Chapter 9: Ethics and Law

1. Natural Law

In primitive societies religion, morals, law, customs, manners, exist as an undifferentiated whole. (1) The boundaries between them are hazy and ill-defined. Their respective provinces are distinguished only gradually. For generations it is not only ethics that retains a theological base, but jurisprudence, which was a part of theology for two centuries prior to the Reformation.

The outstanding illustration of the fusing and separation of the provinces of ethics, law, and theology is the growth of the doctrine of Natural Law. The Greeks put a theoretical moral foundation under law by the doctrine of natural right. The Roman jurists made natural right into natural law and sought to discover the content of this natural law and to declare it. The Middle Ages put a theological foundation under natural law. The seventeenth and eighteenth centuries took out this theological foundation and replaced it or partially replaced it by a rational foundation. At the end of the eighteenth century Kant tried to replace the rational foundation by a metaphysical foundation. (2)

But what was natural law, and how did the concept arise? In the hands of Roman lawyers, the Greek theories of what was right by nature and what was right by convention or enactment gave rise to a distinction between law by nature and law by custom or enactment. Rules based on reason were law by nature. The right or the just by nature became law by nature or natural law. In this way began the identification of the legal with the moral that has been characteristic of natural-law thinkers ever since. (3)

In the Middle Ages the concept of natural law was identified with the concept of divine law. Natural law proceeded immediately from reason but ultimately from God. According to Thomas Aquinas, it was a reflection of the "reason of the divine wisdom governing the whole universe." Later thinkers saw no conflict between natural law and divine law. According to Grotius, for example, both were based on eternal reason and on the will of God who wills only reason. This is also the view of Blackstone. It is reflected in the views of American judges, as for example, Mr. justice Wilson, who tells us that God "is under the glorious necessity of not contradicting himself." (4)

The concept of natural law has played a major role both in legal confusion and in legal progress. The confusion comes from its unfortunate name. When natural law is identified with the "laws of nature" it comes to be assumed that human thought can have no part in forming or creating it. It is assumed to preexist. It is the function of our reason merely to discover it. In fact, many writers on natural law throw out reason altogether. It is not necessary. We know -- or at least they know -- just what natural law is from direct intuition.

This aroused the wrath of Bentham. He contended that the doctrine of natural law was merely one of the "contrivances for avoiding the obligation of appealing to any external standard, and for prevailing upon the reader to accept of the author's sentiment or opinion as a reason for itself.... A great multitude of people are continually talking of the Law of Nature; and then they go on giving you their sentiments about what is right and what is wrong: and these sentiments, you are to understand, are so many chapters and sections of the Law of Nature.... The fairest and openest of them all is that sort of man who speaks out, and says, I am of the number of the Elect: now God himself takes care to inform the Elect what is right: and that with so good effect, and let them strive ever so, they cannot help not only knowing it but practicing it. If therefore a man wants to know what is right and what is wrong, he has nothing to do but to Come to Me." (5)

If, however, we think of natural law as merely a misnomer for Ideal Law, or Law-as-It-Ought-to-Be, and if, in addition, we have the humility or scientific caution to assume that we do not intuitively or automatically know what this is, but that it is something to be discovered and formulated by experience and reason, and that we can constantly improve our concepts without ever reaching finality or perfection, then we have a powerful tool for the continuous reform of positive law. This, in fact, was the implicit assumption and method of Bentham himself.

2. The Common Law

Positive law and "positive" morality are both products of a long historical growth. They grew together, as part of an undifferentiated tradition and custom that included religion. But law tended to become secular and independent of theology sooner than did ethics. It also became more definite and explicit. Anglo-American common law, in particular, grew through customs of judicial decision. Individual judges realized, implicitly if not explicitly, that law and the application of law must be certain, uniform, predictable. They tried to solve individual cases upon their "merits"; but they recognized that their decision in one case must be "consistent" with their decision in another, and that the decisions of one court must be consistent with those of others, so that they would not easily be overthrown on appeal.

