a n d ends, 55-56, S3, 87, 93, 1 5 6 - M o m m s e n , 271
158, 277, 280-281, 286-287, 3 4 3 - M o n a r c h y , 23, 102, 1 1 7 , 153
344, 350-351, 358, 362, 364, 408, M o n e y , 20-21, 164, 3 1 2
457-458 M o n i s m , 53, 62-63, 67-68, 106
Measure, 76, n o M o n t a i g n e , 140
Menger, 62, 180 M o n t e s q u i e u , 102, 243, 310, 358, 363,
M e r c y , 139, 1 95 - 1 98 377-379, 381, 388, 4 13, 414
M e r i t , 74, 79, 265, 448 M o r a l i t y . See M o r a l s
M e r k l , 66, 1 1 4 - 1 1 5 , 248, 281 M o r a l order, 13
Mess, 194, 197 M o r a l person, 303, 354, 444; see also
Mestre, 379 Collectivity
Metaphysics, 3-4 , 6-8, 10, 11, 33, 36, M o r a l rule. See M o r a l s ; R u l e
70-71, 223, 317, 318, 325, 326, 345 Morals, 17, 50, 73, 74, 76, 78-90, 93,
Method, 94, 99, " 3 , 177, 229, 2 3 1 - 2 3 3 , 235,
empirical, 4, 16, 23, 35, 39, 56-57 236, 240-242, 244, 254, 262, 263-
historical, 24, 40 266, 272, 276-277, 279-281, 289-
ideographical, 35 290, 292, 294, 299, 303, 317, 3 2 5 -
juridical, 30-32 326, 329, 3 3 2 - 3 3 3 , 339-343, 3 4 6 -
of elaboration of t h e law, 3 1 8 - 4 1 5 , 347, 331-353, 357, 359-3Ö4, 382,
348-349, 407-415, 433, 455-436 40S-409, 422-435, 439, 454-463
categorial a n d teleological, 1 4 7 - 1 4 8 Mores, 3 7 7 - 3 7 8 ; see also C u s t o m
c e r t a i n t y of t h e law a n d , 4 1 1 - 4 1 5 Moses, 241
end of law a n d , 353-382, 4 07 - 4 1 1 M o t i v e , 81-82, 88, 254, 255, 293, 300;
justice a n d , 462-470 see also I n t e n t
Unauthenticated
486 INDEX
Müller, 137 205, 232, 268-270, 323-325, 330,
M ü n c h , 57 348, 410; see also Value
Municipal law. See Conflict of laws; N o r m a t i v e science, 29, 149, 266, 304
International law
Municipal relation. See International Obedience, 114, 203, 251-254, 257, 262,
relation 268, 459-460
Münsterberg, 41 Object, 33, 36, 148, 318
Mussolini, 93, 105, 164 astronomical, 33
legal, 66, 78, 156
physical, 31, 34
Napoleon I, 1 1 5 Objective law, 32, 33, 40, 77, 86, n o ,
N a t i o n , Nationality, 32, 62, 63, 66-67, 130-133, 231-233, 306, 418
93) 94, 96, 106, 121, 176, 2 1 3 - 2 1 5 , Objectivity, 32, 92, 95-96, 464
217-218, 222-223, 235, 29S, 298, Obligation,
316, 326-327, 330-332, 436-438 contractual, 169-170
Nationalism, 1 3 - 1 4 , 316, 327, 342 m o d e of, 81-83, 88-89, 169-171
N a t o r p , 9, 69, 365 of law, 81-83, 233, 244
Naturalism, 8, 9, 1 1 , 20, 31, 34, 35, 158, of morals, 81-83
I
S9i 173 social, 88-89
N a t u r a l jurisprudence, 426-430 see also Chose in action ; Legal obli-
N a t u r a l law, 4, 6-9, 1 1 , 12, 29, 59-63, gation
70, i n , 116, 121, 139, 166, 169- Occasionalism, 33
170. 173, 177, 187, 201, 205-206, Occupation, of property, 1 61 - 1 63
208, 217, 219, 227, 229-230, 236, Occupational corporation, Occupational
258, 259, 262, 265-266, 323-325. estate, 97, 105, 106, 248, 250
328-330, 332-342, 344, 347, 348, Order, 105, 108, 118, 139, 234, 297-298,
382-383, 433, 455-456, 470 355-359, 362, 433; see also H u m a n
concept of, 416-431 order
nonjuridical character of, 422-431 Ordinance. See Executive order
public good and, 456-462 Organic theory, Organism, 15, 20, 62,
traditional conception of, 417-422 93, 94, 104-106, 158, 159, 189, 191,
N a t u r a l obligation, 258 243, 285
N a t u r a l science, 3, 11, 24, 25, 31, 33, 37, Organization. See Society
39, 49-SO, 52, 56, 100, 130, 148-150, Ought. See N o r m ; Value
