Law in Society

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Law in Society

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GEOFFREY SAWER Professor of Law The Research School of Social Sciences The Australian National University


Oxford University Press, Amen House, London E.C.4 GLASGOW

















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PREFACE book aims to give a summary account of some problems concerning the social history of law, and the social relations of law in contemporary society, with suitable illustrations from a number of different social and legal systems. No attempt is made to present a systematic legal sociology; such a work, if possible at all in the present state of sociology and social psychology, would require the collaboration of a specialist in those fields. The writer has had the opportunity of studying the legal systems of several countries in situ and has practised, taught, and admin¬ istered Australian law in many of its branches, but owes his acquaintance with other social disciplines mainly to the inter¬ disciplinary activities of the Research Schools of Social Sciences and Pacific Studies at the Institute of Advanced Studies, Australian National University. Thanks are due to colleagues in that Institute, especially in the Departments of Anthropology, Law, Political Science, Sociology, and Social Philosophy, for helpful discussions, criticisms, and references to works cited. Thanks also to Mrs. Audrey Edwards, my Departmental Assistant, who prepared the manuscript and checked the references. The General Editor of this series. Professor H. L. A. Hart, has given me both encouragement and help in most generous measure, but I cannot expect to have satisfied all the criticisms of my comments on questions of philosophy and logic which inevitably occur to a professional specialist in those fields. G. S. This

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The Sociology of Sociology The Sociology of LaW' and Sociological Jurisprudence


Primitive Society


Social Evolution and Legal Evolution






V. (Courts







Social Control and Social Order



Postulates, Interests, and Institutions



Folkways, Law-ways, and State-ways


Legal Science and Social Science







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THE SOCIOLOGY OF SOCIOLOGY Today we are all, if not socialists, at least sociologists. Pro¬ fessor H. L. A. Hart’s volume in the present series. The Concept of Law, is clearly in the great tradition of speculative analysis which counts among its philosophic ancestors Hume and Kant, and among its juristic ancestors Kelsen and Austin. But in his preface, he says: ‘Notwithstanding its concern with analysis the book may also be regarded as an essay in descriptive sociology’, and he goes on to mention the relation between a study of words and a study of the phenomena to which they relate. And many of the criticisms and discussions of that brilliant work which the present writer has read and engaged in have con¬ cerned precisely this point: how far do the speculations of Hart rest on observation? The more extreme criticisms might be parodied as requiring that before substituting his ‘rule of recog¬ nition’ for the Austinian sovereign or the grundnorm of Kelsen, Hart should have conducted a randomly sampled attitude test and fed the results through an electric computer. If Hart is to be considered a sociologist, what of John Austin? We are warned by Julius Stone, a master of contemporary jurisprudence, that we must not expect to find in Austin an observer of actual societies, but only a maker of postulational systems J that is, he set up definitions of‘law’, ‘command’, ‘sanc¬ tion’, and other elements in his view of law, and then made adherence to these definitions, and consistency of his account with these definitions, his sole purpose. But Stone has to confess that if this was Austin’s main intention, he was sometimes guilty of trying to make particular systems ‘fit’ the theoretical structure which he postulated. And it is equally possible that Austin’s frequent references to contemporary and ancient his¬ tory, his concern that a ‘sovereign’ should actually be located in Britain, in the U.S.A., in Saxony under the Holy Roman Empire, in the France of 1815, and so on, suggest that he wanted ' Province and Function of Law (1946), ch. 2. 825208




to establish what would today be called a ‘moder, an account of actual mature legal systems in a general or abstract form. Indeed, it may be doubted whether in Austin’s day there was much notion that a study of social relations could involve the possibility of what we now regard as purely postulational systems. That Austin did not intend to provide a conceptual framework capable of application to primitive societies is clear from his own words, but it seems equally clear that he did expect his framework to apply to most of the societies of Western Europe and of North America. He would probably have been most dissatished with an appreciation of his work which in¬ sisted on its logical cohesion and formal symmetry but added that it could not supply and indeed was not intended to supply any account of law as it was or was likely to be. Such a juris¬ prudence could not have served very effectively the criterion of utility to which Austin was attached. Austin can, then, be regarded as an early example of ‘grand theorist’ among the schools of sociology which the late C. Wright Mills, himself a leading American sociologist, listed and satirized in The Sociological Imagination (1959). Consider a contemporary Grand Theorist of sociology, Talcott Parsons. In a long and distinguished career. Parsons has engaged in many of the em¬ pirical inquiries usually associated with the word ‘sociology’, including an investigation of the legal profession, and these have a common-sense quality not obviously related to any of his grand theories. But the name of Parsons is usually associated with a general ‘theory of social action’, in which a prominent part is played by five ‘pattern variables’. These variables are designed to express in a series of dichotomies the sort of choices which the ‘ego’ has to make before committing himself to a course of action involving an ‘alter’. Some of the words used by Parsons to describe these choices are reasonably self-explana¬ tory, others are obscure. First, there is the self as against the collectivity; second, there is universalism as against particu¬ larism; third, there is specificity against diffuseness; fourth, there is neutrality as against affectivity (i.e. having no distinct attitude as against having an attitude of like or dislike); fifth, there is quality as against performance (the least obvious, meaning roughly inherent or intrinsic value against utility or means-to-an-end value). Parsons has also discerned four general



factors in social dynamics: adaptation, goal pursuance, pattern maintenance, and integration. These and similar concepts are drawn from one man’s speculations about the human lot; they are not the result of the sort of observations which an empirical natural scientist makes, nor are suggested ‘laws’ concerning their inter-relation open to the same sort of verification. These Parsonian abstractions are conveniently studied in his reported conversation, in the volume Toward a Unified Theory of Human Behaviour (ed. Grinker) (1956). In the same volume is a more readily intelligible set of ‘pattern variables’ by Jules Henry, a sociologist and anthropologist. He calls them ‘SocioPsychiatric Invariants’. They include such items as this. Equation: AP = PjR. P stand for possibilities of social punish¬ ment, and R stands for possibilities of social reward; AP stands for ‘sense of social punishment’. . . . The equation states that in societies where the possibilities for social punishment for non-conformity are great and the possibilities for social reward for conformity are small, individuals in the society will tend to have a strong sense of being in imminent danger of punishment for non-conformity.

The author sets out ten further equations in which the matters related have the same degree of generality and vagueness. Such categories are derived from observation and experience no less and no more than Austin’s conceptions of the nature of law, and he would have held his own in the colloquium reported by Grinker, at least after extending his knowledge of mathematics and symbolic logic a little. The equation quoted from Henry would have interested him a good deal, as providing a more precise account for a particular type of society of the notion of a ‘sanction’, which occupies a central place in his thinking and in the thinking of many subsequent men usually called ‘sociolo¬ gists’, such as Pareto and Max Weber. Wright-Mills was himself guilty of indulging in systems when he distinguished sharply between the grand theorists, what he called the ‘abstracted empiricists’, and the mainly descriptive schools. There is in fact a gradation from mainly descriptive works like John Mogey’s accounts of suburban life in Oxford, to the many papers by Louis Guttman and Paul Lazarsfeld which report the result of empirical observations in highly abstracted, often mathematically expressed, language. The technique by which the basic observations of the ‘abstracted empiricists’ are



made is often itself the result of some theory concerning human behaviour, and the ‘abstraction’ of the observations is the con¬ sequence of setting up a hypothetical correlation between one set of human attributes or actions and another—for example, concomitant variations between crime rate and income levels, crime rate among juveniles and divorce rate in their family background, wife-desertion and alcoholism. From the point of view of even the most versatile legal scholar, an intimidating feature of some of these sociologists is their easy familiarity with mathematical techniques for correlating and ranking social phenomena and for representing social structures and dynamics. However, even where empirical observation and statistical techniques underly much of the finished product, the latter can often, as in the case of David Riesman, be expressed in the clear prose of common sense. The main distinguishing feature of descriptive and abstracted empiricists is that they do not start with bold general hypotheses about the nature of society in general. They begin with facts, and with theories growing out of those facts and having a relatively small range of possible validity; they leave more comprehensive theories to develop, if at all, from the short-range theories. In all this there is the same difficulty as philosophers of the natural sciences discuss concern¬ ing the relation between theory-forming and the selection of facts to observe. The results obtained by some of the American ‘abstracted empiricists’ seem depressingly flat and obvious. Nevertheless, the most gifted of the mathematically inclined American sociologists may yet be numbered among the saints of science, while the rest of us lie howling. The grand theorists are also often to be found engaged in this detailed, empirical, and sometimes mathematically expressed work, and it is interesting to see how readily they abandon the abstract generalizations of their grand theory in favour of more concrete and readily measurable factors in a restricted field. The trend of this argument is to suggest that ‘jurisprudes’ (as the late Karl Llewellyn called them), however abstract their ideas, have always possessed many of the qualities and some of the outlook of sociologists. Even the most analytical and ‘norma¬ tive’ legal thinkers have always been aware that law, the ‘legal system’, is an aspect of organized society, and in so far as an attempt is made to explain the system as a whole, to describe its



Structure or to indicate the relations of the system or its parts to society, this is in fact an effort at sociological analysis, however misguided the result may seem to one or other contemporary school of sociologists. From this point of view, even Hans Kelsen was engaging in sociology when writing his Pure Theory, notwithstanding his indignant denials, because he was asserting that in any society where law exists it must have the formal structure which he sets out and no other. The sociologist is in¬ terested in such formal structures. He may reject the philosophy which led Kelsen to differentiate sharply between the world of the is and the world of the ought, and if so Kelsen would say that the sociologist was incapable of understanding the system of the basic norm and its concretization in the sense intended by its ‘discoverer’, while the sociologist might say that Kelsen him¬ self was in need of sociological explanation. But a sociologist need not adopt that attitude. There is no standardized philo¬ sophy nor epistemology for sociologists. They too may be con¬ scious of the apparent difference between the human and the non-human, and will concede the possibility of at least a limited free will, or of an irreducible indeterminacy in human affairs at a more macroscopic level than that at which indeterminacy sets in for the physicist; hence they too may recognize a distinct ‘moral’ problem and a special sphere for the normative. So far as they do this, they can without difficulty incorporate into their sociology the speculations of a Kelsen. Perhaps the Scan¬ dinavian ‘law as fact’ school, in which the normative is treated as a distinct kind of ‘is’ rather than the object of a different kind of knowledge, expresses more nearly the sort of accommo¬ dation which might be made between neo-Kantian meta¬ physics and the natural-science assumptions of most American sociology. However, while there is no difficulty in treating Austin as an early grand-theorist with sociological leanings, there is an ob¬ vious touch of paradox in trying to treat Kelsen in the same way. The paradox arises from the fact that contemporary sociologists do share an underlying assumption that there can be an objec¬ tive science of society in something the same sense as natural science, a science with cause-and-effect or functional correla¬ tions, and that this science is relevant to the validity as well as the existence of normative systems. Some sociologists and even some



jurisprudes seek to meet the difficulties in the way of social determinism by saying that it need be no greater than the determinism in natural science, and they draw attention to the elements of indeterminacy in the theory of modern physics and to the heavy reliance of much modern science on statistical methods and on probability theory. These consolations are not convincing. The elements of indeterminacy in physics concern events either much smaller or much greater than the scale of the events with which the sociologist and even the psychologist are concerned, and non-scientists are impressed with the degree of accuracy which physicists still exhibit in predicting and con¬ trolling events over a very wide range of size and complexity. Even their probability theorems appear to leave other possi¬ bilities for the result of a particular experiment only at a certain level of analysis, and to provide for most practical purposes a basis for confident prediction and control. Can the social scien¬ tists give lawyers a comparable body of theory, one enabling them, say, to predict and controlsuch judicial nuclear explosions as the decision of the House of Lords in Bonsor v. Musicians’ Union,^ or of the West German Bundesverfassungsgericht in the Television Case,^ or of the Supreme Court of the U.S.A. in Baker v. Carr,'^ or of the High Court of Australia in the Bank Nationalization Case?'^ If they could the lawyers might well be content to accept as ‘indeterminate’ the precise fine which will be imposed by an English Bench of Justices of the Peace on a particular speeding motorist. But the notions of prediction and control are themselves very difficult in this context, and are discussed further in the last chapter of this book. If the difficulty were merely due to the complexity of the phenomena, one could conceive a time when relevant factors will have been sorted out and when electronic computers will enable the social scientist to calculate correlations with the speed and accuracy desired. But one suspects that the difficulty is more fundamental, and has something to do with free will. Such difficulties are not denied by sociologists; Talcott Parsons considers that organisms have an ‘emergent’ quality not to be explained by the resolution of their interior forces or otherwise ' [1956] A.C. 104. ^ 28 Feb. 1961; see NJW 1961, p. 547. 3 (1962) 369 U.S. 186. Bank of New South Wales v. Commonwealth (1948), 76 C.L.R. i.



capable of reduction. But after every reference to physical ‘inconstants’ has been made and after dealing with the difficulty of being determined to accept determinacy, the sociologist will still wish to say that he is concerned with facts of human be¬ haviour, including the fact that people have values and attitudes and the fact that they reason logically; his aim is to discover functional correlations between such facts or classes of facts, and in doing this he needs to develop methods of expressing his findings which enable his hypotheses to be tested. The use of statistical methods for ranking and correlating observations of human behaviour is not the only method for achieving such objectivity, and if embarked upon without an adequate insight into the matter to be ranked or counted can lead to grotesque results. However, the view of this writer is that success in measuring is ultimately essential to a science of sociology. Even the sociological work in which reference to counting and calculation is not apparent contains, it is believed, a concealed reference to frequency or duration of occurrence and usually also to relative frequency or duration of events re¬ garded as having some interrelation. Thus in Law and Sociolog)) (ed. W. M. Evan, 1962) Talcott Parsons has a perceptive essay, which any solicitor or former solicitor in the Anglo-Australian tradition will read with pleasure, on a social function per¬ formed by lawyers in relation to their clients; he says that the lawyer begins the necessary process by which an aggrieved citizen is made to cool down a little, to assess soberly the merits of his claim, the strength of his evidence, the possibility of another view, and the chance that after all his claim may not be worth the pressing. The lawyer is trained to take the first shock of the client’s indignation, in a manner which will not drive the client off to another lawyer, but yet which will make the client a little less bigotedly personal in his approach to a dispute. Although Parsons does not say so, it is a reasonable guess that he derived this notion from an actual survey of lawyers at work, but not from any careful ‘sampling’ designed to show the actual frequency with which lawyers perform such a social function, nor the relative frequency with which they perform this as compared with other functions. Comparable general statements as to the social functions of law and lawyers abound in the work of earlier sociologists such as Weber and Ehrlich. What is



the scientific significance of such statements? They might be regarded as mere hypotheses—theories as to possible social functions, to be tested by observation, but they are not usually stated in such a form, any more than Austin put forward his definition of law as a mere hypothetical suggestion to be tested later. Such statements are usually made with an implication that the behaviour, attribute, or quality mentioned has actually been observed and is a frequent, or usual, or invariable feature of a repetitive or enduring situation. Some sociologists with measuring proclivities are a little self-conscious about it and inclined to defend themselves by reference to the history of natural science; they suggest that it may even be necessary to prove the obvious. It may be doubted, however, whether the natural scientists have ever devoted much time to such an activity. It was not a question of enumerating the instances in which apples fall, but of showing how fast they fell and whether the rate varied from place to place and why they did not fall upwards. Similarly, in the case of the pacifying or de-personalizing role for lawyers suggested by Parsons, the question might be how often and how well such a role is carried out in a particular society, whether it is affected by the basis of remuneration for lawyers, whether it is performed by public solicitors or by a free legal aid service, and so on. In the end it is only by suitably devised measurements that such questions can be answered in a satisfying way, and the measurements will usually, if possible at all, prove much that is not obvious. But to continue with the same example, the measurements will not establish—nor will the hypothesis—whether lawyers ought to perform such a function. The sociologist may approach such a question by testing to see whether most people or most lawyers or legislators think the profession should perform this function, and sociological knowledge of the ways of lawyers may even enable the sociologist to predict that an attempt at enforcement is likely to be successful or unsuccessful in a stated percentage of cases. He may provide a conditional judgment in the form: Tf you entertain such and such values, then it is con¬ sistent/inconsistent/required that you should advocate such and such a course’, or ‘if you consider such and such an aim as good, then you will wish to know that such and such a course will achieve that aim’. But in the most commonly held view of



sociology and of natural science, the sociologist as such cannot prove that you should regard a particular desire, value, or aim as good or as bad. In the Law and Sociology symposium last men¬ tioned, Professor T. A. Cowan of Rutgers School of Law made an impassioned plea for more sociological concern with values, and with the unique rather than with general laws, and asked whether the logic and methodology of natural science was actually well suited to human and humane studies. It is a cry often raised, and not least in the U.S.A. where sociology of every kind flourishes more than in any other country. It seems likely, however, that a ‘natural’ science of values which deter¬ mines their reality, truth, and rank is not at present known and that if known it would be a very different study from sociology. Indeed, from Savigny onwards, one needs to beware of sociolo¬ gists whose apparently objective statements concerning the relation between law and society turn out to be propaganda in favour of the stated relations. These ‘scientists’ do indeed mingle the ought and the is, but in an illegitimate way. Can there be a ‘legal sociology’, as distinct from sociology with implications for law? It is interesting to consider first a similar question—can there be a legal logic, as distinct from applications of logic in law? There is no a priori reason why a system of unenacted law or a code should not contain detailed instructions as to the way in which lawyers were to reason, and if sharp differences existed as to the principles of valid inference, such a course might be defensible. Actually, legal systems always do contain what looks like a good deal of ‘compulsory logic’—Interpretation Acts, evidentiary presumptions, the ‘deeming’ provisions of which modern parliamentary drafts¬ men are altogether too fond, procedural fictions, and such. But no system ever seems to have attempted a complete codification of what were thought at a particular time to be applicable laws of logic; all systems seem to have assumed for the most part that principles of inference are established outside the law by suc¬ cessive refinements of common sense. The logical aids within the law just mentioned take for granted the existence of primary rules of reasoning. For example, we read in section 5 of the Australian Uniform Companies Act: ‘‘Exempt proprietary company means a proprietary company no share in which is, by virtue of sub-sections (7) and (8) of this section, deemed to be owned



by a public company.’ We can neglect (8) and concentrate on (7) which says: ... a share in a proprietary company shall be deemed to be owned by a public company if any beneficial interest in the share is held, directly or indirectly, by— (a) a public company; (b) a proprietary company a beneficial interest in a share in which is held, directly or indirectly, by a public company; or (r) a proprietary company a beneficial interest in a share in which is held, directly or indirectly, by a proprietary company a beneficial interest in a share in which is held, directly or indirectly by— (i) a public company; or (ii) another proprietary company a beneficial interest in a share in which is held, directly or indirectly, otherwise than by a natural person. The first impulse of most laymen and many lawyers on reading this is to laugh heartily, but after the merriment has subsided it can be seen that the draftsman has employed a fairly simple system of definitions, and there is nothing peculiarly ‘legal’ in the logic which teacher, counsel, and judge employ in explain¬ ing, arguing, and applying the consequences of the definition in a particular case. Indeed, as with most cases of deductive inference in the law, the logic required is elementary. In other branches of law, especially in such systems as the classic Roman and the modern English law, analogy is said to be the principal logical operation. The recognition of relevant resemblances on which the operation depends is not itself governed by dogmatic legal rules; if it were, the operation would be very different and indeed similar to the application of the statutory definition of‘exempt proprietary company’. But take the typical common-law analogy problem such as that in Ellis v. Johnstone',^ are dogs to be treated in the same way as horses and cattle under the principles exempting animal owners from liability for collision between animal and vehicle in a highway? A majority of the Court of Appeal said yes, with the result that the dog-owner was held not liable to the car-driver. In arriving at this result, Ormerod and Donovan L.JJ. made a comparison ‘ [1963] 2 Q..B. 9.



between characteristics of dogs and characteristics of horses and cattle (which had been the animals involved in earlier cases). But how did they ascertain the kind of characteristics relevant for the purpose in hand? They considered earlier decisions and information about the early legal history of the matter, and from these sources concluded that the relevant characteristics were being a domestic animal and having a propensity to wander. There can be much dispute over the kind of logical operation here involved; it can look like a Mill-type induction, depending on comparison between the facts of successive cases, and if there were no other clue to the purpose of the law, such a comparison might be the readiest way of isolating the governing character¬ istic. But usually the court starts with a fair idea of the general purpose and scope of the law, and in such circumstances a single decision may be sufficient to define the characteristic which is sought, though comparison of several may ensure tighter definition. As a matter of form, the final stage of the reasoning is elementary: ‘dogs are domestic animals with a propensity to wander, therefore . . .’. But that stage is unimportant and un¬ interesting. The important stage is the first one of determining the features of the precedents which are to be regarded as rele¬ vant, a problem discussed at length by Dr. Rupert Cross in his Precedent in English Law in the present series. The logical prob¬ lems involved in the process are not peculiar to law, and a dis¬ cussion of those problems requires the use of mental operations whose validity is not determined by law. But they are problems characteristic of the working of norms, legal or moral, and the most frequently arising and most complex illustrations of such problems are found in the operation of the legal systems. Logical inference plays a considerable part in relation to evidence, and this is also a field notorious—especially in English law—for legal rules which prevent the use of materials for inference otherwise relevant to the matter in hand, or which compel or strongly recommend the drawing of inferences from material otherwise not sufficient to found such an inference; the original reasons for many of these rules were precautionary or utilitarian, and some have survived merely because social practices and in particular legal practices often survive when their original purpose has gone. But three features of the law of evidence are particularly relevant to the present discussion.



Firstly, in most cases the special legal rules do not lead to a specific conclusion; [after taking them into account, the trial tribunal still has to determine whether a suggested inference is to be drawn, and this depends on conceptions of relevancy and persuasiveness taken from the general logic of ordinary common sense. Secondly, the exclusionary and presumptive legal rules make sense only against a background of the general logic of ordinary common sense; it is because a jury might well consider a hearsay statement as relevant and persuasive that hearsay is usually excluded; it is because a judge might if following his own experience hold that the minutes of a meeting of com¬ pany directors have very little testimonial value—a view which would be well justified on contemporary commercial practice— that Companies Acts require such minutes to be treated as prima facie evidence of certain matters. But thirdly, legal activi¬ ties exemplify in a particular way the general human necessity for getting on with the business in hand, being content with approximations, committing oneself to a course of action with much less than complete assurance as to its soundness. This im¬ poses limitations on what is to be counted as relevant, and on the degree of persuasion required to justify an inference, and the limitations vary in accordance with the seriousness of the case and the speed at which the tribunal is expected to operate. Many of the legal exclusions and presumptions in relation to evidence are explicable on these grounds. There is, then, point in speaking of a logic of legal evidence; it does not mean merely the general principles of logical inference as applied to legal problems, but also those principles as modified by the conditions under which law is administered. Similarly with sociology. In principle, the ‘grand theorists’ ought eventually to establish a set of principles of social mech¬ anics, chemistry, pathology, &c., applicable to all the operations of society and therefore including law, and they will not be principles applicable only to law, but it may be expected that their application to law will raise special questions. In practice, however, sociology has not reached that stage. Some of its general hypotheses (such as the ‘pattern variables’ of Talcott Parsons) have very little relevance for law; others, such as Max Weber’s conception of ‘charisma’ have a good deal of applica¬ tion to law (for example, in explaining the judicial function) but



have a wider application outside the law; others such as Ehrlich’s distinction between ‘living law’ and ‘norms for de¬ cision’ can be applied in non-legal contexts (for example, how the members of a voluntary association behave may have little relation to their official ‘rules’, quite apart from any question of overriding legal requirements), but its main application is in relation to law. P. H. Partridge, elaborating suggestions of Julius Stone, has written that owing to the heterogeneous character of law, and to the fact that law reaches into nearly all social activities but only as a part (of varying importance) of each such activity, there is an a priori unlikelihood that any such thing as a ‘sociology of law’ can exist.I This may mean only that there cannot be a sociology of legal systems as a whole, at least in relation to complex modern societies; there can only be a sociology of society as a whole, a successful ‘grand theory’, in whose scope law will come. There is much in this suggestion, and certainly in the present state of our knowledge all very general propositions presuming to deal with law as a whole, or with ‘the legal system’, must be regarded with scepticism. The situation is not the same, however, with particular legal situations, or with the social relations associated with a particu¬ lar type of legal rule. The clearest case is that of a face-to-face situation in which a prominent feature is legally determined behaviour. Thus a court-room can be considered as a closed society; juries, and judges sitting in banc, can be considered as ‘small groups’; in each case concepts derived from non-legal contexts will be relevant, but the specifically legal features of the situation are especially important. But empirical sociology also deals with patterns of behaviour and institutions which cannot be isolated in place and time in the manner of a face-to-face situation. Indeed, in the circumstances of modern urban life, hundreds of thousands of individuals spend very little time in particular face-to-face social settings; they perform a morris dance through social relation after social relation, changing employment, business, domestic, and bridge partners at fre¬ quent intervals. The patterns or regularities of their behaviour have to be isolated as sexual, political, economic, &c., and at the modest level of partial or contingent social theory there is no ' (1961) jy Australasian Jo.

of Philosophy,




reason why legal behaviour should not likewise be isolated and considered in relation to its more immediate social setting. For example, in a study of the sociology of modern business corpora¬ tions, the operation of company law is certain to be an important feature. Much of this study would be concerned with the faceto-face type of situation, the mutual relations of shareholders, directors, officers, employees, debenture holders and their trustees, creditors, &c. However, supposing it was desired to con¬ centrate on the particular question of the company prospectus— the conditions under which such a document is likely to be honest or misleading, what part it plays in inducing persons to subscribe for shares or debentures, whether legal requirements in detail produce different results from legal requirements in terms of a general standard of honesty and what the difference is, and similar queries. The general sociology of business corporations will be relevant to such an inquiry, but so will an inquiry into the sociology of many situations, not necessarily connected with companies at all, in which there are legal requirements concerning commercial inducement; for example, compulsory warranties and requirements that financial details be specified in relation to hire-purchase (instalment purchase) of goods, and regulation of money-lending and especially security trans¬ actions. In none of these circumstances is there a ‘legal sociology’ in the sense of a body of learning peculiar to social situations in which legal rules, or the behaviour of persons in response to legal rules, are prominent or are the main focus of interest for a particular observer. The general body of principles of sociology, like the general body of principles of logic, exists independently of law and lawyers and their special interests. But law and legal behaviour give rise to characteristic problems, even from the point of view of the non-lawyer, and lawyers have their own special interest in the possible relevance of sociological thought and technique for their own problems. Thus in a highly organ¬ ized and reasonably stable modern society, the ought quality of legal norms is often a peculiar element, the cause of special tensions, in a particular social situation, as in the behaviour of motorists. The magistrates who have to sort out the facts, in¬ terpret badly expressed driving regulations, and impose dis¬ cretionary penalties, and the law-makers who want to improve



the applicable laws, will be particularly concerned with the tension between rule-determined and otherwise-determined influences in the psychology of drivers. If there were a ‘pure science’ of sociology as well established and clear in its leading principles as corresponding bodies of knowledge in the natural sciences, legal sociology would simply be one of the applied sciences corresponding to that pure science. But without thus begging the broad question as to the standing of general sociology, it is at least possible to suggest that legal sociology bears to the whole of sociology a relation similar to that which the logic of the law bears to logic in general. The comparison between the place of logic and the place of sociology in relation to law must not, however, be carried too far. Logic, rational and orderly thought, has a special place in law. Lawq'ers and judges also have and cannot do without general views about the structure of society and of particular social groups; constitutional law depends on some theory of the relations between government and governed, family law on some theory of domestic relations; even so abstract a legal con¬ cept as property derives much of its content at a particular time from the social values of that time. But lawyers do not ‘think sociologically’ in the same sense as they think rationally, and the sociology implicitly expressed in legal reasoning is apt to exhibit wide differences between individual lawyers and judges, between one decade and another in the same country, and between comparable countries. Since the psychology of car-drivers has been mentioned, it is desirable to say that in this book a relation between individual psychology, social psychology, and sociology is assumed, but without any intention ofpre-judging the much disputed question as to their possible mutual independence.