They therefore sought for general rules under which particular cases might be brought and decided. To find these general rules they looked for analogies both in their own previous decisions and in the previous decisions of other courts. Contending lawyers usually did not deny the existence or validity of these general rules. They did not deny that cases should be decided in accordance with established precedents. But they tried to find and to cite the analogies and precedents that favored their particular side. The attorney for one litigant would argue that his client's case was analogous to previous case Y, not X, and that it therefore came under Rule B, not Rule A, while the attorney for the opposing litigant would argue the opposite.

Thus there grew up, through precedent and analogical reasoning, the great body of the Common Law. There was in it, of course, in the beginning, much reverence for mere precedent as such, whether the precedent was rational or irrational. But there was clearly a great deal of utilic rationality in respecting precedent as such: this tended to make the application of law certain, uniform, and predictable. Moreover, there was also, even in early periods, and increasingly later, an element of utilic rationality in particular decisions. For even in trying to decide a case "upon its individual merits," a judge would probably give at least one eye to a consideration not only of the probable practical effects of that particular decision but to the probable practical effects of like decisions in other cases. Thus the Common Law was built up both through induction and deduction: in deciding particular cases judges arrived at general rules, i.e., at rules that would apply to like cases; and when a new concrete case came before them, they would look for the relevant pre-existing general rule under which it would be appropriate and just to decide it.

Thus judges both made law and applied it. But common law had the defect of a wide margin of uncertainty. Where precedents were conflicting and analogies were debatable, litigants could not know in advance by which precedent or analogy a particular judge would be guided. Where the general rule or principle had received vague or inconsistent statement, no one could know in advance which form of the rule a given judge would accept as valid or determining. How could men protect themselves from capricious or arbitrary decisions? How could they know in advance whether the actions they were taking were legal or whether the contracts and agreements they were making would be called valid? The demand arose for a more explicit written law.

But the law as a whole, common and statute law together, was a steadily growing and constantly more consistent body of general rules, and even of general-rules-for-finding-the-general-rule under which a particular case came. And the attempt to make these general rules more precise and consistent, and to find a utilitarian basis for them or reconstruct them on such a basis, led to the development of the philosophy of law and the science of jurisprudence. Writers on jurisprudence were divided roughly into two schools, the analytical and the philosophical. "Analytical jurisprudence broke with philosophy and with ethics completely.... The ideal pattern of the analytical jurist was one of a logically consistent and logically interdependent system of legal precepts.... Assuming an exact logically defined separation of powers, the analytical jurist contended that law and morals were distinct and unrelated and that he was concerned only with law." (6) On the other hand, "Throughout the nineteenth century philosophical jurists devoted much of their attention to the relation of law to morals, the relation of jurisprudence to ethics." (7)

Yet there is an irony here. While most writers on jurisprudence have been constantly concerned with the relations of law to ethics, while they have sought to make legal rules consistent with ethical requirements, and to find what jurisprudence has to learn from ethics, moralists have not at all troubled to find what they could learn from jurisprudence. For the jurists have made the tacit assumption that while the law is something that was created and developed by man, and is to be perfected by him, ethics is something already created by God and known to man by intuition. The great majority of ethical writers have made a similar assumption. Even the evolutionary and utilitarian moralists have not troubled to see what they could learn from a study of law and jurisprudence.

And this was true, strangest of all, even of Jeremy Bentham, who made tremendous contributions both to jurisprudence and to ethics, and whose most famous book is called, significantly, Introduction to the Principles of Morals and Legislation. Yet he too was concerned principally with what legislation had to learn from morals, or rather with what both had to learn from the Principle of Utility or the Greatest Happiness Principle, and not with the great lesson that ethical philosophy had to learn from jurisprudence and law -- the importance and necessity of general rules.

Nevertheless, Bentham has left us an illuminating simile: "Legislation is a circle with the same center as moral philosophy, but its circumference is smaller." (8) And Jellinek in 1878 subsumed law under morals in the same way by declaring that law was a minimum ethics. It was only a part of morals -- the part that had to do with the indispensable conditions of the social order. The remainder of morals, desirable but not indispensable, he called "an ethical luxury."