231 Ownership, 86, n o , 160-168, 180, 183,
N a t u r e , 8, 9, 49, 51, 59-6°, 7°, 352, 382, 203, 232, 285-288, 337-339, 369-370
419-421, 426, 428, 429 common, 161, 167, 337
state of, 121, 194-195 private, 161-167, 181, 182, 337-338,
N a t u r e of the thing, 53-54, 7 i , 75, i73, 427
337, 348, 453
Nazism, 72, 106, 282, 327 P a c h m a n , 27, 42
Necessity, 64-65 Page, 328, 403, 417
Nelson, 57, 70, 193, 214, 216 Pappenheim, 172
Neo-Hegelianism. See Hegel P a r d o n . See Mercy
Neo-Kantianism. See K a n t Pascal, 146, 1 5 1 , 414
Neo-Malthusianism, 402 Paschukanis, 63, 74, 123, 157, 166, 188
N e w Y o r k State, 404 Paternalism, 315
Nietzsche, 94, 135, 198, 328, 416 Patriotism, 19, 22, 197
N o r m , Normativeness, 6-7, 10, 27-29, Paulus, 434-435
33, 38, 49, 60, 67, 71, 75-78, 81-86, Payment, 115
1 1 2 - 1 1 4 , 147, 149, 169, 196, 203- Peace, 108, 118, 433
Unauthenticated
INDEX 487
Penal international law. See Conflict of 354, 358-360, 363-364, 407-409,
laws 435, 456, 458
Penal law. See Criminal law; Death art of, 354
penalty; Punishment international, 220
People. See Democracy; M a j o r i t y ; Na- legal, 10, 140
tion; Public theory of, 9-10
Perception, 18 Polizeistaat, 201
Permission, Permissive law, 273 Pomponius, 436
Person. See Legal person; Moral per- Poor law, 88
son ; Personality Popper-Lynkeus, 93
Personalism, 13, 15 Portalis, 363, 365, 378, 415, 427
Personality, 12-17, 21, 22, 31, 35-37, Positive law, 6-10, 29, 38, 60, 68-69, 71,
57, 84, 86, 91-92, 95-96, 99-101, 74, 85, 1 0 8 - m , 116-118, 196, 205-
162-165, 184, 217-218, 265, 293, 206, 218-219, 227, 229-230, 249,
296, 313-314 253-254, 259, 269, 317, 322, 323,
Personality right, 299-300, 307, 314 325, 331, 333-335, 338, 413, 417,
Petraschek, 109 419-420, 428-429, 431, 439, 449,
Petrazycki, 81 452-455, 470; see also Civil law
Phenomenology, 71-72 Positiveness, 76, 77, 109, 229, 249, 251,
Phenomenon. See Fact 424, 431-433
Phidias, 93 Positivism, 7, 8, 50, 53, 61, 62, 65-66,
Philology, 141, 230-231 71, H I , 229, 322-325, 331, 341
Philosophical school, 3-4 materialistic, 325, 327-328
Philosophy, 5, 9, 11, 12, 23-25, 29, psycho-sociological, 325-327
39-40, 49-So, 112, 223, 322, 326, Possession, n o , 161, 338
345, 360-361, 396, 410 Post, 321
Philosophy of the law, as part of legal Power, 64-65, 86, 92, 97, 100, 103, 106,
philosophy, 3-23 109, 112, 1 1 4 - 1 1 7 , 136, 215, 221-
Picard, 346, 369 223, 243-250, 257, 327-328, 332,
Piety, 436-439 354, 416-417
Pirmer, 374 Practical action, 34
Pirson, 396 Pragmatism, 199
Pius X I , 162, 166 Precedent, n o
Planiol, 246, 307, 369, 390 Precept, 76, 90, n o , 258, 271-281; see
Plato, 4, 11, 13, 19, 23, 28, 105, 332, also Imperative
402, 417 Preparatory act, 190
Plutarch, 93 Prerogative. See Government by pre-
Police rule, 111, 270-271, 307, 470 rogative
Police state. See Government by pre- Prescientific thought, 25-26, 30, 35,
rogative 148-149
Political Catholicism, 106-107, 117 Prescription. See Statute of limitations
Political law, 309-310 Prevention of crime, 187-190, 194
Political party, 44, 47, 55, 96-109, 117, Primitive people, 90, 242, 385, 413
118-119 Priority, of law or state, 201-202, 204
Political philosophy, 46, 98-109, 362-363 Private international law. See Conflict
Political relation, 309-311, 315-316 of laws
