The Ideal Element In Law

V. The End of Law: Maintaining the Social Status Quo

FIVE The End ofLaw: Maintaining the Social Status Quo @® We turn now to the end or purpose of law, both as legal order and as a body of authoritative norms, i.e., models or patterns of conduct, of decision of controversies, and of predictions or advice by counsellors; or, in other words, to theories of justice.1 It has been seen that a body of philosophical, political, and ethical ideas as to the end oflaw- as to the purpose ofsocial control and of the legal order as a form thereof- and hence as to what legal precepts ought to be in view ofthis end, is an element ofthe first importance in the work of judges, jurists, and lawmakers. The history and development of this body of ideas is no less important for the science of law than the history and development of the precepts and doctrines which used to be thought of as making up the whole of the law. Indeed, the history of ideas as to the end of law is part of the very history of legal precepts and legal doctrines. But there is another reason why we should examine the history of these ideas. It used to be said that law is the body of precepts in accordance with which justice is administered by the authority ofthe 1. Pound, Justice According to Law (1951) pt. 2; Del Vecchio, Justice (1952) (trans!. by Lady Guthrie, ed. by Campbell); Radbruch, Rechtsphilosophie (3 ed. 1932) §§ 7-9; Binder, Philosophie des Rechts (1 ed. 1925) §12; Kant, Philosophy ofLaw (1887, trans!. by Hastie)45-46; Spencer, Justice (1891)chaps. 5, 6; Dewey and Tufts, Ethics (1938) rev. eel. chaps. 20-24. THE END OF LAW~ 141 state.2 This presupposes that the purpose of law (in the sense of the judicial process) is the administration of justice, and the task of the judicial process is to maintain the legal order as an order of justice by applying to decisions of controversies the authoritative norms of decision established or recognized by the state. Thus at the outset of even a purely analytical investigation we are met by the question, what is justice , in the sense of what we are trying to bring about through law. This is not a question of what justice is when thought of as an individual virtue, nor what it is when thought ofas a regime ofadjusting relations and ordering conduct. It is a question ofwhat it is that we seek to attain by means of the legal ordering of society. What is the end which we are trying to reach by means ofthe legal order and hence through judicial decision, juristic discussion and legislation? As has been said hereinbefore , I prefer Radbruch's definition of justice as the ideal relation among men. Even ifwe cannot dogmatically lay clown an unchallengeable universal formulation of that ideal, we may set forth the received formulation which men accept in the time and place as what they believe to be the ideal formulation and we accept as the nearest approximation we may attain for the time being. We may take up this question of the end of law, or of what is justice, either historically or philosophically. We may inquire as to ideas of the end oflaw as they have developed in legal precepts and legal doctrines. Or we may inquire about these ideas as they have developed in juristic thought. In the latter connection we are brought to inquire what ought to be conceived as the end oflaw, and we must ask what do economics, politics, sociology, and ethics point to as the purpose to which the ordering of society is to be directed. As one pursues this last inquiry he soon perceives that juristic theories of the end of law and those which obtain in the other social sciences are not always the same. Thus there was a significant divergence between the idea as to the end oflaw which had developed in actual legal precepts and doctrines and obtained in juristic thought at the end of the nineteenth century, on the one hand, 2. E.g., Pollock, First Book oflurisprudence (1ed. 1896) 17- 142 ~THE IDEAL ELEMENT IN LAW and, on the other hand, the idea of justice which had then come to obtain in economics, politics, and ethics. Hence we have not merely to ask, what is the legal or at least the juristic idea of...