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Published online by Cambridge University Press: 02 September 2013
He who hungers for an easy formula, resolving all doubts as to “What is law?,” is advised to lay aside this article. I deal in no such magic. For law, even though it is the great principle of order in life, must inevitably share in the uncertainties and paradoxes of the fluid reality it partially canalizes. Indeed—and perhaps better stated—law is merely a specially differentiated phase of life, a type of group activity. The problem of law's nature is tremendously complex, and if a few categories and definitions are here hesitatingly advanced, that is because no analysis is possible otherwise. They are not improvised to avoid examination of the tangled tissue of relationships they attempt to describe. Law I define as those rules of conduct which are generally obeyed. General obedience is a consensus within a given community in support of its rules. In Bentley's terms, the phrase “general obedience” looks at the phenomena as group activity, the phrase “consensus” as opinion activity. Despite the obvious ambiguity of these terms, the reader is requested to quiet his impatience. I may succeed in partially elucidating their meaning.
1 Like some others who have written before me, I must acknowledge a great debt to A. F. Bentley's epoch-making and pioneer effort in the field of social study, The Process of Government. Social scientists are still making “discoveries” almost daily, anticipated by Bentley, as almost routine applications of his insight, in 1908. Cf. Llewellyn's, tribute in “The Constitution as an Institution,” Columbia Law Review, Vol. 24, p. 1Google Scholar.
2 Bentley has uttered a needful word of caution against the tendency to become enamored of definition-making as such. “If any of these things lead us to interesting paths, we shall be prepared to follow them, heedless of definitions. Who likes may snip verbal definitions in his old age, when his world has gone crackly and dry.” Process of Government, p. 199.
3 The definition might otherwise be stated as denoting as law those norms for acting which are likewise norms of acting. Llewellyn has done a major service in emphasizing the importance of this distinction. See his “A Realistic Jurisprudence—The Next Step,” Columbia Law Review, Vol. 30, pp. 431 ffCrossRefGoogle Scholar. It seems to me that, once the distinction is recognized, a definition combining the two conceptions may be usefully employed. Varying somewhat from Llewellyn, I should place at the focal point of legal discussion the area of conduct between norms for acting, whether officially or unofficially formulated, and the behavior of individuals (norms for acting) successfully—not merely professedly—prescribed by the norms for acting. Thus law is not primarily norms for acting, unless those rules prescribe or describe factually ascertained regularities in behavior, namely, norms of acting. On the other hand, a norm of acting may be a pure “habit” or a physical or organic necessity, and hence lack the true characteristic of law. For example, a generally observed rule that if one engages in the steel business one shall conform to a price-maintenance agreement seems to be law, whereas the rule that if one is to live one must eat seems to lack legal character. I repeat that law appears to be those norms for acting which are simultaneously norms of acting (in the sense that they are generally observed), although the prescription of the norms need not always by any means be through a specially differentiated governmental agency. Moreover, many of the rules declared and allegedly “enforced” by government or courts seem almost entirely lacking in legal character, since they are not generally observed. At best, they are merely law for the governing agencies involved, not for those laymen whose conduct they are supposed to govern. At the risk of provoking rather than resolving controversy, I might suggest the following definition of norms for acting: those rules of some generality—Jerome Prank to the contrary notwithstanding—consciously or “rationalistically” regarded as right and binding by some of their proponents, formulators, expositors, followers, or even violators. Otherwise stated, such rules cannot be significantly formulated so as to preclude the distinct possibility of their violation. The mere fact that they are formulated as rules regarded by the formulator as “right” indicates that he envisages tne possibility of “wrong” conduct in disregard of them. On the other hand, natural, organic, or physical laws may be formulated significantly so as to preclude every chance except an Eddingtonian one of violation.
Llewellyn, in the discussion cited above, disclaims any intention to define law, but does describe what he calls a “point of reference” or “focus of matters legal,” which he believes is more exciting than a definition, since it puts “nothing outside the field of law.” It seems to me largely a verbal matter whether this focus is called a point of reference or a definition. In either case, there is a relative concentration on some phenomena and only an indirect consideration of those lying on the periphery.
4 For powerful arguments expressing a point of view which seems to the author in many respects similar to his own, and largely developed in reply to W. W. Willoughby's monistic formalism, see Sabine, G. H., “Pluralism—A Point of View,” in this Review, Vol. 17, pp. 34–50Google Scholar, and “Political Science and the Juristic Point of View,” ibid., Vol. 22, pp. 533–576.