Political science. See Politics Private law, 35, 36, 74, n o , 122, 147,
Political society. See State 152-155, 157, 169-170, 186, 187,
Politics, 21, 25, 47, 55, 62, 100, 101, 215, 245-247, 269, 284, 309-310,
108, 147, 151, 238, 245, 247, 262, 358, 364-371, 375, 392, 403, 452
271, 289, 303, 315-317, 322, 353- Private party, rule-making by, 248-250
Unauthenticated
488 INDEX
P r i v a t e relation, 309, 3 1 1 - 3 1 5 , 365, 468 Public policy, 272, 292, 304, 307, 339,
Problematicism, 57, 69 365, 371, 393
Procedure. See Adjective law Public relation. See Political relation
Profit, 20 P u c h t a , 31, 32, 42, 63
Prohibition. See Imperativ e Puffendorf, 420, 422, 425, 427, 428
Promise, 436, 437, 439, 466-467» 469 Punishment, 21, 74, 75, 80, 114, 184 -
P r o o f , 200, 3 7 1 - 3 7 2 , 400-403, 408, 413, 195, 197, 259-260, 263, 372-373,
427-428 451
P r o p a g a n d a , 117 compulsion and, 255-256
P r o p e r t y , 15, 31, 86, 101, 103-104, 116, end of, 185-190
i53> 155, 1S6, 159-168, 1 8 1 - 1 8 3 , justification of, 184-186, 191-195
278-279, 287, 307, 3 1 1 - 3 1 3 , 366- P u r e theory of law, 71
371, 404-4°5, 453 Purpose, 8, 15, 21, 22, 34-36, 51-52,
limited right in, 159 67-68, 80-81, 124, 156-159, 198, 350
Protestantism, 128-129, 144, 209-212; of knowledge, 27
see also Evangelical Church of law, 30, 90-97, 107-108, 116, 1 9 7 -
Prudence, 277, 293-294, 319, 341-350, 198, 200
352, 354, 363, 382, 391, 411, 4 1 4 - of punishment, 187-190
415, 429-430, 435, 441, 450, 462, of the state, 91
470
legislative, 252, 343-344, 354, 382, 462 Quadragesimo anno, 162, 166-167
Psychologism, 34, 325-327 Quasi contract, 95
Psychology, 34-35, 76, 83, 84, 130-136, Quasi delict, 340
195, 231, 293, 376-377, 398, 403 Quasi society, 265
Psycho-sociological view. See Psychol-
ogism Race, 21-22, 105, 327
Public, 241-244, 246, 308, 310, 326, R a d b r u c h , 38-39, 42, 43-224, 53, 54, 58,
354-355, 365, 374, 449, 456-457, 65, 70, 97, 99, 103, 109, 121, 123,
465, 470 126, 137-139, 144, 147, 148, 177,
Public good, 167, 240, 305, 307, 309, 186, 219, 220, 334, 366, 385, 398
310, 353-363, 408, 410, 416, 428- R a n k , 15
429, 447, 449-452, 454-455 Ranke, 117, 123, 153
as n o r m of the law, 363-382, 406, 4 1 0 - Raphael, 93
413, 426, 430 R a t h e n a u , 58-59, 182
aspects of the, 357-359 Rationalism, 6, 8, 20, 47, 63, 67, 68, 70,
concept of the, 354-363 104
morals and the, 363-364, 456-462 R a u , 307
n a t u r a l law a n d the, 456-462 R a v ä , 70
Public international law. See I n t e r n a - Realities of legislation, 54, 172
tional law Reality, 4 -12, 16-17, 21-26, 28, 29, 31,
Public law, 16, 36, 74, 122, 147, 1 5 2 - 33, 49-53, 71, 88, 106, 109, 230,
155, 169, 186, 245, 261-266, 269- 269, 285, 314, 318-320, 345
270, 307, 309-311, 364, 376, 452 cultural, 24, 26-28, 32, 36, 73, 78, 203
Public morals. See Public policy epistemological, 25-28, 32, 37
Public officer, 252-253, 256, 262-263, extralegal, metajuridical, prelegal, 29,
274, 277-278, 285, 293, 3 1 1 , 315, 30, 32, 35, 36, 39, 204
388, 395, 448 historical, 28, 202
Public opinion, 243, 251, 254, 257, 326, legal, 4, 6, 7, 32, 33, 39, 52, 61, 63,
330-331, 341-342, 354, 378, 3 8 1 - 65-70, 73, 75, 76, 202-203, 205,
383, 413, 460 303-304, 324, 406
Public order and safety, 76, 117 mental, 34, 84
Unauthenticated
INDEX 489
psychophysical, 32, 33 Rickert, 2, 10, 24, 25, 30, 34, 39, 41, 42,
