The theory of justice

Front matter

THE MODERN LEGAL PHILOSOPHY SERIES

The Theory of Justice

THE MODERN LEGAL PHILOSOPHY SERIES

CHAPTER II — Just LAW AND ETHICAL THEORY

Mesailtny eitiel MOnaliby. & a <i. caracts gece tiot<ls BS .ne wae Tdentity of Material and Diversity of Purpose........ Just Law an. Independent: Problem... 22 cn soi 3 aie o> saree Ethical Doctrine an Independent Problem............ Winom ima Common Propress..........ece esses crue

CHAPTER III — Just LAw Anp Law oF NATURE

Vahdity ot tite Daw ot Nature os. sis ci ct ceenacesas The Three Questions of the Philosophy of Law........ The Univetsal Standardiat Laws cia us ites eles «ce

CHAPTER IV — Just LAW AND GRACE

Gracennnchenleawan e.crcasvaentsaniieas mere eevee auc e Coes Grace in the Uncertainty of Positive Law.............

Xiil ee

PAGE vii XVii

17 21 25 29 34

40 44 54 58 64

72 76 89 85 89

X1V CONTENTS

PAGE § 3. Grace as Correction of Positive Law...............-. 99 Sade Sennen ews te Sy swonene anaheim A ere aE ee eae 105 Su; Mercy Stpertor to Justice. |. o.u101 sa oe es aia o ee eee 109

CHAPTER V — Just LAW AND THE UNCRITICAL CONCEPTION OF LAW CONTENTS XV

CHAPTER V — THE MopeEt or Just LAw

Chapter I — The Right Exercise Of Legal Relations

Noles Exercise of Rigshtsion Dxcltsiom, s,s. ssa aoc nese | eo See bertonmearnce 1m Goods Harhh %. cn. e se ocleeee cine eaie- 254 § 3. Avoiding “Abuse” in Family Rights... ......6.<e0s0s 279 Re Reread CPC UCAIME "oi. ace somes wo bea tales tae, bu Mao Sloan ae 284 § 5. Determination in Accordance with “‘Fairness”........ 288 CHAPTER II — Limits OF FREEDOM OF CONTRACT § 1. “Uti Lingua Nuncupassit, Ita Ius Esto”............. 300 § 2. Transactions in Violation of a Legal Prohibition....... 310 § 3. Transactions in Violation of “‘Good Morals”.......... 318 § 4. Inadmissible Transactions — Positive (Misfeasance)... 327 § 5. Inadmissible Transactions — Negative (Non-feasance). 338

CHAPTER III — DutiEs or Just LAw

§ 1. Dotations Corresponding to a “Moral Duty’”’......... 348 NeveemeConsideration tor Propriety .c)c... cscs access eee sae 360 § 3. Indemnity as a Matter of “Fairness” ............... 365 § 4. Deliberate Injury in Violation of ‘‘Good Morals”...... 368 § 5. Accepting a Performance in Violation of ‘‘Good Morals” 382

Chapter IV — Determination Of A Just Transaction

§ 1. Interpretation of Legal Transactions................. 387 Naeger eure: MWA. we ss aw acim eons ceune means ad erode 394 § 3. ‘Intelligent’’ Estimate of the Case.................. 408 mia, Bond Bide”. Interpretahoni .. sc. vet da denen cece’ 408 § 5. A Point about which an Agreement was Intended..... 428

Chapter V — Justified Termination Of Legal Relations

Wal. Wenraliof Exclusive Rights. oa. sake ee owen de ours 433 We ok Valid.” Reason... .. +. is Rarerise ene craw § 438

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PAGE § 3. Culpable Destruction” of Marriage ...620 0% dense es 450 § 4. Prevention of a Result in Violation of ‘‘'Good Faith”... 456 § 5. Termination according to Objective Judgment........ 463