5 Professor Coker seems to imply in his Recent Political Thought that it is desirable to define law in terms of those rules sanctioned by government. The state possesses a “special right to use organized coercion” in some important sense not possessed by other social groups and associations (pp. 516–517). The state possesses a monopoly of a unique or peculiar sort of sanctions or power, and is a “uniquely comprehensive and compulsive institution” (pp. 540–541). Even if it be true that government is a unique form of association and that its sanctions are “peculiar,” it does not follow that it is useful to ascribe to it sole authority to make law, that it possesses a monopoly of an undefined and perhaps undefinable “coercive power,” or that, even if it did so, governmental sanctions are so much more fundamental and important that it would be desirable to define law in terms of governmental rules exclusively.
6 This statement does not mean to imply that ordinary speech may not be pointing at important social realities when it draws a line between “free” and “involuntary” consent. I mean merely that for present purposes I find it necessary to distinguish, not between free and unfree consent, but between compulsion, quite strictly defined, and consent, quite broadly defined.
7 I cannot agree with J. Roland Pennock that a definition of law in terms of general obedience includes either too little or too much. He is worried, on the one hand, because such a definition would exclude rules neither obeyed nor enforced. Why should it include such rules? On the other, it would include rules of a customary character as well as those founded on a régime (if such could ever be imagined!) of “pure force and fear.” Why should it not include such rules? See his “Law and Sovereignty,” in this Review, Vol. 31, p. 623. He believes that the term “custom” has an “ordinary” meaning in the sense of those rules observed “voluntarily,” as distinct from those “in some way obligatory” (ibid., p. 624). This distinction seems to me a matter of subjective metaphysics. Pennock further defines law as those rules receiving from the “bulk of the members of a given society a peculiar recognition—a recognition that is likely to be induced by certain objective factors” (ibid., p. 631). It seems to me impossible ever to surprise this “peculiar recognition” in the minds of the bulk of a given society. The only workable test is that of general obedience, although, as pointed out above in footnote 3, some of those individuals concerned with the rule will doubtless regard it as “right,” or as a norm for action. Pennock's further effort to distinguish between “sovereign” and “non-sovereign” law I regard as unnecessary subtlety.
8 Grammar of Politics, p. 249.
9 Ibid., p. 245.
10 Ibid., p. 241.
11 Ibid., p. 250; and cf. note 10.
12 Ibid., p. 251.
13 John Dickinson feels that the chief weakness of custom as an agency of control is its inability to function effectively in adjusting interests except in extremely static societies. “Social Order and Political Authority,” in this Review, Vol. 23, pp. 293–328 and 593–632Google Scholar, at p. 305. Granting that non-governmental efforts to adjust conflicts often fail in dynamic societies, it does not follow that they always fail. Nor does it follow that governmental efforts always succeed, or that a paper sovereignty always creates law. It is one thing to wish for complete order, another to get it. Dickinson seems clearly to erect a personal, and highly debatable, ethical preference into a definition of law when he accepts the necessity of the “concentration of the directing function in a single center” (ibid., p. 328). Granting that we need authoritative control, it does not follow that we always get it, that it always should or does come from a single center, or that it is useful to define law in terms exclusively of those rules emanating from this center. Although a rebuttable presumption may exist that governmental rules are law, the presumption is quite frequently rebutted. For further statements of Dickinson's beliefs, see “A Working Theory of Sovereignty” Political Science Quarterly, Vol. 21, pp. 524–548Google Scholar, and Vol. 22, pp. 32–63, and “The Law Behind Law,” Columbia Law Review, Vol. 29, pp. 113–146, 285–319CrossRefGoogle Scholar.
14 In one sense, there may be a lawless revolution, when society is not split asunder, but when the community-at-large is quite indifferent to the fortunes of the contending leaders. The contest for control may be a mere matter of personalities. Neither revolutionists nor constituted rulers have community support or any considerable active backing among large portions of the community. The so-called revolution may be almost entirely a personal matter, a palace affair involving a change of faces only. Many of the Central and South American revolutions were of this order. No legal questions affecting the whole community were at issue, only matters of personnel. It may be suggested that the French revolution of 1830 greatly resembled this legally indifferent kind. The community of France apparently went serenely on its way while a relative handful of Parisians set up a new government which the rest of France accepted as readily as it had the old.
15 It is only of canny individuals that I am here speaking. The great mass obeys or disobeys in the wake of the more zealous members of society.
16 Unpublished mss.
17 McBain, H. L., Prohibition, Legal and Illegal, pp. 11–12Google Scholar.
18 Lowell, A. L., Public Opinion and Popular Government, p. 11Google Scholar.
19 Lippmann, Walter, The Phantom Public, pp. 191–192Google Scholar.
20 For a discussion of law in the international sphere, along lines in many respects similar to the ones here developed, see Wild, Payson S., “What Is the Trouble with International Law?,” in this Review, Vol. 32, pp. 478–494Google Scholar.
21 The Phantom Public, p. 77.
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