social, 14, 22, 37, 39, 103, 1 7 3 - 1 7 4 , 49
202, 303-304, 324, 329-330, 406, Riezler, 58, 130, 310, 3 1 1
409-410 Right, 74, 231, 235, 436, 441, 444-445,
Reason, 7, 8, 1 6 - 1 8 , 26, 47, 57-60, 63, 451, 456, 465
70, 76, 85, 98-100, 1 1 2 , I i s , 1 1 7 , natural and positive, 452-455
1 2 1 , 169, 184-185, 193, 197, 219, of man, fundamental, 1 0 1 - 1 0 2 , 201,
265, 290, 299, 3 2 8 - 3 3 1 , 337, 3 4 2 - 206, 215, 217, 377
344, 352, 406, 418, 419, 423, 426, political, 103, 232
428 see also Legal right
practical, prudential. See Prudence Righteousness, 74, 85, 1 1 9
Recasens Siches, 70, 240-241 Ripert, G., 300, 340, 369, 376
Recht, 32, 231, 232; see also Legal Ripert, M., 389
right; Objective law Robespierre, 1 3 1
Rechtsstaat, 201 Robilliard, 338
Recognition, of law, 1 1 4 - 1 1 6 Rodbertus, 14
Reduction, 38-39 Rodiere, 402
Reglade, 232-233, 263 Rolin, 230
Regularity, 8-9 Rolland, 94
Regulation. See Executive order Roman law, 20, 3 1 - 3 2 , 36-37, 66-67, 73,
Reinach, 71 122, 132, 152, 173, 1 8 1 , 209, 271,
Relativism, 12, 47, 53, 55-59» 60, 69, 309, 340, 398, 427
70, 108-109, 1 1 6 - 1 1 7 , 362 Romanticism, 62, 63, 159, 327
Relief, 74 Rome, 19, 20, 3 1 - 3 2 , 99, 100, 326
Religion, 5, 1 1 , 5 0 - 5 1 , 93, 97, 104-105, Rouast, 3 7 1 , 469-470
126, 163-164, 1 7 5 - 1 7 7 , 19S, 198, Rousseau, 15, 102, 1 1 5 , 192-193, 283
207-212, 223, 289, 294-295, 329, Rosin, 36, 42
352, 357, 432, 436-438, 450; see Rothacker, 62, 123
also Church Rückert, 124
freedom of, 294-295 Rule, 230-235, 258; see also Legal rule;
protection of, 294, 295 Norm
Religious philosophy, 5, 1 1 Rule of law. See Government of laws
of law, 52, 61-62, 1 2 7 - 1 3 0 , 207 Ruler, 105, 1 1 7 , 429, 449
of war, 223-224 Rümelin, G., 30, 38-39, 4 2
Renard, G. (G.A.), 238, 295, 3 1 2 , 3 3 4 - Riimelin, M., 58, 73, 75, 108, 1 1 0 , 133
336, 347-348, 35°, 365, 383, 4M, Russo, 242, 244, 257, 263, 268, 274, 288,
436 293, 304, 305, 313, 315, 316, 318,
Renard, R. G., 238, 342 320 323, 324, 3 2 9 - 3 3 1 , 336, 3 4 1 ,
Renner, 63, 1 2 1 , 164, 168, 174, 180 346, 348, 354, 362, 384, 3S5, 399,
Rent legislation, 366-367 408-412, 414, 431, 469
Renvoi, 244
Republic, 1 1 7 St. Augustine, 143, 378, 460
Rerum novarum, 448 St. Thomas Aquinas, 227, 237, 239, 243,
Res judicata, 1 1 0 , 196, 200-201 247, 251-254, 260, 262, 271, 272,
Respect, 436, 437, 439 280-281, 283, 284, 290, 291, 294,
Retaliation, 185-188, 190, 221 296, 319-320, 326, 333, 339, 3 4 2 -
Revenue law. See Taxation 344, 349-350, 352-355, 357, 358,
Revolution, 19, 55, 62, 106, 1 1 0 , 1 1 3 , 360, 361, 363, 365, 373, 375, 378,
117-119, 125, 139 379, 381-385, 391, 404, 412-415,
Reward, 20, 74 4 1 8 - 4 2 1 , 423, 425-431, 434, 435,
Ricca-Barberi, 3 1 1 437-454, 460-461, 463, 466, 470
Unauthenticated
490 INDEX
Sale, 33, 1 7 1 , 287-288 Separation of powers, 102, 245, 3 1 7
Salomon, 57, 68-69, 98, 150 Seume, 1 1 2
Sanction, 83-86, 90, 234, 240, 254-256, Shakespeare, 86, 1 3 1 - 1 3 2 , 136, 139, 195,
258, 262-263, 267-269, 276-279, 223
287, 325-326, 3 7 2 - 3 7 3 , 400, 408, Significance, 29, 32, 50, 83, 222-224;
4SI see also Meaning
Sanhoury, 274 Sigwart, 30
Sapir, 80, 128, 1 3 3 , 194 Silberschmidt, 58
Sauer, 47, 70 Simmel, 2 0 - 2 1 , 26, 3 2 - 3 3 , 40, 4 1 , 88,
Savatier, 3 7 1 , 386, 393, 396 1 4 3 - 1 4 5 , 172, 179