ConcLusIon — THE Mission oF Just LAW

TRANSLATOR’S INTRODUCTION

Philosophy of Law is an expression of indefinite meaning. To Austin it means an analysis of the more general concepts underlying the details of legal rule and principle. His method of treating the substance of law is like the method of the grammarian in his analysis of language. It is a method of classification according to certain categories suggested by the material under investigation and implied therein. The purpose of the analysis is the better understanding of the details, which are seen to form parts of a whole, the easier mastery of the manifold rules as flowing from a more comprehensive formula, and the ability to correct errors in specific cases by reference to the broad principles suggested by the subject as a whole. Thus, a rule of grammar that nouns form their plural by addition of “‘s”’ to the singular expresses in a few words what would otherwise have to be learned in each case separately. But to make such a rule possible it is necessary that the material of the language — the vocabulary — should be classified according to the categories of the parts of speech, and each part of speech be further analyzed in reference to its attributes of number, gender, case and so on. Analytical jurisprudence, the jurisprudence of Austin, Holland and the majority of English writers on the subject, applies the same method to the material of law, t.e. to the social and economic relations of men, and the purpose is the same. That trover is a possessory action is a formula comprehending any number of concrete situations. But in order to express such a formula a good deal of classification and analysis must have gone before. The relations in which persons stand to things XVli

XVill TRANSLATOR’S INTRODUCTION must have been analyzed, so that the categories of ownership and possession have a meaning. Similarly the concept of action and the various kinds of actions are the result of analysis, going back ultimately to the basic elements of law, namely, rights and duties and the consequences of their violation.

This brief description of the nature of analytical jurisprudence shows that its method is a posteriori. It is based entirely on the material presented in the positive law, which it proceeds to arrange and classify according to principles of classification suggested by the subject matter and the use to which it is to be put. The definition of law itself is based upon a comparison of the positive law, as it exists in statute and decision, with other departments of human thought and action to which the word law is applied, such as the laws of physical nature, the laws of ethics, morality, honor, etiquette, the laws of a game, etc.

Analytical jurisprudence never goes beyond the positive law. It is expository of the positive law, not critical or evaluative. It may enable one to correct an error in a specific legal rule, or in the decision of a specific case. The criticism would lie within the system of positive law. It would be to the effect that the rule or decision in question is inconsistent with some other more comprehensive rule or principle derived from the system as a whole. But there cannot be in analytical jurisprudence a criticism of the positive law as such, or of its basic principles. Analytical jurisprudence does not evaluate the fundamental principles of law. Positive law as a matter of fact recognizes rights and duties of various kinds and protects and enforces them in certain ways. It derives its authority from the sovereign power in the State, hence without a State there is no law. The business of the analytical jurist is to expound in a systematic and scientific way what it has actually pleased the sovereign to command his subjects or citizens. It is not his concern to discuss

TRANSLATOR’S INTRODUCTION xix the right or the wrong, the justice cr the injustice thereof. For as a jurist he knows only of legal right and wrong, legal justice and injustice. Hence right and just, wrong and unjust, mean respectively the same as accord with the law and violation thereof. The law itself cannot be according to law or against the law, hence the law itself is neither just nor unjust, neither right nor wrong.

It follows therefore that the study of analytical jurisprudence is of value primarily to the student, the lawyer and the judge. To the legislator and the statesman it is of value secondarily only in so far as it may enable him to formulate his legislation in a precise manner. But it has nothing to teach him that is substantial. The ideal legislator — and if we look upon him as representing the voice of the people, the ideal voice of the people — wants more than the knowledge of formal accuracy in the formulation of a desired law. He wants enlightenment on the desirability and justifiability of the contemplated measure. Analytical jurisprudence is silent in this matter. And not merely the legislator, the judge too is not always in a position to decide a given case in accordance with a technical rule of law. He may have to make a choice between two rules of law equally applicable so far as the technical aspect is concerned. Or there may be no rule applicable to the specific point in issue. Or the law itself may bid the judge decide in accordance with reason and justice. Analytical jurisprudence does not deal with reason and justice, it deals solely with positive law. An obvious solution would be to relegate all questions of the justice of law to the sphere of ethics. But it matters not what name one gives to this department of thought, the group of questions suggested in their peculiar applicability to legal relations must be studied by the jurist and the legislator. And moreover, there is a peculiar group of problems pertaining to the science of ethics, namely, the perfection of the will and the formation of character,

XX TRANSLATOR’S INTRODUCTION whereas in law we are concerned with external regulation of the conduct of men in relation to one another.

