The Dilemma of Jurisprudence

Extract

Law, we are accustomed to say, comprises two elements. It is a body of obligatory rules of conduct, but it differs from other obligatory rules, such as moral precepts or the rules of a game, in that it is enforced by the state. On the one hand, law exists as a conceptual system of normative rules; on the other, it dwelis as well in the realm of brute fact, where it is something that is “done” or enforced by the state. But here surely is a snake swallowing its own tail, for the state which concretises law on the level of actuality is itself a creature of the realm of ideality: the state is meaningless except as a legal concept.

What is needed is a treatment of law which will equate the actual practice of government with the conceptual system of rules that are obligatory, not merely upon citizens, but upon government as well. There seem to be good a priori reasons for believing that this cannot be done, and for believing, furthermore, that no definition of law in terms of either of the elements alone will be satisfactory.

The American writers loosely grouped as “realistic” have made a thoroughgoing effort to solve the problem by omitting the normative element. With individual variations, these authors have argued that law is simply the behavior of the judge. Since the judge is a man, the law which he makes is a by-product of his personal existence, secreted, perhaps, as a result of a bad breakfast, as a pearl is secreted by an oyster. It is meaningless to talk of law as obligatory, or law as rule. Law is occurrence, on the simple level of fact, and it is not to be discussed in terms of obligation or validity, ideas which are the product of folklore or father-fixation.