II THE SOCIOLOGY OF LAW AND SOCIOLOGICAL JURISPRUDENCE Thinkers both legal and non-legal have suggested that there is a sharp distinction between the sociology of law or sociology including law in its scope, on the one hand, and on the other, sociological jurisprudence. By sociological jurisprudence is meant the speculations of those jurists who have paid detailed attention to the structure, working, and purposes of legal systems from a position, so to speak, ‘within the law’, but have emphasized the social relations of law rather than its metaphysics or its formal logic; Roscoe Pound is the great exemplar of the English-speaking world, Rudolf von Ihering of the German¬ speaking world, and Francois Geny is a French approximation. The point of the distinction is illustrated by the following experience. The present writer had been in correspondence with an American sociologist, one of the several who have devoted special attention to judicial behaviour; such work is discussed further in Chapter VI. The writer suggested that this American and his colleagues had by now developed their mathematical techniques and their knowledge of the Justices of the U.S. Supreme Court to the point where they ought to try the follow¬ ing test; obtain access to the ‘briefs’ (i.e. written statements of the issues and arguments) submitted for the ‘docket’ of cases to be determined by the Supreme Court in its next term, and pre¬ diet the decisions. The American replied that it was not part of his job to enable lawyers to do their job better; from his point of view, the application of his correlations to a docket already decided had as much value as a prediction for the future. Sociological jurists, like sociologists, have no official philo¬ sophy or system of values, so that those generally classed under this head show in fact a bewildering diversity of views, as can be seen from the admirable summaries in W. Friedmann’s Legal Theory, in his Fourth Part, Friedmann has a separate head titled ‘Sociological Jurisprudence’, but nearly all the authors he



considers under the heads of ‘Biology, Society and Legal Evolu¬ tion’, ‘Law and the Pursuit of Interests’, and ‘The New Legal Idealism’, are also shown to have strong sociological tendencies. Ihering, sometimes considered the father of sociological juris¬ prudence, also turns up as an imperative analyst in the tradition of Austin. Geny, placed by Friedmann in the centre of the sociological movement, also tried to give natural law theory in the traditional philosophic and religious understanding of that concept an interpretation consistent with evolutionary social theory; applying ideas of the neo-Kantian R. Stammler, he developed the notion of ‘natural law with a changing content’. Pound is often regarded as a disciple of Ihering, but he also developed many of the ideas of J. Kohler, another German jurist of Hegelian and anti-positivist tendencies who disliked Ihering. What the writers of this ‘school’ do share is rejection of the ‘jurisprudence of concepts’ against which Ihering inveighed, and acceptance of the view that law can and should be developed, by judges as well as by parliaments, in order to meet changing social needs. A jurisprudence of concepts is one which attempts to treat the law as a closed system of definitions, rules of opera¬ tion, and substantive major premisses such that any specific legal problem can be solved by deductive reasoning from the propositional system so established. In principle, acceptance of this view does not mean rejection of legislation; on the contrary, some of those who would have liked to see legal administration ‘mechanized’, such as Jeremy Bentham, wanted to emphasize the possibility and need for continuous reform of the law by legislation. But Savigny, who reached a similar belief in the logical completeness of the law by the curious route of identifying Roman law with the spirit of the German people, also tended to denigrate not only codification, but legislation in general. The extreme form of Begriffsjurisprudenz is a claim that a mature legal system in a modern state can provide logically necessary solutions for all conceivable cases, and one only ‘correct’ solution in each case. The alternative view, that any positive law system must leave considerable room for further law-making, is now reasonably well established. It involves the further problem—how do the courts carry out the part of the task of legislation which falls to them? The problem is usually discussed entirely in terms of the judiciary, and it is commonly 826208




said that by contrast there is no problem for legislatures—they do as they please, subject only in rigid constitutional systems to constitutional restrictions. Actually, from the sociological point of view there ought also to be a further problem in relation to legislatures, and a factual study would probably show that they too are subject to restraints which go beyond constitutional limitations and matters of morals and the internal restraints on political majorities, and include some respect for the ‘logic’ of the existing legal system. But the most acute problem concerns judicial legislation, because it is generally conceded that judges should in some sense administer ‘the law’, that the restrictions on their freedom are a matter of ‘ought’ as well as of ‘is’, and that as Justice Oliver Wendell Holmes said, they can legislate only ‘interstitially’. Although it is likely that few practitioners or judges would today try to uphold any theory of the logical completeness of the law in the same bone-headed fashion as some former judges and leaders of the Bar quoted in Jerome Frank’s Law and the Modern Mind (1949), nevertheless the ideal of a government of laws rather than of men retains its force, and there is a demand that so far as possible law should be administered according to the book and a belief that to a considerable extent such adminis¬ tration is possible. When Sir Owen Dixon was welcomed by the Bar of Australia on his induction as Chief Justice of the High Court in 1952, he gave an analytical account of the function of a constitutional court, adhering to traditional notions of that function, and continued: Such a function has led us all I think to believe that close adher¬ ence to legal reasoning is the only way to maintain the confidence of all parties in Federal conflicts. It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else. There is no other safe guide to judicial decisions in great con¬ flicts than a strict and complete legalism. Later he said, referring to legal administration in general: Lawyers are often criticised because their work is not constructive. It is not their business to contribute to the constructive activities of the community, but to keep the foundations and framework steady. Those who believe in a planned society should perceive that the rule of law administered by the courts offers a reconciliation of



ordered liberty with planned control. Those who, on the contrary, believe that society is best served by giving rein to the competitive exertion of the energies of everyone in his calling or pursuit must also see that the courts must preserve the rights of each from the encroachment of the others. Between those two views there are gradations in which the court must serve the like function. . . . There is I believe a general respect for the Qiieen’s courts of justice which administer justice according to law, and I believe that there is a trust in them. But it is because they administer justice according to law. Probably this moderate and sophisticated conservatism would be approved by most judges and leaders of the profession throughout the English-speaking world. However, it may be a tribute to the labours of the sociological jurists that Sir Owen’s case for a ‘non-constructive’ judicial role, and for a maximum use of ‘legal logic’, was not based on philosophic or moral grounds, nor on logical necessity; it was presented as the better choice in a situation where choices were presumed to exist. The ground of preference given was sociological; this is how the court will best carry out its social responsibilities. Such a chal¬ lenge to the sociological jurists—most of whom have been academic rather than practising lawyers—might be expected to find as answer merely a counter-argument urging that as a matter of choice judges and lawyers ought to perform a more active and constructive social function; if this were all, then the view that sociological jurisprudence is merely a matter of tech¬ nical choices of method within the law and quite different from the sociology of law would be justified. Actually, however, so-called sociological jurisprudence has usually involved much more than recommendations as to the way in which judges and legislators at a particular time should carry out their functions. Consider, for example, Rudolf von Ihering. The first volume of his most famous work. Law as a Means to an End (1877), comprises in the English translation eight chapters, and the first four of these contain only passing references to law; they are taken up with the elaboration of a general theory of social action—a ‘grand theory’. It is built on a view that for human beings, causation in the natural-science sense has only a limited application, and that for the most part social action is determined by the notion of purpose. In choosing purposes, humans have a wide freedom of choice but are



guided by four main considerations, namely the egoistic ‘social levers’ of reward and coercion, and the ethical ‘levers’ of a feeling of duty and of love. The assertion that all social action is purpose-directed is stated as a matter of fact. Similarly, the account of specific legal rules and institutions which follows is devoted mainly to demonstrating that they serve definable purposes, which Ihering sub-divides into interests of the in¬ dividual, of society, and of the State. There are no explicit recommendations that in performing his functions, a judge should adopt one technique rather than another. Rather it is contended that whatever technique he follows a judge cannot help but serve in some degree a utilitarian end. It had been a leading theme of Ihering’s Spirit of the Roman Law (1852-65) that the jurisconsults of classical Rome were down-to-earth fellows who satisfied contemporary social demands with more common sense and technical skill than some of Ihering’s doctrinaire German predecessors, such as Puchta; by implication a standard of performance for lawyers was indicated under which the credit marks would go to the judge or jurist who best under¬ stood the social setting of a rule and developed it in the light of that understanding. But this technical preference was sub¬ ordinate to a general theory as to the necessary relations of law and society. Indeed, Ihering became so obsessed with the fundamental theory adumbrated in his first volume that—to the sorrow of lawyers then and since—he did not carry on his intended pro¬ gramme of restating the law in terms of its social purposes. Instead in his second volume (1883), of which there is no English translation, he took up the general problem of the sanction required for social norms. He had come to the opinion that one could not describe law in terms of ends-and-means unless this was done for the wider field of ethics, morals, customs, etiquette, politeness, and so on. Accordingly he tried to establish a utili¬ tarian basis for every kind of social ‘ought’, using linguistic analysis, social history, psychology as then understood, intro¬ spection, and intuition. This was general sociology, old-fashioned and mechanistic in tone as it now seems, but entirely lacking in any connexion with the art of legal administration. Francois Geny, on the other hand, although an admirer of Ihering, fits much better the notion of a sociological jurist as



mainly interested in professional technique. The German ‘juris¬ prudence of conceptions’ against which Ihering had rebelled was one whose substantive major premisses remained until 1900 mainly uncodified; those premisses were contained in the suc¬ cessive layers of juristic wisdom represented by the Justinian compilations of the Roman law (a.d. 530-3) and the commen¬ taries thereon of the generations of pandektists since Irnerius (c. A.D. 1100), which provided many bases for conflicting inter¬ pretation and covert adaptation to changing needs; as E. Fuchs had shown, ‘pandektology’ involved at least ‘cryptosociology’. But in France the earlier nineteenth-century drive for a formally consistent and complete system operated on the Code Napoleon, which from this point of vie^v was a prematurely ossified system of premisses. In his first great work. Method of Interpretation and Sources of Positive Private Law (1899), Geny plunged at once into the task of proving that ‘logical’ inference from the Code could not solve all legal problems, that the attempt to work in this fashion had led to fortuitous or arbitrary choices instead of reasonable ones, and that the results were in many cases socially inconvenient. He illustrated this with a wealth of detail; for example, he showed the absurdity of denying all possibility that contractual rights might be transferred, a rule inferred by the French civilians from the abstract concept that all contacts involved purely personal relations. The work of Geny and his colleagues had a marked effect on the interpretation of the French Civil Code in general and on particular legal doctrines, and much of this was simply a matter of indicating a more sensible and readily intelligible way of developing the law— an argument addressed to the profession and to the Cour de Cassation. But even Geny went much beyond the professional politics of his generation. It was not enough for him to demonstrate that in fact a ‘geometrical jurisprudence’, as he and his school described the earlier jurisprudence of conceptions, would not work in relation to the particular written code which France had acquired. Using the riches of European legal experience and speculation, he demonstrated that as a matter of social necessity no code could ever provide the basis for such a jurisprudence, that attempts by legislatures to restrict the function of inter¬ pretation of law within specified bounds would always fail, and



that constructive development of the law through professional and judicial interpretation was not merely desirable but un¬ avoidable. In the Methode Geny gave a general endorsement to Ihering’s views, and often called in aid general conceptions of social utility. But like many thinkers before and since, he was worried by the question—how can a jurist determine the ends to be served, in the conflict of ends which life provides? The Methode left this question with the rather optimistic answer that each specific problem will provide its own solution, if the jurist will but examine it thoroughly and objectively—a confidence in the self-revelatory nature des choses when submitted to ‘free scientific research’ which was not sustained in his later work. His Science and Technique of Positive Private Law (1913-24) attempted, rather in the manner of the second volume of Ihering’s ^weck, to elaborate the fundamental ‘science’ on which the applied legal art should rely. But the ‘science’ turned out to be less sociological and more in the tradition of classical philosophy; a development of natural law in the Thomist sense, leaving room for changing rules of positive law to meet changing social conditions and for attention to common-sense conceptions of convenience and workability, but serving some supposedly unchanging values. Geny was by the standards of many contemporary sociologists a conservative and old-fashioned thinker. He contended that certainty and security were paramount needs in a legal system, and argued only for a rational exercise of the small area of choice (as he saw it) which a positive law system must leave. By the time of the second edition of the Methode (1919) he was able to describe two experiments in the use of the sort of judicial free¬ dom to adapt the law which he had advocated. In France itself, there was the ‘Phenomene Magnaud’. From 1889-1904, some magistrates of what we would call the Court of Petty Sessions at Chateau-Thierry, notably M. Magnaud, exercised their (mainly criminal) jurisdiction in a spirit of freedom which scandalized the conservatives. For example. President Magnaud inferred from the Civil Code (Articles 1135 and 1156) an obliga¬ tion of employers to compensate injured workmen independently of fault of the employer, so anticipating the French statute on workmen’s compensation passed in 1898. But as Geny was able to show, it was the manner rather than the substance of what



Magnaud did that gave offence; he adorned his decisions with speeches deriding lawyers, attacking the wealthy and the church, and advocating sweeping social change. Many of his conceptions as to criminal penalties are now accepted as a matter of course and some were at once recommended to magistrates generally by circulars of the Ministry of Justice; others of his innovations were soon generalized by legislative amendment. The ‘phenomenon’ provided rather encouraging evidence that even a judge lacking in tact and ‘objectivity’ was bound to be guided aright by the ‘nature of things’. The other example was Article i of the Swiss Civil Code of 1907, which in express terms adopted the recommendations put forward by Geny in 1899; apply the code, so far as it does not apply resort to custom and learned opinion, and in the last resort apply that rule which the judge thinks the legislator would have prescribed if the problem had been present to his mind. This invitation to judicial licence had operated without the Swiss heavens falling. Geny was certainly more of a law-reformer and a master of the legal art than was Ihering and he relied more on hunches as to how the law could be managed, but partly for this reason he was also more of an experimental scientist. His recommenda¬ tions were based on a theory of social action in the legal field; they were precise enough to be given a trial, and to a consider¬ able extent they ‘worked’. But as with the case of‘prediction and control’ in the previous chapter, the conception of ‘working’ in relation to social activities raises difficulties. Roscoe Pound, at various times in his long life a judge. Dean of Harvard Law School, and an active pamphleteer in the cause of law reform, might have been expected to fit best of all the sociological jurists the picture of an adviser to legal practi¬ tioners on how they should practice their art. Actually he fits the picture less than Geny, and the five volumes of his Jurisprudence (1959), in which his endless erudition is distilled, are open to only one serious criticism: they give very little practical advice to counsel or judge. What they do give is a history of European and Anglo-American views on the nature of law and its relation to divine ordinance and human society since the Greeks and Romans first began to worry about such questions, with occa¬ sional glances at even earlier, or later but more primitive, illustrations of the same theme. This history of human thought



concerning ‘legal’ operations is to some extent repetitive; it in¬ volves running through much the same story first from the point of view of a history of the topic called ‘jurisprudence’, next from the point of view of the ‘end of law’, and yet again from the point of view of the ‘nature of law’. But in all the wealth of de¬ tail about legal systems and their interpreters, the connecting factor is a sociological point of view; the theologians, philoso¬ phers, and professional technicians who have concerned them¬ selves with law are criticized and evaluated from the point of view of a man who considers social utility as the main value, but who admits the existence of other historical points of view and the difficulties of trying to decide all questions as if all men were completely ‘rational’, in the Kantian-Spencerian sense of ‘rational’. The sociological essence of Pound is in the third volume of the Jurisprudence, where he elaborates a theory of ‘jural postulates’, and sets out a table of‘interests’ served by law. These themes are basic to a consideration of the sociology of law and are scrutinized in more detail in Chapter IX of this book. But even in the fourth volume (Part VII), where Pound is dealing with the fundamental juristic concepts—right, duty, liberty, &c.—what he says has special significance for general sociology, especially anthropology, and we shall be concerned with these concepts further in Chapter III of this book. After describing what various kinds of philosophers have had to say about the end, nature, scope, and sources of law. Pound keeps coming back to the question—what is the social end, nature, and scope of law? His answers to these questions are tentative and open to many criticisms, but they are given as objective answers not related to any immediate practical question of judicial technique; at no place is he obsessed, as Geny was, with the immediate doctrinal problems of a particular national system of law. The conclusion of this inquiry, then, is that a distinction be¬ tween the general sociology of law and the art of legal adminis¬ tration is sound in principle, but it does not correspond with the distinction between a sociology of law and a sociological juris¬ prudence, as actually experienced. The reason for this is clear. At the present time, a man who wants to make a kerosene refrigerator finds immediately available several highly de¬ veloped basic sciences—physics, chemistry, and biology—to aid



him, and one would have no difficulty in distinguishing between the elements of art and the elements of science relevant to his endeavour. But the lawyer is not so situated. He may be able to give you good advice concerning the kind of argument likely to succeed before a particular judge at a particular time, but it is most unlikely that any current sociological or psychological theory will enable him to generalize his advice in the form of an objective ‘law’ (in the natural science sense) ofjudicial reaction to arguments. Hence if he wishes to construct some such general theory, it is probable that he will essay this himself on such bases of general sociological and psychological knowledge as are available to him. The result may well look to the professional sociologist or psychologist as merely an exercise in the art of legal administration, but if those critics in turn attempted to re-state the matter in terms congenial to their understanding, it is likely that the practising lawyer would find the result use¬ less, because uninformed by any knowledge of the lawyer’s art. These difficulties are well illustrated by the discussion of the ‘fellow-servant’ rule established in Priestley v. Fowler'^ in Pound’s Jurisprudence, vol. i, p. 235. This case established that a master is not liable to his servant for injuries caused by the carelessness of a fellow-servant, and it has often been relied on by social historians to show how law is influenced by the economic bias of judges. Pound has no difficulty in deflating this economic inter¬ pretation of the particular decision, by showing how the legal doctrines inherited from a period earlier than that of industrial capitalism made the decision inevitable, having regard to the way in which the issue was presented. A contrary decision would have been surprising, from the point of view of legal rules of the time considered independently of economic in¬ fluences. No social historian or sociologist can expect to obtain a hearing from lawyers on such matters unless he is prepared to follow the sort of intricate doctrinal history which Pound des¬ cribes. Nevertheless, having agreed that Pound’s explanation of Priestley v. Fowler is convincing, the social historian or sociolo¬ gist might still contend that the decision need not have been accepted, generalized, and applied so widely in Britain and in the U.S.A. if the doctrine of ‘devil take the hindmost’ and the indifference to the actual conditions of industrial employment ‘ (1837) 3 M. & W.




which such acceptance involved had not fitted with the mores of gradgrind capitalism in that era. The work of sociological jurists is likely to have an advantage over that of‘pure sociolo¬ gists’ in the same field because only the trained lawyer is likely to understand the full character and strength of professional legal technique. But there is a corresponding danger that the legal sociologist will exaggerate the force of professional tech¬ nique and underestimate the influence of extra-professional factors in legal history. This rather than any theoretical differ¬ ence between legal science and legal art is what one needs to beware of when relating the work of Ihering and his successors to the progress of the social sciences.

Ill PRIMITIVE SOCIETY This chapter is not

headed ‘Primitive Law’, because that heading would beg a question debated among jurists and anthro¬ pologists, namely whether primitive societies have law. Much heat has gone into this debate. It is not surprising that the eminent Nigerian jurist. Dr. T. O. Elias, in The Mature of African Customary Law (1956) should seek a definition of law apt to include even the customs of those few African tribes who until recently were without courts and police; as an African, he is involved in the difficult transitional stage of many ‘under¬ developed’ peoples, in which they want to claim virtues for the systems of their recent past, or at least resent any suggestion that they then lacked anything of consequence, and yet resent even more any suggestion that they cannot or should not adopt the institutions of western European societies. But the heat is also observable in the writings of observers unaffected by such con¬ siderations, such as Bronislaw Malinowsky and E. A. Hoebel. Long contact with primitives can cause among such scholars an affection for individuals among the peoples they study and an admiration for the institutions of those people; this explains their impatience with writers such as W. Seagle, who in his Quest for Law (1941) reiterates that among primitives ‘Custom is king’. But the argument is not mainly an emotional matter, and still less one as to the use of words. Its main point is a difference as to sociological theory. It is a reasonable though unprovable assumption that human society has evolved from simple beginnings. Archaeology, ancient history, and contemporary empirical anthropology enable us to construct a fairly detailed ideal scheme of stages in this evolution, from small groups in which differentiation of social tasks went no further than the physical facts of sex, age, and strength dictated, to the highly differentiated and complex modern societies which first became fully realized in nineteenthcentury Western Europe. When setting out such an evolutionary



scheme, we have to consider many aspects of social life—techno¬ logical, religious, economic, aesthetic, inter-group relations, and so on. But as far back as we can trace or imagine human society, there has been a quality of human behaviour affecting all the other aspects mentioned, a quality giving each particular society identity, continuity, and internal cohesion. Perhaps this social ordering was originally no more than one way of consider¬ ing the sort of co-operation created by the physiological need for food, shelter, and sex, but in the earliest societies of which we have considerable knowledge, social order is exhibited in feelings, attitudes, and behaviour going much beyond any such minimum degree of co-operation. In the last two sentences the historical significance of the words ‘back’ and ‘earliest’ requires explanation. An ideal scheme of/social evolution is unlikely to have occurred in any actual society, and in known cases where many of these phases have occurred, their duration has varied greatly from case to case. Social changes have spread by imita¬ tion and by conquest; they have been compelled by successful defence against either imitation or conquest; they have followed natural bonanzas or catastrophes. Jumps in social development may have been due, even in prehistoric times, to the genius or lunacy, the nobility or greed, of individuals or small sub-groups. Hence it is impossible to predicate even of a single human group that at some time as a matter of history it went through stages of development corresponding to every step in an ideal social evolutionary scheme. It is also certain that at times changes were, from the point of view of such a scheme, retrogressive; this happened to many western European societies between a.d. 600 and 1100, and to many Asian and American cultures whose material remains have been swallowed by the jungle, and could easily happen to contemporary civilization if there were a World war with nuclear weapons. And it is probable that some socie¬ ties developed in ways which represented, from the evolutionary point of view, a blind alley; that is, they failed to adapt their own institutions to changing needs, and persisted in a course which ensured their destruction or disappearance. Perhaps the culture best known and most congenial to this writer, the liberal capitalist democracy or welfare state of Britain, North America, and Australia, will turn out to have been such a blind alley, along with its European counterparts.



However, for the purpose of this discussion, we do not have to decide that question. It is certain that these societies share with their Communist competitors four features important for a study of law which antedate the technological and economic features of all these societies by some centuries, and the word ‘modern’ can for this purpose be applied to all of them. The historical order of appearance of these features of a legal system varied a good deal from society to society, and the following order is adopted only for convenience of treatment. Firstly, modern societies have specialized institutions, regularly operating, regarded as posses¬ sing wide authority to make and amend rules of law—Legis¬ latures. Secondly, they have specialized institutions to decide the disputes which are considered capable of decision by reference.1 to the rules of law having validity within the society—Courts of Law. Thirdly, they have specialized institutions to watch the observance of law in general and in particular to see that the decisions of courts are carried into effect—court officers and police. Fourthly, they have specialized institutions whose main task is to advise the people of the society as to the meaning and application of rules of law and to help in the conduct of disputes before the courts—a Legal Profession. These ‘institutions’ are here described only as they appear to a modern lawyer. From the point of view of a modern political scientist, the legislatures and the police forces, and even the courts and legal profession, can be regarded in quite a different way, as sharing in the exer¬ cise of power within the society. Indeed this way of regarding them is more congenial to much juristic thought than is the sociological view that they perform a designated ‘role’ as insti¬ tutions. But however one regards the matter, one can find in modern societies people doing jobs who and which correspond to these descriptions. All of them are absent in the societies which can now be defined, by reference to this absence, as ‘primitive’. It is usual in studies of legal evolution to distinguish an inter¬ mediate stage of ‘archaic’ legal systems in which some but not all of these features are absent, though as we shall see in Chapter IV these systems are also and perhaps mainly characterized by reference to features other than the four mentioned. But this also is irrelevant to the point now under consideration. If these four features or any one or combination of them are thought



necessary to the social complex described in modern societies as ‘the legal system’, then the expression cannot be used to denote any feature of primitive societies. The point of difference be- . tween those who take the latter view, and those who argue against it, is that the latter do not regard any one or combina¬ tion of these four features as necessary to or as the most important features of law. They prefer a wider conception, such as that quoted by Dr. Elias from A. L. Goodhart—‘any rule of human conduct which is regarded as obligatory’. Beyond question such rules are to be found in plenty in primitive societies. Not all those who take the more complicated view of law would insist on all four of the elements here mentioned. Most would dispense with a legislature, many would dispense with a legal profession, and some would dispense with machinery for execution of decisions, or at least reduce the requirement to offi¬ cials very directly concerned with the work of courts. Probably all would stress most the necessity for something corresponding to Courts of Law. What we might call the ‘anthropological’ view, since probably most anthropologists now hold it, emphasizes the elements of social order not only in primitive but in archaic and modern societies as well, which are thought to depend not on an apparatus of State administration but on societal forces or func¬ tional relations considered to be more fundamental. The other view does not deny the existence and importance of these social forces, but insists that at any rate when all four of the ‘modern’ factors in a legal system coexist, so many distinctive features enter the character of the system that it is confusing not to find a specialized name for the result. The result is more than a matter of social differentiation producing some more efficient way of doing substantially the same thing. In the case of tribal warfare, there comes a time when instead of each warrior carrying both spear and waddy, some concentrate on spears and others on waddies. Even in such cases and in other technological examples, differentiation of function soon results in important differences of social organization. When law gets into the hands of lawyers, it is apt to serve at least additional functions, and Goodhart in the essay cited by Elias thought it necessary to devise the term ‘State law’ to indicate something of the dif¬ ferentiation which law undergoes when ‘the State’ comes into existence.



Having seen the nature of the difhculty, we can speak of ‘primitive law’ without adopting any particular view as to the character of modern law, simply on the evolutionary ground that modern law can be traced back both as a matter of history and as a matter of social theory to a stage of social ordering within primitive societies, in which the potentiality of later differentiation can be seen. However, the problem has more than historical importance. If we assume that basic human characteristics have changed little in thousands of years, anc^ are practically uniform for all humans now existing, then we can regard primitive societies as ‘models’ for social study; they are usually less complex and more self-contained than modern societies, and sometimes almost every feature of the life of every individual in such a society can be described for appreciable periods of time. From such observations it may be possible to induce valid general scientific ‘laws’ of social corre¬ lation, including some relevant to lawyers. Furthermore, many primitive societies are now being required to make enormous jumps in social evolution, if not by spontaneous demand of their own members then by the pressure of outside opinion. One of the problems of this transition is to make use of the potentialities of development within the primitive society, and this can be done only if the potentially legal aspects are correetly assessed; it is a difficult task of social engineering, with the risk on the one hand of wasting social resources, and on the other of reactionary antiquarianism. At this point some account should be given of the aspects of primitive societies which correspond to law in modern societies and from which modern law is likely to have evolved. In E. A. Hoebel’s Law of Primitive Man (1954) there is an account of four primitive systems—Eskimo, Ifugao (Philippines), Plains Red Indians, and Trobriands (New Guinea)—and of one archaic or transitional system (Ashanti). Hoebel, however, complicates his picture of primitive law by introducing highly sophisticated concepts from modern systems as organizing ideas for the primi¬ tive material; something will be said of this tendency later in the present chapter. A more ‘innocent’ picture of primitive systems can be obtained from books in which legal analysis was not the main purpose of the anthropologist, and two such of particular interest are Marie Reay’s The Kama (1959) and R. F. Salisbury’s



From Stone to Steel (1962). These studies deal with tribes in the New Guinea Highlands, who first made contact with whites very recently and whose culture is likely to have been relatively stable for a long period. Although living close to each other and depending on the same type of economy—gardening for sweet potatoes and green vegetables, pig raising, arboriculture, and a little hunting—the Kuma and Siane peoples also display inter¬ esting variations of social organization and custom and one can see in their culture suggestions of past changes, and of changes which might have occurred in future independently of Austra¬ lian colonization and administration. As in the case of most societies, they have practices which can be put on one side as amounting to no more than good manners or standard tech¬ niques of craftsmanship; there is left a large body of observances, regarded as obligatory and as giving rise to valid claims, ob¬ served with a high degree of fidelity but not without breach, and breach of which is likely to cause social disturbance which has to be settled before the society can resume an orderly and peaceful life. These ‘normative’ observances concern many aspects of social life and there is considerable interaction between them, but for the purpose of description we can select four illustrative areas. First, there are rules defining the social sub-groups which the people concerned themselves recognize and which have signi¬ ficance for a variety of social purposes: making war, neutrality in war; co-operation for religious purposes; co-operation in farming, housebuilding, and other economic activities; co¬ operation in the provision of bride-prices, payments for the birth of children and similar outlays requiring ‘insurance cover’; restrictions on intermarriage. Dr. Salisbury distinguishes six such groups among his Siane, and these do not include the most inclusive group, the ‘Siane-speaking people’, who are likely to become a unit in the politics of the new New Guinea but were not recognized in the behaviour or language of pre-white times. The six groups are; the tribe, which covers the largest number of people but has the least normative significance, its main point being to define an area within which land use is open to the mem¬ bers ; the phratry, which is co-terminous with small tribes but is a subdivision of large ones, and within which, among other things, intermarriage is prohibited; the clan, which usually coincides



with a territorial village, and which among other things is the usual social unit for pursuing feuds; the wards of a village, coincid¬ ing with the ‘men’s houses’, the three or four large buildings in which all males aged about eight years and upwards usually sleep and take counsel, and which is another unit for the further¬ ance of quarrels; the lineage, which is an enlarged family group led by the eldest brother of the ‘active’ generation—usually the under-fifties—and is prominent in the settlement of marital issues; the ''age-mates\ being males who were initiated at the same ceremony, and often inherit each other’s widows. The clan, the ward, and the lineage are especially important for purposes of economic co-operation, such as fencing garden areas to keep out animal marauders, allocation of plots within that area, building and rebuilding communal men’s houses and huts. Membership in these groupings is governed partly by rules of descent, partly by rules permitting voluntary migration, adhesion to a particu¬ lar leader, or adoption. These people did not have ‘chiefs’ until the white administrators insisted on such an office, but they had lineage heads—the eldest brother in the active generation-— and ‘big men’ who had asserted themselves among lineage heads by achievements and personality traits; of the big men in a particular men’s house, one usually stood out as first of equals. The Kuma have comparable groupings, looser in character and with even less definition of phratry and tribe. These arrange¬ ments provided a basis for a good deal of government by dis¬ cussion, in which the views of elders and still more of the most vigorous and talented men of middle age received special respect, but both Dr. Reay and Dr. Salisbury insist on the fundamental individualism of these people. Some of the matters mentioned under this head bear an obvious resemblance to aspects of social ordering which in a modern state form an important part of ‘public law’. Others concern economic arrangements which have no close parallel in modern societies. Secondly, there are the rules concerning marriage. These deter¬ mine to a considerable extent membership in the sub-groups just mentioned, since family descent (in these tribes patrilineal, though in many Polynesian and Melanesian peoples matrilineal) is the main though not sole factor determining membership of lineage, clan, and phratry. In common with most primitives, the Kuma and Siane regard intermarriage within a fairly widely 825208




defined group as ‘wrong’, and these rules of‘exogamy’ go much beyond what modern society would regard as relevant to the question of incest. Indeed, there is no reason to suppose that such primitives knew enough about the physiology of paternity or about heredity to have any views on ‘inbreeding’, and the theory explaining exogamy now most widely accepted is that it furthered social solidarity;^ it maximized the circulation of women in a region, multiplying kinships in many villages and ensuring that during inter-lineage, inter-clan, and inter-tribal disputes there are always enough parents on one side anxious about daughters on the other, or enough brothers and sisters on one side anxious about sisters and their children on the other (a relationship especially important in matrilineal societies which remained important in patrilineal ones), to provide forces for moderation in fighting, for early discussion, and for reason¬ able settlement. The institution of marriage is sharply dis¬ tinguished from the licensed petting of the teenagers; marriage is a serious business arranged between lineage and lineage, in¬ volving payments from the bridegroom (aided by his lineage) to the bride’s parents which can be demanded back if the mar¬ riage breaks down or fails to produce children, and further pay¬ ments if children are born. The husband and wife or wives (monogamy being fairly common) have well-defined duties towards each other in the provision of food, clothing, and shelter for themselves and their children, in so far as these are not provided by the co-operation of larger groups. The natural family unit is not so prominent in the social structure as it is in most modern societies, because of the fact that married men live much of their time in the men’s houses while married women spend much of the time in doing common tasks with other married women, but it is sufficiently prominent for us to speak without difficulty of a primitive law of marriage and the family. Thirdly, there is an established religion, with required rites which occur at frequent intervals and affect all the main features of tribal life. As with many primitives, it is related not to ‘gods’ in a modern sense but to the spirits of ancestors. After a death, the spirit remains, in a disgruntled and malevolent frame of mind, until the next appropriate feast, and must be conciliated in various ways; after departure to an anthropomorphic spirit • Claude L^vi-Strauss, Les Structures eUmentaires de la parents (1948).