3. The Relativism of Anatole France

The great lesson that moral philosophy has to learn from legal philosophy is the necessity for adhering to general rules. It also has to learn the nature of these rules. They must be general, certain, uniform, regular, predictable, and equal in their application. "Rules of property, rules as to commercial transactions, the rules that maintain the security of acquisitions and the security of transactions in a society of complex economic organization -- such rules may be and ought to be of general and absolute application." (10) "The very conception of law involves ideas of uniformity, regularity, predictability." (11)

The essential requirements of law have seldom been better described than by F. A. Hayek in The Constitution of Liberty. It must be free from arbitrariness, privilege, or discrimination. It must apply to all, and not merely to particular persons or groups. It must be certain. It must consist in the enforcement of known rules. These rules must be general and abstract rather than specific and concrete. They must be so clear that court decisions are predictable. In brief, the law must be certain, general, and equal. (12) "The true contrast to a reign of status is the reign of general and equal laws, of the rules which are the same for all." (13) "As they operate through the expectations that they create, it is essential that they be always applied, irrespective of whether or not the consequences in a particular instance seem desirable." (14) True laws must be "known and certain.... The essential point is that the decisions of the courts can be predicted." (15)

When these requirements are met, the requirements of liberty are met. As John Locke put it: "The end of the law is, not to abolish or restrain, but to preserve and enlarge freedom .... For liberty is to be free from restraint and violence from others, which cannot be where there is no law." (16)

"Freedom of men under government is to have a standing rule to live by, common to every one of that society, and made by the legislative power erected in it; a liberty to follow my own will in all things, where that rule prescribes not: and not to be subject to the inconstant, uncertain, arbitrary will of another man." (17)

When justice is represented on court house statues as being blind, it does not mean that she is blind to the justice of the case, but blind to the wealth, social position, sex, color, looks, amiability or other qualities of the particular litigants. It means that she recognizes that justice, happiness, peace, and order can only be established, in the long run, by respect for general rules, rather than respect for the "merits" of each particular case. This is what Hume means when he insists that justice will often require that a poor good man be forced to pay money to a rich bad man -- if, for example, it concerns the payment of a just debt. And this is what the advocates of an ad hoc "justice," a "justice" that regards only the specific "merits" of the particular case before the court, without considering what the extension of the rule of that decision would imply, have never understood. Almost the whole weight of the novelists and intellectuals of the last two centuries, in their treatment of both legal and moral questions, has been thrown in this ad hoc direction. Their attitude is summed up in the famous ironical jibe by Anatole France at "the majestic equality of the law that forbids the rich as well as the poor to sleep under bridges, to beg in the streets and to steal bread." (18)

But neither Anatole France nor any of those who take this ad hoc view have ever bothered to say what rules or guides, apart from their own immediate feelings, they would apply in place of equality before the law. Would they decide in each case of theft how much the thief "needed" the particular thing he stole, or how little its rightful owner "needed" it? Would they make it illegal only for a rich man to steal from a poor man? Legal for anybody to steal from anybody richer than himself? Would Anatole France himself, in his pose of magnanimity, have considered it all right for anyone to pirate or plagiarize from him, provided only that the plagiarist could show that he was not yet as prosperous or well-known as Anatole France?

The forthright declaration of a Thomas Huxley that it is not only illegal but immoral for a man to steal a loaf of bread even if he is starving, seems like a cruel and shocking Victorian pronouncement to all our "modern" ethical relativists, to all the ad hoc theoreticians who pride themselves on their peculiar "compassion." But they have never suggested what rules should be put in place of the general rules they deplore, or how the exceptions should be determined. The only general rule they do in fact seem to have in mind is one they seldom dare to utter -- that each man should be a law unto himself, that each man should decide for himself, for example, whether his "need" is great enough or the "need" of his intended victim small enough to justify a particular contemplated theft.

4. Inner and Outer Circle

Before concluding this discussion of the relation of law to ethics, let us turn back to the simile from Bentham that law is a circle with the same center as moral philosophy but with a smaller circumference, and to the similar conclusion of Jellinek that law is a "minimum ethics." Let us try to see just where the radius of the smaller legal circle ends, and why it ends there.