Savigny, 3 0 - 3 1 , 60, 63, 68, 77, 1 2 3 , 1 3 3 , Simplification, 397-400, 404
159, 306, 3 1 5 , 326 Simonius, 251
Scelle, 265, 266 Sin, h i
Schäffle, 1 8 1 , 183 Skepticism, 58-59
Schapp, 71 Slavery, 93, 157, 168, 461
Scheler, 5 0 - 5 1 , 214, 220 Smend, 105
Schelling, 1 5 , 23 Social contract, 14, 67, 94-95, 1 0 1 , 104,
Schiller, 93, 1 1 5 , 120, 1 3 1 , 201 1 5 3 , 165, 1 6 9 - 1 7 0 , 1 8 4 - 1 8 5 , 1 9 1 -
Schleiermacher, 1 5 195, 204-205, 2 1 5
Schlossmann, 33 of owners, 1 6 5 - 1 6 6
Schmidt, E., 189 Social discipline. See Discipline
Schmidt, R., 185, 186 Social environment. See Society
Schmitt, C., 282 Social function, 3 2 - 3 3
Schmoller, 84 of ownership, 1 6 6 - 1 6 7
Scholastics, Schoolmen, 81, 143, 423, Social institution, 1 4 , 3 2 - 3 3
424, 4 5 1 - 4 5 2 Socialism, 9, 1 4 - 1 5 , 64-65, 100, 104,
Schönfeld, 145, 150
1 1 8 - 1 1 9 , 123, 124, 152, 155, 1 6 1 ,
Schopenhauer, 7 1 , 100
162, 179, 182, 327, 337, 365-366,
Schreier, 71
37°
Schubert, 87
Schuppe, 17, 33, 4 ° , 42 Social law, Social legislation, 1 5 4 - 1 5 5 ,
Schwinge, 149 179, 188, 189, 297, 365, 380, 3 9 7 -
398, 469
Science, 3, 4, 8, 1 1 , 23-24, 29, 30, 37,
Social order, 73, 162, 337-338
50, 82, 92, 93, 1 1 7 , 177, 199, 203,
223, 268, 3 1 4 , 3 1 8 - 3 5 0 , 362-363, Social philosophy, 3, 9, 10, 1 3 - 1 4 , 23, 65
396-397, 4 0 6 - 4 1 1 , 418, 470 Social relation, 36-37, 76, 79, 100, 174,
concerned with law, 6, 1 4 0 - 1 4 1 ; see 289-291, 2 9 7 - 3 1 7 , 407, 469-470
also Legal science kinds, 302-303, 3 0 8 - 3 1 7
logic of, 24 voluntary and nonvoluntary, 303-305
philosophy of, 24 Social science, 3, 9, 25-29, 3 1 , 39-40, 65,
prescientific thought and, 25-26, 30 304, 323, 348, 408-410, 421, 422
Security, 108, 3 3 3 - 3 3 6 , 3 3 8 - 3 4 1 , 394, Social theory,
428, 433 of law, 27-29, 34, 39, 1 0 3 - 1 0 4 , 141
Sedlacek, 322 of ownership, 162, 1 6 6 - 1 6 7
Self-defense, 1 9 4 - 1 9 5 , 2 2 1 , 260, 263 of the contract, 1 7 1 - 1 7 2
Self-obligation, 84, 1 6 9 - 1 7 0 , 204-206, Social value, 9, 1 2 - 1 7 , 22-23, 25, 360-
215 3 6 1 , 427
Self-preservation, 86, 2 1 0 Society, 1 4 - 1 6 , 20, 23, 30, 89-90, 95-96,
Seneca, 1 1 5 100, 103, 1 1 2 , 1 7 1 - 1 7 2 , 1 8 6 - 1 8 9 ,
Senn, 2 3 1 , 258, 343, 367, 418, 434-436, 227, 234, 235, 240-241, 243, 245,
438, 441, 443, 451 246, 254, 279, 290-291, 297, 333,
Unauthenticated
INDEX 491
335-336 , 353. 355, 361, 413, 432, c o m p u l s i o n b y t h e , 259-260
433, 4 4 6 - 4 4 9 c o n c e p t of t h e , 202-204
end o f , 238, 241, 290, 353 end, p u r p o s e , of t h e , 91, 204, 234, 240,
kinds, 237-24 0 243, 291, 297, 305, 353
of n a t i o n s , 237, 263-264, 359 idea of t h e , 204
Sociology, 17, 26, 28, 29, 39-40, 54, 67, political views of t h e , 23, 47, 98-109
1 1 4 - 1 1 6 , 1 1 8 , 1 4 1 , 1 7 3 - 1 7 4 , 188, reasons of, 196, 204, 433
264, 268, 301, 3 2 1 , 322, 330, 386, secular, 107
397-398 , 408-410, 454 u n i t a r y . See D e c e n t r a l i z a t i o n ; F e d -
Socrates, 120, 139, 198 eralism
S o h m , 138, 2 07 - 2 1 0 will of t h e , 201, 219
Solidarism, 370 S t a t e of facts. See F a c t
S o l i d a r i t y , 235, 298, 302, 305, 3 2 5 - 3 2 6 , S t a t i s m , 249, 365-366
332, 438-439, 4 4 3 - 4 4 4 Status, 123-124
Solon, 142 matrimonial, 174-175
S o l u t i o n , as e l e m e nt of t h e legal rule, S t a t u s q u o , n o , 221, 335, 4 1 4 - 4 1 5
