The Ideal Element in Law - Roscoe 1870-1964 Pound

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legal order by a process of adjusting relations and determining controversies whether it is done judicially or through administrative agencies. Writers on jurisprudence from a psychological standpoint are concerned chiefly with the judicial process or with both the judicial and the administrative processes as phases of one type of governmental activity. Hence, in the neo-realist writing, of which there has been so much in America in the past twenty-five years, the term ‘law’ is used in a third sense. As Llewellyn has put it, “What officials do about disputes is. . . the law itself.”8

      Much of what has been written about the ‘nature of law’ has been vitiated by taking all three of these meanings as included in the one term and then assuming that the whole may be defined by defining the authoritative materials for guidance of judicial and administrative determination in terms of one item of the precept element in those materials, namely, rules of law. In truth, the precept element itself is complex, composed of rules in the strict sense, precepts prescribing definite detailed legal consequences for definite detailed states of fact; principles, i.e., authoritative starting points for legal reasoning; precepts defining conceptions, i.e., authoritative categories into which states of fact may be put with the consequence that certain rules or standards become applicable to them; and precepts establishing standards, i.e., measures of conduct from which one departs at his peril of answering for resulting damage or of legal invalidity of what he does.

      In arguing for and discussing an ideal element in law one must look into all these meanings of ‘law.’ But one must be concerned specially with one ingredient of law in the second sense, namely, laws, the body of authoritative norms or models or patterns of decision applied by the judicial organs of a politically organized society in the determination of controversies so as to maintain the legal order. This precept element may be looked at with respect to the form in which the laws are expressed, reflecting the source of their authority, or with respect to the point of view from which we regard them. They have looked very different to jurists according to the form looked at or the standpoint of observation chosen.

      Law as an aggregate of legal precepts may be defined with reference to the source of authority or with respect to the form regarded as typical. When thought of in terms of the authority which promulgates it and puts coercion behind it, jurists have spoken of enactment or promulgation by the ruling organ of a politically organized society. Hence, we get definitions of a law in terms of the imperative type of legal precepts.9 But jurists who looked instead at the form in which precepts are expressed have thought of traditional or customary precepts, expressing reason or good morals as the type and so have defined law as a body of traditional or moral rules of conduct formulated by some authority of politically organized society but having a deeper foundation in reason.10

      More significant differences, however, come from the standpoint of purpose from which legal precepts may be regarded. One such standpoint is that of the citizen or subject who wishes to know what he should do, as an upright and law-abiding person, at the crisis of action. To him a law is a rule of conduct.11 On the other hand, Mr. Justice Holmes thought the question as to the nature of a law should not be put from the standpoint of the conscientious good man, seeking guidance as to what is right, but from the standpoint of the unconscientious bad man who seeks to know how far he may do what he wishes to do with impunity or at least a reasonable prospect of impunity. To such a person law is a body of threats of what the public authorities may do or a person aggrieved may do to him if he does some particular thing he has in mind or does not do something he wishes to avoid doing. This threat theory of a law has been much urged in the present century.12

      In the same paper Mr. Justice Holmes speaks of a law from another standpoint, namely, the standpoint of a counselor, advising clients as to their rights and liabilities. From this standpoint, he says, a law is a prediction of what the courts or administrative agencies will do, given a particular state of facts or particular situation.13 But it is the counselor who does the predicting, not the law. Hence, Mr. Justice Cardozo combined the threat idea and the prediction idea, saying that a law is a rule of conduct so established as to justify a prediction with reasonable certainty that it will be enforced by the courts if its authority is challenged.14

      Another standpoint from which the nature of a law may be looked at is that of the judge, called upon to decide a case pending before him and looking for an authoritative ground of decision. He may think of a rule of conduct which is, therefore, a rule of decision. Or he may think of a model or pattern of decision of such cases as the one before him.15 It is because judges feel bound to and do normally give effect to these rules or decide in accordance with these models or patterns that they may serve as rules of conduct for the good man or threats to the bad man or bases of prediction to the counselor.16

      Finally, there is the standpoint of the jurist or the law teacher who seeks to put the body of legal precepts in the order of reason for the purposes of systematic exposition. Today jurists have come generally to think of a legal precept as an authoritative pattern of what ought to be in conduct, in official action and in decision.

      In whichever of these five senses we understand the body of legal precepts which is commonly taken to be meant by the term ‘law,’ when we come to study it functionally, we find that we must inquire as to certain ideals of the end or purpose of social control and so of the end or purpose of the legal order (law in the first sense), of the judicial process (law in the third sense), and hence of the authoritative materials of judicial decision and administrative action (law in the second sense). We find that we must take account of certain ideals of what those authoritative materials should be and how they should be understood and applied in order to achieve the end and purpose of the legal order by means of the judicial process. For example, we find that in the judicial process a highly significant role is played by ideals with reference to which the starting points for legal reasoning are chosen, by ideals which determine what is ‘reasonable,’ by ideals by which the ‘intrinsic merit’ of competing interpretations is determined, and by ideals which lead tribunals to extend one precept by analogy while restricting another to the narrow bounds of its four corners.

      What is an ‘ideal’ as I am using the term in connection with theories of the nature of ‘law’? The term comes from a Greek word meaning basically something one sees. Applied to action, it is a mental picture of what one is doing or why, to what end or purpose, he is doing it. Postulating a good lawmaker and a good judge, it is a picture of how the one ought to frame the laws he enacts and how the other ought to decide the cases that come before him. But behind these pictures of what ought to be the enacted or the judicially formulated precept for the case in hand is a basic mental picture of the end or purpose of social control—of what we are seeking to bring about by adjustment of relations and ordering of conduct by social pressure on the individual and so immediately of what we are seeking to achieve through adjustment of relations and ordering of conduct by systematic application of the force of politically organized society.

      Such ideals may be the avowed basis of determination or may be held and made the background of their decisions by judges unconsciously or, one might say, half consciously, being taken for granted as a matter of course without conscious reference to them. Often they have a traditional authority from having been received in the thinking and understanding of practitioners and judges—an authority, therefore, quite as legitimate as that of traditionally received precepts. Often they have been assumed in a long course of teaching and writing so that lawyers and judges, perhaps for generations, have assumed them as a matter of course as the criteria of valuing claims or expectations, of deciding upon the intrinsic merits of competing interpretations, of choosing from among possible starting points of legal reasoning or among competing analogies and of determining what is reasonable and just. Sometimes we may find this body of received ideals referred to in the lists of subsidia in codes or in authoritative or semiauthoritative expositions of codes.17

      Are ideals of this sort a part of the law? Are we to say, with Bentham, that law is nothing but “the sum total of a number of individual laws taken together”?18 Shall we say that they are wholly outside of the law, that is, are no part of the authoritative materials established or received for the guidance of judicial or administrative action, or shall we say that so far as they are received and generally recognized

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