Stammler is not concerned — as a philosopher of law — with analytical jurisprudence. He presupposes that. He defines the philosophy of law as the theory of those propositions about law which have universal validity... The concept of universal validity is one that Stammler never ceases repeating. But no study of positive law, however extensive and thorough, is capable of yielding universally valid propositions. They must therefore be arrived at in another manner. They are propositions about law and not propositions of law. They must be universally valid, that is, they must apply to all possible law, past, present and future. They are in the first place propositions which are implied in all law and without which no law is logically possible. They are ways of thinking which are indispensable if we are to think of such a thing as law. The method of arriving at these propositions Stammler speaks of as a critical deliberation (‘kritische Selbstbesinnung’) on the content of our mind. This is not very clear. And it is not made clearer by Stammler’s statement that such critical deliberation presupposes a knowledge of law (the more thorough the knowledge the better) ; that it is not ana priori process, and is not derived from a fancied mythical source. So much is clear that in Kantian fashion (Stammler is a Neo-Kantian) Stammler lays stress on consciousness, on our mode of thinking and conceiving.

Now if we analyze critically our mode of conceiving reality, we find that we have two such modes, no more and no less. We conceive of natural phenomena as a series of events united by the law of causality. The cause determines the effect which succeeds it in time. This is a universally valid mode of thinking, which determines every possible natural event, else it is not a natural event

1 Zeitschrift ftir Rechtsphilosophie, I, 4.

TRANSLATOR’S INTRODUCTION XX1 and we can not deal with it assuch. We also find another mode of conceiving certain other domains of reality, namely the relation of means and purpose. The purpose, which comes later in realization, determines the means to be chosen. Means is a cause that is subject to choice. Volition pertains to this second category and is defined not as a force but as a mode of arranging and unifying our mental content.

Law is a kind of volition. It is a mode of arranging human acts according to the relation of means and purpose. The legislator does not describe the natural following of certain acts upon others as the physical scientist does with respect to natural phenomena. He determines that certain acts shall take place as means to certain purposes. When the law says that breach of contract should be followed by damages, it chooses the sanction as a means to the purpose of preventing breach of contract or loss to the party injured.

If we analyze volition we find that there are various kinds. An individual may select a given means for a specific purpose. This is individual or isolated volition. The law is not of this sort. It is a volition which binds man to man. It uses the acts of one individual as means to further the purposes of the other, and vice versa. But not all binding volition is of the same kind. The individual whose acts may thus be made use of as means for the purposes of other individuals may retain his privilege of refusing to be so treated and step out of the System; or the System may be such that the individual has no choice except so far as the System chooses to grant it. Law clearly belongs to the second class. Social customs of a certain kind are examples of the first. They are governed by conventional rules. Finally, we can conceive of a mode of volition, binding and sovereign (‘selbstherrlich’), but arbitrary. That is, the author of the volition changes it as his whim suggests, and one never

XXil TRANSLATOR’S INTRODUCTION knows how long a given determination will last or if it will last at all. This is not law. Law must be inviolable (‘unverletzbar’) so long as it is law. Law may be repealed, but cannot be violated arbitrarily. These are the essential elements of law, and taken together form the concept (‘Begriff’) of law. They are universally valid modes of thinking, and without them law is logically impossible.