2 67 - 2 7 1 , 334, 336, 349-350, 388, S t a t u t e , S t a t u t e l a w , 30, 1 1 3 , 124, 187,
404-405, 433 200, 227, 243-249, 282, 292-293,
S o m l o , 68, 71, 73, 77, 148 298, 3 2 3 - 3 2 4 , 331, 333, 351, 373·
S o m m e r , 141 385-386, 4 5 3 - 4 5 4
Sophocles, 139, 457 a p p l i c a t i o n of, 253
S o u r c e of law, 7, 8, 77, 201, 243-250, contrary custom and, 252-253
345-346 , 3 5 0 - 3 5 I , 358, 385-3S6 j u r i s p r u d e n c e a n d , 38
S o v e r e i g n t y , 2 1 4 - 2 1 9 , 239, 3 1 5 , 3 1 7 , 326 m a n d a t o r y , 172
Soviet Russia , 1 7 8 - 1 7 9 n o n - r e t r o a c t i v i t y of, 386
Space, 17, 386-387, 4 1 2 - 4 1 3 see also Legislation
S p a n n , 93 S t a t u t e of l i m i t a t i o n s , n o , 1 1 5 , 338,
Specialization, 20 368, 399, 4 27-4 28
Special legislation, 281 Staudinger, 9
Special p a r t , 46, 151 S t e n d h a l , 138
Specific p e r f o r m a n c e , 87 S t e r n b e r g , 137, 1 5 1
Spinoza, 115 S t i r n e r , 99, 215
S p i r i t u a l science, 3, 34, 130 S t o c k , 71
S p r a n g e r , 49, 58, 91, 93, 1 3 0 - 1 3 1 , 133, S t o e r k , 36, 42
137 Stoics, 19, 4 3 5 - 4 3 6
Stahl, 6, 8, 9, 1 5 - 1 8 , 3 1 , 40, 62, 63 S t o o p , 230
S t a m m l e r , 6, 8 - 1 0 , 14, 25, 29, 39, 40, S t o r m , 92
47, 5 ° , 53, 58, 60, 68-69, 78, 88, S t r e s e m a n n , 44
156, 160, 1 9 3 - 1 9 4 , 1 96- 1 97 S t r i n d b e r g , 78
S t a n d a r d , 274; see also N o r m S t r o u x , 144
S t a t e , 15, 1 9- 2 2 , 40, 93, 94, 97, 1 1 2 , 1 5 3 - Struve, 9
154, 1 69- 1 7 0, 174, 176, 1 7 8 - 1 7 9 , S u b j e c t , 2 5 1 - 2 5 2 , 344, 3 7 6 - 3 7 7 , 383, 429,
1 8 3 - 1 8 7 , 189, 1 9 1 , 198-199, 2 0 1 - 449; see also Legal p e r s o n
206, 208, 2 1 1 , 2 1 4 - 2 1 9 , 227, 232, S u b j e c t i v e right. See Legal r i g ht
234-267, 294, 296-298, 303, 3 0 8 - S u b s t a n t i v e law, 196, 199-200
310, 3 1 5 - 3 1 8 , 3 3 3 , 3 5 3 - 3 6 1 , 3 6 3 - S u b s t r a t u m . See R e a l i t y
364, 366, 3 7 1 , 3 7 3 - 3 7 4 , 379-380, Succession, 180-184, 287-288, 301, 3 7 0 -
4 1 3 , 424, 425, 430, 446, 448-453 ,
3 7 1 , 394, 406
458-459, 463-465, 470
Suicide, 296, 470
as i n s t i t u t i o n , 284-285
S u p p l e m e n t i n g law , 273-274 , 284, 310,
c h u r c h a n d , 294-295
375
Unauthenticated
492 INDEX
Syncretism, 27 Tutelage. See Guardianship
Systematization, 5, 6, 10, 19, 24, 28, Typology, 28
37-40, 56-57, 69, 1 4 1 , 146-149,
285-289, 405-406 Ulpian, 73, 173, 309, 418, 434-436, 443
Uniformity, 32
Taste, 50, 76, 115 United States, 389, 404
Taulier, 413 Universalism, 93
Taxation, 74, 3 1 1 , 399-400, 402, 403, University, 97
448, 451-453 Unjust enrichment, 305
Technical rule, 234, 276-277 Unorganized communion. See Commun-
Technique, Technology, 3, 37, 318-350, ion
360-361, 396, 406, 409 Urge, 86
of the law, 4 0 7 - 4 1 1 , 452, 461-462 Usage, 240, 244; see also Custom
rule of, 346 Usury, 374, 379, 388-389, 392, 395, 402
Teleological view, 5, 65 Utilitarianism, 67, 293, 3 5 1 - 3 5 2 , 407
of law, 16, 30-32, 34-35, 39, 67-68, Utility, 426-430
147-149, 1 5 7 - 1 5 8
Tension. See Antinomism Valensin, 351
Terrorism, 92, 100, 188-190 Valeur, 404
Tertullian, 126 Validity, 4-6, 8, 10, 1 3 , 14, 16, 22, 28,
Theology, 264, 336, 342, 345, 420 33-34, 5 1 , 71, 83-84, 108-109, 251,
Thibaut, 61 332
Thing. See Object; Property of law, 38, 60-61, 68-69, 84-85, 87-88,