world, the spirits take a more benign interest in earthly affairs and have an especial importance for crop fertility. The feasts and ceremonials are also related to economic affairs and to the ‘rites of passage’ which mark stages in the growth and re¬ ception into tribal life of children and adolescents. There is no priesthood, but the making of certain speeches or incantations passes from leader to leader in particular lineages. These obser¬ vances can involve several clans and require the distribution of large quantities of food to the participants and to visitors, with corresponding planning and organization in advance; special gardens may have to be prepared, and the consumption of pigs may be so heavy as to decimate the pig population and prevent the accumulation of pig-wealth, which otherwise would be an available form of capital in food in a society lacking foods that can be ‘saved’. Fourthly, there is ‘property’; claims to the use and enjoyment of things. Early nineteenth-century observers thought that primitives held all in common and practised a form of commu¬ nism. It was an understandable mistake, since the sharing of tasks and of produce is widespread, and the moral precepts of many such people, including the Kuma and Siane, place express emphasis on a general duty of mutual help. Moreover, the observers often had an exaggerated notion of the extent to which modern systems embodied ‘absolute ownership’ by in¬ dividuals as a basic legal principle. More careful observation has disclosed among many primitive peoples an elaborate set of rules as to the distribution, enjoyment, and disposition of differ¬ ent sorts of things. Since Dr. Salisbury was mainly interested in economic arrangements, he paid special attention to such questions and found that the Siane distinguished broadly between things which were rnerafo and those which were amfonka. The former—land, sacred objects, knowledge of ritual, and sacred speeches—were held by an appropriate leader as ‘trustee’ for a group and were ‘entailed’ in that group; other articles were amfonka and treated for many purposes as what we would call individual property, so that Dr. Salisbury translates the expression as ‘personalty’, although they could include some interests in land as well as what we call chattels. Such goods lay in the disposition of individuals and descended as a rule within the natural family. Dr. Reay found that among



the Kuma, unoccupied bush has been plentiful enough for land ‘titles’ of any kind to have little importance. Certainly with both peoples the expenditure of labour on an article is the ‘root of title’ to which most arguments about ownership will trace back. But the Siane recognize limits to the possibility of creating such an amfonka claim, if the activity alleged (such as planting a nut tree) occurred on merafo land in circumstances constituting a wrongful intrusion. Overriding all these ‘titles’ is a principle that when a person is not actually making use of an article, he is under an obligation to lend it to a person who wants to make use of it; among the Siane, however, permission to use fallow land controlled in merafo right by a lineage leader may be refused if such usage would imperil the recovery of the land from previous cropping. Elaborate rules govern the distribution of garden plots among clans, lineages, and families, and of particular types of plants within such gardens as between men and women. But the circulation of the produce among the com¬ munity is ensured mainly by a system of‘gifts’ with a generalized expectation of reciprocal gifts. Dr. Salisbury is inclined to think that there is no concept of a property right of any kind in food once it is cooked. When the Siane engage in trading expeditions to obtain articles from distant and non-Siane people not coming within the established system of mutual gifts, they try in fact to drive a bargain, but they still express the matter by a sort of ‘legal fiction’ as if gift and counter-gift, not commerce, were involved. Within the area of kinship where mutual gifts are the rule and are frequent, generosity is enjoined and admired, and is one of the practices necessary for one who aspires to become a ‘big man’. This gift-exchange system has prevented the emergence of anything resembling a law of contract. But the system of property is sufficient to require notions similar to what we would call theft or trespass against the individual owner, or trustee, or group. Dr. Salisbury even noted a fictitious process by which merafo things could be labelled in a way which made them temporarily amfonka, so as to inhibit use by pre¬ sumptive beneficiaries. Even under the gift-exchange system, records are sometimes kept, fo. example by knots in ropes, as a reminder of obligations outstanding. Evidently the rules just mentioned resemble in their content the legal rules of many modern systems. Moreover, the primi-



lives concerned discuss their ‘customs’, argue with each other about their content and implications, recall past disputes con¬ cerning them, summarize them in the shape of proverbial expressions and myths; the young are taught about them. ‘Custom’ is an unsatisfactory word for observances which are verbalized and subject to interpretation. It expresses the sense of obligation or claim of right accompanying the observance, but it also suggests an unvarying content and mechanical repetition. Although pre-literate people often develop, of neces¬ sity, astonishingly good memories, and have recording devices, they are fallible. The Kuma and Siane have good reason to re¬ call the genealogies on which their rules of exogamy and clan structure depend, but both Dr. Reay and Dr. Salisbury found that their memories of such matters were short and disputed among themselves. Primitives are as much subject as moderns to the play of self-interest, or lack of interest, or suggestion. The present writer has noted among a group of fellow academics whose memories were probably better than average the rapidity with which rules deliberately left as ‘gentlemen’s understand¬ ings’ came to be disputed, leading to cries for a written rule on the topic, leading later still to fresh cries for a release from these entangling legalisms. In so far as a primitive custom is rooted in biological or technological necessity, the custom may be ex¬ pected to remain stable. In other cases, a continuous process of change in detail and adaptation to new desires and ambitions is likely. The daily routine of the clan-village may change only slowly, but what of the ceremonies and beliefs associated with such an institution as the pig-feast of the Kuma, occurring for the one clan at intervals of about fifteen years? In many respects, these customs are nearer to the modern conception of positive morality, the actually accepted morality of a particular social group. There is an association with religious sanctions, and when these express the values of an anthropo¬ morphic ancestor-worship, it may be expected that the rules will be consistent with social utility. Feelings of virtue and social approbation, and exhortations to mutual help, are prominent in attitude and discussion, rather than the calculus of Justice Holmes’s bad but legal man. The mobilizing of public opinion and pressure against deviants is also consistent with what moderns consider morality as distinct from law. Indeed, a good



deal of the attention of modern jurists has been taken up with the relations between law and morality; as we have seen, the problem diverted Ihering from the task he should have under¬ taken, and N. S. Timasheff’s Sociology of Law (1939) down morality and law as the two great branches of the imperative norms in any society and is mainly concerned with their rela¬ tions. It would not be surprising if legal norms are a specialized form of moral norms and not merely of‘customs’. That is, mere usage and tradition, and a negative fear of non-conformity are not sufficient; some element of active moral approval is re¬ quired, so that observance helps to qualify a man as ‘good’. However, most anthropologists and sociologists are not con¬ tent to call these primitive norms law merely because they may represent an unspecialized stage in the development of law and custom or morals, and still less because of the psychological factor which Goodhart, and Elias after him, thought sufficient -—-the sense of obligation. They accept the view that law should have sanctions; considering the arguments among jurists over the Austinian theory, it is odd how readily the necessity for a sanction of a definite, external character is accepted by sociolo¬ gists. Many of them claim that in primitive societies the rules which are sanctioned can be distinguished from those which are not, and that these alone constitute the law of the society. But since these societies do not have the courts and police which apply the definite external sanction of modern societies, what alternative social institutions do they have? Malinowsky thought that reciprocity was enough, but this is at best a very diffuse sort of sanction and it explains only the part of behaviour concerned with the system of alternating gifts. Reciprocity alone will not restrain the murderer, bully, or thief, nor ensure due performance of the rites of passage, nor guarantee observance of the rules of exogamy. The importance of reciprocity as an element in economic activity has always been great and it is doubtful whether systems of commercial law, and their equivalents in socialist societies, would ever work for long if they did not enforce reciprocity. But this recipro¬ city is a social consequence of the operation of the legal rules; the question is, what happens when expected reciprocity breaks down? If the people concerned are actively conscious of the reciprocity involved, and failure to discharge an obligation is



systematically met by refusing the corresponding counter¬ performance, one could speak in a practical sense of a sanction operating. But in primitive society systematic behaviour of this kind seems to have been unusual. Much more direct, in the areas where it operates, is the sanction of supernatural action. If a primitive man is confident that spirits or gods will deservedly punish him for the infraction of a rule, for example the rules of exogamy, then he is likely to sentence himself to sickness and death if he infringes the rule, even if he infringes it unwittingly. Among the Australian abori¬ gines, the reach of supernatural taboos was especially wide and extended to hunting activities important for the economy of these people. However, even among the Australian aborigines there were organized social sanctions not religious in character. Among many other primitives, the specifically supernatural had a limited reach. For example, with the Kuma and Siane, it related mainly to the feasts and ceremonies directly connected with religious belief, and hardly at all to the daily family and economic life—the business of keeping up the supply of food and shelter, and of preserving peace between individuals. A. S. Diamond has expended a wealth of research and learning on disproving the theories of earlier writers who thought that the lawyer descended originally and always from the priest, but his Primitive Law (1935) may go too far in the direction of debunk¬ ing the claims of religion. Where primitives connect the obser¬ vance of a rule with preserving the goodwill of spirits and gods, there is little need to look for a further sanction. But compre¬ hensive combinations of theocracy and the rules of social order are late developments in social evolution. Among the peoples mentioned in this chapter, it is surprising how little part religious beliefs play even as an aid to the administration of rules: for example, they do not have sacred ordeals to prove guilt or innocence, nor sacred oaths to found enforceable promise or relation of fealty. This sort of mutual help between law and religion was also a ‘later’ development. Sorcery, the use or supposed use of magic by humans to injure other humans or animals, is sometimes connected with religious beliefs, but more frequently among primitives it is a distinct matter, and it has complex relations with the pattern of rule-observance. Sorcery may be used to identify a supposed



wrongdoer, or as a method of revenge against him, or as a means of warding off wrongful intrusion. Particular individuals may acquire a position such that their use of sorcery goes un¬ challenged, and such a position may even be acquired by a lineage and transmitted. But more usually the suspected sorcerer was considered an enemy of society and subject to mob execu¬ tion. Indeed, the search for a supposed ‘sorcerer’ to explain death by disease or accident, and the lynching of the suspect, is a terrible feature of primitive human life with analogues such as witch-hunting in modern'* societies. Some writers consider sorcery to have been the earliest and most prevalent ancestor of ‘crime’—that is, wrong regarded as directed against the society as a whole and deserving punishment by the society as such. Hence in the societies mentioned above, it could not be said that sorcerers any more than priests had acquired a position in which they might use their powers as a regularly operating sanction for the observance of‘law’. Putting aside reciprocity, religion, and sorcery, the constant sanctioning force in primitive society is that of self-help, gradu¬ ally contained and institutionalized by social action. The wide prevalence of lineage or clan aid to the ‘plaintiff’ in seeking his revenge, and of aid given the ‘defendant’ by his lineage or clan in resisting or threatening counter-revenge, was itself an in¬ fluence for restraint. The group members might want some assurance that their cause was just. ‘Feud’, the endless exchange of revenge, is almost unknown in the earliest societies. A single act of revenge was often accepted as ending the matter, and if the situation threatened to get out of hand, we find in all cases some more or less regularized social response designed to restore the peace. How strong and effective these measures were depended mainly on the size of the groups concerned and the distance—geographical and psychological—between the dis¬ putants. If the dispute was between different clans in villages some miles apart, and particularly if the clans or tribes con¬ cerned had a tradition of mutual hostility, then before the com¬ ing of a colonial peace, the last resort was war. Among Dr. Salisbury’s Siane the outcome might be anything from a settle¬ ment negotiated by neutral but intermarrying clans of the neighbourhood, to the complete extermination of a defeated village. There is the same difficulty in fitting this into a picture



of sanctioned rules as there is with the Grotian conception of the ‘just war’ between nation states. But within this limiting case, social response shows degrees of rule-integration which may reasonably be regarded as the predecessor of legal sanctions. The simplest situation, vividly described by Dr. Reay and Dr. Salisbury, is the quarrel between individuals in the same village, rapidly boiling up into a shouting match. All the adults gather ; lineages tend to side with their respective kin but with a possible counter-influence due to living in different men’s houses or belonging to different age-sets; individual argument merges in public discussion, general feeling hardens against one or other, and a ‘big man’ may suggest a compensating gift by the ‘guilty’ party, often acceded to though with an ill grace. Two men who continually nurse a grudge cannot continue to live in the same men’s house. A persistent trouble-maker may eventually after public discussion be compelled to leave the village. Among the wide spaces and ample food supplies of New Guinea and Australia, this usually means no more than seeking refuge with maternal kin in another village. Among atoll-dwellers, it might mean being cast adrift in a canoe with only a moderate chance of surviving another landfall. Among the Eskimos, it is likely to mean certain death. Indeed, some Eskimo have an even more drastic sanction; after an habitually violent trouble-maker has murdered twice, a resolute ‘peace-preserver’ first obtains the approval of his fellow villages and then, by stealth, kills the murderer. In only one case, and that doubtful—the Yurok Red Indians, mentioned by Hoebel—is there something like judicial consideration; the parties each appoint, from neutral clans, two persons called ‘crossers’, who have power to order compensatory payments to be made by one party to the other in accordance with an accustomed scale of damages. Among the Ifugaos of Luzon there was the better attested case of the monkalun—a man of substance and repute employed by the ‘plaintiff’ to wring a settlement out of the ‘defendant’, but his powers were mediatory only. A. S. Diamond suggests that such conciliation procedures might be ancestors of the specific institutions known as ‘arbitration’ in modern Anglo-American law, rather than of judicial procedures, but this is a speculative question; what we would call ‘arbitration’ has profoundly influenced Chinese civil procedure, and M. Gluckman has portrayed in his Judicial



Procedure Among the Barotse of Northern Rhodesia (1955) some archaic courts which consider the main purpose to be making life possible for the parties in future, rather than achieving retributive justice. If, however, the disputing parties could not be contained within the pressures of a face-to-face group, but were not so far apart that war became likely, then many forms of limited or representative combat existed. Among the Australian aborigines the ‘plaintiff’ and his kin hurled spears at a sole ‘defendant’ armed only with a shield, until the latter was wounded— usually in the thigh—when bystanders would rush in to part the antagonists; the intervention might be mainly the affair of women, or of neutral but inter-marrying groups. Dr. Salisbury reports combat by several champions on each side; when a champion fell, he was killed by arrows from the opposing clan and the matter ended. The Eskimos had their ‘singing duels’, in which the combat was by invective and satire—a cooling-off process, though sometimes conducive to further dispute. These procedures are in the beginning only a moderated revenge, but they contain elements of punishment. Some even suggest methods of proof, though in most the identity and ‘guilt’ of the defendant are assumed. Many anthropologists claim that in these small societies—not more than 25 in an average New Guinea men’s house, nor more than 200 in a village—life was lived so closely and publicly that dispute about the facts rarely occurred. Everyone had a fair idea of the course of events and the main question was whether a recognized claim had been infringed, or a retributive or defen¬ sive act pushed to excess. My experience as a magistrate makes me sceptical about such claims; rows between husband and wife conducted with a good deal of publicity before children, relatives, and neighbours are usually the foundation for remark¬ ably different narratives in the witness box, even on ‘binding over’ applications heard within a few days of the row. One must suspect that the complaints of the fact-sceptics, examined in Chapter V, would be even more applicable to trials by village meeting. We are also told that most of the ‘cases’ decided in these ways should be treated as involving civil rather than criminal liability. If initiation and conduct of the affair by the injured party is taken as the chief mark of civil wrong, this may



be so, and the frequency of a compensating ‘gift’ when the parties are reconciled also fits the modern notion of civil liability. But retaliation is not itself usually aimed at civil ‘compensation’; it is much more like punishment. And it is not common among primitives to find definite systems by which a defendant can buy the spear rather than bear it. Indeed, these primitive rule-structures are much too various in their case-to-case as well as tribe-to-tribe operation for such organizing concepts as ‘civil’ and ‘criminal’ liability, or ‘com¬ pensation’ and ‘punishment’, to be at all appropriate. If earlier writers tended to underestimate the ‘lawstuff ’ observable among primitives, modern ones have exaggerated its significance and have added to this exaggeration by excessive use of the concepts of modern legal analysis, whether as descriptive aids or for ‘jural’ evaluation. Thus Dr. Salisbury likens merafo ownership among the Siane to trusteeship. But it is not characteristic of the trustee in Anglo-American law that he is entitled jointly with the ‘beneficiaries’ to use the land, &c., in question; the primitive lineage leader under such arrangements is in some respects more like a tenant for life with liability for waste, and in others like the governing director of a proprietary or private family company. Whatever he is ‘like’, his actual position can only be described behaviourally by reference to what happens and comparisons with modern legal relations can be misleading; they are especially misleading in so far as they might suggest an origin of the concept of trusteeship or any other modern concept in primitive practices. Similarity of particular social situations can produce similarity in legal concepts, but it is dangerous to assume conceptual similarity merely from social similarity, since the range of possible different legal solutions to any one social problem is often wide, and the concepts are apt to be coloured by a different general social or conceptual setting. Even more questionable is the use by Hoebel, continued by Gluckman, of the table of eight correlative and contrasting legal relations developed by W. N. Hohfeld. Roscoe Pound has summarized the many detailed criticisms to which this scheme is open.^ Some of its distinctions are not analytically necessary, as they pretend to be, but depend wholly on the social setting. A calculus based on such concepts cannot be used to express the ' Jurisprudence, vol. iv, pp. 77-84.



dynamics of legal development, since such a calculus assumes stable relations and ignores the non-logical, affective, and evalu¬ ative aspects of decision. The scheme is too rigid and also too discriminating for practical use even in a modern system where a jurisprudence of concepts is dominant. For example, much modern legal development depends on an ambiguous use of the word ‘right’. If we find that at a particular time a man’s ability to earn a living is protected only in an indirect fashion and that the activities of capitalist monopolizers on the one hand and of trade union monopolizers on the other do not come within the ban of existing law, then we tend to inhibit the creation of further remedies which the times may demand if we insist that there is no ‘right’ but only a ‘privilege’ or ‘liberty’ to earn a living. Hoebel’s expression ‘privilege-right’ instead of ‘liberty’, however, is apt to beg similar questions with opposite results, because of the misleading implications of the word ‘right’. Thus Hoebel says A has a privilege-right, as against B, to sell his auto to X. If this means only that in the circumstances B cannot pre¬ vent such a sale by legal injunction, it is unobjectionable, but the words can convey further misleading implications; for example, that B would commit a wrong against A if he per¬ suades X not to buy. More fundamentally, such tables can give a false impression of the relation of law to the social structure in most of the societies hitherto known. Hohfeld was concerned to establish categories for legal thought, not for social analysis. If used for sociological purposes, his tables can convey the misleading im¬ pression that every human activity is legally significant and derives its social character from its legal validity. Actually social life is a phenomenon largely independent of the law, having a complexity and fluidity which cannot be expressed in legal categories. From it we abstract for legal purposes certain aspects of activity and subject them to legal categorization. From this point of view, there are only two significant legal relations: the right (or demand-right)-duty relation, in which A can compel B to do or refrain from doing something, and the power-liability (or exposure) relation, where A can create a right-duty relation involving B and at least one other person which did not exist before. Hoebel saw something of this, but then went to the other extreme by describing what in the



Hohfeld scheme is the domain of ‘privilege’ and ‘no-right’ as ‘no law’; it is better thought of as the area of incipient law, the area in which social claims are constantly being put forward, argued over to see if they can be fitted by analogy into existing legal categories, and given or denied remedy by judicial or other legislation. If this is so in modern societies, it is much more likely to be so in primitive ones where the rule-system is less extensive, looser, retained only in memory and practice, and related to social groupings in which personality is a dominant factor. A good example of the obfuscation which the use of such con¬ cepts can produce is to be found in Hoebel’s account of the difference between the position of the person whose ‘right’ has been infringed in modern societies, on the one hand, and on the other, in primitive societies without regular enforcement machi¬ nery. He says that in the modern case the aggrieved person has a series of‘demand rights’ (rights) against enforcement officials so as to obtain satisfaction from the wrongdoer; he says, however, that in the primitive case the aggrieved person has only what he calls a ‘privilege-right’ (liberty) to obtain satisfaction by selfhelp, personally or with the aid of kin. Now, looking first at the modern case, the aggrieved person has in the first place a liberty to apply to the law-enforcement officials—he does not have to do so. If he does, the official is under a duty to issue a writ, later to hear the case, later to issue execution, &c. If, how¬ ever, an official fails to carry out his duty, the plaintiff will have to seek some further official to put pressure on that official, and if he meets a series of derelictions of official duty, he will even¬ tually finish up with that non-legal ultimate ‘sanction’ or brute fact of social pressure which every system presupposes. Unless the system works, he cannot coerce the defendant. In the primi¬ tive case the plaintiff similarly has a liberty to decide what further he will do. But if he does organize a self-help enterprise, and if by the ‘regularized manner’ postulated by Hoebel effective force is exerted against the defendant, and if the ‘brute fact’ of social approval and acceptance of this course ensures that the pressure is not resisted or intercepted, in the particular case and in most cases, then his position is very similar to that of the plaintiff in the modern case. You might as well say he has a ‘demand right’ to satisfaction, as against the defendant. If the defendant in fact (possibly with kin aid)



effectively resists, the plaintiff is likely to reach in one step the position which the modern plaintiff might reach only after many steps—the appeal to the opinion of the social group whose effective power overrides deviation from socially accepted rulebehaviour. If, however, the primitive society regards resistance to the plaintiff by the defendant as usual and proper, and is indifferent to the success or failure of the plaintiff in obtaining satisfaction, then it is futile to use Hohfeldian language at all. The enthusiasm of sociologists and anthropologists for the distinctions and techniques of speculative, mature analytical jurisprudence is indeed odd, seeing that the lawyers themselves have been trying for a century to escape from the tyranny of such analysis and to admit a wider examination of the social setting and of social values. Presumably this anthropological enthusiasm is part of the search for organizing concepts and theories and the distaste for mere behavioural descriptions of primitive life. An attention to contemporary jurisprudence rather than to that of the nineteenth century is certainly desir¬ able for students of primitive life, since many futile controversies were aroused in earlier days by assumptions that possible legal relations were few and that the facts of primitive life must fit them. Either the canoe must be owned by the group which used it, or else the ‘captain’ must own it and hire the rest of the crew. The answer to these absurdities is not to be found in the Hohfel¬ dian categories, but in a realization that there is no degree of initial logical necessity in any legal concept at all. Once a system is under way, it develops definitions and calculi which cannot be departed from without inconsistency, but even then de¬ partures are invariably numerous. It seems likely that in primi¬ tive communities, there was no conception of ‘title’ at all, in the sense usual for European and Anglo-American law today, and hence no basis for either co-ownership or trusteeship. The rela¬ tions established were sui generis, and are best described in their own terms. When the discovery is made that some primitive people applied in their own speech and thinking notions closely similar to those of modern analytical jurisprudence, or some of them, and not until then, it will become appropriate to use the modern terms when describing the primitive usage. Some other aspects of this problem are considered in the next chapter. From the point of view of the evolution of legal systems, it is



especially important not to use contemporary technical terms when describing primitive societies, since to do so may give to primitive ‘law’ the appearance of a degree of definition which it does not have, and thereby beg the question to be decided. We can see without difficulty in primitive societies what may well be the origins of legal systems; characteristic features of what we now regard as law are more apparent in the structure of rules and the way they are discussed than in the institutions for the enforcement of those rules, but even on the institutional side there are not wanting practices and procedures which suggest later developments. But perhaps the main importance of such studies is to show that relatively complex social arrangements can be maintained for long periods without the institutions which in modern society are regarded as necessary for a ‘rule of law’.

IV SOCIAL EVOLUTION AND LEGAL EVOLUTION All the early societies which possessed writing and have left

historical records, whether on stone, clay, papyrus, or paper, also possessed at least courts of law and a discernible set of legal rules, and sometimes many other features of modern law as well ■—legislative authorities, executive officials, and in one case, that of Republican Rome, a legal profession. \Ve also know from observation in modern times that many African pre-literate societies possessed such legal institutions. The earliest literate society of whose legal system we have considerable knowledge is that of Babylonia between 2000 and 1500 b.g., and we can infer the existence of comparable African societies from a.d. 1000 or earlier. Although the transition from primitive to such ‘archaic’ societies can be described only with the aid of a good deal of guesswork, there is nothing inherently surprising about such guesses. The main feature of the development was the emer¬ gence of a political organization; specifically, the growth of the powers of the various sorts of leaders already evident among primitive societies, until chiefs and paramount chiefs, kings and kings of kings, established themselves on stools and thrones. Even among the Australian aborigines, cases were observed in the early nineteenth century of gifted individuals—mainly through a combination of prowess in war and ability to manage their people during peace—establishing a temporary personal authority which superseded that of the tribal elders. Most of the Polynesians already had well-developed hierarchies of chieftainly authority when first encountered by Europeans, and others acquired them whilst under European observation al¬ though without European influence, as in Ongtong Java. It is likely that improvements in the technique of gaining a living and in accumulating various forms of wealth contributed to such changes. Possibly most important were wars, which compelled obedience to a leader, and technological and organizational



discoveries relating to war, which gave an advantage to groups over groups, and to groups within groups. Whatever the causes of political organization, its effects have been apparent on every continent, and students of eomparative culture have been able to construct with some confidence a cul¬ tural time-scale of historieally known peoples. There are some remarkable eoincidences, such as the eontemporary and largely independent achievements of the Greeks, Hebrews, and Chinese in the sixth century b.c. But owing to the uneven pace ofchangein most cases, and regressive changes in others, the effect of such comparisons is usually to place under the same cultural entry societies which were far separated in time; for example, Babylo¬ nia of the 2nd millennium b.c. is classified with Republiean Rome, with the China of the Former Han (250-150 b.c.), with England of the twelfth and thirteenth centuries a.d., and with Abyssinia in the early twentieth. There is no difficulty in seeing, in a general way, that law in such societies was an integral part of the society and was influenced by the various structural features of the society as a whole. The most erudite attempt at describing the relations between law and society as an evolutionary process is A. S. Diamond’s The Evolution of Law and Order (1951). After enrolling himself in Book I in the party which doubts the existence of ‘law’ among primitive societies. Dr. Diamond proceeds in Books H and HI to give an account of ‘barbarism’ and ‘early civilization’, in which demographic, economic, political, religious, and legal factors are closely correlated; he uses the notion of ‘cultural simultaneity’ mentioned in the previous paragraph. It is notice¬ able, however, that whereas in dealing with ‘savages’ and early ‘barbarians’, he uses a simple economic criterion for his classi¬ fications (Food-Gatherers, First and Second Agricultural Grade, Hunters, Gattle-Keepers), he then switches to a purely legal criterion—Early, Central, and Late Codes. Probably this was not due merely to the growing prominenee of law in successive societies as a distinetive or separable part of eulture; it was due also to the increasing difficulty of categorizing the rele¬ vant societies by reference to any single dominating non-legal feature—economic or otherwise. Thus the Babylonians were agriculturalists who practised irrigation, pastured animals, had considerable crafts and busy markets, traded with other peoples. 826208




supported a vigorous military monarchy and a religion with a priesthood, and had a complex system of writing. The ‘jural postulates’ of such a society must have been a good deal more numerous than those which E. A. Hoebel was able to construct for the societies in his Law of Primitive Man. In a society like the Babylonian, the possibilities of‘hangover’ institutions, of verbal and conceptual manipulation of rules, and of compromise legal adjustment when social demands of about equal force con¬ flicted, were evidently much more considerable than in the simpler primitive societies. The probability of inappropriate law surviving from earlier systems is also much increased when the artificial memory of written records comes to help the fallible human memory and obstructs the workings of practical commonsense. Of all the historical societies, the one in which social structure and legal structure have the most obvious relation is the feudal. In its Western European form between about A.d. 8oo and 1200 and in its African forms as in nineteenth-century Buganda, though probably not in its Chinese forms of the period 1000-700 b.c., feudalism tended to bring about an extraordinary integration of economic organization, the exercise of political and military power, and the administration of justice. Most of the population were serfs or depressed freemen, living in villages and tilling the soil in manorial units each of which was held by a Lord of the Manor, who had a court in which land was distributed and disputes between his villagers were decided. The Lords of Manors in turn held their manors from superior Lords, who held courts which could determine disputes between the Lords of the Manor, and (assuming, as was usually the case, that there was no further layer of still superior Lords), the superior Lords or Tenants-inChief held from the King (Duke, Prince, &c.) whose court deter¬ mined the disputes of the Tenants-in-Chief. There was no conception of appeals from court to court; indeed, in such a system suit of court becomes a kind of property, owned by the Lord of that court. The serfs paid a portion of their pro¬ duce and rendered labour services to the manorial Lords, who handed on a portion of produce and rendered military services to the Tenants-in-Chief, who handed on a portion of the produce and rendered military services (including ser¬ vice of their tenants) to the King. The inter-personal relations



of the system were formalized by oaths of fealty, especially important in the upper layers; the conditions and period of holdings were determined partly by natural considera¬ tions, such as the level of agricultural technique, partly by the bargaining power of the parties concerned, and partly by custom. In practice, such a system was often the consequence of conquest by a small military caste, which had to occupy the country by holding scattered castles and which either brought from its place of origin or improvised from case to case the laws required to govern relations between King and Tenants-inChief, all usually drawn from the conquerors; at the stages below, more respect might be paid to the customs of the con¬ quered, and in particular the manorial village might retain the substance of its traditional mores, perhaps altered in opera¬ tion by the recital and recording of customs in a manorial court with a more or less learned clerk. There might in conse¬ quence be a considerable difference between the laws applied in the higher and the lower levels of the system; for example, primogeniture was important to Kings and Tenants-in-Chief, because of the anarchic effects of an attempt to partition fiefs between children, whereas among the serfs division of such rights as they possessed between at any rate all male children could have advantages from the point of view of manorial manage¬ ment. Tenants-in-Chief might demand the honour of deciding their disputes by battle, a contained and formalized version of self-help, whereas serfs must not be permitted to knock each other about. One of the oddities of English legal history is the throroughness with which the implications of a feudal system were carried out in the structure of the land law, even though the political and military aspects of feudalism were never fully established and those that were established soon decayed or were abolished. Thus feudalism required that at any time it should be possible to name a person as the responsible tenant of a parcel of land, in relation to the persons above and below him in the feudal hierarchy; the ‘seisin’ of a ‘tenure’ must never be in abey¬ ance, and the implications of this affected the rules developed by the common-law courts from 1200 onwards as to the circum¬ stances in which interests in land could be created contin¬ gently or to operate in future. Many such examples of the



‘artificial reasoning’ of the land law, in which Coke took such pride, came long after they could have any relation to the social requirements of feudalism, but this does not mean that they had no contemporary social significance. The system of feudal dues served many of the functions of a taxation system in a modern state, and the commutation of payments in kind and labour or military services to payments in money which commonly occurs under such systems made the tax aspect of the system even more obvious. It is important to tax-gatherers as well as to feudal lords that they should be able to identify at any time the person responsible for land taxes. In this and other respects the legal requirements of a feudal system may coincide with the legal re¬ quirements of other systems. Indeed, a useful consequence of feudalism, as a stage in the development of social concepts, is a concentration of legal talent on problems of land tenure which tended not to be prominent in earlier periods, unless irrigation was practised. On the other hand, feudalism tended to be regres¬ sive in other respects, because the dignity and the passions of feudal chiefs would not brook containment in a system of fair judgment based on objective laws and rational evidence, or even in systems of regulated battle, so that private wars were endemic among the over-mighty subjects and so were rebellions against the monarch. However, no feudal system ever corresponded to the theoreti¬ cal pattern of sub-infeudation and court-holding downwards, and rendering of goods and services upwards, sketched above. Many Chinese feudal overlords discovered the hard way that the top man in such a system who depends entirely on the fealty and services of his Tenants-in-Chief is not likely to last long: he needs an independent demesne, and is to this extent a direct ex¬ ploiter and ruler and in competition with his Tenants-in-Chief. He is also apt to assert a special interest in certain types of offences against society, whoever commits them, and demand that such charges be brought in his court or at least that he should share the penalty, as in the case of murder of Frenchmen in Norman England. He puts certain places under his special protection, such as the royal highways. The holding of courts tends to be a profitable business; there are fees as well as penal¬ ties, and there are Royal officials as well as their masters want¬ ing to encourage, if necessary by legal fictions, the use of the