It is of interest to compare Stammler’s definition of law with that of Holland. Holland defines law as “a general rule of external human action enforced by a sovereign political authority.” The word “general” no doubt implies not merely that it is not directed to a single individual as such, but to a class, or an individual as a member of a class, but also that it does not give an order to do a specific thing on a given specific occasion, but a general order in reference to a type of action. The word also implies that the order is intended to last until it is properly’ repealed. Hence the word “‘general’”’ implies Stammler’s fourth element, ‘“‘inviolable.” If law is “a rule of action,” it of course has to do with means and purpose and not with cause and effect. However, Holland does not make this distinction specific, whereas Stammler carefully and rigidly defines wherein volition differs from observation. According to Holland law must be “enforced by a sovereign political authority.” This means that there can be no law without a State, and that the State precedes law. Here Stammler disagrees with Holland. There is nothing said about the State in Stammler’s definition, and as a matter of fact Stammler is of the opinion that law comes before the State, that the State is a creature of law. The moment there is society, there is externally regulated conduct — this is what society means —and if the individual is not consulted as to his wishes in the matter, we have law in Stammler’s sense, whether there is a State in the strict sense or not.

TRANSLATOR’S INTRODUCTION XXili

This difference has its consequences. It makes it possible to discuss the justice and injustice of a law without having to go outside of the law. Law is no longer a fiat of a sovereign who creates it. In fact according to Stammler the actual origin of the law in the concrete sense is a question of history or psychology with which philosophy is not concerned. The philosophical concept aims to give the essential elements of the thing in question, but the question of origin is not essential, any more than the question whether the law is written or oral. To be sure, a critic might say that it is all a fight about words. What law is, he might say, is a question of definition. And whether a given attribute of law is or is not universally valid is similarly a matter of definition. The four characteristics given by Stammler are indeed universally valid, because Stammler would refuse the name of law to anything which failed to satisfy those requirements. He would deny universal validity to Holland’s definition on the ground that law need not be confined to the State; it may exist in a non-political society. But for Holland the characteristic in question is universally valid because he refuses to recognize a rule of action as law which is not the order of a sovereign political authority. What is to decide between them? And does it make much difference? Whether the justice of a law is a legal or an ethical problem is once more a question of words and definition. I confess to a leaning in favor of such a critic, without any diminution in my admiration for Stammler’s rigor of logical method.

But while the choice between two equally plausible definitions may seem arbitrary, preference should be given to that which gives the better results. And here it may be said that, as we shall see later, Stammler succeeds in deriving a great deal from his definition which does not lie in Holland’s program at all. This is to justify a nonpragmatic philosopher by a pragmatic test. Stammler would repudiate such a test.

XXiv TRANSLATOR’S INTRODUCTION

In all his analyses Stammler insists with all possible emphasis that the philosophy of law must deal with pure forms of legal thinking, 7.e. with concepts which contain nothing of concrete legal material. Thus the concepts of marriage, property, agency, are not concepts of the philosophy of law as such, since they are not applicable to all law and contain matter in addition to form; whereas the four elements in the definition of law satisfy the requirements, since they express the form of thinking which one must have if he is to think of anything legal.

The completeness of the definition Stammler proves from the fact that in deriving it he did not begin with legal propositions and unmethodically endeavor to enumerate characteristics applicable to them, but his method was to analyze the possibility of modes of thinking, taking care to leave nothing out.

Having established the concept of law, he then proceeds to derive what he calls the categories of law, a sort of intermediate concept standing between the definition and the specific legal institutions and regulations. These categories, however, are also purely formal concepts, 7.e. modes of thinking implied in all legal matters and logically determining them. They are once more universally valid and contain nothing specific. To be sure that they are enumerated in full, he derives them from the four characteristics of law as expressed in the definition — namely, volition, binding together, sovereignty and inviolability.

Since law is a mode of volition, and volition signifies using means to realize ends, law as such must in all cases determine certain persons or things or acts as ends in themselves and others as mere means. Hence arise the concepts of “‘legal subject” and ‘‘legal object.’”’ Similarly he derives from the other three elements of the definition the following pairs of categories in order: ‘‘legal ground” and “‘legal relation,” ‘“‘legal supremacy” and ‘‘legal subjection,” “conformity to law” and “opposition to law.”