We may do this by a few concrete illustrations. The first is of the schoolmaster who said: "Boys, be pure in heart or I'll flog you." (19) The point is that the law can only operate through sanctions -- through punishment, redress, or forcible prevention -- and therefore can only insure the outward morality of words and acts.

The second illustration is that of an athletic young man with a rope and a life-belt at hand, who sits on a bench in a park along a river bank, and quietly sees a child drown, although he could act without the least danger. (20) The law has refused to impose liability. As Ames has put it: "He took away nothing from a person in jeopardy, he simply failed to confer a benefit upon a stranger.... The law does not compel active benevolence between man and man. It is left to one's conscience whether he will be the good Samaritan or not." (21)

This legal reasoning is supported, also, by certain practical difficulties of proof. Suppose there is more than one man watching on the bank, and each contends that the other is in a much better position to effect the rescue? Or suppose we take the broader question raised by Dean Pound: "If John Doe is helpless and starving, shall he sue Henry Ford or John D. Rockefeller?" (22) This raises the question of the difficulty of saying upon whom the duty of being the good Samaritan should devolve.

But if we pass over these practical difficulties, and come back to our original illustration of the man who sits alone on a bank and coolly lets a child drown, knowing there is no other person from whom help can come but himself, there can be no question of what the common-sense moral judgment upon his act would be. The case is sufficient to illustrate the far wider sphere of ethics as compared with law. (23) Morality certainly calls for active benevolence beyond that called for by the law. But how far this duty extends must be the subject of a later chapter.

Notes

1. See Roscoe Pound, Law and Morals (Chapel Hill: University of North Carolina Press, 1926), pp. 26, 85, and passim. This is an especially valuable discussion not only for its analysis but for its scholarship. It contains a bibliography of 24 pages.

2. Ibid., p. 12.

3. Ibid., pp. 6-7.

4. Ibid., pp. 8-9.

5. Jeremy Bentham, The Theory of Morals and Legislation, pp. 17 and 18n.

6. Roscoe Pound, Law and Morals, pp. 40, 41, 43.

7. Ibid., p. 85.

8. I find this quoted in Albert Schweitzer, The Philosophy of Civilization (New York: MacMillan, 1957), p. 157, but have been unable to trace it down, in these words, in either Bentham's Morals and Legislation, the Deontology, or A Fragment on Government.

9. Jellinek, Die sozialethische Bedeutung von Recht, Unrecht und der Strafe, 1878 (2nd ea., 1908), Chaps. 1 and 2. See also Pound, Law and Morals, p. 103.

10. Roscoe Pound, Law and Morals, p. 71.

11. Ibid., p. 79.

12. (Chicago University Press, 1960), Chaps. 10, 11, and 12.

13. Ibid., p. 154.

NOTES TO PAGES 67-83 369

14. Ibid., p. 158.

15. Ibid., p. 208.

16. Second Treatise of Civil Government, Sec. 57.

17. Ibid., Sec. 21. See also infra, Chap. 26.

18. Le Lysrouge (Paris, 1894), p. 117.

19. Pollock, First Book of Jurisprudence, (4th ed.), p. 47n.

20. Roscoe Pound, Law and Morals, pp. 68-69.

21. Ames, "Law and Morals," 22 Harv. Law Rev. 97, 112.

22. Op. cit., p. 68.

23. But Bentham asks, in his Principles of Morals and Legislation (1780), p. 323: "Why should it not be made the duty of every man to save another from mischief, when it can be done without prejudicing himself, as well as to abstain from bringing it on to him?" And he adds in a footnote: "A woman's head-dress catches fire: water is at hand: a man, instead of assisting to quench the fire, looks on, and laughs at it. A drunken man, falling with his face downwards into a puddle, is in danger of suffocation: lifting his head a little on one side would save him: another man sees this and lets him lie. A quantity of gunpowder is scattered about a room: a man is going into it with a lighted candle: another, knowing this, lets him go in without warning. Who is there that in any of these cases would think punishment misapplied?"

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