Royal courts when a lower feudal court should be employed. Thus in the African cases there was a widespread practice of conditionally cursing the King if the claim in question should prove not well founded, which at once attracted the royal juris¬ diction. There were also survivals from different systems, such as the English courts of the Hundred and Wapentake. All feudal systems have been short-lived and have succumbed to the grow¬ ing strength of top men, who turn themselves and their officials into an institutionalized central government having direct con¬ tact with and control over the whole population. The King replaces incompetent feudal levies with a mobile professional army, commutes feudal dues whose liquidity is low for money payments and often sells a better brand of justice. In Europe, some bishops happily settled down as feudal lords, military ser¬ vice and all, but the Catholic Church on the whole encouraged centralized royal power or offered a centralized theocracy as alternative. The good theoretical fit of feudal law and jurisdic¬ tion with the social organization was no guarantee of long life for the system but rather illustrates the theme of those who con¬ sider law the least important factor for social stability. On the other hand, dynastic China from about 200 b.c. until the twentieth century a.d. provides a remarkable example of an archaic society having very high stability, although its legal system was in many respects unsatisfactory and not particularly well suited to the conditions of its social system. Through these centuries, the economy and the system of government in China changed little. The economic base was agriculture, with a good deal of irrigation, but there were also many towns and cities, crafts, trade which was widespread or restricted in proportion to the efficiency with which the central government maintained public order, and a great proliferation of learning and art. But both government and law fell into two sharply separated systems. On the one hand was the Imperial government, with a civil service extending throughout the country, concerned mainly with the protection and enforcement of Imperial claims, includ¬ ing taxation, and the propagation of the ethical teachings for which, pursuant to the Confucian system, the Emperor took responsibility to his and hence the country’s ancestors. This included a good deal of legal administration, to which we will return. On the other hand, there was local government in



villages and towns, in which the Imperial officials intermeddled as little as possible; in some areas it was highly autocratic, the affair of a few gentry or heads of merchant guilds, in others more open to the participation of heads of households or the guild members, but throughout this level there is the stamp of primi¬ tive government and primitive law. Here are clan systems, with exogamy; very varying customs concerning land tenure, share¬ farming, agricultural employment, and inheritance; equally varying customs concerning craft standards, craft employment, merchant agreements, and weights and measures. At this level could be found local ‘judicial’ arrangements illustrating the whole range of primitive and archaic practice, from lynch-law for witches to relatively formalized hearings before clan-elders, village councils (often but not always the same as clan-elders), and the officers of merchant and craft guilds. We know a good deal about the system of Imperial law, because it was embodied in successive codes and amendments of codes, carefully recorded, and in thousands of reported cases and published collections of cases decided by the Imperial tribunals. But we know less of the economic and personal law administered by the villages, clans, and guilds because it was not always so recorded. Some clans and guilds had written rules, but these have a suspiciously official sound, merely repeating for the most part the prohibitions of the Imperial codes. A family with august official connexions might be expected to acquire such products of the intelligentsia. Other¬ wise local custom has to be gathered from descriptions of life in particular areas by observers not usually mainly interested in law, and from more careful observations—also usually very local in character—by anthropologists and lawyers in recent times. It is likely that the local systems, like all non-recorded customary systems, changed a good deal from age to age in de¬ tail, for example by the substitution of patrilineal for matrilineal descent and by the modification of rules concerning intestate and testamentary succession. The Imperial system, however, changed little. The Imperial system of judicial tribunals, unlike most archaic systems, provided appeals through a hierarchy of authorities finishing with the Emperor himself; in the later Empire, death sentences had to be referred to Peking, and some classes of the population had the privilege of trial before the Emperor or the



highest Imperial officials. But the vast majority of cases were tried and determined by magistrates distributed through the Empire, who discharged in their locality most of the functions of government for which the Emperor made himself responsible. Perhaps the District Officer of British colonial government in India and Africa is the nearest parallel. This combination of governmental functions in the one man is characteristic of archaic systems; similarly the African chief, and the feudal Lord, were also judges, though in such cases often influenced by elders or senior suitors who sat with them—a feature absent from the yamen of the Chinese magistrate. The appeals similarly were to the higher administrative officials of larger administrative units —counties, provinces, eventually Peking. These courts admini¬ stered the Imperial Penal Code as amended or extended from time to time. As the name indicates, the Code was mainly concerned with what we would call criminal law. The main emphasis was on the prohibition under penalty of conduct which we would classify as treason, offences against government and the adminis¬ tration of justice, homicides, other offences against the person, sexual offences, offences against property, frauds and forgery. Other portions of the Code assumed the existence of the clan, village, family, and guild structures with their traditional rules and created offences and punishments which in various ways tended to maintain their tradition; for example, punishments for incest which enforced traditional exogamy, punishment for marrying without the consent of appropriate clan leaders, who were defined for the purpose of the offence, and punish¬ ments for children who injured, insulted, or defied their parents. T’ung-Tsu Ch’t) in his Law and Society in Traditional China (1961) mentions among other such provisions the case of divorce; the Code does not set out any grounds of divorce, but makes it an offence for a husband to divorce his wife—a step not requiring judicial action—save for good cause, and in this case a note to the official text of the Code sets out the seven grounds of divorce which had come to be customarily accepted—in this case a universal custom because approved in Confucian moral commentaries. The Code also contained much sumptuary legis¬ lation, designed to keep the social classes properly separated by their manner of housing, dressing, eating, and worshipping.



Other statutes, especially those concerned with the duties and powers of officials, also involved the imposition of penalties. But throughout this Imperial law, the emphasis is always on the creation of offences and the imposition of punishments. This emphasis is reflected in the case collections. Thus in R. H. Van Gulik’s T’Ang-Tin-Pi-Shih (1956), which translates and anno¬ tates a thirteenth-century collection of 144 cases, only ten con¬ cern what we would call mainly civil-law questions, and in most of these there was an element of fraud or the possibility of theft. One which we would consider civil (No. 38A) concerned the problem, still disputed in English law, of title to money dug up in a garden by a tenant; but the case came from Peking, where Imperial jurisdiction might be expected to range widely, and the main emphasis was on the fraudulent character of a claim, demonstrated by the dates on the coins. Hence facultative law, i.e. law concerned only with defining the conditions for legal validity of transactions, was left to local customary law, which covered the main fields of what we would now call civil or private law and even a good deal of the sort of peace-preservation which is today dealt with in Englishspeaking countries by courts of summary jurisdiction. This, inci¬ dentally, left gaps in the system as a whole, since customary local law applied within clans, families, villages, guilds, and towns; there was neither settled law nor court to deal at the same level and in the same way with disputes between men of different clans, villages, or towns. If such disputes led to violence, the Imperial district magistrate could intervene, but he would be unlikely to do so in the spirit of a civil court adjusting claims; he would do so as one concerned with the administration of the criminal law. The procedure of the Imperial Courts ensured that this em¬ phasis on punishment should be preserved and that the possi¬ bilities for development of a civil jurisdiction, which any English King’s Bench Judge of the thirteenth century would have per¬ ceived in Imperial law, were not developed. It was an inquisi¬ torial procedure involving the systematic use of torture. An accused person, a private accuser, and the witnesses, were all subject to cruel beatings; the accused in particular was likely to be beaten until he confessed—all in open court. The case collections report monotonously that the accused became unable



to bear the pain longer and ‘wrongly confessed’, and the point of the report often is that the magistrate disbelieved the con¬ fession and by some brilliant stroke of detection or crossexamination of other witnesses discovered the actual culprit. Even after making allowance for a convention of reporting and for literary exaggeration, one can understand why to be involved in a legal action in an Imperial Court was widely re¬ garded as the deepest misfortune which could befall a man, a misfortune to be avoided at all costs and even an occasion for suicide. Punishments were correspondingly harsh, though miti¬ gated in practice by frequent Imperial amnesties for reasons of religion, superstition, or royal celebration. In the case of private prosecution, an unsuccessful prosecutor incurred the penalty which accused would have borne. This system of making Imperial justice hateful rather than beneficial was deliberate. It was thus explained by an Emperor quoted by Sybille van der Sprenkel in her Legal Institutions in Manchu China Law suits would tend to increase to a frightful amount, if people were not afraid of the tribunals, and if they felt confident of always finding in them ready and perfect justice. As man is apt to delude himself concerning his own interests, contests would then be inter¬ minable, and the half of the Empire would not suffice to settle the lawsuits of the other half. I desire therefore that those who have recourse to the tribunals should be treated without any pity, and in such a manner that they shall be disgusted with law, and tremble to appear before a magistrate. The passage reminds one of the frequent, usually groundless, worries of English judges lest permitting a new remedy would open wide the floodgates of litigation. But in the Chinese case we are told that this policy also found support in fundamental teachings of the Confucian ethic and philosophy. According to these teachings, the Empire should represent a perfect har¬ mony between man and nature and between man and man, and the existence of the disharmonies indicated by litigation, whether civil or criminal, were accordingly a reproach to the magistrate responsible for the district where they occurred and ultimately to the Emperor himself. There was a famous dispute in the fourth century b.c. between the Confucians and the ' {1962), p. 77.



School of Law. The Confucians argued that morality and educa¬ tion should be sufficient to keep society stable; the School of Law emphasized the virtues of an objective, clear system of sanctioned laws administered by the central government. Con¬ fucianism became the official philosophy, but its teachers as advisers to the Government had to accept the necessity for a good deal of law until morality and education should triumph. Unfortunately they adopted the worst feature of Legist teaching —the emphasis on harsh punishment; they did not follow up the Legist suggestion that law should also offer rewards. That the system endured so long may be a tribute to the local customary law and to the methods of conciliation and arbitration which the clan, village, and guild organizations encouraged. The Emperors, however, might have strengthened their position if they had been prepared to promote harmony by active measures such as the development of civil courts administering a better system of commercial and property law and doing so with more consistent fairness and impartiality than was likely to be found in the customary systems. Instead, this was another case sup¬ porting in a different way the views of those who denigrate the importance of law in general and of‘State law’ in particular as a social force. The specialists in Babylonian law of the period when HammuRabi’s ‘code’ was engraved on diorite {c. 2000 b.c.) tend to rhapsodize about the legal genius of this people with the touch of sentimentality evident in the Hoebel-Llewellyn treatment of the Plains Red Indians. It is accordingly disconcerting to read in the commentary by Sir John Miles to Driver and Miles, The Babylonian Laws (1952) that section after section of the legis¬ lation is difficult or impossible to understand. The difficulties are partly linguistic, but even more are due to ignorance of the main body of Babylonian law; like all the other ancient ‘codes’, that of Hammu-Rabi is not an exhaustive statement of the law or any part of it, but a collection of interstitial bits and pieces of legislation designed to supplement a system of customary (per¬ haps in this case partly judge-made) law. The law-giver may in some cases have repeated for emphasis a customary rule, or varied its accustomed penalty, but in many cases the purpose was to change the substantive law. Such ‘codes’ are compar¬ able with the statutes concerning criminal law to be found in



England and in those parts of the British Commonwealth where a mixture of common law and statute applies—especially where the statutes have been consolidated, as in many Australian States. Thus the Crimes Act, 1958, of the State of Victoria has some thirty sections bearing on homicide, but none of these sections in terms makes murder an offence nor defines murder nor manslaughter. Nevertheless, thanks to the extraordinary labours of Driver and Miles and of their (mainly German) predecessors, we know sufficient of the Babylonian laws to see what an advance they represent on anything ‘earlier’, in time or in culture. They have three particularly admirable features. Firstly, a single national system of law administered in all courts covers the whole field of social relations—crime, torts, property, contract, family law, testamentary and intestate succession, the regulation of profes¬ sional and craft conduct. Secondly, the range of remedies in¬ cludes a good deal of criminal punishment, but it also provides a great deal of compensation; some of the compensation is on a basis of actual loss and some includes greater or lesser amounts additional to loss, paid to the injured person, which also serves as punishment—-‘penalties’ in the technical sense of English contract law, but without the prejudice of English Equity. Thirdly, the Babylonians were far ahead of their time and much subsequent time in possessing specialized judicial tribunals, usually a bench of three judges. Religious oaths and ordeals were employed for evidentiary purposes, but in a residual fashion, mainly in cases where other evidence was not available or where an ordeal might provide the last chance of escaping a death penalty. There is no sign of torture as a method of proof. Characteristic of the apparent rationality of the Babylonians was their rule on ordeal by water; he who floated was innocent, he who sank was guilty. Most other early systems embodied the cruel dilemma that he whom the pure water ‘rejected’—i.e. who floated—was guilty, while he who sank was innocent (but drowned unless promptly pulled out). All we know of the sub¬ stantive law of agriculture, crafts, and merchant dealings sug¬ gests a reasonable adjustment to the requirements of a property and slave-owning and trading society, but not without regard for underdogs. For example, when a tenant-farmer prepays rent and flood destroys the crop, he cannot recover the rent but can



require tenancy for another year; on the other hand, if it is a share-farming agreement, landlord and tenant share whatever crop is reaped, and if money or seed is borrowed to plant a crop which fails from flood or drought, there is a moratorium for that year.' But in order to assess with confldence the social virtues of this system, we would need to know a good deal about both the content of the substantive law and the way in which it was administered. The law on stelae and clay tablets can as readily as the law in books be inoperative. Even as it stands, the Code contains barbarisms, such as the rules of talion—eye for an eye, tooth for a tooth, a daughter killed if her father causes the death of a free woman.^ The early law of Rome, the Hebrew law of the Pentateuch, the early English common law, and the Hindu codes embedded in the teachings of Manu all belong on Diamond’s criteria to the same stage in the evolution of societies and of law as the Babylonian system of 2000 b.c., as do most of the pre-literate African systems in which kingship or aristocracy were strong, such as the Ashanti of the West and the Barotse of the East. In all of these cases, the volume and complexity of the legal rules and the degree of speciahzed administration brought about an approach to ‘legal reasoning’—that is, to the conceptualization of legal relations and to arguments of an analogical or deductive character. Judging from the examples of analogical reasoning in the Chinese case-books, and from the examples of Barotse judgments reported by M. Gluckman, the dominant tendency was to look at the social relations and stretch the rule to fit them, rather than the tendency of some modern periods to develop concepts and let social relations fit if they can. Nevertheless, the concepts and the technique begin to look recognizable to modern lawyers and it is almost instinctive to apply familiar English technical words—crime, torts, contract, testamentary succession, penalties, tenant-farmers, share-farming, moratorium, &c.—as can be seen from the preceding paragraph. It was in relation to this stage of legal development that M. Gluckman was more particularly writing when in his important papers ‘African Jurisprudence’3 and ‘The Technical Vocabulary of Barotse ' Driver and Miles, The Babylonian Laws, Text pp. 28-29, Commentary pp. 142-4. 2 Ibid., Text p. 77. 3 Advancement of Science, No. 74 (Nov. 1961), p. 439.



Jurisprudence’^ he argued for an extensive use of the terms of modern English law and jurisprudence, though he was prob¬ ably including primitive law in the scope of his advocacy. He wished to refute the quoted contrary view of P. Bohannan that ‘it is, in the long run, the folk classifications that are important for social anthropology, not the “presence” of torts or contracts which are both folk and analytical concepts in another society.’ In the previous chapter, this writer took a position agreeing with Bohannan as far as primitive law is concerned. As to archaic law, the position is more complex. Many of the organiz¬ ing concepts of modern law go back, in a history of ideas which can be traced, to early English law and to Anglo-Saxon or Frankish law in one line, to early Roman law in another, to Hebrew law in another. When a modern term is convenient and not seriously inappropriate, it would be pedantic to avoid using it for an archaic situation and as Gluckman says the task of cultural comparison and of seeking explantions for surprising differences would be hindered. Nevertheless, even in rela¬ tion to archaic institutions, care is needed. Gluckman in his Barotse paper cited above describes the many situations in which these people use the expression mun£a, and defends his own translation of this as meaning ‘ownership’. But it is plain from what he says that mung'a is used to cover many personal relations which we would not regard as involving ‘ownership’. It is also used to connote status situations, such as blood relationship to a chief, which are the defining conditions for the existence of a claim to enjoyment of property, a historical social factor which has almost disappeared from the connotation of ‘ownership’ in modern law and legal theory. Perhaps mung’a should be translated as simply ‘legal right’. When an archaic word is used to cover relations conceived in a way unfamiliar to modern society, it may be best to describe the usage so far as possible in behavioural terms carrying a minimum of technical legal significance, and thereafter to use the archaic word. The Hebrew ‘levirate’ has been domiciled in the language of social anthropology to describe inheritance of widows by brothers of a deceased, without tying the expression down to the particular rules of the Hebrew system; it may be possible to generalize other such expressions when a family of similar relationships is ' American Anthropologist, \o\. &i (i959)) P-473*



intended. The objection to using modern expressions with a settled application applies even when, as is often the case, the modern word can be shown to descend etymologically from an archaic expression having something much more like the application desired; to use the modern expression in that case involves the double danger of misleading the reader who does not know the etymology, and of implying a non-existent or unprovable social or conceptual continuity between the society or rule being described and a present society or rule. Sir Henry Maine, the pioneer of English historical jurispru¬ dence, attempted to establish a type of archaic law. He himself modified some of his views through the successive stages of Ancient Law (i st ed. 1861), and Early Law and Custom (1883), and his famous generalization about the progress of societies from status to contract will be further considered at the end of this chapter. Both subsequent discoveries and reinterpretation have compelled reconsideration of most of his ideas. For example, he held that early codes were bound to be a mixture of law, morality, and religion, but Hammu-Rabi’s legislation was purely legal and secular. He said that fictions, equity, and legislation in that order were the main instruments of legal change, and that in archaic societies only the first two were prominent. But we now know that legislation was also exten¬ sively used in early societies, and that the adventurous use of fictions, or the use of obvious fictions, such as the jurisdictional fictions of the English common-law courts, is characteristic of relatively modern rather than ancient systems. Maine also assumed that archaic systems gave primacy to procedural con¬ siderations and had highly formal, rigid procedural rules. There is no doubt that such systems encountered serious procedural problems, particularly in getting parties before a court and in executing judicial decisions. We are not well informed on how the Babylonians handled these problems; as to execution, how¬ ever, it is likely that a plaintiff awarded damages or penalty was expected to be his own sheriff, and possible that he or the kin of a slain man were required to carry out capital and corporal punishments, though perhaps military officers assisted courts in the latter case or the accused was delivered into military custody. In China, the Imperial Courts were all too well equipped with constables who arrested accused persons, laid on



the bastinado, and carried out death penalties, and these were the only forms of judgment with which these courts were seriously concerned. Roman law contained clear traces of an¬ other wide-spread archaic procedure for executing judgments, namely the deposit of pledges for carrying out a judgment when given, and it is possible that this type of security-giving was the ancestor of more generalized concepts of pledge and guarantee. One of the few common factors in early systems, so far as known, is the absence of any provision for what we would now call notice in lieu of service of process, and judgment in default of appearance. Plaintiffs for the most part had to rely on self-help in getting defendants before a court, and in feudal times the task could easily be beyond them. Maine tried to support his thesis about the predominance of adjective law in early times by listing the number of early codes which begin with procedural provisions. To begin in this way might be considered merely a sign of common sense, but in any event the important point is not order but quantity. Early codes contain to our notions inadequate procedural provisions; a close attention to such questions is typical of modern, not of ancient, law, and a worship of procedure at the expense of substance is a recurring disease of modern systems such as English law in the fifteenth, seventeenth, and early nineteenth centuries. Indeed, the survival of a lunatic formalism into the twentieth century is illustrated by Re Pritchard [1963] i All E.R. 873. As to formalism, it must be remembered that one man’s formalism is another’s orderliness. Archaic law abounds with examples of transactions and steps in legal procedure requiring the use of set words. Sometimes, though not always, religious ceremonialism influenced the law on such matters. But in any event in ages when most men were illiterate, there was social virtue in some degree of ceremony since it brought parties to an issue, made them face up to a definite commitment and was memorable. It was open to criticism if employed by those with knowledge of the forms to defeat the ignorant, or if insisted on when the need for such kinds of order had passed. But on this point also, we see no traces of excessive formalism in the pro¬ cedure of Barotseland or of Babylonia. In China, the Imperial Courts employed one unsatisfactory formalism; parties and



witnesses had to kneel abjectly before the raised bench of the magistrate, and this seriously incommoded him in carrying out the duty of watching the demeanour of witnesses which was enjoined even in Han days.' But although there were accustomed judicial procedures, there were no magic words or ceremonies whose omission or wrong performance would invalidate a trans¬ action or a judgment. All attention was concentrated on the facts and the substantive law. So an attempt at finding a standard type of archaic law is likely to fail, and with it an attempt to find even usual, let alone invariable, correlations between society and law in those periods. Such correlations as can be established are very general in character. Thus the substitution of compensation for revenge is related to the growth of social wealth, and first becomes wide¬ spread in communities where cattle-owning is common because payment in cattle is easy for the offender and tempting to the injured. Social stratification causes compensation to be calcu¬ lated on scales which reflect the social distinctions. The growth of strong government by high chiefs and kings gives these leaders and their officials a special interest in preserving peace and pre¬ venting homicides and personal injuries, apart from the in¬ terests of individual subjects, and so the more serious homicides and assaults cease to be compensable on private suit and are proseeuted as crimes, usually with the death penalty. Then the range of breaches of the peace in which the King displays a speeial interest expands, often for no better reason than the pro¬ fits of jurisdiction. These and many other steps in legal evolu¬ tion, affecting every branch of substantive law and of court organization, have been traced in individual societies and in classes of societies. Dr. Diamond’s modest conclusion^ is as fol¬ lows: Tt is generally true to say that in any department of law, the peoples of a given stage of material culture may produce rules of any one of a limited number of species-—others they do not produce.’ It is important to notice that the course of legal evolution cannot be considered merely as a matter of throwing away feathers for chain-mail, and chain-mail for silk and horse-hair. Through all these stages, there was a growing body of stored, ’ A. F. P. Hulsew6, Remnants of Han Law (1955), p. 342. * The Evolution of Law and Order, pp. 306-7.



enduring knowledge and experience, and an increasing capacity for managing legal administration and for stating substantive legal rules so as to cover a wide or a changing set of social circumstances. The economic and other social changes in Britain and Western Europe from the seventeenth to the nine¬ teenth century were no less momentous than the changes which occurred in Rome between the fourth and second centuries b.c., but the rate of formal legal change in the modern period was slower, because the Anglo-European law of the seventeenth century was much more adaptable than the archaic law of a peasant community with which the Romans began. This question of the social adaptability of law is considered further in Chapter X. Sir Henry Maine’s most famous generalization was: ‘the movement of the progressive societies has hitherto been a movement from Status to Contract' By ‘progressive societies’ he meant \\’estern European and Anglo-Saxon societies in which social and particularly economic change had been frequent; the non-progressive societies he had specially in mind were those of Asia and Africa in which social and particularly economic structure had remained relatively stable. Since the later nine¬ teenth century it has been fashionable to criticize Maine’s dictum on the ground that the progressive societies were show¬ ing a trend back towards ‘status’. What these critics had in mind was the tendency to regulate by legislation the incidents of many types of social relation, so as to abridge the ability of the persons concerned in those relations to establish or vary their obligations by agreement. For example, employers were com¬ pelled to accept obligations for the safety and health of their employees, landlords were subjected to rent control or restric¬ tion and their ability to eject tenants was limited, town-planning schemes reduced the contractual freedom of owners and builders, and entry to and conduct in increasing numbers of trades and professions was made subject to qualification, registration, and disciplinary control. The trouble with this argument is that Maine and his critics were not talking about quite the same things. Maine’s generali¬ zation is the conclusion to his account of the family structure in archaic societies, in which he relied almost exclusively on early ' Ancient Law, conclusion to chap. 5; italics in original. 825208




Roman law. He pointed out that under that system, full legal capacity was possessed only by the head of the family; not only did wives lack capacity (which remained the case in most systems until the late nineteenth century), but so did sons and daughters irrespective of their age and actual social responsibili¬ ties, and of course slaves and serfs were likewise legally incap¬ able. Maine’s point was that in the ‘progressive’ societies the long-term trend was for the family to disappear as an indepen¬ dent unit of legal calculation, and for the pater familias to lose his monopoly of legal power in relation to adult children (and eventually, in relation to the wife as well), and for slavery and serfdom to disappear. General legal incapacity remains only by reason of physical circumstances, notably in the case of infants and lunatics. It was the wide extension of full legal capacity to sane adults which Maine emphasized, and in this he was quite correct. But in the manner of the English Victorians, he was particularly interested in contractual capacity. He could be taken to imply that in consequence of a regime of equal capacity, most social relations would now be established by contracts between individuals, though this was not the aspect of the matter to which he paid most attention; if he had, he might have made more of the social stratification, immobility, inheritance of social position, and attribution of specific law-clusters to specific classes found in some archaic societies. The Hindu castes and the Chinese sumptuary laws are examples. It is certainly the case that a general assumption of formal legal equality has tended to replace an earlier assumption that laws may reflect class structure, a process whose working out is poignantly illus¬ trated by the history of the American negro since the war between the States. However, too much can be made of legal stratification in archaic and early modern systems. Different courts, administer¬ ing diverse laws, attended to the disputes of the manor, the town market, the great landholders, and the clergy in most parts of Western Europe and in Britain in the thirteenth century, but the differences were not due mainly to any rigid principles of personal legal status; they were the consequence of different administrative arrangements to deal with different social situa¬ tions. The fact that a man found it hard to move from one milieu to another was due more to illiteracy, poor transport, the



Struggle to keep alive, and other such social factors than to any formal legal obstacles. Social attitudes supported social strati¬ fication, but there was a constant movement of individuals from class to class. Even in China, there was the imperial administra¬ tive career open to the talents. It was not so much a question of special legal capacities or incapacities which reflected social class, as of special privileges, such as the right to be tried in a special court, immunity from certain punishments, tax im¬ munities, licences to pursue trades otherwise forbidden, and monopoly of the ability to carry on certain professions and trades. In so far as Maine might have implied that social relations come to be governed increasingly by contract, he was again not wrong. The area open for negotiation and agreement is much larger in contemporary industrial society partly because of the equal legal capacity of all sane adults (with some restrictions if they are bankrupt or in gaol), partly because social mobility is great, and partly because the opportunities for buying, selling, hiring, borrowing, lending, pledging, entering associations, and associated legal transactions depending in some degree on choice have become so much more numerous with increase and spread of wealth and education. But it never has been the case, nor did Maine assert, that the detailed incidents of all or most social relations could be established by individual contracts; such a notion was at most the ideal vision of the nineteenthcentury political and economic theorists who favoured laissezfaire. In actual life, many of the relations which in legal theory could at a particular time have been governed by negotiated agreements have always been governed by custom, usage, con¬ tracts of adhesion, standard clauses, general conceptions of a reasonable price or other contractual term, and terms assumed to apply unless parties otherwise agreed. In addition, laws con¬ cerned with particular occupations and professions, especially with government service, and the general law of torts and delicts, have always created many areas of right and duty which could not be varied by agreement or could be varied only within limits. The tendency to multiply specification of right and duty by overriding legislation, which has steadily increased in the twen¬ tieth century, does not restore anything remotely like the



personal status to which Maine referred, nor anything like the social and to some extent legal stratification, transmitted from ancestor to descendant, of some archaic systems. It is a different system again. Under it, sane adults are legally free to move from occupation to occupation, and to enter into a very wide variety of legal relationships, and actual social and ‘transactional’ mobility is great, but important features of each set of relations which the subject enters are beyond his control. Thus a con¬ temporary North American may have a dozen jobs in the decade during which he becomes established as a practising attorney, varying from taxi-driving to being the law clerk of a Supreme Court Justice, and during the process he will hire rooms, flats, and finally buy a house on mortgage, buy automo¬ biles and furniture on instalment terms, invest savings in shares, have a bank account, insure his life and property, join a group medical service scheme, serve as a soldier, and join and leave a trade union and a political party. He may soon abandon the law and become personnel manager of a large corporation, or take a job with the N.L.R.B. At each successive step he will have a considerable choice as to the set of relations he will next enter, and as to some matters he will have a considerable ability to bargain about details—the price and terms of the automobile transaction, the salary paid by the corporation. But to a con¬ siderable extent the incidents of his next step or transaction are fixed by overriding statutes, or by the terms of collective bar¬ gaining agreements between trade unions and employers, or by standard conditions and practices. The North American example is important because the actual room for freedom of negotiation in that system is great and is to some extent pro¬ tected by laws which prevent price-fixing agreements and other such standardizing arrangements. Even university professors bargain about their terms of employment. In a country like Australia, with a long collectivist tradition, the area for private agreement is relatively less; for example, the Australian com¬ pulsory arbitration system specifies what in legal theory are minimum wages and maximum hours in most industrial occupa¬ tions, but these tend to be the actual wages and hours, and many of the other conditions of employment specified in awards are not even theoretically subject to individual agreement. Absence of effective controls over restrictive trade practices also



means that prices and other terms of sale or hire of goods are highly standardized. But nevertheless, even in this situation the room for individual bargaining over many details of daily life is considerable. The formal position in most modern nonCommunist countries is that freedom to contract is the residual rule, and freedom to move from relation to relation is wide. The extent to which the incidents of particular relations are fixed in advance is everywhere considerable but varying, and the manner in which this specification is achieved also varies. Legal science provides no short expression to denote this system. In sociological terms, it is personal mobility with relational stability.