TRANSLATOR’S INTRODUCTION XXV

It is not necessary to go into the details of Stammler’s logic and to reproduce his manner of derivation of these categories of law. Suffice it to say that they are also pure forms of law in that they are implied in all thinking about any legal matter. The reader who is interested will find all he wants and more in Stammler’s systematic treatise, ‘‘Theorie der Rechtswissenschaft.”’ There are “simple concepts of law,” “‘composite concepts of law,” “concept of law in relation to time,” and ‘‘concept of law in logical relation.”” The treatment is extremely abstract and is apt to make the reader’s head swim.

Of greater interest is the second question with which, according to Stammler, the philosophy of law is concerned. We have found now what law is, we wish to find what justice is. For it is clear that law as such is not necessarily just. Nothing was said about justice in our definition. Law is, as we have seen, a mode of volition combining the purposes of human beings in society. But whether it combines them justly or not is still an open question. It is clear also that such a question as this latter would have no meaning if law were an event in nature like an eclipse and to be studied as such, 7.e. as governed by the law of cause and effect. The physical scientist never asks whether an eclipse is right or just. His study is complete when he has discovered the law of eclipses, that is the causal relations involved in the happening of an eclipse. Now whether the formation and growth of law is as necessarily determined as an eclipse, is a matter difficult to decide. Unless one is a materialist he will admit that purpose and idea and motive have a determining influence in shaping law. And we are dealing with law as a form of volition, and volition means a choice of means to realize a purpose. Here the question of the propriety of the purpose is not merely relevant, it is the only scientific mode of dealing with the relation of means to purpose. For if we think of the means as the cause

XXvi TRANSLATOR’S INTRODUCTION and the purpose as the effect, we have shifted our ground from the realm of purpose to that of nature.

Now if we consider a single act in isolation, as, for example, taking a train for New York, where the means is taking the train and the end is reaching New York, the act is right if it is such as to bring the person to New York, it is wrong if he takes a train going in the opposite direction. In law we are dealing not with an isolated act of an isolated individual. The definition of law indicates that law is a mode of volition which combines the purposes of individuals in society. It makes the purposes of A subservient to the purposes of B, and vice versa. Moreover, society came into existence to enable its members better to realize their purposes. Hence the law, which is by definition not concerned with any individual as such, but with all individuals as combined in society, has for its purpose the harmonization of all the purposes of all the individuals in a given society. Any law which does this is a just law, otherwise it is unjust, for the simple reason that it goes back on itself. It stultifies itself, so to speak, by doing the opposite of that which by its definition it is intended to do.

It is obviously impossible to bring about the harmony in question if every individual is allowed to act so as to realize his individual purpose regardless of the purposes of his neighbor. The purpose of the law must be an all-embracing purpose, in which the conflicting individual purposes find their adjustment. A community in which this is the case, Stammler calls a ‘‘community of freewilling men,” also the ‘‘social ideal.” And he defines a law as just which corresponds to this ideal.

To make it possible to apply the social ideal to positive law it is necessary to derive certain principles which follow directly from the nature of the social ideal. It will be sufficient here to state the principles — principles of just law, Stammler calls them— and refer the reader who

TRANSLATOR’S INTRODUCTION XXVil is interested in the manner of derivation to Stammler’s book.2 But it is well to call the reader’s attention to the fact that here too Stammler is true to his purpose of dealing only with the purely formal, 7.e. with propositions which apply to all law without exception and hence do not in their content have anything of specific legal material. It is also well to observe how rigorous Stammler is in his method of analysis, never undertaking any process of reasoning without stating beforehand what it is he is about to do and why. The four principles of just law, which follow from the social ideal, are as follows:

t. The content of a given volition must not be arbitrarily made subject to another volition.

2. A legal requirement may exist only so far as the person under obligation may remain his own neighbor (7.e. may be an end in himself).

3. A person who is a member of a community regulated by law must not arbitrarily be excluded from the community.

4. Alegal right or power of disposition granted to any one may be exclusive only in so far as the person excluded may still be his own neighbor.