Thoma, 215, 217 1 1 0 - 1 2 0 , 200-201, 465
Thon, 33, 42 of natural law, 420, 421
Timacheff, 321 source of, 83-84
Time, 11, 17, 386-387, 4 1 2 - 4 1 3 Value, 3-23, 23-26, 29, 35, 49-55, 74,
Tolstoy, 80, 81, 89, 1 2 7 - 1 2 9 , 1 3 2 - 1 3 3 , 78, 88, 91, 106, 232, 329, 358-359,
135, 139) 207-210 410, 442-443
Tonneau, 3 1 3 , 3 5 1 , 454 collective, 91-94, 358, 360-361
Tönnies, 20, 41, 89, 95, 100, 123, 124, common, 4-6, 9 - 1 3 , 1 7 - 1 8 , 22-23
164-165 concrete, 22-23
Tort, 255, 340-341. 371-372. 377. 3 9 3 - conquest of, 50-52, 126, 223
396, 403 cultural, 1 3 , 22, 35, 357, 359-360
Tourtoulon, 321, 432-433 economic, 303, 3 1 2 - 3 1 3 , 357, 359-36°,
Transindividualism, 12, 1 4 - 1 5 , 1 7 - 1 8 , 427
2i,. 92-96, 104-107, 123, 154, 1 5 8 - extraeconomic, 303, 3 1 1 - 3 1 5
160, 1 7 4 - 1 7 6 , 180-185, 190, 1 9 1 , family, 3 1 4 - 3 1 5
214-218 formal, 4-6, 9 - 1 3 , 1 7 - 1 8 , 22-23
Transpersonalism, 1 3 , 1 8 - 1 9 , 92-97, 123, hierarchy of, 92-93
158-160, 207-208, 2 1 7 - 2 1 8 individual (as personal value), 91-94,
Treaty, 215, 218, 266 357-358, 360-361
Treitschke, 93, 105 individual (as single value), 4-6, 9, 1 1 ,
Trendelenburg, 8, 15, 41 22
Triadism, 53, 70 legal, 68, 73, 193, 431
Trial. See Procedure moral, 1 7 , 73, 85, 88, 91, 289, 357,
Trialismus, 70 359-361, 391-392, 427, 431, 451
Troeltsch, 219 objective, 1 3 , 1 7 - 1 8 , 22
Truthfulness, 73, 436, 437, 439, 466- of the individual, 1 0 2 - 1 0 3
467, 469 personal, 1 3 , 1 7 - 1 8 , 22, 3 1 3 - 3 1 4
Tsatsos, 70 political, 303, 358-361
Unauthenticated
INDEX 493
prejuridical, 35, 198 Weigelin, 72, 79, 88
qualitative, 391-392 Weizsäcker, 136
relation to, 50-52, 70, 88, 107, 150, Weltanschauung, 6, 327, 360; see also
203, 222, 223 World outlook
religious, 357 Wenger, 321
sanitary, 357, 359-360 Weyr, 321
scientific view of, 55-56, 58 Wieruszowski, 175
single, 4-6, 9, 11, 22 Wilk,· 282
social, 9, 1 2 - 1 7 , 22-23, 25> 360-361, Will, 10, 1 4 - 1 7 , 20-22, 29, 31, 34-36, 46,
427 79, 82-85, 95, 100, 112, 1 1 3, 116,
standard of, 454 117, 149, 169-170, 184-185, 1 9 2 -
technical, 451-452 193, 204-205, 265, 304-305. 324,
transpersonal, 13, 1 7 - 1 8 , 22 327-328, 330, 344
twofold, 85 contractual, 1 6 9 - 1 7 1 , 291
typical, 4-6, 9 - 1 3 , 1 7 - 1 8 , 22-23 declaration of, 170-171
work, 91-94 last. See Succession
Value judgment. See Evaluation legislative, 1 4 1 - 1 4 2 , 146
Van Hove, 231 Windelband, 2, 9, 22-23, 35, 41, 49. 57.
Vareilles-Sommieres, 238, 271, 276, 281 93
Vattel, 425 Wirth, 44
Verdross, 3 1 1 Wissenschaft, 3, 50; see also Science
Vico, 342, 430 Wolf, 148, 149
Ville, 396 Woltman, 9
Vindication, 436, 437, 439 Work, 92, 94-96, 207, 2 1 7 - 2 1 8
Voetzel, 427 and ownership, 1 6 1 - 1 6 3
Volkmar, 301 World outlook, 3, 6, 10-14 , 1 6 - 1 7 , 2 I >
Vollmer, 143 25, 56, 69, 1 0 1 - 1 0 3 , 327, 360-361
Vorländer, 9 World state, 2 1 3-2 1 5, 217, 218
Worth, Worthlessness. See Value
Wach, 147 Wundt, 38-39, 42, 124
Wage, 74
Waiver, 274-275
Youth Movement, 97, 174
War, 94, 194, 219-224, 259, 263-264, 461
concept of, 221
meaning of, 220, 224 Zachariae, 307
significance of, 222-224 Zachary, 1 1 7
War guilt, 220 Zechlin, 119
Weber, Marianne, 57, 58, 178 Zitelmann, 30, 33, 42, 269
Weber, Max, 41, 57, 58, 68, 92, 114 Zwilgmeyer, 62
Unauthenticated
Unauthenticated
Unauthenticated
Unauthenticated