V COURTS Law is not clearly distinguishable from other aspects of social

order until courts of law come into existence. The occurrence of this event has been mentioned previously in this book as if ‘court’ referred to an obviously recognizable institution or neces¬ sary concept. Actually it is likely that courts too evolved gradu¬ ally (where not imitated or imposed), usually by gradual specialization of a leadership role, and they have existed in very diverse forms. But in historical times we can recognize without great difficulty institutions and associated concepts denoted and connoted by the expression ‘courts of law’, and we can report what most people have always considered the primary social function of such courts. It is to hear and determine a dispute by ascertaining the facts and the applicable law and giving the judgment required by applying the law to the facts. Every fea¬ ture of this description involves logical and historical problems, which have been explored with the greatest wealth of juristic learning by the High Court of Australia, and by the Judicial Committee of the Privy Council on appeal from it, because of the central position which the definition of judicial function has come to occupy in Australian federal constitutional law.^ There is, however, a fundamental objection to the description arising from the theories of some American jurists, expressed for example in Jerome Frank’s Law and the Modern Mind (1930) and Courts on Trial (1949). It is that because of the obscurity, vagueness, and mutual contradictions of all or most laws, and the logical diffi¬ culties in matching up facts with law, and the difficulty or even impossibility of ascertaining ‘true’ facts or the appropriate characterization of facts in cases of dispute, the traditional des¬ cription of judicial function embodies a myth. On this view, the actual function of courts is merely to resolve a dispute as a result of an intuition or hunch come to by the tribunal in the course of the hearing as to the solution which will work * See Essays on the Australian Constitution, ed. R. Else-Mitchell, 2nd ed., ch. iii.



best in the circumstances. The doubts of such thinkers arising from the nature of legal rules and principles are conveniently summarized as ‘rule scepticism’, and those concerning ascer¬ tainment of facts as ‘fact scepticism’. Probably none of the American ‘realists’ has been both a thoroughgoing rule-sceptic and a thoroughgoing fact-sceptic. In the sixth impression of Law and the Modern Mind, Frank qualified his earlier views, and in Courts on Trial his main emphasis was on fact scepticism. How¬ ever, the grounds for both kinds of scepticism are substantial and there is reason to believe that most civil cases which reach a court do so precisely because the uncertainties which justify rule scepticism or those which justify fact scepticism or both are pre¬ sent; this is less often so in criminal cases, because even where the accused pleads not guilty he may do so only on a sporting theory of justice—giving the prosecution a run for its money and hoping that a doubt may turn up—and both the law and the facts of the case may be reasonably clear. But even if we concede the utmost validity to both rule scepticism and fact scepticism, we need to modify the account of judicial function mentioned above only by saying that courts are the institutions which all or most people have hitherto regarded as performing the function of dispute settlement by applying legal rules. Courts of Law are distinguished from conciliatingbodies, such as marriage guidance councils, or from arbitrating bodies of the type of Australian and New Zealand industrial arbitration tribunals, because the Courts of Law are generally considered to be committed to rulecontrolled decision after fact-finding; conciliating and arbitrating dispute-settlers of the kind mentioned are either not even in myth supposed to be worried about the application of law to facts or are even expressly authorized to make new law to apply to the parties only for the future. Frank’s later position was that if only the facts can be disen¬ tangled, there is often a more probable view of the legal rule considered appropriate, and this would leave a non-mythical function for courts in terms of the traditional description, since in a respectable proportion of cases the disputants agree about the facts. He made this concession after experience as a judge in an appellate tribunal. Perhaps experience of trial work would have caused him to modify his fact scepticism as well. In this writer’s experience as a trial magistrate, it is possible for witnesses



to be discredited as to their powers of observation, memory, or truth-telling in such a way as to leave one story more probable than another; this is not—at least in Petty Sessions —because of brilliant cross-examination by Counsel of over¬ powering personality, but because documents, or real evidence, or internal inconsistencies in evidence which a witness was too stupid to appreciate, or the weight of evidence given by persons without a direct interest in the matter, indicate a more probable view. Nevertheless, it is a frequent experience for the evidence to be such that the court cannot decide on a probable view of the facts, and the matter has then to be decided by the rules as to onus of proof. These, however, often operate with a good deal of predictability. Hence it does happen that courts decide cases in a manner roughly corresponding with the traditional des¬ cription of their function, though the result may not always have the relation to actual fact which the more naive versions of traditional theory requires. A discriminating appreciation of the social function performed by courts requires a thorough examination of the particular kind of court, of its mode of operation, and of the social system in which it works. The institution called a court consists not only of a judge or judges, but also of court officials, rules of procedure, the parties who appear before it and their representatives and witnesses. Questions concerning judges are discussed in more detail in the next chapter, and concerning lawyers in Chapter VII. In this chapter, however, there must be some anticipation of those discussions. Court procedures are often classified as either inquisitorial or adversary. In the ideal type of inquisitory tribunal, the judge supervises and even himself carries out much of the process of calling evidence, and examining and cross-examining witnesses; he takes the initiative in establishing what happened. A basic theory of this type is characteristic of most systems which have been influenced by Roman and Canon law. In the adversary system, the main responsibility for calling, adducing, and testing evidence is with the parties; the judge has no independent power of calling evidence, interferes little with the conduct of the parties or their representatives when handling evidence except by way of excluding inadmissible material, and regards his task as judging on the basis of what he is told, not on a basis of the



‘actual’ facts. This approach is characteristic of most systems derived from English common law. In the British Common¬ wealth, Royal Commissions armed with statutory powers of compelling evidence usually operate in the ‘inquisitory’ manner. And in practice, the distinction between inquisitorial and ad¬ versary systems is not so sharp as indicated above. Western European tribunals, especially in civil cases, and especially in the higher jurisdictions, usually leave a good deal of the case in the hands of the parties. One could watch the West German Supreme Constitutional Court, the Bundesverfassungsgericht, for a long time before realizing that its procedure was anything but adversary, whereas as suggested later the practice of the U.S. Supreme Court has inquisitory features. On the other hand, English criminal practice places restraints on the conduct of the prosecution, restraints which apply in theory in the U.S.A. but in practice are sometimes disregarded by elected prosecutors who have to run for office on their record of convictions. Never¬ theless, the distinction between adversary and inquisitorial pro¬ cedure does correspond to important differences in practice and in court-room behaviour. In particular, English-style judges intervene in the examination of witnesses infrequently and apologetically, often only after consulting Counsel in the absence of the witness, and if insufficiently inhibited may find their deci¬ sions upset on appeal. * The Greeks and Romans of classical times laid the foundations for the legal philosophy and the legal science of Western Europe, and the interactions between their cultures were numerous, but their legal systems provide bold contrasts in judicial organi¬ zation. In the golden days of Athens, the fifth and fourth cen¬ turies B.C., the judicial structure was complicated and varied with the varying political fortunes of democrats and oligarchs, but a predominant feature was the use of courts consisting of 501 citizens in criminal cases, and 201 in civil cases—the ‘dicasteries’. These bodies of jurors, as we are tempted to call them, decided all questions of facts and law. Magistrates acted as chairmen of dicasteries, and performed important functions in the prelimi¬ nary sorting out of cases and issues, but they played very little part in the presentation of the cases to the dicasts and none in their decision. The nearest approach to a legal profession were ' Jones V. National Coal Board, [1957] 2 Q,-B. 55.



the orators who for fee provided parties with suitable speeches, to be memorized and delivered by the parties themselves, or, if a party was incapable of speaking, by a friend. The bringing and defending of actions in these courts was an integral part of the turbulent political history of Attica; suits and prosecutions were often brought as a means of removing a political opponent or obstructing his activities. There was even a class of vexatious litigants called ‘sycophants’, a word whose meaning in current English is quite different; their main purpose was to sue as a means of financial or political blackmail, on their own account or as paid agents of undisclosed principals. Bonner and Smith in their Administration of Justice from Homer to Aristotle (1930) give reasons for believing that the dicasts did often make an honest attempt at ascertaining the facts and applying the law. Probably it was the intention and hope of Solon and Cleisthenes (sixth century b.c.), whose reforms introduced the system, that it would ensure decision by citizens of a small community having some initial knowledge of the facts, in accordance with a widely shared understanding of applicable laws. Moreover, many civil cases were dealt with under a publicly organized system of arbi¬ trators, who were empowered to attempt compromise adjust¬ ment by agreement, but in default of agreement were expected to act judicially. Nevertheless, the political and factional use and abuse of the dicasteries was very prominent, and their existence and method of operation militated against any such formal development of legal concepts as the Romans achieved. Rome of the Republic and early Principate also employed trial by mass meeting for some criminal cases, and even when smaller criminal tribunals were established their mode of opera¬ tion remained in many respects ‘politicalized’. But the legal genius of the Romans was shown chiefly in the field of civil law, and throughout this period the chief method of civil trial was as follows.^ The plaintiff and defendant first appeared before a competent magistrate (in most cases the Praetor Urbanus or the Praetor Peregrinus), gave him an outline of the dispute, and with his aid worked out a ‘formula’, that is a statement of what we would call the issues to be determined and the decision which should follow, in accordance with an applicable rule of law, * Based mainly on Jolowicz, Historical Introduction to the Study of Roman Law (1952), and L. Wenger, Institutes of the Roman Law of Civil Procedure, trans. Fisk (1955).



depending on whether the facts were found in accordance with the contentions of the plaintiff or of the defendant respectively. The parties agreed (and could be compelled to agree) to submit this definition of the issue and its consequences to decision by a single lay judex, usually chosen from a panel of respectable citi¬ zens drawn up by the magistrates. Evidence and argument before the judex followed, later and in a different place; the judex then gave a decision in the form of a finding of fact or mixed fact and law, related to the defined issue, and reaching the result required by the magisterial direction. The magistrates themselves were sometimes trained lawyers, and in any event they usually had expert assistance when settling the issues and sometimes called on the special class of eminent lawyers who by usage (and later by Imperial appointment) could give authori¬ tative advice, ‘responsa’, to help them. The judex too might act on learned advice. Our knowledge of the detailed working of this system is defective, and many questions will occur to a con¬ temporary lawyer; for example, was a magistrate required to disclose to both parties any advice or responsa he obtained, and was a. judex required to do so? But, even without the detailed knowledge we should like, we can recognize here a workable system which tended to produce a careful concentration on rele¬ vant facts, a sharp statement of relevant law, and decision honestly intended to result from the application of one to the other. If the lay judex is equated with the Anglo-American jury, then the system seems open to one of the well-founded objec¬ tions of the modern fact-sceptics, namely that we know very little about how jurors actually decide cases, and indeed the jury is sometimes defended on the specific ground that it should not decide by the sort of reasoning which judges are at least sup¬ posed to employ. We know enough about the kind of arguments addressed to a judex in important cases, especially those with political significance, to suspect that decisions were sometimes swayed by emotion, political bias, and even fear of retaliation by disappointed litigants. The Roman was less in the posi¬ tion of a modern jury merely instructed and left to bring in a general verdict, than that of a modern jury invited to answer a list of specific questions as to the facts of the case, the ‘special verdict’ system. In the Roman case, the magistrate’s statement



of applicable law was made first, in anticipation of alternative ‘special verdicts’ by the judex, whereas in the Anglo-American practice, the jury finds the facts first and the judge then works out the applicable law. The latter system is more flexible than the former, because the fact issues are defined in the light of the evidence after it is given and there is little danger of the question put to the jury turning out afterwards to be inappropriate. Under the Roman system, in cases of any complexity there must have been a possiblity of the magisterially defined issues turning out in the light of the evidence to be inappropriate, so necessi¬ tating a fresh start. But the comparison with special verdicts can not be taken far. The Praetor’s formula was usually in condensed and general language and often left the judex the scope for decision on questions both of fact and law which a plea of the general issue left to a common law civil jury, and it was the judex himself, not the Praetor, who gave judgment. Also, the fact that the Praetor zxid judex acted separately and apart must have produced a quite different relation of social psychology from that evident in the relations between judge and jury sitting together. The Roman system worked, with few known com¬ plaints from litigants concerning its basic principles, for at least four centuries. It was an important factor in enabling the Roman lawyers and law-teachers to develop the first, or at least the first recorded, set of legal definitions, classifications, and rules having a fair degree of intelligibility, rational cohesion, and internal consistency. The popular or lay participation in legal administration in Athens and in Republican Rome was attributed to an earlier revolution against priesthoods and aristocracies which, accord¬ ing to the tradition, had possessed a monopoly of legal know¬ ledge and abused it. In neither case was there any suggestion of a desire to modify by lay common sense the tendencies of a law dominated by professional lawyers and judges. In the later Roman Principate and Dominate, these methods of popular participation in judging disappeared, and courts came to assume more of the shape familiar to us—tribunals of one or a few judges who were also government officials and who determined all the issues presented. Courts of this sort were also more con¬ genial to the invading barbarian kings and princes of tribes which had independently begun to develop the justice of chiefs.



The Catholic Church, whose practices were influential all over the western world, likewise tended to develop the more authoritarian type of judicial tribunal when administering canon law, which had secular as well as priestly significance. Lay justice, or at least the sharing of judicial functions, was prominent in those areas where feudalism became firmly estab¬ lished and where the feudal court consisted of the Lord or his representative sitting with his vassals to hear the disputes of fellow vassals. As indicated before, this was in theory a system ideally fitted to the political and economic organization, but was cumbrous in operation and had always to meet the challenge of ambitious princes who wanted the control and the profits provided by centralized jurisdictions; in Italy, France, and Germany the princes were able to use the example of Imperial Rome, and to call in aid the revival of Roman law learning from A.D. I too onwards, to support their claims. In England, ^Villiam I and his immediate successors in the eleventh century may also have used Roman and Church examples to some extent, but even more they relied on their own experience and on Norman administrative traditions. In their case, however. Royal justice administered by Royal officials was early tempered by the addition of a lay element, which became eventually the common-law jury. This lay element was originally a Frankish and Norman administrative device, a method of using for purposes of record, taxation, and the discovery of criminals the knowledge of local affairs possessed by a representative group of local inhabitants. In the twelfth century Henry II offered trial by inquest of local inhabitants in many of the common classes of dispute concerning title to land, so undermining both feudal and old local jurisdictions, and he also required local inquests to report the occurrence of the more serious crimes over which the Crown claimed jurisdiction and to present for trial suspected malefactors. The ‘assizes’ concerning land provided from the beginning a method of proof by the testimony of neighbours, as well as the notification of a dispute. The criminal inquests at first led to trial by ordeal, but the Lateran Council of 1215 prohibited priests from providing the religious supervision which had come to be regarded as neces¬ sary for an effective ordeal. After some hesitation and im¬ provisation, the Royal Justices who travelled the country to



supervise the presentation of criminals by the vicinage devised the scheme of inducing the accused to ‘put himself on his coun¬ try’, that is agree to final decision by a body of local inhabitants, smaller than the body which laid the accusation in the first place; this became the petty jury as distinct from the grand jury or jury of presentation. Then practice aided by a statute of 1275 enabled the Justices to compel an accused to ‘accept’ trial by petty jury, using torture which some hardy accused suffered unto death in order to avoid the forfeiture following a conviction. The Royal courts developed out of criminal pro¬ cedure the system of civil remedies, ‘trespass’ and ‘trespass on the case’, tried by judge and petty jury, which ultimately came to dominate English civil law. The petty jury was for long expected to decide mainly or partly from its own knowledge, and it was not until the seventeenth century that it finally reached its modern position of a body of twelve citizens who/ must not be acquainted with the facts beforehand but must find concerning them on the basis of evidence adduced. This extraordinary history illustrates the difficulty of making anything but tentative statements about the social function of the English jury. For long its main point was to make avail¬ able to Royal Justices the ‘knowledge’ of facts, too often based on gossip and rumour, which small isolated communities acquire about the affairs of all inhabitants. For long, especially in criminal cases, this testimonial function was combined with the application of such additional evidence, common sense, pre¬ vailing moral views, and (aided or hindered by judicial in¬ struction) knowledge of law as the ‘country’ possessed to reach a general verdict of guilty or not guilty. In periods when the substantive criminal law was harsh, juries often tempered it by declining to convict, and sometimes worsened matters (as in witchcraft trials) by the expression of popular superstitions and hatreds. The ‘tempering’ function is still performed; it is one of the main reasons why, in the British Commonwealth and North American countries which employ criminal juries, prosecutors have given up trying to obtain manslaughter verdicts against negligent motorists. Outside the U.S.A. and the State of New South Wales, the use of juries has almost disappeared in civil cases. The preservation of juries is now usually defended on grounds connected with the contrast between the supposed



superior experience and capacity for judgment of fact situations possessed by the ‘man in the street’ as compared with pro¬ fessional judgesd The Law School of the University of Chicago has for some years been engaged on a project intended to explore the actual working of juries and to establish whether the social functions usually claimed for them are actually per¬ formed. Unfortunately one of the key techniques of this inquiry, namely planting secret microphones in a jury room in Chicago and tape-recording what was said, became publicly known and in the ensuing furore (1956) several States and Congress en¬ acted legislation to prevent such sociological prying into the mysteries of jury decision. The inquiry has gone on with simu¬ lated trials, collection of the confessions of jurors and other such methods, and its results are likely to be illuminating for both theory and practice. Probably there are considerable elements of myth in AngloAmerican social attitudes to the jury. The decline of the use of juries in civil actions is in part a tribute to the success of modern law reform in bringing the substantive civil law into reasonable correlation with the social interests it protects, so that litigants prefer in most cases that this law should be applied with the greater speed and professional expertise provided by judges as compared with juries, and do not demand that the law of lawyers be modified by the common sense of jurors. But the power of the myth in relation to serious crime remains powerful. It may be in part an inherited attitude, from the days when the jury stood betwxen a brutal law enforced by brutes and the ill-defended accused. The present writer, however, has not heard any Australian judge criticize the working of criminal juries. They sometimes agree that there is an element of myth in the view that juries are shrewder than judges or reflect prevailing limits of tolerance, since the circumstances of modern life ensure that judges too have a pretty wide experience of practical affairs and the atomized character of industrial society reduces the speci¬ ficity of accepted moral standards. Yet our judges welcome the sharing of a heavy responsibility in criminal trials, are not on the whole dissatisfied with the objectivity of jury opinions, and consider that so far as juries err, as they usually do today, on the side of mercy, this is a proper function legally and socially. • See Sir Patrick Devlin’s Trial by Jury (1956).



Criminology is of all branches of legal study the one in which sociology and psychology have had the most important impact, reflected in an enormous literature which is for the most part critical of the criminal law and of criminal punishment as cur¬ rently practised, but many criminologists support jury trial if they support the conception of‘trial’ at all; those who oppose it do so either because (as in some parts of the U.S.A.) the composition of jury lists is unsatisfactory, or because they think judges might be more willing to become an instrument of trial by psychiatrists. In Western Europe, Roman Law influence ensured that jury trial would not develop from the barbarian origins which Europe shared with Britain, though there were some survivals of lay judging in Germany. But since the eighteenth century, admiration for and imitation of British institutions has led to use of juries, mainly in criminal cases. Today in the countries of the European Economic Community their use is confined to serious crime and often in forms which an Anglo-American lawyer would hardly recognize. This difference cannot be explained by any great difference in the current social situation of the countries concerned; it is the consequence of a different political and legal history. To illustrate the extent of the difference, in relation to juries and other matters, the following is an account of a trial which the writer witnessed in Heidelberg, West Germany, in 1959. A handsome young German woman was charged before the local criminal court with throwing acid in the face of a Persian medical student who had brought about the breaking up of an engagement between the girl and another Persian student. The court consisted of a judge sitting with two Schoffen; the latter are laymen corresponding in many respects with the British jury¬ man but they sit on either side of the judge and have equal authority with him on all questions of law and fact. It is in legal theory as full a sharing of judicial functions between lay and professional judges as occurs in the People’s Courts of Commu¬ nist countries. But convention and tradition assign the dominant role to the judge and no German lawyer of my acquaintance could recall a case in which the Schoffen had attempted to combine against the view of the judge, nor did I observe in this or other cases any sign of the Schoffen interposing during the course of the trial. The accused woman was represented



by counsel. The State Prosecutor adduced evidence of the assault, and, in the case of each witness, he did not proceed far before the judge took over the leading of evidence and in the course of leading it interposed a good deal of what we would call cross-examination. Counsel for the defence cross-examined the witness so far as the judge’s questions had left any room for this activity. During the cross-examination of the assault victim, however, the accused herself (sitting in civilized fashion behind her counsel and not in a dock as is the barbarous AngloAustralian practice) kept jumping to her feet and indignantly interrupting, calling the witness a liar and so forth. This is a situation which often arises in courts of all descriptions, and in Anglo-American courts the interrupting client is usually sup¬ pressed with various degrees of severity by judge, counsel, policemen, and tipstaffs. In this case also the accused was at first shushed, but after several such interruptions the judge suggested to her counsel that he should sit down and let his client question the witness for a while, so as to get her indignation off her chest. An English, Australian, or American barrister would probably have withdrawn from the case in dudgeon and called his kin of the Bar to the feud, but this counsel did not object; he mildly sat down and the judicial suggestion was carried out. The girl asked the witness a few questions in a spirited fashion, until the judge told her she was making things no better for herself and himself completed the cross-examination. In the Continental fashion, the evidence ranged much more widely over the ante¬ cedents of the parties and the genesis of the crime than would be regarded as relevant in an English-style court. The girl was convicted and released on a bond. The writer was told after¬ wards by German lawyers that the particular judge, an old and very experienced one, had probably dominated the court, the parties and their representatives, not to mention the Schoffen, in a greater degree than is normal and that the case was a parody rather than a paradigm, but other observers agree that thejudge plays a more prominent part in every aspect of German court procedure than is usual in procedures of English origin, and this ‘inquisitorial’ element is prominent in all systems of Romanlaw origin. At the other extreme from the Continental European tradi¬ tion is that in many American trial courts where the judge, 825208




inconspicuous in plain robes and with no wig or Continentalstyle formal cap, is hardly ever heard; the scene is dominated by counsel who stomp around the court, facing up to witnesses and the jury at close range—really behaving in the manner sug¬ gested by television movies. In Courts on Trial, Frank emphasizes the role of court proceedings as a substitute for private battle, and quotes with approval an American Bar Association hand¬ book for trial lawyers which speaks of litigation as resembling warfare, with stratagems and tactics, skirmishes, scouting parties, and so on. He dwells on the primitive origins of courts in regu¬ lated self-help, mentions Wigmore’s theory that the sport-loving proclivities of the medieval English contributed to the adversary theory of litigation, and more percipiently relates the pro¬ minence of battle in the courts of the U.S.A. to the values of competitive private enterprise. What he says is truer of the U.S.A. than of other countries in the English legal tradition, because the wide scope for jury trial in that country and the peculiar history of its legal profession have strengthened the other factors tending to combative litigation. However, even in the U.S.A. there are types of case and forms of procedure in which the theory of an inquisition to ascertain the truth, which Frank derides, has more validity, and that approach is more or less prominent in other countries in proportion to the oppor¬ tunity which varying legal traditions and methods of procedure provide for forensic combat or judicial inquiry as the case may be. In English-style courts of summary jurisdiction—which in Australia hear and determine about go per cent, of the total cases, civil and criminal, heard in all courts in a year—there is a minimum of preparatory procedure to cool passions; the courts themselves are usually small and dingy; the magistrates wear ordinary clothes and are often not physically separated from the parties to the extent which prevails in higher courts; the practitioners engaged are sometimes from the lower echelons of the profession and apt to put pleasing their clients first and adhering strictly to the theory that they are ‘officers of the court’ last; lists are heavy and there is pressure to decide quickly; the magistrates, even where lay Justices of the Peace are not em¬ ployed, often have only a limited legal training but their train¬ ing enables them to umpire with much skill what an appellate judge might regard as a disorderly rough and tumble. It is



under such conditions that litigation seems most clearly a battle, its main social function to satisfy the combative instincts of the parties and secure a rough adjustment of interests by reference to hunches based on current mores. But it would be difficult to imagine anything less like a battle than what goes on in the Supreme Court of the U.S.A. There, the attorneys of the parties first supply to the court elaborate written statements of their cases, known in this system as ‘briefs’; at an appointed time counsel for the parties, usually cowed by the august atmos¬ phere of the court, each tries to address the nine justices for half an hour, in very important cases an hour, or so much thereof as the incessant interjections and cross-examination by the nine permit, and is cut off in mid-proposition when the period ends. The procedure is adversary, but the atmosphere is inquisitorial. There may have been a battle somewhere down the line, in which case what happens in the Supreme Court is an inquest on that battle. Procedures of this type are common in American appellate courts; in England, oddly enough, there is more of an adversary atmosphere in appellate tribunals.' But in any event, it is a mistake to think that battle-type court procedures are necessarily inconsistent with an inquiry into truth. The tragedy queen in Heidelberg certainly pursued in court her battle with the Persians, and did so with encourage¬ ment from a presiding judge who was operating in the full tradition of the later Romanist inquisitory procedure. But the judge did not adopt this policy merely in order to please her; he did so because by coolly observing the course of the verbal strife he could better arrive at an estimate of the character of the parties and a probable view of the events in dispute. One of Frank’s complaints against the forensic battle was the pheno¬ menon, pointed out to him by Sir Frederic Eggleston, that the lawyers often turn out to be fighting a different battle from that which the clients originally thought they were fighting. How¬ ever, if the procedure really allows something like a battle in hot blood, such a legal transformation of the issues is unlikely to occur; the most astute counsel will be unable to prevent his client and witnesses from fighting their battle. The situation in which such shifting of the issues commonly occurs is where a pre¬ trial system of pleading and discovery provides cooling time and ' See D. Karlen, Appellate Courts in the United States and England (1963).



enables the lawyers to transform the original issues and educate their clients and witnesses up to the requirements of the new situation, in which the heat of the genuine original battle will have gone. But the social purpose is not then to provide a sub¬ stitute for battle; it is to organize a dispute in such a way that the interests involved can be adjusted in accordance with objective rules. Since the late eighteenth century the general movement for law reform and codification has included much attention to the organization and procedure of courts; the English Judicature Acts of 1873 and 1875 are still regarded in many parts of the U.S.A. and in New South Wales as daring experiments of this kind. In the twentieth century the Americans have injected into this movement a characteristic stress on the business manage¬ ment aspect of courts—improving and mechanizing the keeping of records, reducing waiting time for the trial of cases, and when the cases are listed the waiting time of witnesses and parties, reducing the waste of judicial time and talent caused by mal¬ distribution of judges and litigants among various courts, simplifying the definition of issues and ensuring by pre-trial con¬ ference that the issues have been properly defined, that matters which should not be disputed have been admitted, that possi¬ bilities of settlement have been explored, and that the parties are ready for trial. H. Zeisel’s Delay in the Court (1959) is a model study of trial bottlenecks in the City of New York, using all the resources of field research and statistical estimation developed by modern social studies, and coming to conclusions which are a warning against the too ready assumption of earlier reform¬ ers that the course of reform is self-evident. Perhaps the latter assumption is to some extent present in Shelden Elliott’s Improving our Courts (1959).^ Elliott traces the course of court reform in the U.S.A. since the famous speech of Roscoe Pound to the American Bar Association in 1906 from which many reform organizations have taken their programme. Some of the demands of Pound and his followers are related to purely American difficulties. Many American States inherited from British rule an imperfectly professionalized judiciary and system of legal practice; the Revolution created a suspicion of ' And see the subsequent reports titled ‘Judicial Administration’ in Annual

Survey of American Law.



courts and the legal profession, because rnanyjudges and lawyers were ‘loyalists’, and Jacksonian democracy added to these sus¬ picions. Hence by mid-nineteenth century, election ofjudges for short terms, abolition of technical training or even general educational requirements for legal practice, and widespread use of lay judges and reliance on jury decision had become characteristic of many State judicial systems. The suspicion of ^ legal professionalism was such that many States prohibited judges from summing up to juries or expressing any opinion to juries on the weight of evidence, and removed from the judges all power of regulating procedure by Rules of Court.' But many of the objectives of American reformers could be objectives of reformers elsewhere; for example, the introduction of councils of judges, practitioners, and representative laymen, with pro¬ perly equipped research facilities, to keep continuous check on the organization and procedure of the legal system, and better control over the distribution of litigation, especially in lower and intermediate courts. Elliott shows that success in achieving the twelve-point programme worked out by Pound and his great successor in reform activity. Chief Justice Vanderbilt^ of New Jersey, has been patchy. He infers that this is due mainly to the stupidity or wickedness of the legislatures and legal vested interests which obstruct change or fail to see it as selfevidently desirable, and to the unwillingness of legislatures to spend money on such purposes. Although some lawyers have always been prominent in law reform movements, it has probably always been the case that most lawyers have opposed them; the Eldons have outnumbered the Broughams. The social reasons for this have usually been plain; the judges, court ofhcials, and lawyers of any generation have learned a technique, acquired positions, and come to associate a familiar routine with substantive rules of law whose existence they readily identify with basic social order. Their vested interest can be of a despicable kind, when compared with the interests of the general public, as in the case of the successive layers of sinecure-holders on the staff of the unreformed English Court of Chancery. But the anti-reform case can be more ’ See L. Mayers, The American Legal System (1955), and I. P. Callison, Courts of

Injustice (1956).

^ See Vanderbilt’s Minimum Standards of Judicial Administration (1949).



worthy of attention; for example, the desire to retain orderly systems of pleading, as against claims that such systems are a conspiracy to multiply costs. One of the virtues of contemporary sociology is that it does not make simple, mechanical assump¬ tions about the working of social institutions and the con¬ sequential course of desirable or possible change. Since Pareto, Durkheim, and Max Weber examined the ‘irrational’ forces which help to maintain social cohesion, and in particular since Weber speculated about the sources of legal validity or legiti¬ macy and the charisma of judges, reformers are more prepared to concede the need for maintaining a certain amount of ceremony and dignity in the proceedings of courts. It is not necessary to maintain a judicial reign of terror, in the Chinese fashion, but neither is it desirable to elevate freedom of advocacy above any principle of contempt of court, as has tended to happen in the U.S.A. The problems raised by the American realists involve a differ¬ ent difficulty for law reformers, one which the realists themselves have not adequately faced. If the fact sceptics and the law scep¬ tics are both right, if their scepticism is justified for most cases, then reform designed to ensure a more thorough and efficient assessment of evidence and a more objective and scholarly application of law is beside the point. As we have seen, Geny, while endorsing a sort of rule scepticism, thought that a ‘good judge’, which in this context is apt to mean a good man rather than a good lawyer, must come to a ‘right’ decision if he gets the facts clear, and at times Frank wrote similarly. Frank also supported strongly a set of reforms designed to improve factcertainty by ‘rational’ methods—abolishing juries in civil cases, greater use of expert witnesses called by the court, greater government aid in obtaining desirable evidence in all classes of case, abolition of the irrational exclusionary rules of AngloAmerican evidence law. But the ‘rational’ inference from com¬ plete fact and rule scepticism might well be to encourage the theory of litigation as a battle to be fought in hot blood as near as possible in time to the dispute litigated. The battle theory remains powerful as one of the factors causing many American practising lawyers to resist procedural reform; they claim a right to surprise the opponent by concealing information, and to take advantage of procedural slips.



Probably, however, the dominant attitude of public and of legal professions in the present world is that a rational adminis¬ tration of objective rules after a probable finding of fact can be achieved and that courts should be organized so as to maximize the efficiency with which this task is performed. In so far as fact scepticism or rule scepticism or both are justified in relation to certain classes of case, for example motor-vehicle accident cases and perhaps negligence claims generally, the solution may be not a resort to judicial mysticism or the hunch of‘le bon Juge’, but open recognition that such cases are not fit for judicial handling and should be brought within the terms of a system of social insurance like that already used for workers’ employment injuries. Dissatisfaction with the operation of courts was one of the factors tending to produce a proliferation of administrative tribunals in English-speaking countries during the past century. However, as can be seen from H. W. R. Wade’s Administrative Law in the present series, the cry for a release from the rigidities of traditional courts is soon followed by a cry for putting re¬ straints on the undue freedom, the ‘arbitrariness’, of the new judges. One man’s absence of red tape is another man’s absence of due process. If the psychologists and psychiatrists succeed in isolating and removing the cause of ‘criminal personality’ another class of case may disappear from judicial ken, but until then criminal trials seem likely to retain longest some older aspects of court procedure—the symbolized might of the State, with some degree of licensed irrationality and popular equity in the mode of proof and of trial.