The precise meaning of these principles and their logical relation to one another, as well as the proof of their necessity and sufficiency, are all explained in detail in the work itself.

There are only four principles of just law, but Stammler feels that without further ideas it would be impossible to apply these principles properly to the confusion of human relations. The most important question of all is, how are we (7.e. the law) to decide the degree of obligation that one owes to the various members of Society? None can be entirely neglected, and all can not be treated alike.

2 “Die Lehre von dem richtigen Rechte’’ (Berlin, 1902).

xxvill TRANSLATOR’S INTRODUCTION

For example, it will not do to make every member of society share equally in the property of a deceased member (why not’). And yet the principles say nothing explicitly about this. Accordingly, Stammler introduces what he calls the ‘‘Model of Just Law,’ which, while based upon the social ideal, comes to meet it, so to speak, from below, from the concrete material of positive law. This does not, however, mean that the ‘“‘Model of Just Law” in its expression contains anything of concrete legal material. All that the model signifies is that in order to determine in a given case what one member owes to another, the person in question must be regarded as occupying the center of an area, around which are drawn concentric circles, measuring by the relative lengths of their radii the extent of the claims their occupants have against the person in the center, the proportion between the claim and the radius being inverse. If one asks on what principle the concentric circles are to be drawn, the answer would no doubt have to be that they must be drawn so as to correspond to the social ideal.

Of interest also is Stammler’s conception of the relation between law and ethics. They are co-ordinate; neither can be derived from the other. Justice can not be derived from perfection and truth, nor perfection and truth from justice. Both law and ethics are modes of volition, and hence are subject to the laws of volition as such. Pure volition (‘Willensreinheit’) is the source from which justice as well as perfection is derived. They are like two branches issuing from the same trunk. Volition as such divides itself into individual or isolated volition, and social or combining and binding volition. Law belongs to the latter, morals to the former. In each case the concept (‘Begriff’) of the thing is distinct from what Stammler, following Kant, calls the ‘Idee,’ 12.e. ideal. Thus any form of associative volition which satisfies also the other conditions expressed in the definition

TRANSLATOR’S INTRODUCTION XXiX of law constitutes a law. It may be a good law or a bad law, a just law or an unjust law. Only when it satisfies the ideal of law, namely, the Social Ideal as defined above, is it a good and just law. Similarly, any form of individual or isolated volition which satisfies the other conditions that may be contained in a definition of morals, constitutes morals. For example, a person hates his fellowman, another loves his fellowman. Both of these states of mind, or the volitions associated with them, pertain to morals. One is good morals, the other is bad morals. That a moral volition be good it is not sufficient that it come under the concept of morals, it must satisfy the ideal of morals, which is, according to Stammler, never to make a particular thing as such an end in itself. Now it is true, Stammler says, that law and morals have the same root, purity of volition (‘Willensreinheit’), and hence, in any concrete act of a person, it is requisite that it be good legally as well as morally in order to be a good act. Nevertheless, from a philosophical point of view the two fields are distinct and must be treated separately.

Most of us would admit no doubt that the ethical law can not be derived from the juristic law. Or to put it in other words, many of us would be willing to grant that a person may obey the laws of the land relating to property and yet be far from a moral man even in relation to property. Obedience to law is compatible with a violation of the tenth commandment. But there are many who believe that the positive law has been ‘‘added because of transgressions,’ and that, if every man were morally perfect, there would be no need of law. Accordingly, law is conceived as being an inferior morality, or as an institution established to secure a minimum of morality. Stammler is opposed to this. The law of morals as such he says can not determine the institution of property or its laws. For morality deals with the motives, desires and yearnings of the individual; whereas law deals with a:

XXX TRANSLATOR’S INTRODUCTION volition superadded to or superimposed upon the isolated volitions of the various individuals, which combines the purposes of all and makes those of one serve as means for those of the other. Law is not the sum of the individual wills, but a super-individual will; and hence no matter how good from the moral point of view the individual wills are, their sum can not replace the combining or associative volition represented by law. The latter has to be studied by itself.