The 20th Century Legal Philosophy SeriesThe Legal Philosophies of Lask, Radbruch and Dabin-Emil Lask

Uploaded by

Copyright:

Available Formats

The 20th Century Legal Philosophy SeriesThe Legal Philosophies of Lask, Radbruch and Dabin-Emil Lask

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

The 20th Century Legal Philosophy SeriesThe Legal Philosophies of Lask, Radbruch and Dabin-Emil Lask

Uploaded by

Copyright:

Available Formats

THE 20TH CENTURY LEGAL PHILOSOPHY SERIES

THE LEGAL PHILOSOPHIES OF

PRINTED IN T H E UNITED STATES OF AMERICA

ASSOCIATION OF AMERICAN LAW SCHOOLS

JEROME HALL, Professor of Law, Indiana University, Chairman

THIS book is one of the 20TH C E N T U R Y LEGAL P H I L O S O P H Y SERIES,

INTRODUCTION BY E D W I N W . PATTERSON XXVII

TRANSLATOR'S NOTE . . . . XLI

I. EMIL LASK: LEGAL PHILOSOPHY

I. THE PHILOSOPHY OF T H E LAW 3

II. GUSTAV R A D B R U C H : LEGAL PHILOSOPHY

SECTION Ι Ο. T H E VALIDITY OF L A W 112

Juridical doctrine of validity, 112; Sociological doctrine of

SECTION I I . PHILOSOPHY OF HISTORY AND THE L A W . . . . 1 2 0

SECTION 1 2 . RELIGIOUS PHILOSOPHY OF THE L A W 126

Early Christianity, 126; Tolstoy, 127; Catholicism, 128; Refor-

SECTION 1 3 . T H E PSYCHOLOGY OF THE M A N OF THE L A W . . . 130

SECTION 1 4 . AESTHETICS OF THE L A W 137

Art of the law: aesthetics of forms of legal expression, 137; The

SECTION 1 5 . T H E LOGIC OF L E G A L SCIENCE 140

Legal science and sciences concerned with law, 140; Interpre-

SECTION 16. PRIVATE AND P U B L I C LAW 152

A priori character of these concepts, 152; Liberal view, 153;

SECTION 1 7 . T H E PERSON 156

Person as a concept of equality, 156; Teleological interpreta-

A priori character of the concept of ownership, 160; Theories

SECTION 1 9 . CONTRACTS 168

SECTION 20. MARRIAGE 172

SECTION 2 1 . T H E L A W OF INHERITANCE 180

SECTION 22. T H E P E N A L L A W 184

SECTION 23. T H E D E A T H P E N A L T Y 191

SECTION 24. M E R C Y 195

SECTION 25. PROCEDURE 198

SECTION 26. A GOVERNMENT OF L A W S 201

SECTION 2 7 . ECCLESIASTICAL L A W 207

SECTION 29. WAR 219

SECTION 2. POWER AS T H E SOURCE OF T H E L E G A L R U L E . . . 243

SECTION 3. L A W AND P U B L I C COMPULSION 250

SECTION I . T H E L A W AS A PRECEPTIVE, CATEGORICAL R U L E OP C O N -

SECTION 2. T H E L A W AS A GENERAL R U L E 281

III. THE SUBJECT MATTER OF THE LAW 289

SECTION 2. T H E SOCIAL RELATIONS AND THE CONCEPT OF THE

SECTION 3. T H E DIFFERENT KINDS OF SOCIAL RELATIONS AND THE

lie," 309; (89) International relations and international law, 310;

PART T W O . T H E LEGAL METHOD

I. IS T H E L A W " G I V E N " OR " C O N S T R U E D , " T H E SUBJECT

SECTION I . STATE OF THE PROBLEM AND PRESENT THEORIES . . 318

SECTION 2. EXAMINATION OF THE THEORIES OF THE "GIVEN"

SECTION I. CONCEPT AND CHARACTERISTICS OF THE TEMPORAL

SECTION 2. T H E TEMPORAL P U B L I C GOOD AS N O R M OF THE POSITIVE

367; (151) Examples from the ordinary law of private institu-

SECTION 3. THE CONCENTRATION OF LEGAL MATTER . . . . 404

Conclusions on the Legal Method and Corollaries

SECTION 2. RELATIVE CERTAINTY AND VARIABILITY OF THE LAW . 411

SECTION I. THE TRADITIONAL CONCEPTION 417

SECTION 2. I s T H E R E A JURIDICAL N A T U R A L L A W ? 422

SECTION I. THE EXISTING CONCEPTIONS; ESPECIALLY, ON THE

SECTION 2. T H E T H R E E K I N D S OF JUSTICE 443

SECTION 3. T H E N A T U R A L J U ST AND THE POSITIVE JUS T . . . 452

SECTION 2. JUSTICE AS THE NORMAL MATTER OF THE LEGAL R U L E 462