VI JUDGES In Anglo-American legal administration the now accepted practice is to appoint as judges only men who have qualified to practise as lawyers and who have in fact had extensive experi¬ ence as legal practitioners. The requirement of qualification is usually statutory; the kind of experience after qualification is not, though it is usual to require that a specified time (often seven or eight years) shall have elapsed since qualification. In the older rigid constitutions of the English-speaking world, such as those of the U.S.A., Canada, and Australia, these require¬ ments were not usually embodied in the constitutional docu¬ ment; the constitutional emphasis was on guaranteeing the tenure of judges as against the executive government, and so far as the constitutions go there is often nothing to prevent the appoint¬ ment of unlearned persons as judges, or to prevent the intro¬ duction of the other main type of qualification for judicial office—that commonly practised in European systems of Roman origin. Under those systems, university training followed by some form of office apprenticeship is the usual basis either for private legal practice or for government legal service, but at the conclusion of the university training the graduate or licentiate elects to enter either private practice or government legal ser¬ vice; only if he enters the latter is he likely to become a judge. It is not unknown for private legal practitioners to be appointed to the judiciary, especially to special tribunals and to those, like the West German Constitutional Court, intended to represent many different types of legal experience. But the great majority of Continental judges pursue from the beginning a judicial career, through stages of official training and apprenticeship specifically intended to turn them into judges and then promo¬ tion from low to higher courts. There is an approximation to that situation in the case of stipendiary magistrates in Australia; most of them are appointed to that position after a career in the offices connected with courts of summary jurisdiction and as



clerks in the courts themselves, subject to passing all or most of the examinations in a professional law course. In the newer rigid constitutions of English origin, such as that of Nigeria (1960),^ the practice of appointing the judiciary from the ranks of the practising profession has been entrenched, though since the training of the profession itself has not been entrenched an unlearned judiciary could be introduced if the profession were also made unlearned. Even where not en¬ trenched, however, the convention in systems of English origin that judges should be appointed from the profession is so strong that its retention is certain, subject to one possible modification. This is the principle now well established in the U.S.A. that professional teachers in the law faculties of universities, or equi¬ valent training institutions, may also be appointed to the Bench. It is a modification not so far adopted in the British Common¬ wealth, but its adoption in some Commonwealth realms is not inconceivable. Law professors usually possess the formal quali¬ fication required by relevant statutes and constitutions, but the predominant convention has been to require continuous and active practice of the law and particularly practice in the courts as a barrister, advocate, or ‘amalgam’ specializing in court work. American law professors, however, have usually had some practical, including forensic, experience, and the tone of American university law teaching is highly professional; the case method, and frequent use of moots and ‘legal clinics’ as teaching aids, inject into these schools an atmosphere not unlike that of apprentice training. The tendency of British Common¬ wealth university law schools is similar. It is not surprising that Justice Felix Frankfurter, formerly a Harvard professor, turned out on the U.S. Supreme Court to be a defender of conservative professional standards of procedural caution and adherence to precedent, as against the judicial adventurism of colleagues some of whom (e.g. Justice W. O. Douglas) also had a university background while others (e.g. Justice Hugo Black) had had mainly professional careers. Hence while wider adoption of this American innovation may be expected to produce some change in the prevailing style of English-type judicial benches, it is likely that for an indefinite time to come those benches will * Federation ss. no, ii6, Regions s. 50. Note that in India (1950) ss. 124, 217, the President may appoint ‘distinguished Jurists’ to the Supreme Court.



have a close identification with the values and intellectual habits of the practising profession, which are considered in the next chapter. This identification between Bench and Bar was exhibited most perfectly by the English Order of Serjeants, the first class of legal practitioners to achieve a distinct institutional form in England and perhaps in the world. The Serjeants became pro¬ minent in the thirteenth century; the Court of Common Pleas was then separated from the previously undifferentiated Royal Council, and settled down at Westminster (instead of following the monarch in his peregrinations) to attend to the pleas con¬ cerning land which Henry II made a royal monopoly. In the late thirteenth and fourteenth centuries, the Serjeants acquired their own Inn of Court, a club-house and collegiate centre for learning; they were given a general superintendence of the training of legal practitioners intending to practise in the Royal courts, and acquired a monopoly of the right to appear in the Court of Common Pleas and to be appointed judges of that court and of the Court of King’s Bench. After appointment to the Bench, these judges continued as full members of Serjeants’ Inn, contributing to its government and social life, and they continued to address Serjeants arguing cases before them by the title which all used in the affairs of the Inn—namely ‘Brother’. The Order of Serjeants, also known from their head-dress as the Order of the Coif, was abolished in 1877. Long before then its various monopoly privileges had been abolished, and the con¬ nexion between Bench and practitioners had become more diffuse as mentioned in the next chapter, but until the end of the fifteenth century the existence of the Order ensured a substan¬ tial unity of values and technique between the leaders of the legal profession and the judges of the Royal courts. Since the sixteenth century in England, the Attorneys-General and Solicitors-General have provided a distinct source of re¬ cruitment to the Bench, and, more recently, membership of Parliament and of other political bodies has often preceded such appointment. The basic requirement of membership of the legal profession applies in both cases and usually identification with the organized profession remains the main social determinant for the views of such appointees, irrespective of the party affilia¬ tions accompanying their political offices. It is said that the



offices have also contributed in these cases some awareness of the wider problems of government, but it is doubtful whether former M.P.s when on the Bench have exhibited within a cen¬ tury past any significantly different judieial characteristics. Lord Chief Justice Hewart, a former Attorney-General, wrote The New Despotism (1929), attacking the growth of administra¬ tive lawlessness, but his decisions in cases arising from such lawlessness showed no special ingenuity in solving the relevant problems. Lord Denning, M.R., never a Law Officer, has done more in recent times to adapt common-law remedies to adminis¬ trative situations than all the former Law Officers put together. In Australia, it is widely thought that former Crown Prosecutors make hanging judges; the hypothesis has not been the subject of the sort of quantitative analysis which would here be appro¬ priate, but if well founded would provide a reason for confining such appointees to the civil docket. There are, however, social influences which may modify or supplement the dominant professional orientation of the Eng¬ lish, and the Australian, judieiary. Firstly, there is the diffuse one of absorption into the ‘establishment’, the relatively small group of political, administrative, and business leaders and the Monarch, her relatives and loeal representatives, who between them determine the main lines of national policy and symbolize the national mores. In England, absorption into this milieu may often precede judicial appointment, and indeed contact with the establishment may actually be lost as a result of such appoint¬ ment. But many judges are drawn as such, for the first time, into a round of regular contacts with ceremonial and social aspects of elite activities, or maintain previously established contacts. In Australia, the effect is probably more marked; this is especially so in the case if the higher judiciary, since they often perform the functions of Lieutenant-Governors or Admin¬ istrators, and preside at parliamentary and other ceremonial functions. In this tradition, the judges take the utmost pains not to be involved in the actual determination of policy by the politicians and bureaucrats; their contacts are purely social and ceremonial, in a sense peripheral, but this if anything heightens the impression of dedication to the maintenance of the social system in being. Secondly, more specifically, there is the widespread employment of judges as Royal Commissioners to



investigate questions of all sorts, usually questions in which policy and morality are closely mingled. Lord RadclifFe in¬ vestigates the Vassall Affair in England, and Lord Denning the Profumo-Keelcr affair; Mr. Justice Kinsella investigates the in¬ cidence of starting-price betting on horses in New South Wales, and Judge Frederico allegations of malpractice in Victorian acquisition of land for a public reservoir—all these in 1963. In some modern societies judges may be the last persons to enjoy an institutionalized charisma, independent of personal qualities, and their employment (to the detriment of the time-table of their courts) in non-judicial inquiries is a tribute to this quality. But the work also identifies them with the problems and activities of other branches of government in a manner regretted and even resented by some judges, who would sooner see the judicial charisma preserved for purely court purposes, and fear it may be frittered away if judges are turned into trouble-shooters for the other branches of government. As against the various social identifications of the judiciary in the English tradition, there is also a well-marked tradition that judges should be independent of all identifications and protected from all situations which might imperil their objecti¬ vity. The tenure rules established by the English Revolution of 1688—life tenure, dismissal only on address of Parliament, salaries not to be reduced while in office—have been widely adopted and in the twentieth century provision of generous pensions has also been common. When economic crisis com¬ pelled Australian and other British Commonwealth govern¬ ments to carry out general reductions of wages and salaries in 1930-1, there was a good deal of debate about the constitutional validity and political morality of attempts to apply the reduc¬ tions to judicial salaries. Somejudges protected by constitutional restrictions voluntarily returned an appropriate part of the salary; others refused to do so, though in some cases the refusal may have been based on disagreement with the deflationary policy as well as the higher ground of social principle. This writer’s estimate of opinion in Australia at the time is that most people did not think the security of judicial tenure was affected at all by a universally applied deflationary measure. Professional opinion among lawyers strongly supported judicial objections to the measure, but this was partly due to the fact that judicial



salaries had failed to keep pace with earlier inflations, so that they should not have been made to suffer from deflation as well. The episode made it clear that the high prestige of the judiciary was not inconsistent with a good deal of popular and political indifference to the material claims of judges. The question of age-retirement for judges has also raised arguments, but it is now fairly widely accepted that provision for such retirement is not an improper abridgement of independence. There are also some conventions associated with judicial independence. It is expected that judges will be sober, orderly and discreet in their personal lives and will avoid company or social situations which might be used to discredit them. Some judges go to extraordinary lengths in order to observe this con¬ vention, for example, by requiring full advance information as to the names and position of persons likely to be present at a social occasion to which the judge is invited. Some of the features of court-house architecture are directed to ensuring protection of judges from close contact with public and even practitioners, when entering and leaving the court. To some extent, these practices are designed to prevent imputations of bias against a judge due to his having contact with persons concerned in a particular case, but they go much beyond that. There used to be a convention that judges should not after appointment to a particular position be promoted, because the possibility of promotion might tempt them to seek through their decisions the favour of the authority which could promote. This so far as applied prevents the very thing which most Euro¬ pean systems encourage—advancement of judges from court to court. In an extreme form it would even prevent the appoint¬ ment of a Chief Justice from the existing judges of a particular court. This convention has been so much disregarded in the twentieth century that it may be regarded as no longer existing. Promotion from some hierarchies of courts, such as the English and Australian County and District Courts, to a higher one such as the English and Australian Supreme Courts, is still exceptional, but this is due more to a theory as to the basic qualifications required of judges in the two types of court. In England, the salary differences are small, but elsewhere in the Commonwealth they are often appreciable. A Victorian County Court judge used to be promoted from time to time



to an Acting-Judgeship in the Supreme Court, to clear off the arrears in the divorce list, and then demoted back to the County Court; shortly after such a demotion, he told counsel bitterly that it was waste of time quoting dozens of cases to him in the County Court, since his brothers in the Supreme Court were paid an additional thousand a year on the assumption that only they could read. But in England the promotion of judges from High Court to Court of Appeal, and from both to the House of Lords, has become customary, and so has the appointment of Chief Justice and Master of the Rolls from existing members of the Bench. Similarly in Australia, it has become usual for Chief Justices to be appointed from existing judges; three of the six Chief Justices of the High Court of Australia who have held office to this writing were so appointed. The modification of this convention is probably due not to any disregard of the dangers against which it was supposed to guard, but to a belief that the other supports for judicial objectivity are sufficient. There is also the parliamentary practice which prevents parlia¬ mentary criticism of the conduct of judges save in proceedings for their removal. The pattern of insulation, with selected influences, so far described applies to a wide range of judges. Where, as is fre¬ quently the case in the British Commonwealth, there is a three tier system of courts—summary jurisdiction, intermediate courts (County, District, &c.), and superior courts—it applies to the latter two. But the position of courts of summary jurisdiction is different. This is traditionally in England, and consequently also in the U.S.A. and in Australasia, the last sphere of justice administered by laymen—the Justices of the Peace—and it is convenient to sketch some recent history in all these countries. Until the nineteenth century, the Justices of the Peace were county gentlemen or senior burghers who had their own in¬ stitutionalized charisma and soon picked up sufficient knowledge of law and procedure to deal with petty civil and criminal cases, mainly criminal and the affairs of the poor. Originally, they were paid, but inflation destroyed the value of the pay and there was no agitation to restore it, since the county gentry dis¬ covered the other advantages of attending to such matters themselves. But the social revolution of the nineteenth century materially altered the character of the men appointed on the



Commission of the Peace, even more in the U.S.A. and in the British colonies overseas than in England; they became in¬ creasingly middle class and then working class—shopkeepers, craftsmen. Trade Union officials, and often persons appointed as a political favour. They were still largely concerned with administering justice to the poor, but they had neither charisma nor institutional isolation. It began to look like biased justice on the cheap. The sort of common sense and dispatch which experienced lay magistrates often display is either something which should be displayed at all levels of the legal system, or it is a grossly differential treatment of small men and small cases. Because a civil case concerns only ten pounds or the maintenance and custody of a very obscure little Jude, or a criminal case concerns a thimble-and-pea trick, it does not mean that any feature of the factual or the legal problem presented is easily solved. Substituting ten thousand pounds, or the succession to an earldom, or the defrauding of thousands by a company pro¬ moter, problems no more complex will occupy more august courts for days and go to the Court of Appeal and House of Lords. R. M. Jackson in his The Machinery of Justice in England (3rd ed., i960) describes how in the period between the First and Second World Wars, the summary courts suddenly began to be concerned with the affairs of more well-to-do, and as Dr. Jackson says ‘vocal’, defendants. This was mainly due to a single class of case—traffic offences by the drivers of motor vehicles. The incidence of the traffic offence on Justice of the Peace Courts was felt even earlier and more poignantly in the U.S.A., where the J.P. had in many places become purely a political appointee, chosen to render suitable favours to those in a position to wield influence; in many cases, he was paid a pro¬ portion of court fees. Hence as early as 1942, G. Warren’s Traffic Courts provided a detailed and damning account of this area of corruption and exploitation under the guise of law in American society. Many of his recommendations have been widely adopted, and year by year some State or municipality congratulates itself on having at least achieved an ‘unfixable traffic ticket’, but there are still corners where the police and the traffic court extract a toll from the passing motorist who finds the fix cheaper than summary arrest. Complaints of this sort



also occurred in England, but the most common complaint there was not corruption; it was the bumbling incompetence of some benches, the gross differences between their ideas of a proper penalty, and the domination of some benches by their clerk—usually a local solicitor. By 1939 it seemed possible that the Justices of the Peace would be replaced by stipendiary magistrates appointed from the legal profession, already em¬ ployed in some parts of England and the U.S.A. But as Dr. Jackson also explains, the performance of Justices of the Peace in England during the war, when national service and rationing increased their responsibilities and they rose to the occasion, caused earlier opinions even of the well-to-do critics to be re¬ vised. A series of Royal Commissions and other inquiries after the war led to reforms in the appointment of J.P.s and in their procedure, and to the provision of some legal training for those appointed; as a result of this, and also as a result of disenchant¬ ment with the performance of some stipendiary magistrates, the Courts of Justices of the Peace have had a new lease of life in England. In the U.S.A. reformers still urge abolition of Justices of the Peace, and there has been a steady spread of employment of paid magistrates or judges to hear petty civil and criminal cases, with specialized traffic courts. However, there has also been much political opposition to the abolition of the lay justices, and the latter have in some cases formed associations to protect their position and also to improve their ability, pro¬ bity, and social standing, so that considerable retention of the lay jurisdiction is still possible. In Australia there has been a widespread adoption of the stipendiary magistrates system, with parallel restriction of the types of cases in which J.P.s may sit; in New South Wales their judicial powers have almost disappeared. This, however, was not the result of any such widespread dissatisfaction with lay justices as was experienced in England between the wars, and still less the result of a history of corruption as in the U.S.A. Indeed, the Australian development was well under way before traffic cases had become a significant feature in petty jurisdic¬ tion. The Australian trend was the consequence of different social factors. In this huge but sparsely settled land, there was always a considerable demand for decentralized justice, in civil as well as criminal matters, and so the practice grew of using



Courts of Petty Sessions in civil cases much more extensively than they had been employed in England. Indeed, some States have only recently begun to acquire intermediate civil and criminal courts such as the English County Courts and Quarter Sessions. It is in civil cases that the deficiencies of lay magis¬ trates appear most clearly, with consequent need for appeals on questions of law, and so experiments in the use of stipendiary magistrates proved popular and the trend was to reserve the more complex types of small civil case for visiting stipendiaries. The need for such expertise grew as money limits of the popular summary civil jurisdictions were raised. A Queensland stipen¬ diary, when giving evidence in an inquiry into magistrate’s salaries, summed up the position by a happy slip of the tongue; he said that the ‘jurisprudence’ of himself and his colleagues had become almost as extensive as that of the Supreme Court. How¬ ever, although it has always been possible to appoint legal practitioners to such posts, and in South Australia and New Zealand only practitioners are so appointed, the supply of capable solicitors or barristers willing to take such positions tended to be inadequate, and the practice grew of encouraging the career Clerks of Courts (never solicitors as in England) to undergo a restricted form of legal training, since extended, and appoint them as stipendiaries. This then created an occupa¬ tional group with some political influence interested in maxi¬ mizing the opportunity for promotion. Both their training and the variety of their jurisdiction prevented the development of the sort of crankiness due to boredom which Dr. Jackson says has been an occupational disease among English stipendiaries. However, this system has many critics in Australia, chiefly on the ground that as cler’-.s the future stipendiaries are brought into close touch with the executive government and in particu¬ lar the police force and so develop an ‘anti-defendant’ bias in criminal cases. This too is a question capable of answer by systematic investigation using sociological techniques. The different histories of summary jurisdiction in societies sharing a common original history is a warning against too ready generalizations concerning the social function of legal institutions. However, there are some common factors. There is the question of cost; there is the question of a sufficient supply of trained personnel willing to perform such tasks even for pay; 825208




there is the persistence of lay beliefs that law need be no mystery reserved to specialists, but is all the better for administration by laymen of good character and ordinary common sense; there is the snobbism of eminent lawyers, accustomed to dealing with large claims, important people, or the more melodramatic aspects of crime, who are happy to encourage the lay super¬ stition just mentioned, so long as it applies only to small cases and people and dull crimes. It has often been pointed out that for the mass of the people, law means what happens in courts of summary jurisdiction, and that the concrete image of justice for them is the figure of a Justice of the Peace or a stipendiary magistrate, not that of the judges whose life-style and social aloofness have been prescribed and guarded with such care in Britain and its dominions, and in some American jurisdictions. There is accordingly some paradox in a situation where the magistrates have to try to guard the tradition of objective legal administration with a minimum of professional prestige, in¬ stitutional trappings, and social conventions to aid them. The paradox, however, is lessened if one reflects that the majority of citizens never have any personal contacts with courts at all, so that their picture is derived wholly from press, radio, T.V., and general reading, all of which deal mainly with superior courts and judges and reflect their aura. Perhaps too the lower tribunals obtain from the higher ones a derivative charisma. Returning to the superior courts, the course of development in the U.S.A. has shown extraordinary variations as between the federal and the state judiciaries, which under that form of federalism are substantially independent of each other. In the federal sphere, the English judicial tradition was preserved, largely because of the rigidity of the Constitution, through the period when at both state and federal levels popular feeling and political majorities were anti-lawyer and the states were adopt¬ ing elective judiciaries and endeavouring to destroy the social ‘apartness’ of judges. The federal system remained as an ideal for state reformers in the Pound-Vanderbilt tradition. In the twentieth century, the social prestige of state lawyers and judges has increased and social conventions protecting judicial independence have been fostered. There is not and is not likely to be the degree of ceremonial identification of judges with an ‘establishment’ observable in England, nor the insulation of



judges from casual social contacts. In one respect, however, American social evolution is tending to institutionalize an aspect of the problem which the British and the older British dominions still leave to a dangerously vague convention— namely that of the appointment of judges. Some American states never abandoned or have since re¬ sumed appointment of judges by the Governor, on the English and federal model, for relatively long terms or for life, but in most states popular feeling and political interest in the elective system have made it difficult to abandon when once adopted. Ironically, some of the reformers who inveigh against elected judges have also in their jurisprudential writings emphasized the constructive, law-making role inseparable from judicial function, and so strengthened the doctrinaire democratic case for bringing judicial office within the democratic political system. But the substantive social grounds for not doing so have been widely recognized; in addition to the general case for maximizing legal objeetivity, there has been the practical point that the most able, conscientious, and learned lawyers were less and less likely to undergo the uncertainties and humiliations, and endure the consistent bad taste, of electoral campaigns using current publieity techniques; there was a danger that legal administration would fall into the hands of the worst types of lawyer. The solution to this generally known as the Missouri Plan, and its variants, provide a neat compromise between the conflicting demands of democratic sentiment and funetional efficiency. These schemes preserve in one form or another electoral power either to approve appointments to the superior judiciary, or to veto an appointment already made. But the choice of candidates is vested in a board consisting of senior existing judges, representatives of the legal profession, and non¬ lawyers nominated by the state Governor (who is the executive head of the state, more equivalent to the Australian Premier than to the Australian Governor), and once appointed a judge is usually re-nominated without opposing candidates when re-election is necessary. Although the formal scheme has been enacted into law in few states, its prineiples have been more widely adopted by conventional procedures, under whieh there is bi-partisan approval of a candidate, no nomination of a rival candidate by the major parties, and hence automatic



election or, if positive majority approval is required, electoral veto power only. The conventional use of bi-partisan recom¬ mendation or nomination by representative committees and reappointment of incumbents is also known where judges are appointed by the Governor. Otherwise, Presidential and guber¬ natorial appointments are often partisan and it is true in a general way that the personnel of the U.S. Supreme Court has followed the election returns. Since the U.S.A. is the only coun¬ try where election of superior court judges has ever existed on a large scale, and where non-elective judiciaries have been simultaneously in existence, applying similar law in the same social setting, the possibilities for social analysis and evaluation are great. The move to modify partisan election for short terms supports a view that executive appointment for long terms, practised in all other countries, is a social probability and not merely historically conditioned. But the retention of some degree of electoral control, and the development of restraints on executive appointment, also point towards solutions for the ‘partisan’ problem elsewhere. In England, superior judges are appointed by the Crown on the recommendation of the Prime Minister in some cases and of the Lord Chancellor in others—the Lord Chancellor himself being chosen by the Prime Minister; the Lord Chancellor’s opinion is likely to be important in all cases, and some con¬ sultation with other ministerial colleagues is possible, but it is not a Cabinet matter. A strong convention ensures choice among eminent members of the Bar, likely to be approved by the profession, and without regard to political opinion, but subject to the special claims for judicial appointment of the Attorneyand Solicitor-General who are members of the House of Com¬ mons and of the party in power. It is a historical compromise whose maintenance depends wholly on conventions of decent conduct in public life. One of the factors making it possible is the absence of a rigid constitution; this eliminates the possi¬ bility of serious clashes between the views of judges and the views of parliament and the executive, as to the validity of legislation. In the older British Dominions this system has been adopted, notwithstanding the possibility (as in Australia, Canada, and India) that judicial interpretation of a rigid constitution will have momentous import for current political



action. In general, the Prime Minister or Premier and an appropriate legal Minister—Attorney-General or Minister for Justice—will decide most appointments in much the same spirit as Prime Alinister and Lord Chancellor in England, but with a greater probability of general Cabinet interest in the matter and even of party insistence on a partisan appointment. In Australia the classic case was the appointment in 1930 of Justices Evatt and McTiernan, both Labour members or former members of Parliament, to the High Court of Australia, on the insistence of a Labour Party Cabinet and caucus, and against the wish of the Prime Minister and Attorney-General who at the time were out of Australia. The pressure for party influence on the composition of the judiciary was great, since the country was in the throes of the world Depression, there was acute party and factional strife over economic policy, and the Scullin Government had already had court set-backs when endeavour¬ ing to carry out its industrial arbitration policy and could expect constitutional difficulties with its economic policy. The situation resembled at some points that in the U.S.A. when President F. D. Roosevelt advanced his court-packing pro¬ gramme (1937), though the difficulties arising from judicial doctrine were fewer in Australia. Dr. Evatt and Sir Edward AIcTiernan, as he now is, went on to distinguished judicial careers in which the general social evaluations resulting from their Labour background were evident in some marginal cases, but no more evident than the different social assumptions of colleagues in the same cases. There has been no other Australian episode of this kind. To some extent, the importance of the prob¬ lem has declined because of another later twentieth-century social development in Australia—a declining participation of eminent lawyers in politics, and a comparative lack of clear criteria by which such men can be identified as left or right in politics. It will be suggested in the last chapter that in any event the criteria of politics are not always the most important when considering the bias of judges. But the Australian episode does show the possibility that out of England the restraining English conventions as to judicial appointment can break down. In some of the newer British Commonwealth Constitutions, this possibility has been faced, and the appointment of judges has been institutionalized in ways reminiscent of some of the



American reform proposals. Thus Malaysia (ss. I22, 138) pro¬ vides for a Judicial and Legal Service Commission; so did Nigeria in its i960 Constitution, but this was dropped in the 1963 revision. In the Western European career judicial systems, and the similar Japanese and South American systems, the main differ¬ ence from the Anglo-American practice lies in the absence of an intimate connexion between the legal profession and the judges. To some extent, the treatment of the judiciary as a branch of government service produces an identification of the judiciary with the bureaucracy in general, and with the outlook of the current type of government, but this identification is closest in the early years of legal service with the government, and once a person begins regular service as a judge he acquires a sub¬ stantial degree of independence which increases with age and with promotion in the service. The principal factor in his advancement as a judge is the assessment of his quality by brother judges and in particular by the senior judge of the part of the system in which he works. None of the legal guarantees of tenure, and few of the English conventions and trappings, designed to emphasize independence and prevent unsuitable contacts, are lacking; the social standing of judges may not be fully comparable with that of English counterparts, but is in many respects superior to that of American State counterparts in unreformed States. Much has been written about the failure of the West German judiciary to resist the Nazis. However, in the palace of the Bundesgerichtshof, the supreme tribunal for general civil and criminal law purposes, at Karlsruhe, may be seen a list of the members of that court who were victims of both Nazi and Communist savagery, and Hitler was sufficiently dis¬ satisfied with the pliability of the judiciary at all levels to con¬ struct a special set of courts for the administration of the most brutal of his laws. The trouble was with the whole national tradition and morale; the judiciary shared in the general guilt, and the Adenauer regime (1949-63) was at fault in not weeding out those judges who were seriously compromised earlier and in a more ruthless fashion, and continuing the failure long after a shortage of trained lawyers ceased to justify the retention of such men. But much of the propaganda on this matter is of Communist origin, and the objections which the Communists



had and have to West German judges of conservative and nationalist bent would apply equally to most of the English judiciary. It has become a commonplace that A. V. Dicey was wrong when in his Law of the Constitution (1885) he assumed that Continental-type systems of administrative courts would be biased in favour of governments and civil servants; on the con¬ trary, they provide more effective and flexible remedies against governments and their servants than do the Anglo-American systems, yet their judges have usually had an even closer associa¬ tion with administration in their early training than men who specialize in other types of jurisdiction. The absence of a strong professional connexion makes a difference, but its consequences have been mitigated by an infusion of judges taken from the profession in the higher levels of some of these systems, and still more, in all of them, by an infusion of judges taken from the ranks of university law teachers. Judges also maintain more systematic contacts with the university teaching faculties and with research institutions than is the case with judges in the British Commonwealth, though probably not more than one finds among judges in the U.S.A. Soviet Russia is a convenient comparative case for many features of social organization. The ideological assumptions of Leninism produced a strong revolutionary bias against law, lawyers, and judges, on the view that they were merely instru¬ ments of exploitation, but the later necessities of an oligarchy ruling through a bureaucracy led to revisions of this attitude; law and courts were revived or re-established and the present Constitution (1936, Ch. IX) guarantees the independence of the judiciary. Such guarantees must be regarded with reserve. The Communists are more likely to regard independent courts as a desirable form of division of labour than as a separation of governmental powers designed mainly in the interests of personal freedom. The courts themselves usually consist of a university-trained lawyer-judge who has been through steps of governmental legal service as under the West European systems, and a number (usually two) of non-lawyers serving in this capacity for up to five years and comparable with the West Ger¬ man Schbffen, though taking in fact a more active part in decision than do the latter. The point is, though, that even in this system with its heavy emphasis on social solidarity and rejection of



‘formalism’ in social control, a specialized professional judieiary has become established. J. N. Hazard’s Settling Disputes in Soviet Society (i960) traces the steps by whieh the Russian Communists have come to aecept the need for an objective legal system objeetively administered. As Professor Hazard says, the history supports the hypothesis that an independent judiciary and trained legal profession, administering norms whieh possess a good deal of formal rigidity, is essential to a modern society irrespeetive of its eeonomic organization and governing ideo¬ logy. Indeed, there is even an odd link between Soviet theory on the judicial function and the pre-revolutionary psyehological jurisprudence of Leon Petrazycki. This is an insistenee on the judge arriving at a feeling of personal conviction as to the facts and the proper applieation of the law, almost a demand for ‘absolute truth’, instead of relying on probabilities or onus of proof. ^ It has become a eommonplaee of jurisprudence and social science that whatever safeguards there may be against partisan abuse of the power to make judicial appointments, and however carefully judges are insulated against direct interference with their impartiality, the personal values and attitude of the judge are likely to affeet some of his decisions. This is because the formal strueture of legal rules and the estimation of states of fact leave so many situations in which different decisions are equally consistent with the law or the evidence. The existenee of such situations is most vividly shown by dissents in a series of multi-judge tribunals in a trial-appeal hierarchy, such that in the finish an equal number of judges is for the plaintiff and the defendant respectively, or there is even a majority against the view which, under the decision rules, prevailed. This ean hap¬ pen because the majority view in the highest appellate court prevails, no matter how many of the judges below may have been of a eontrary opinion and no matter how narrow the majority in the highest eourt may be. A lawyer would want to be satisfied that in addition the professional and scholarly standing of the two judicial blocs is comparable and that eaeh set of opinions is rationally persuasive. An example satisfying these eonditions is Ridge v. Baldwin^ The question was whether * See A. K. R. Kiralfy in International and Comparative Law Quarterly (1957), vol. 6, p. 639. 2 [ig64] A.C. 40.



a Chief Constable of Police had been properly dismissed; there was no significant dispute about the facts, ljut the legal questions involved were complex. On trial in the King’s Bench Division, and on appeal to a Court of Appeal of three Lords Justices, the action was dismissed, but in the Judicial Committee of the House of Lords (five Lords sitting) the decisions below were set aside and judgment entered for the plaintiff. Lord Evershed dissenting. Thus in all five judges were against the plaintiff and four in his favour; those against him were not clearly less eminent than those in favour and the views on the one side and the other were about equally persuasive. Similar considerations arise when courts overrule their own earlier rulings on question of law. There was a remarkable illustration of this in the High Court of Australia in three cases on the interpretation of s. 92 of the federal Constitution, the guarantee of freedom of inter¬ state trade, decided in 1916 and 1920;^ in the second case, the decision in the first case was expressly overruled; then in the third case, the decision in the second case was expressly over¬ ruled and the decision in the first case was expressly reinstated, though actually the legal doctrines laid down in the third case were significantly different from those acted on in the first. Two out of seven Justices dissented in each of the second and third cases. It is ridiculous to pretend that in such circumstances there was a ‘correct’ view and that it was the view which prevailed. In such cases no decision is necessarily entailed by the evidence or the law and hence while the reasoning on one side or the other provides somt justification for the conflicting views, it does not for the observer satisfactorily explain the decision. The problem has long been acknowledged in relation to the operation of a system of judge-made law depending on precedent, and, as we have seen, Ihering and Geny demonstrated its existence in rela¬ tion to code systems. The examination of this problem has been obstructed by the determination of many judges and members of the legal profession to foster the myth of decision inevitability, sometimes because they really believe it but usually because they think the myth necessary to the maintenance of public confidence in the judicial process. Hence judges have not been very willing to ’ Foggitt Jones & Co. Ltd. v. 22 Comm. L.R. 556; W. & A.


21 Comm. L.R. 357; Duncan v. Queensland, 28 Comm. L. R. 530.

AIcArthur Ltd. v. Queensland,



engage in self-examination, or to record its results. Even the writings of Cardozo, such as TheNature of the Judicial Process (1921) cannot be regarded as completely candid accounts of what goes on in a judicial mind. Jerome Frank wanted judges to be psycho¬ analysed so that all the possible elements of bias in their decisions would be publicly known, but the proposal has never been seriously pursued. In any event, it cannot be too readily assumed that the factors causing judges to choose between two decisions equally consistent with the official materials for de¬ cision are necessarily buried in the subconscious. They may be of many different kinds. The choice may be fortuitous—dictated by an impulse comparable with the tossing of a coin. The judge may really think that the materials compel his decision; he may not see the force of the other argument, and his failure may be due to some prejudice or value-orientation which a psycho¬ logist could uncover or may be due to simple stupidity, to tired¬ ness or overwork, to imperfect presentation of the argument or to his having been in a doze when it was presented. When Justice O. W. Holmes emphasized the inarticulate or unex¬ pressed major premisses of legal decisions, he was probably not thinking in terms of emotional or irrational influences affecting a judge, such as the current state of his digestion, but of social policies or purposes capable of rational statement and suggest¬ ing one rather than another possible conclusion. These can often be inferred from the choice of specific reasoning which the judge makes. For example, in Ridge v. Baldwin, the case of the dismissed Chief Constable, the reasoning selected by the five judges who were against the plaintiff could be traced beyond the doctrines and cases mentioned to two broader factors; first, the evident fact that the conduct of the plaintiff had justified some disciplinary action, and secondly, a view that the special needs of discipline in a police force require the administrative authority concerned to have a good deal of flexibility and dis¬ cretion in its procedure and grounds of action. The majority view in the House of Lords, on the other hand, was more con¬ cerned with re-establishing a long-range principle of action for administrative authorities of all kinds—namely that they should not act without giving affected parties a chance to be heard. This is an example of the statement of a legal principle and of a social purpose being almost identical in terms, There was



a special point in choosing a ‘strong case’ for the restatement of the principle that parties must be heard, since there was a con¬ siderable conflict among earlier decisions on the point, and in Nakkuda Ali v. Jayaratne,^ a decade earlier, the Judicial Com¬ mittee of the Privy Council had expressed an opinion which threatened to abridge judicial control of administrative authori¬ ties; this opinion had been much criticized and ran counter to the current trend towards greater control of administrative dis¬ cretion. There is no possibility and probably no need for ex¬ planation of this case in terms of the psychology of individual judges or of social evaluations not concerned with legal doctrines. Nevertheless, the possibility of explanations of the work of some courts, or some judges, generally or in some cases, by reference to other factors than short-range rule or long-range policy cannot be excluded. When hearing a case, a judge is with the parties, witnesses, lawyers, officials, and public present participating in what the sociologists call a face-to-face group. There are so many variable factors in its personnel and work from case to case that the application of group psychology or sociology is likely to be difficult, but the relation between a judge or Bench and a small group of counsel regularly appearing before them may be capable of systematic analysis. Judgments of fact—whether to believe a witness and the inferences to be drawn from accepted evidence—are particularly likely to be influenced by experience and valuations and a court atmo¬ sphere not susceptible of formal ‘legal’ analysis. A bench of judges is also itself a small group and here the duration of the group and the intimacy of its contacts provide cogent basis for group analysis. Where the cases before a particular multi¬ judge court come in runs of a similar type, it is possible to see patterns of majority grouping and dissent which invite attempts at statistical correlation with factors other than the overt reasons for decision. Such methods of analysis have been most developed in the U.S.A., partly because the conditions of judicial activity often invite such irreverent treatment. The work has been done mainly by political scientists, an example being G. A. Schubert’s Quantitative Analysis of Judicial Behaviour (1959). This deals mainly with decisions of the U.S. Supreme Court. One part of the work shows how the summary disposition of cases for which ' [igsdA.C. 66.



no opinions are written is eating into the time of the court to an extent which imperils the discharge of its main constitutional function—namely disposition of key cases with reason. This type of analysis is referable mainly to problems in the business organi¬ zation of courts, mentioned in the last chapter. Another section deals with the subdivision of the nine Justices into various kinds of sub-groups, roughly left-wing, right-wing, and centre, taking as a mark of ‘being left’ and ‘being right’ a tendency to decide for or against persons appealing against criminal convictions. The transformation of these groupings is pursued through successive appointments over the period 1946-57. Another section applies games theory to the manoeuvres of the Justices under threat of packing in 1937, when ‘a switch in time saved nine’. Another section demonstrates the consistency with which a group of Justices decided for or against worker-claimants under Em¬ ployers’ Liability statutes; there is also an interlude, dealing with the Michigan Supreme Court, which shows group bias concerning such cases. Professor Schubert has progressively refined his mathematical techniques and increased the number of potential factors in decision which can be simultaneously correlated; see, for example, his paper ‘The i960 Term of the Supreme Court, a Psychological Analysis’.^ In the last chapter of this book the scientific standing and social implications of such work are further considered. • (1962) 56

American Political Science Review,

p. 90.


LAWYERS Among some primitive peoples an approach to specialized

knowledge of the ‘legal’ rules is found in particular individuals, usually as an attribute of leadership. But we may infer ancient origins for a well-marked folk hostility towards the notion that a special class of persons should earn their living by the perfor¬ mance of the social functions associated with a ‘legal profession’. Moreover the reason for the prejudice is likely to have been a belief still often found among non-lawyers, namely that lawyers foment social strife in order to earn fees and have a vested interest in misinterpreting'the customs of the fathers, the teachings of the prophets, the dooms of hero-kings, or the intention of Parliament. In dynastic China, Confucian teaching supported popular prejudice; the rendering of legal aid for reward was prohibited. This did not preclude highly skilled attention to legal problems. In Ch’ii’s Law and Society in Traditional China there are examples of criminal equity, and discussions of the relation between legal rules and social policy, which could not have been conceived by men indifferent to analysis and systematization, ^ and the case-books often illustrate reasoning by analogy com¬ parable with that achieved in English common law. But this was done by a bureaucracy within and above the courts which never succeeded in breaking away from the traditions and obli¬ gations of administrative service to the Imperial government, in order to provide services to the citizenry which the latter might gladly have purchased. Similarly, in ancient Greece and early republican Rome there were both prejudices and rules against the giving of paid legal advice; by a curious blend of social snobbism and legal antiquarianism, the Roman rule was revived in seventeenth-century England and attached to the English barrister, who then became unable to sue either lay client or instructing solicitor for his fees. * See, e.g.,at p. 93, concerning exogamy.

de facto

marriages in breach of the rules as to



But notwithstanding the rules, the beginnings of a legal pro¬ fession were evident in fourth-century Attica among the orators and rhetoricians who wrote speeches for parties to deliver in court. In Rome it is likely that the distrust of ‘lawyers’ was specifically concentrated on those who provided or delivered speeches before judex or the criminal tribunals, leaving un¬ touched the jurisconsults or prudentes who advised on the de¬ velopment of the praetorian edicts, on the construction of the formulae approved case by case by magistrates, and on the law to be applied by the judex. The prestige of the jurisconsult derived partly from his social origins; he was in the first place a powerful or politically ambitious or charitable-minded patri¬ cian or a man of wealth who provided legal advice for tenant farmers, household dependents, and political supporters, being able to do this because the possession of legal knowledge was a necessity for a man of position who wished to cut a dash in the community, or even to hold his possessions against his peers. Such a man would disdain to charge fees. On the other hand, the faint flavour of Greek disreputability about trial rhetoric might have correspondingly reduced the prestige of the man who argued in court. It is likely that some further specialization of a ‘great lawyer’ class among the jurisconsults occurred even in the republican period, and that some of these men also provided apprentice training in law for young men of the governing classes, at least as a favour. Probably a majority of the juris¬ consults continued to be of the same class throughout the golden period of Roman law, under the Principate; if not intending or former holders of offices inherited from the Republic, they were Imperial officers, and in any event they were men of the govern¬ ing class with a wide knowledge and experience of the society whose laws they helped to administer. A few of these may have spent most of their lives advising on the law and teaching law. But it is very likely that under the Principate there were some writers on law and law teachers who did not move in Imperial circles, who earned a living mainly from those activities, and who (perhaps for those reasons) were not at the time regarded as prudentes', Gains, who afterwards became the most highly regarded legal thinker and writer of the period, was probably one of this class whom we might call professional in a special sense. But perhaps the ‘honorary’ quality of the services of those



who were regarded as prudentes and whose opinions were cited to magistrates a.nd judices became more and more of a fiction, as it did in the Dominate, and many such men expected and received ‘gifts’. Although the Roman jurists were said to fall into ‘schools’, there is no evidence that they ever constituted organized or corporate bodies with a regular discipline, external or self-im¬ posed. The alternative explanation that the word ‘school’ referred to a type of doctrine is unconvincing, since so far as we know the doctrinal differences were trivial. Jolowicz suggests' that there were clubs of some sort in which the jurists of the two schools gathered for discussion. But however it was managed, there was probably a good deal of personal contact between the great jurists of a particular time, and there was certainly a wide circu¬ lation of a large professional literature. The Justinian Digest is a collection, culled from larger collections, of opinions given by such jurists in relation to specific cases, some suppositious but mainly actual. The resemblance of these to collections of reported cases in the English system has often been pointed out, and so has the resemblance in style of treatment, thinking, and arrangement of material. Owing to the Roman procedural system already mentioned, there was no stage in judicial de¬ cision which produced something capable of being reported in the form taken by the reports of the decisions of English (and present-day European) courts. Even in Anglo-American law, we are familiar with one type of reported opinions of Counsel, namely opinions of Attorneys- and Solicitors-General, which have acquired a high degree of authority as sources of law on questions which often do not reach ordinary courts, or which used not to reach them—disputes concerning constitutional questions in systems like that of the United Kingdom; questions of international law, and questions as to the validity oiproposed laws even in federal systems, where the proposal did not become law. In Rome collections of the opinions of the prudentes were used much as English law uses decided cases; as the basis for analogical development in specific disputes to help solve the latter, and as the basis on which teachers and writers constructed abstractly stated systems of general rules or principles, such as the ‘Institutes’ of Gaius and of the writers in Justinian’s compilation. *

Historical Introduction to the Study of Roman Law

(2nd ed., 1952), p. 390.

I 12


Hence it is the accepted view that Roman law was primarily the creation neither of legislators (though they contributed much) nor of judges, but of a section of the legal profession. It must be emphasized again, however, that this did not relate to constitutional, administrative, or criminal law, but only to what we now call civil law. It must also be emphasized that the ‘legal profession’ in this case had a more integrated relationship with government in general and with legal administration in particular than lawyers in ‘private practice’ have today. Presentday parallels can be given for the sort of authority which the prudentes possessed in relation to civil litigation. For example, the learned clerk to English Justices of the Peace may exert a similar authority. ‘Books of authority’ formerly existed in English law; Sir Frederick Pollock, in his First Book of Jurisprudence, gives Foster’s Crown Law (1762) as the last example. But the species now seems extinct, and most of the law stated in the old ones has ceased to be applicable. Where there is a jungle of jurisdictions and precedents, as in the U.S.A., the work of an institutional writer such as Williston on Contracts may still acquire high authority. Leading members of a legal profession may join with judges and university teachers in regularly operating advisory committees whose suggestions for reform of ‘lawyers’ law’ are often accepted by the legislature, as in England and in several Australian states. But none of these scattered phenomena pro¬ duce the unique Roman situation of legal development domin¬ ated by a class of legal specialists who were neither, when so operating, government officials, nor judges, nor legislators, nor even advocates. The prudentes were practical men looking for solutions to speci¬ fic problems, and hence their law had a disorderly quality. They tended to use criteria of organization which came ready made, such as the historically determined order of topics in the magisterial edicts, or of legislation, or of available forms of action. Since they worked in relation to the demands of specific litigants whom they saw and heard, they were conscious of changing social demands and social settings for the operation of existing laws; whether an old action should be extended or a new action be devised did not appear as an abstract intellec¬ tual exercise, but as a proposal whose application was immedi¬ ately illustrated. But owing to their class position in Roman



society, to their usual possession of a livelihood or probable career independent of their legal work, and to their lack of close identification with the cause of a particular client, the prudentes also had sufficient aloofness and objectivity to achieve a fair degree of abstract and generalized thought. The situation in which they left the law of contract is illustrative; they did not develop any single basis for contractual liability. We are now accustomed to methods of analysis which emphasize one or both of two aspects present in most contractual situations—a promise made by one person to another, an agreement between two per¬ sons—and our rules are related to such fundamental analyses. But the eleven or twelve types of contractual liability known to Gains between them covered most of the situations in which farmers, dealers in urban land and buildings, and commercial men were likely to want a legal remedy for the breach of agree¬ ment or promise. By the time of Justinian, it had come to be regarded as usual and proper that a legal profession should exist, capable of advis¬ ing people as to their rights, preparing documents and otherwise giving legal shape to their transactions, and representing them in the conduct of litigation, though with restrictions on the basis and amount of remuneration such as still exist in most countries. This tradition was carried on in the courts of the Church through the dark ages, when over most of Western Europe and Britain the invading barbarians re-established the earlier principle that lawyers should not exist and that parties should argue their own cases in court. Even before the revival of Roman secular law in European universities from a.d. iioo on, clerical example and the practical necessities of a litigious feudalism ensured the re¬ establishment of some forms of legal advice and representation, and the prestige of the revived Roman doctrines then encouraged acceptance of the need for men skilled in the law and paid for their services. But the old prejudices died slowly, especially among the common people. ‘The first thing we do, let’s kill all the lawyers’, says Shakespeare’s Dick the Butcher, and Jack Cade replies; ‘Nay, that I mean to do. Is not this a lamentable thing, that of the skin of an innocent lamb should be made parchment? that parchment, being scribbled over, should undo a man?’^ * Henry VI, Pt. 2, Act iv, Sc. ii. 825208




The main development of legal scholarship in Europe in the Middle Ages did not occur among a class of lawyers comparable either with the Roman jurisconsults or with present-day legal professions; it occurred in the universities. This prominence of law teachers had Roman origins and justifications; law teachers and law schools were prominent in the later Empire, especially in the Eastern Empire, and at least four of the compilers of the Justinian collections were teachers in law schools at Constanti¬ nople and Beyrout which resembled universities. To this day, university Professors of Law hold a position in the Romanist countries higher in professional repute and influence with the courts than that of their university colleagues in English-speak¬ ing countries. The prestige and importance of law teachers in the actual administration of law is higher in the U.S.A. than in other countries of the English tradition, but even there, if you fail to find a Harvard law professor on the campus in term-time because he has been summoned to Washington, his mission is likely to be advising the Administration, not appearing before the Supreme Court. At Cologne, or Frankfurt-am-Main, or Heidelberg, a missing law professor will probably be found at Karlsruhe arguing some leading case before the Supreme Courts. The present writer had the opportunity of watching three cases argued before the Bundesverfassungsgericht in 1959; in a Bar of twenty odd, four were Government legal officers, one was a private legal practitioner (Rechtsanwalt), and the rest were professors. The relative importance of the legal profession may be greater in Italy, and is certainly greater in France, but there too the members of university faculties achieve promin¬ ence not only as teachers and as the writers of books for students, but also in giving opinions in the manner of the Roman juris¬ consults and in publishing papers and texts on specific current problems which are habitually cited and applied in the courts. The generalization that the later Roman law of Europe is mainly the product of university teachers and writers, whereas Anglo-American law has been mainly the product of the legal profession and the judges, is true, but from it can be drawn misleading implications. The European commentators on the Roman law and on the nineteenth-century codes stretch in unbroken tradition from Irnerius in the early twelfth century to the present day and in that time the circumstances in which



such men lived and worked have changed from time to time, and have varied from country to country, from university to university, and from individual to individual. It is natural to assume that the work of university men will have an ‘academic’ quality—generalization, attention to consistency and sym¬ metry, an infusion of philosophic ideas, concern about old puzzles which may not be presently relevant, inattention to ‘practical’ needs, refusal to be concerned with ‘questions of detail’—with ‘the small change of professional life’ as an American Professor of Constitutional Law, illustrating the attitude, once put it. If the ‘ivory tower’ picture of university life is true, one might expect its denizens to be ignorant of or insensitive to the structure of surrounding society and willing to put out as valid law provisions having no organic relation to the society’s needs. On the other hand, one might expect a profession-dominated law to be highly ‘practical’, indifferent to consistency and symmetry and philosophic considerations, im¬ mediately sensitive to changes in social structure and social need, much taken up with points of detail. But the ‘ivory tower’ picture of universities never has been true of all features in their life and has often been almost entirely untrue, and practising lawyers can be strikingly indifferent to considerations of social utility. Most of the Glossators (twelfth to fourteenth centuries) and post-Glossators (fourteenth to sixteenth centuries) were not only university teachers but men of affairs who engaged actively in the legal life of their communities, especially in Italy, southern France, the Low Countries, and Germany. They gave opinions, argued cases before courts, and advised judges; they did this while teaching, and in intervals between teaching; they moved from university to university and from country to country; they attached themselves to Emperors and Popes, to Princes and republics. Many became judges, or acted as arbitrators. They were often professionally concerned with cases before feudal courts administering feudal custom, and town tribunals ad¬ ministering merchant custom. Those who established great reputations probably did not display quite the social mobility of the twelfth-century nobleman, mentioned by H. Kantorowicz in his Glossators of the Roman Law (1938),! who became a law ' p. 207.



teacher at the famous school founded by Irnerius at Bologna; he was generally thought a better horseman than jurist, and was later appointed Archbishop of Pisa, where his law and horse¬ manship were presumably of equal utility. P. Koschaker in his Europa und des Rdmische Recht (1958) gives many illustrations of the complex social relations between the ‘jurists’, as he calls them, and the societies in which they worked. He is led as a result to putting together the jurists of classical Rome, the Euro¬ pean Glossators and post-Glossators, the French advocates (especially those of the Parlement of Paris) who taught and wrote about the mixture of Roman and local customary law developed in northern France, and the serjeants, barristers, and judges of the English common-law system; these, he says, were all primarily Juristen who created closely comparable systems of Juristenrecht. His test for this is both formal and socio¬ logical; these were all men who were concerned to find a valid, applicable law capable of actual use in the particular society in which they lived. He contrasts them with professors who lacked contact with legal administration and who discovered or created only a Professorenrecht: examples of this were the Humanists of the fifteenth and sixteenth centuries such as Cujas who dis¬ missed with contempt the work of their predecessors the postGlossators, such as Bartolus, and of their predecessors the Glossators, as a barbarous mixture of Germanic custom and Justinian law, and who further dismissed the Justinian corpus itself as a botched, distorted collection of the ‘pure’ Roman doctrines which had to be sorted out from the interpolations, mistakes and contradictions of Tribonian and his colleagues. Other examples of Professorenrecht were the constructors of ideal natural law systems, such as Pufendorf, who often arrived at much the same results as the Humanists, and still later examples the students of ancient law and of comparative law who were admittedly concerned with the history and sociology of human culture and not at all with the working law of their own time. Hence Koschaker treats as unimportant the particular way in which his Juristen worked, and translated their ideas into appli¬ cable law, whether by collection of their opinions and associated doctrinal writings as in Rome, or by the decisions of judges as in England, or by teaching and the writing of commentaries as in Europe after 1100.



This broad distinction between jurists’ law and professors’ law is unsatisfactory in two respects. Firstly, between the scholar who establishes the precise meaning of a clay contract-tablet dug up from Babylon of the third millennium, and the scholar who writes a critical note for the Law Qimrterly Review on the latest decision of the Court of Appeal concerning penalty clauses in hire-purchase agreements, there is a long, gradual slide, and a good many of the professors come somewhere in its middle. Koschaker puts into his Professorenrecht category the products of the German historical school beginning with Savigny, but he describes the influence which these men had in shaping the German Codes; such an influence gives them some claim to be regarded as jurists. Secondly, and a related point, his category of‘jurists’ is too broad to be useful. The way in which particular lawyers influence the applicable law of a particular time is also important. Given that we are dealing with relatively mature societies having complex bodies of law which demand some specialized attention, then as between those societies we may ask whether the prominence of university teachers in the de¬ velopment of Euro-Roman law had an important influence on the difference observable between that law and the law of Eng¬ land, where the main influence was that of judges and practi¬ tioners. Differences are apparent. They are comparable to those be¬ tween Coke’s Institutes and Blackstone’s Commentaries in the English system. Edward Coke (1552-1634), a barrister. Reader and Treasurer of the Inner Temple, Crown Law Officer, and Chief Justice of Common Pleas and King’s Bench, is the great epitomist of the common law and symbol of the common law¬ yers ; his works are highly detailed, concerned only with what he thought applicable law, very practical in the sense of showing the practitioner how to go about the business in hand, and also extremely disorderly and badly written. Conflicts are left un¬ resolved, or resolved by a casuistry relying heavily on facts, and there is no ‘general part’. William Blackstone (1723-80) was a Fellow of All Souls, a student of English literature, and an unsuccessful barrister who gave some successful lectures on English law at Oxford, and was encouraged to turn them into the Commentaries', before their publication, he was appointed first Vinerian Professor of English Law at Oxford, where



previously only Roman law had been regularly taught. He later became a successful judge and law reporter, though he never had the Bar practice usually required for judicial appointment. In short, much closer to the European style of university jurist. His ‘commentaries’ are carefully arranged, with an eye to con¬ sistency, lacking in fine detail, elegantly written; they begin with an account of general legal concepts and classifications, and pay some attention to theories of natural law. When the great battles over conceptualized law, the mos geometricus, in European law were raging at the end of the nineteenth and early part of the twentieth century, many French and German advocates of‘free law’ startled English and American lawyers by finding in the English common law an illustration of the practicability and merits of the ‘rule-free’ system which they advocated. They were not anticipating the view of Jerome Frank that the Anglo-American judges, while purporting to apply precedents, actually applied values from their subconscious, or relied on unanalysable hunches. These European observers thought that the official English theory of precedent and of judicial function authorized constant adaptation and individualization of the law. That they should make such a mistake, as most English lawyers thought it, is another illustra¬ tion of the difference between the systems. The Europeans were contrasting the English position with an extreme form of Franco-German juristic geometry or algebra, but the latter was not mere Professorenrecht; it influenced the courts. The English situation was partly the product of the law-reporting system, the system of attributing binding force to precedent decisions and especially to a single decision instead of a course of decisions, and of a professional and judicial tradition of fact-casuistry rather than rule-casuistry. It would not be logically possible to attribute such a degree of authority or importance either to court decisions or to the detailed facts of a decided case and at the same time to give highest authority to the writings of univer¬ sity teachers. It would be logically possible to establish a habit among university teachers of law, producing the same results as the English precedent system; they would need to eschew the writing of general treatises, monographs, and commentaries, and instead make collections of the facts of decided or imagined cases and indicate how they would decide the case, and why.



and the courts would need then to accept the views so expressed as having at least high persuasive authority in relation to the facts recited. Indeed, a good deal of case-putting and fact-distinguishing has always been present in European legal scholarship. It was an aspect of scholastic philosophy and rhetoric which in¬ fluenced the early history of English legal thought as well. Attention to decided cases and the prominence of ‘unwritten’ law, theoretically attributed to custom, was a prominent feature of the legal system of pre-revolutionary northern France. But the advocates attached to the Parlement of Paris, the principal law court of that region, formed a close corporation and order fully comparable with the English serjeants; the judges of the region were usually appointed from among their number, and when Louis XIV created Chairs of French (i.e. northern French) law at the University of Paris—where the teaching of Roman law had been prohibited because of its support for the pretensions of the Holy Roman Emperors to superiority over the Kings of France—he chose the incumbents from the practis¬ ing advocates. In southern France, we find both the law of the Glossators and the dominance of university teachers of that law whose own training was wholly within the universities, but even there the infiltration of non-Roman local law was considerable. Germans still often refer to French law as a Romanic system much corrupted by Frankish barbarisms, as distinct from Roman law adapted to changed social needs. Even since the adoption of the code system in France, with consequent unifica¬ tion of French law and of the organization of the practising pro¬ fession, French administrative law has developed in the Conseil d’Etat largely on a basis of judge-made case law, but influenced by the work of great teachers such as Duguit and Hauriou, who were also prominent general theorists of law. The misleading inference, then, which Anglo-American ob¬ servers may draw from the prominence of ‘university law’ in Europe is a notion that the law will be ‘academic’ in a sense of lacking integration with the general life of the society, or tech¬ nically ill-adapted to the current conditions of legal administra¬ tion, especially in the lower or more decentralized courts and branches of public administration. It is certainly the character¬ istic vice of such a law to possess these qualities. But in the



nearly nine centuries since Irnerius, there were five centuries in which the university teacher was usually a man of affairs in close contact with the work of courts and with at least the governing classes and the men of property; it is only in the last four centuries that the possibility of an ‘academic’, in a pejora¬ tive sense, administered law has become a serious possibility. Even in that period the contact between professor and practical administration has in a majority of cases remained close, and the legal profession outside the universities has become increasingly well organized and socially influential. But the university teacher and research lawyer is likely to be more exposed to philosophy, history, economics, sociology and such disciplines, and to a general intellectual habit of systematic treatment and a search for general, abstract principles. The necessities of teach¬ ing encourage orderly and to some extent simplified treatment. The existence of the university career and means of making a livelihood reduces the commitment to or sense of responsibility for specific, immediate clients or causes as compared with the lawyer whose whole living depends on his professional success. In the Anglo-American setting, the trend of this difference is illustrated by the frequent tension between university lawteachers and the practising profession where, as in North America and Australia, training for legal practice has passed largely into the hands of the universities. The Bar seeks usually to maximize both the amount of‘hard law’ taught at the univer¬ sity, and the practicality and detail of the teaching. The univer¬ sity seeks usually to maximize the general educational content of the course and to teach the ‘hard law’ in a manner appropriate to a learned discipline rather than to a trade school. Correspondingly, the characteristic vices of a law developed, as in countries of the English tradition, mainly by the practising profession and judges drawn from it, are disorder, fine differ¬ ences, excessive concern with procedure, lack of general organiz¬ ing concepts. Some of these attributes are now associated specifically with the system of precedent, but they existed long before the precedent system hardened and were evident not only in case law, but in the statute book and in statutory interpreta¬ tion. The merits of such systems are flexibility in development and application, provided the social changes concerned are relatively small-scale, and a tendency to reject unworkable



conclusions based only on deductive logic. However, just as in the case of the European history we must not underestimate the social cohesion of law, lawyers, and the rest of the society, so in the English case we must not overestimate the corresponding cohesion. The organization of the legal profession in England has had a complex history, and its present shape dates only from the nineteenth century. Since about 1400, however, one factor has been constant; the dominating position of the branch of the profession which developed into the modern barrister, and which was concentrated in the Inns of Court in London. It was not until the seventeenth century that the formal separation between the serjeants and barristers on the one hand, and the attorneys, solicitors, scriveners, conveyancers, notaries, and other such branches of the profession became complete, and for a short time during and after the Commonwealth there was even a possibility that the professional cohesion of the Inns would break down and the Bar become scattered. Until shortly before the Commonwealth, one of the important factors keeping the Inns in being was the richness of the social and cultural life which they provided. They have indeed been described as universities in themselves, but this is an exaggerated claim; it does not seem that formal instruction ever extended much be¬ yond the teaching of law, and that rather in the manner of craft instruction than of university teaching. But there was also much feasting, dancing, producing of plays, writing of verses, and general good fellowship, and the modern Benchers who have delighted to recall the past glories of their Inns—Lord Justice MacKinnon’s Inner Temple Papers (1948) is an out¬ standing example—have had the satisfaction of knowing that the Inns survived the decay of the later seventeenth and early eighteenth centuries and are a main centre of English and of British Commonwealth legal life today. The social history of the Bar, in the sense of ‘social’ relevant to this book, has never been written in the penetrating and compendious manner of Michael Birks’s Gentlemen of the Law (i960), dealing with the branches of the profession which combined in the solicitor of today. The ancestors of the solicitor, however, varied in social status from the almost servile to that of a prosperous merchant and did not achieve the corporate organization or standard of learning likely to influence the law until the nineteenth century.



Until the twentieth century the English Bar came principally from the wealthier classes and mostly from the gentry or the younger sons of the nobility. This is quite apart from the large number of young men of the nobility or upper gentry who until the Commonwealth spent periods at the Inns of Court without any intention of practising the law, because the Inns were a school of manners and of social style. The fees payable for membership, tuition, and advancement through various stages were such that only with the aid given by charities, such as the Tancred scholarships at Lincoln’s Inn, could those of modest means hope to achieve admission. But the governing bodies themselves also stressed the need for ‘gentility’ as a condition of admission, and sought at various times to prevent the vulgar from earning their way through in the manner at different times open—working as attorneys, scriveners, court clerks or in trade, or more recently as journalists. Not only in England, but throughout Europe, snobbism and caste-consciousness were until the nineteenth century at a pitch which it is difficult for us to appreciate today, accustomed as we are to many sorts of snobbery, direct and inverted. This was so even though social mobility in England was considerable; the Pastons are a famous example—in the early fifteenth century, the son of two villeins, with financial help from an attorney uncle who had also started as a villein, entered an Inn and became a judge, and the founder of a great family, but it was the subject of sour com¬ ment from the gentry. An extreme example of the identification between Bar and Establishment is mentioned without comment by Lord Justice MacKinnon; in 1561, Lord Robert Dudley en¬ abled the Inner Temple to triumph over the Middle Temple in a dispute over the control of Lyon’s Inn, Dudley being then Queen Elizabeth’s favourite; in gratitude, the Inner Temple made Dudley a member of the Inn and the Benchers ordered that no member of the Society should ever appear against him as counsel! Even before the separation of the Bar was completed in the seventeenth century and the rule was then established that the barrister’s client must be an attorney or solicitor, not the lay ‘ultimate’ client, it was usual for the cases of most lay clients to filter through several hands before being finally represented in court by a serjeant, ‘apprentice’, or barrister. Before the seven¬ teenth century, a client who lived in London might have a close



association with his counsel—closer than would have been re¬ garded as proper in the past two centuries. But the client not in London, and through the centuries when land was the main form of wealth this meant most clients, had of necessity to deal through an attorney as described in the pages of Gentlemen at Law. This was so whether the case was tried in London or by a judge on circuit, because even in the latter case the barrister came from London with the judge; he would expect to find that all the steps necessary for trial had been taken before his arrival and indeed he would normally have been briefed before coming on circuit. Many features of the situation encouraged a concentration on legal technicality rather than social substance. From the judges downwards, all sections of the profession and the court officials relied on fees which were measured largely by number and length of documents to be filed and served, copies required, and procedural steps to be taken. More technicality meant more fees. The method of training in the Inns, and the close corporate life of counsel, encouraged concentration on pro¬ cedure and caused virtuosity in the handling of technicalities to be admired and imitated, and the choice of judges exclusively from the men so conditioned ensured that most judges would encourage these attitudes. The use of Latin for documents and Norman French for argument and reports shut out from the first the masses who were only English-speakers; as Latin and French became less and less the ordinary language of the upper classes, of administration, and of learning, law court language became the expression of a special set of concepts, and left a specialized vocabulary after English became the legal language, a process which was spread over four centuries (1362-1731). Hence although the English never suffered from Professorenrecht and are not likely to do so now, their system had and has comparable vices. The judges and Bar at all times have had sufficient aloofness, sufficient dedication to the idea of law as esoteric craft, and sufficient self-interest in preserving the mystery, to develop their own mos geometrica, though using different co¬ ordinates. Taking a century at a time, one is impressed with the adaptability of Common Law and Equity; in particular, the changing pattern of agriculture, the growth of commerce, and finally the growth of industry were catered for, and the process



looks the more impressive because its beginnings were so primi¬ tive. Taking lesser periods, a struggle to prevent or delay change is more apparent. For example, in 1800 English judicial organi¬ zation and court procedure were a disgrace to the country, in their needless complexity, expense and delay, and capacity for preventing a trial on the merits of a case. In 1900, however, English judicial organization and procedure were an example at least to the English-speaking world for simplicity, commonsense procedure, unlikelihood that any case would be deter¬ mined otherwise than on its substantial merits, and relative cheapness; the changes were largely compelled by legislation, but the Acts were mainly the work of lawyers and a great deal of the detailed working out was directly the work of the judges. But along the way, the professional record was not so good. Between 1800 and 1850, a majority of the judiciary and the most influential sections of the profession fought change, and from 1834 to 1854 there was a characteristic professional attempt at reform from within, which amounted to reviving older though more ‘logical’ rigidities of pleading. It was said that had another volume of Meeson and Welsby’s Reports, em¬ bodying the consequence of this folly, been produced, the com¬ mon law might have disappeared. Instead the next twenty years were occupied with the experiments which culminated in tht Judi¬ cature Acts of 1873 and 1875, under which, inter alia, the old forms of action and their associated pleading methods were abolished. This system was developed by the judges and profession in a manner which on the whole did them credit, but nevertheless with sufficient backward glances to produce Maitland’s aphorism— the forms of action are dead, but they rule us from their graves. Legal professions have in all ages had an overriding reputa¬ tion for conservatism, although individual lawyers have been in one way or another rebels—Coke, Madison, Robespierre, Lenin. Certainly it has been a purpose of many revolutionaries to abolish the legal profession, if not the legal system, or to curb its pretensions. Even the conservative English revolutionaries of 1642 looked with a suspicious eye on the Inns of Court, whose officers trod carefully and humbly until the Restoration. The French revolutionaries abolished the Order of Advocates, and the Bolsheviks abolished the Russian Advokatura in 1917. As we have seen, many states of the U.S.A. attempted between 1800



and 1850 to abolish the organized legal profession. The reasons for this fall into three groups. Firstly, there is the preoccupation of the lawyer with the application of a continuing set of rules and principles; secondly, there is his more immediate and selfish interest in preserving his intellectual capital—the knowledge of the system in which he was trained; thirdly, there is the tendency of lawyers, and especially of the leading and most able lawyers, to be closely identified in interest with the establishment of the time—the men in power, or the men who have prospered. It is the justified complaint of Labour Party leaders in Australia that, if they pick a lawyer of the left for high judicial appoint¬ ment, they are accused of stacking the Bench, yet their opponents constantly stack the Bench with conservatives—since the practi¬ tioners whose talents mark them out for judicial office are almost automatically conservatives. Yet in every instance, attempts at de-professionalizing legal practice have failed or been reversed or modified. The Inns of Court made their peace with the Protector. Napoleon restored the Order of Advocates. In 1918 Lenin re-established the Advokatura; its subsequent reorganizations, especially that of 1939, and the ‘return to legality’ of 1956, have created a possibility, no more, that a co-operative and collegiate profession with some independence of spirit will be reborn there in spite of the restric¬ tions of bureaucratic administration.^ In the U.S.A. the main effort of the past half-century has been to revive a corporate, integrated legal profession and to raise its standards of special training.^ To some extent, these revivals reffect the tendency of all revolutions to react in the direction of the relevant ancien regime. But the examples suggest other influences as well. In a society of any complexity, legal administration cannot help having difficulties which require specialist attention and the development of a specialized technique. It seems that the necessary price of having a legal profession with discipline, stan¬ dards of ethics, and an adequate sense of responsibility towards its social tasks, is to put up with the less desirable attributes of such professions, such as preoccupation with rule structure and procedural techniques for their own sake. ' See A. C. Malone, ‘The Soviet Bar’, in (1961) 46 Cornell L.Q,. 258. ^ See R. Pound, The Lawyerfrom Antiquity to Modern Times (1953)) Parts VIII and IX.

VIII SOCIAL CONTROL AND SOCIAL ORDER American pioneer sociologist, E. A. Ross, popularized the expression ‘Social Control’ to describe the various forces which create social cohesion, and in 1901 published a book under that title; the expression has acquired particularly wide currency in speculations about law, for example in Roscoe Pound’s published lectures. Social Control Through Law (1942). As a compendious clue to the social relations of law ‘Social Control’ is an unsatis¬ factory expression since it begs many problems in rather the same way as does the Austinian definition of law. Control of whom, by whom? Ross himself appeared to accept without question an imperative theory of law, and most of his references are to criminal law. He said: ‘It is obedience that articulates the solid bony framework of social order’, and while speaking often of ‘society’ or the ‘state’ as ‘imposing’ law, he seemed also to ac¬ cept the necessity for a ‘wise minority’ or ‘organization of dis¬ tinct elements of the population’ to exert social control through law. Indeed, he said that in modern industrial and urban civili¬ zation, the forces of sympathy, sociability, a sense of justice and a sense of resentment, which he thought could maintain a ‘natural social order’ without law, tended to become progres¬ sively weaker with a consequent greater necessity for imposed law.‘ We shall consider in Chapter X another type of modern thought which on the contrary assigns to law closely associated with State action a secondary role, and stresses the possibility and importance of a more ‘spontaneous’ or ‘socially inherent’ law, even in large modern societies. Another approach to these questions is to consider the commonly used expression ‘lawyers’ law’. What is this law? Does the use of the expression imply that there is another sort of law which is not ‘lawyers’ ’ ? Roscoe Pound was puzzled by the


' See the edition of Social Control by Borgatta and Meyer (1959), pp. 8,20,28,31.



observation in Sir Courtenay Ilbert’s Legislative Methods and Forms (1901) that Tor lawyers’ law, parliament has neither time nor taste’.* Ilbert did not refer to the special way in which lawyers might argue problems arising in any part of the whole legal system, though such a special method of argument is often dis¬ tinguished in similar contexts by the (usually pejorative) adjec¬ tive ‘legalistic’. He was referring to this special technique as applied to particular areas of legal regulation. Parliament has both taste and time for other kinds of law; the debate may or may not be ‘legalistic’ in style, but the important point is that the area of regulation tends to be different from that suggested by the expression ‘lawyers’ law’. As with all social categories, we must expect a shading off from what is ordinarily considered lawyers’ law to this other kind of law, with many marginal cases and cross-references, and these difficulties are considered later. Lack¬ ing any commonly used expression to indicate that which is not ‘lawyers’ law’, let us call it ‘law of social administration’. A paradigm case of an activity in the field of lawyers’ law is the making, carrying out, and, so far as needed, the litigation of a standard commercial contract. Typical problems of lawyers’ law likely to arise in many English-speaking parliaments are: Should the doctrine of consideration be retained in the law of contracts? Should the rule against perpetuities be retained in the law of property? Should the requirement of non-natural user be retained under the rule in Rylands v. Fletcher? Lawyers’ law is pre-eminently the domain of the lawyers and courts. It has a characteristic symmetry, and the methods of argument used in its development and application place much stress on definitions and on consistency of statement; so far as social purposes enter into these arguments, they tend to be very generalized or long-term in character, and to be congealed in propositions so that inferences from the propositions rather than directly from the purposes are usual. Changes in this part of the law are usually described as ‘law reform’; they are undertaken relatively seldom, partly because the kind of changes proposed rarely make useful political slogans, and partly because citizers and legislatures have some feeling that this kind of law is asso¬ ciated with enduring features of social order which should not require frequent alteration. * Jurisprudence, vol. iii, p 585.



A paradigm activity in the field of law concerning social ad¬ ministration is the obtaining of unemployed relief. This requires reference to a complex body of laws, but it is unlikely that the applicant will consult any lawyer (even where free legal aid is provided) and still less likely that he will engage in litigation concerning the question; he will be concerned almost entirely with officials, some of them probably exercising broadly defined discretions. Typical problems in the law of social administration likely to arise in English-speaking parliaments are: Should the age at which persons qualify for retirement pensions be reduced? Should the executive government or a governmental statutory corporation be authorized to establish a flood control scheme? By what combination of measures concerning motor vehicles, roads, and road users can deaths and injuries caused by traffic accidents be reduced? Law of this type is mainly the concern of various classes of officials. Its development and application requires a good deal of attention to questions of consistency, but the dominating considerations are questions of policy and of social purpose, directly apprehended as such. The relevant law is readily and frequently amended; much of it is expressed in delegated legislation or statements of the way in which discretions will be exercised at a particular time, so that the officials mainly concerned can themselves change the formal structure of the law as need arises. About go per cent, of the time of most democratic legislatures is taken up with detailed amendments to law of this type. Such changes are not ordinarily described nor thought of as ‘law reform’, but as changes in policy or the removal of obstructions to policy. Most modern societies began with a heritage of law of the type of lawyers’ law; the basic system of criminal law, law concerning the family, property, contracts and economic organization, and concerning the organization and procedure of courts and of the legal profession. In the transition to capitalism this inherited lawyers’ law required a good deal of revision, into which politics entered at times, but even at that stage much of the revision was politically neutral. Later and usually even more detailed piece¬ meal reforms are especially likely to be trans-political. Lord Haldane wrote that it had taken himself as Lord Chancellor in a Labour Party administration and his Conservative successor Birkenhead to steer through Parliament the Law of Property



Act, 1925, which carried out fundamental changes in one of the most esoteric branches of English lawyers’ law, and that simi¬ larly it had taken the successive labours of Lord Chancellors Cairns (Liberal) and Selborne (Conservative) to turn into law the recommendations of the Judicature Commission which re¬ sulted in the Judicature Acts of 1873 and 18759 This is also the kind of law with which the American Law Institute has been mainly concerned since its foundation in 1923, and to be found in successive volumes entitled, with magnificent arrogance. The Restatement of the Law. Lacking a single sovereign parliament with constitutional power to codify the common law—which was mainly State, not Lederal, law—the leading lawyers and Judges of the U.S. A. joined in a non-governmental, co-operative enter¬ prise to provide an unofficial code, representing in principle a general view of the lawyers’ law of the country; in the process they necessarily adopted as ‘existing law’ what in some States would be amendments. Such law has also been the main concern of an American agency more dii'ectly concerned with legislation, the Commission on Uniform Laws, which from its Clearing House in Chicago has promoted parallel uniform State legis¬ lation on topics such as negotiable instruments, business cor¬ porations, sales and bank collections which have come to be governed chiefly by statutory law. This, while mainly an exercise in uniformity, is also in practice a reforming influence. Canada has a similar Commission. Similarly the Australian Committee of State and Federal Attorneys-General, which grew up with¬ out formal organization between 1959 and 1962, is concerned with procuring uniform State and Federal Territory Acts, mainly in the field of lawyers’ law; its first important achieve¬ ment (1961-3) was a uniform Companies Act, adopted by each State and Territory. The Australian body is specifically inter¬ ested in reform of the uniform law which it promotes, provided the reform is also uniform. The common law and equitable rules of the English system concerning general conditions of personal security from moles¬ tation by other persons, of the validity of contracts, of rights to ownership or possession in land and chattels, and concerning the remedies for infringement of such rights, cannot without straining the word be called ‘control’ of the society as a whole by ^ Quoted by Sir William Ball in Lincoln's Inn (1947) at p. 135. 825208




an assignable part of it, even though the relevant legal rules are amply sanctioned by the system of courts and police created by the state. It is the case that a man who infringes such a right, has damages awarded against him, and refuses to pay the damages, will soon find his person seized by state officials until he pays, or (as is more usual today) his property seized and if he tries to resist his person seized to end the resistance. But only by a fiction can it be said that an intelligent minority, or an organization of distinct elements in the population, or a discoverable Austinian sovereign, or the legislative authority in the state, or an exploit¬ ing class, has decided to ‘control’ English or any other society using such laws by creating and enforcing them. It is also a metaphor, or a statement devoid of positive significance, to as¬ sert that ‘the society’ imposes such laws. Society exists by virtue of relations between human beings which are expressed, inter alia, in laws of this type. Control, if relevant, occurs only in the case of breach of the laws, which happens in a tiny minority of trans¬ actions involving the law. Law of this type is also often referred to as ‘law between man and man’ with the implication that it is not, or not primarily, law between man and state. There is, however, a constant tendency for particular aspects of lawyers’ law to become connected with questions of social administration which touch the reasoned or felt desires and pur¬ poses, the policies, of definable existing interest groups who have effective political power or influence. There is also a constant tendency for social relations to change, through causes not con¬ nected with legal administration, so that legal relations which had been taken for granted, or regarded as part of the ‘natural order of things’, often for long periods, are seen not to corre¬ spond with the social relations which people now want to exist; if the tension is sufficiently great and affects classes of persons with sufficient political influence, then to change the relevant law can become an aim of social administration. But it often happens that the questions of lawyers’ law which thus become matters of active interest to the politicians and bureaucrats will, once the change is effected, become again for long periods lawyers’ law, considered as part of the ‘natural order’, something inherent in the society as such and no longer attributable to any conscious exercise of social control. For example, the general law governing the structure of



business corporations was a matter of political dispute and dif¬ ference in England from 1825 '^ntil 1862, and in the early 1850s, the press was still cursing the principle of limited liability as an instrument of fraudd But the general principles of the 1862 Act were generally accepted, and a considerable number of lawyers’ law questions as to the meaning and operation of the legislation began to arise, of the sort whieh empty the House of Commons if anyone tries to explain them or solve them by appropriate legislation. But commercial companies can be and sometimes are used as instruments of fraud and oppression, in addition to their normal use as methods of bringing capital and enterprise into organized juxtaposition; hence this is an area of law which sometimes attracts political attention. There has been a series of English inquiries into company law, anxiously followed in the places, such as Australia, where the 1862 Act was copied, and also a series of inquests in the latter countries, in which the main originating factor has usually been some scandal. The lawyers sometimes manage to use such occasions as opportunities for tidying up some of the technical points which cause them parti¬ cular difficulty, but not often. The Australian Uniform Com¬ panies Aet is the latest exercise of this kind. It was enacted against a background of frauds and company crashes involving two particular sorts of activity—both capable of being carried on honestly and to the benefit of the community. One was the sale to the public of rights in automatic vending machines, and the other of rights in a block of shares in other companies—‘Unit Trusts’. In neither case was the defrauded subscriber sold a share in the company promoting the venture', if he had been, the well-tried provisions of these Acts concerning prospectuses, keeping of accounts, calling meetings of shareholders, and so on, would have protected the subscriber. Instead, he bought ownership or part-ownership (legal or equitable) in the vending machine it¬ self, or in the block of shares in other companies, which the pro¬ moting company managed or held for him. So the Australian Uniform Act now contains provisions,^ new at least in the English-speaking world, by which the sale of what are called ‘interests’—ownership or part-ownership of vending machines, equitable interests in a block of shares held by a trustee, and so ' See L. C. B. Gower, Modern Company Law, 2nd ed. ^ Part IV, Div. V.


ch. 3.



on—is brought under a regime of regulated advertising, keep¬ ing of accounts, provision for general meetings of the owners of interests to direct the operating company and trustees, &c., all this quite apart from the obligations of the operating company to its own shareholders. It is an ingenious Chinese box of regula¬ tions to protect the over-trustful against the over-sharp. But in an analysis of this Act,i the present writer has pointed out nine examples of old lawyers’ puzzles, going back to the early days of the Companies Acts, which could easily have been cleared up, but were not. Company law is likely to remain in most of the welfare states a topic in which the politicians and the administra¬ tive bureaucracy take a periodical interest, not only because of the special opportunity for financial malpractice which companies present, but because there is a tendency to make company law the repository of provisions directed at the regulation of commercial malpractice in general. For example, in order to ensure that vending machine and unit trust frauds are not carried out by individuals or partnerships, as distinct from operating companies, the Australian Uniform Companies Act requires the sale of‘in¬ terests’ to be carried on only by public companies. But repeated experi¬ ences have shown how rapidly company law reform is absorbed into the system of lawyers’ law, and loses the dynamic quality of social administration; hence there are growing demands for systems of continuous official supervision of company activities, involving extensive discretionary powers, so that the required social control would be exercised with the required dynamism. An important example of changes in a social relation origi¬ nating mainly outside the law concerns marriage and the family. The steps by which English Equity had by 1800 come to protect wives against the kicks and kisses of their husbands were in response to a long-term gradual improvement in the social and especially economic status of women affecting only the noble and the wealthy. But in the nineteenth and twentieth centuries the pace of change in family structure became rapid, affected all classes of the community, and has been seriously retarded mainly by religious influences, thanks to which no divorce a vinculo can be obtained in Eire or in Italy, and divorce only on the ground of adultery in New York State. Outside these areas, legislative change designed to facilitate divorce, to supervise ' (1963) 4 Melb. Univ. L.R. 238.



resulting problems of child custody and maintenance, to pro¬ vide for legitimation of illegitimates (unknown to English com¬ mon law, and on easier terms than under Euro-Roman law), and to facilitate and regulate adoption has occurred at compara¬ tively frequent intervals. In large parts of the U.S.A., mono¬ gamy has been replaced by polygamy and polyandry, only successive instead of simultaneous. This is one of the few areas of mainly lawyers’ law which in Australia comes within the power of the Commonwealth (federal) Parliament, and in 1959 it en¬ acted a federal code on divorce,^ and in i960 another on marriage,2 which change in marked degree what had previously been varying and long-established State laws. One of the bridging cases between lawyers’ law and the law of social administration is constitutional law. In societies with a tradition of constitutional instability, such as many of the South American countries, or which have not yet settled down after a transfer of sovereignty from a former colonial power, such as Pakistan, Indonesia, and the new African states, the law of the Constitution, whether in form rigid or flexible, is unmistakably under the control of a governing elite and one of the methods by which it expresses changes in policy. This is especially clear where as in Ghana and Indonesia the Constitution exists at the pleasure of a charismatic leader. But even in Nigeria, where political groups and political leaders are substantially ‘rule conscious’ and show considerable desire to work within the limits of a rigid federal constitution, events in 1962 showed how a dominant group could manipulate constitutional forms in order to achieve mastery. The Federal opposition was a party which had a large majority in the Western Region parliament and supplied the government there, while the Federal majority, supporting Sir Abubakar Balewa’s government, was the Region majority in the other two regions. In consequence of a split in the Western Region parliamentary majority, some disturbances took place in the legislature of that Region. The Federal govern¬ ment could not resist the temptation to use this opportunity of destroying the political basis of the federal opposition, which it did by declaring a state of emergency for the whole of Nigeria, displacing the Western Region government, and putting a federal administrator in charge of that region. The present ' Matrimonial Causes Act.

^ Marriage Act.



writer was in Ibadan at this time as counsel to the Western Region government on another matter and watched these events at close hand. All the important issues between the Region and the Federation were in course of judicial decision, and there was no condition of public disorder justifying so extreme a measure as the displacement of the Region government; indeed, it is doubt¬ ful whether such a step was authorized by the then relevant section of the Federal Constitution (s. 65, now s. 70 in the re¬ vised Constitution of 1963). However, the very taking of the step hindered effective judicial challenge. But in this case the Constitution may yet become accepted as part of the settled order of the society. The state of emergency was lifted in J anuary 1963 and the normal course of constitutional development and of party politics within the federal framework seemed likely to be resumed. But in countries which have had the good fortune to establish a stable constitutional system, whether it be formally flexible, as in Britain and New Zealand, or formally rigid, as in the U.S.A., Canada, Australia, and West Germany, constitutional questions tend to come more within the area of lawyers’ law. The poli¬ ticians cannot help but be concerned with such questions. In the case of the rigid constitutions, the proposals of political leaders are apt to be frustrated, or the interests they represent protected, by the existing distribution of powers or fundamental guarantees; or the existing provisions may provide them with an alibi for failing to take action which followers want and leaders fear, or enable them to retain planks in the party platform which satisfy party traditionalists although there is no danger that those planks will be carried out. The political uses of‘real’ con¬ stitutions, and the social attitudes of different peoples to such constitutions, deserve more attention from sociologists than they have received. Rigid constitutions often gather an encrustation of judicial interpretation which only lawyers, and a particular group of lawyers at that, can begin to understand, and this interpretation may require amending as well as or more than the constitutional document. For example, the interpretation of section 92 of the Constitution of the Commonwealth of Aus¬ tralia, ‘trade, commerce and intercourse among the States . . . shall be absolutely free’, has passed through various stages and the now established judicial view ignores both its history and its



context in the Constitution, and produces such absurdities as the invalidation of State laws designed to prevent sale of firearms to criminals, so far as sale across State borders is concerned but the precise application of section 92 to various kinds of social administration—transport control, marketing control, nationa¬ lization programmes, health measures, &c.—is disputable. All Australian political parties have reasons for wanting to amend the section and its misinterpretations, but are so afraid of the effect of amendment on the various interests or alibis fortui¬ tously protected or created by it that they have little option but to leave its unfolding to the lawyers and hope for the best. Even in the countries with flexible constitutions, conventions and practices acquire a high degree of stability and are interpreted by experts, such as the Speaker’s Standing Counsel at Westmin¬ ster and the Parliamentarian at Washington, in a manner characteristic of lawyers’ law. Hence the relation between social control and social order is constantly shifting. In the example of law concerning matri¬ monial causes, we find that at the moment of writing the recent Australian legislation is habitually referred to as the ‘Barwick legislation’, after the Attorney-General, Sir Garfield Barwick, who played a leading part in deciding its policy and in pushing it through against opposition from groups which wanted divorce to be less easy and groups which wanted it easier, from judges who disliked procedural features of the scheme because it in¬ creased their discretionary responsibilities, and from legal prac¬ titioners who had to start learning a new routine. Although the changes involved were to a considerable extent merely a matter of fitting relevant law to a social situation which had changed, there was also an element of conscious social direction, as in pro¬ visions encouraging marriage guidance and requiring greater attention to be paid to the position of children of a dissolved marriage. But within a decade these Acts will be accepted as part of the system of lawyers’ law, something to which people adjust their behaviour as best they can, and the name of their author will be remembered only by lawyers; they will have ceased to be examples of social control, and become aspects of social order. The legal history of all countries abounds with examples of law later taken for granted which began as an I Chapman v. Suttie (1963), 36 A.L.J.R. 342.



imposed social policy, famous English examples being the Statute of Westminister II (1285) and the Statute of Frauds (1677). Legal historians are interested mainly in the extent to which such legislation is incorporated into a connected body of unen¬ acted or judge-made or glossators’ law, and this technical legal question has some relation to the social aspect of the matter stressed here—the identification of law with social order rather than with social control. But even where the legal regulation of a soeial relation can¬ not without fiction be attributed to any group exercising at the relevant time some conscious control of society, there is another circumstance which approximates to ‘control’. This is where breach of the relevant rules has become frequent, or occurs in circumstances which threaten the existence of the social relation in question or are felt to threaten social stability generally. The politieal institutions or State are then called on to vindicate the law by a vigorous enforcement poliey, and if this occurs it can be said without fiction that the governing group is renewing the relevant law, actively adopting it as current policy, and in this way asserting social control. This literally occurred in the earlier history of many historical societies, when kings and par¬ liaments enacted proclamations or legislation whieh repeated existing laws or drew attention to their existence, sometimes adding severer penalties, and with threats that the search for offenders would be invigorated. Today mere repetition or re¬ minder has gone out of fashion, but amendment maybe directed more towards reminder or reinforcement of accepted regulation than the introduction of any new policy. Thus in i960, the Australian Commonwealth Parliament enacted amendments to the federal Crimes Act, many of which were concerned with de¬ tailed technical improvement of older provisions. But much political excitement was caused by provisions which extended older conceptions of sedition and introduced two new offences, ‘treachery’ and ‘sabotage’, all this being directed mainly against Communist activities.^ Some of these provisions fall within a distinct class of legislation, namely measures intended to em¬ barrass a political opponent or to tempt him into politically damaging attitudes, without making any significant alteration in operative law. But so far as these provisions were genuinely ' Ss.

24, 24AA, 24AB.



intended to operate, it was by way of emphatie reminder to the eommunity that long-existing and generally accepted provisions of the criminal law designed to prevent violent or fraudulent subversion of the existing system would be enforced. The regular active enforcement of the law (mainly the crimi¬ nal law) by appropriate state authorities does not necessarily justify a view that the whole body of the law is constantly adopted and enforced by the governing group for the time being as a matter of conscious social policy. Once a modern society has reached a reasonable state of complexity and stability much of this sort of enforcement is institutionalized, and so far as pos¬ sible separated from the questions of social administration which are the concern of daily politics and legislation. In England, the Director of Public Prosecutions, and the conventions concern¬ ing the independence of the Attorney-General in his character as a chief prosecutor, embody this separation of the ‘enforcement’ function. Similar institutions and conventions operate, with varying degrees of success, in Europe, North America, and Aus¬ tralasia. On this matter, as with the appointment of judges, the constitutions of the new British Commonwealth countries are instructive. Thus in Nigeria, the Federal Constitution (1963) embodies provisions designed to ensure a considerable degree of autonomy for public prosecutors and for the police force.• There is, therefore, in the work of police and prosecuting agencies much routine response to the social stimulus of deviant behaviour. The criminal feels himself controlled, but the process viewed as a whole is the expression rather than the imposition of order. However, it would be too mechanistic a view to attribute this quality to every example of state law enforcement, even of the parts of the criminal law (such as those concerned to prevent homicide and assaults) which are basic to all social order and common to all kinds of society. In social situations where a law or some of its applications are not accepted as part of the settled order, its enforcement maybe seen as an exercise of social control by one group or class over others, even if there is formal respect for the autonomy of the police and prosecuting authorities. Thus during the first two-thirds of the nineteenth century, over the greater part of the English-speaking world, the capital-owning and employing classes attempted through their influence with • Ss. 88, 104, 106-9.



enforcement agencies or by private prosecution (which at that time was widely available) to prevent the growth and activity of trade unions of employees, using for this purpose common law and statutory provisions concerning conspiracies in restraint of trade. It was an attempt at social control which failed, and the failure was due to social changes which had to be accommo¬ dated by such changes in the law as the English Trade Union Act, 1871. In 1962 West Germany was thrown into political turmoil over the prosecution of the news-magazine Der Spiegel for breach of official secrets. The German Staatsanwaltschaft, the public prosecuting staff, has a tradition of autonomy and most of its activities are highly institutionalized. But having regard to the history of a feud between the Adenauer federal government, in particular its Defence Minister, and the magazine in question and to the well-known view of many German conservatives that press freedom in the new Germany had become excessive, this prosecution was widely seen not as a routine enforcement of accepted law (as Dr. Adenauer claimed it was), but as an at¬ tempt to make the press more respectful in its attitude towards governments. The episode brought about the retirement of the Defence Minister, reconstruction of the government, and a promise of early retirement from the Chancellor. It was there¬ fore both an illustration of the possibility that even routine criminal law enforcement can be used as an instrument of social administration, and a warning to governments in the more settled societies that such use is likely to be resented. A similar situation arises when there is law in the books which is dead or moribund, in the sense that there is no regular social behaviour even roughly corresponding to its provisions, but which is nevertheless capable of being brought to life if a govern¬ ing group is determined to enforce it and if (what is not neces¬ sarily possible) enforcement will ensure appropriate conduct on the part of most of the people concerned. Laws concerning control of monopolies and restrictive trade practices provide an instructive example of the range of possibilities which may exist. In the U.S.A., the Sherman Act of 1890, amending Acts, a large body of case law, and supporting State legislation, have established a regime which in spite offrequent breach and covert resistance must certainly be regarded as operative law and to a considerable extent lawyers’ law'—part of the settled social



order. Thus organized American business groups would no more embark on a systemadc defence of retail price mainten¬ ance than they would of the regular commission of larceny. However, there are steep rises and falls in a graph indicating intensity of observance and enforcement of the Sherman Act. In Australia, at the other extreme, a considerable body of State and federal statute law, mostly enacted in the period when American trust-busting mania was infectious (1900-14) and imitating the Sherman Act, was at the time of writing quite dead—systemati¬ cally disregarded and never enforced. Australian business men defended and practised retail price maintenance, collusive tendering, and other restrictive trade practices, and monopolies were prevalent. Governments occasionally threatened to use existing laws against these practices, but there was also a pro¬ posal under consideration for a new set of laws, requiring joint action by Federal and State legislatures, and it was certain that if enacted these laws would require a prolonged and energetic exercise of social control by the relevant governments and by special enforcement agencies. The model for the new laws would not be the Sherman Act but the English Restrictive Trade Practices Act, 1956, and here we enter the field of social administration. In a nation which gave effect to the social theories of Herbert Spencer, social administration would hardly exist. Most law would be lawyers’ law, occasionally amended as social change necessitated. Something like this occurs in countries where fre¬ quent revolutions or changes of government prevent the carry¬ ing out of an active centrally-directed social policy, although at a level below that of the contending politicians or military leaders, life and law between man and man goes on in a reason¬ ably orderly fashion. But in most modern countries, the greater part of the time and skill of legislators and bureaucracies is occupied with the devising and administration of social policies connected with collectivized industries and services, collective marketing of farm products, welfare services for the masses (health, pensions, unemployment, &c.,) provision of education at various levels, provision or regulation of entertainment ser¬ vices (radio, television, &c.), regulation of the activities of the private sector of the economy and of economic development and stability generally, and the conduct of defence and foreign



relations. These activities require a large output of law, and account for the great bulk of current legislation and delegated legislation. There is always the possibility that some of the policies involved will settle into branches of law and admini¬ stration left to lawyers and courts and become predominantly lawyers’ law; for example, the system of workmen’s compensa¬ tion for industrial accidents and diseases formerly operating in the United Kingdom did so, and in North America and Aus¬ tralasia continues to do so. But it is more common for this kind of law to be administered directly through the bureaucracy, and for the ordinary courts to come into the picture, if at all, in an auxiliary role; they try prosecutions for the innumerable offences (usually punishable on summary prosecution) created in order to protect the activity or service in question from harm¬ ful or obstructive action or fraudulent manipulation, and they keep the bureaucracy within its assigned powers. But the modern state can mix legislative and adjudicative processes in ways which defy classification or which represent cases at the borderline of several classihcations. The English Restrictive Trade Practices Act, 1956, was mentioned as some¬ thing in the sphere of social administration rather than of lawyers’ law. Here the legislature has handed over to a com¬ bination of administrative authorities and a special court the responsibility for developing and applying a system of social control over price-maintenance, market-sharing, dealer ration¬ ing, and other such restrictive trade practices, instead of relying on criminal law prohibitions and judicial administration as in North America. The court consists partly of judges and partly of non-lawyers, the latter in a majority, and although the Act con¬ tains some specific prohibitions and exemptions, in the main it provides only general policy guides and creates wide dis¬ cretions. A similar system operates under the New Zealand Trade Practices Act, 1958. It is quite possible for such a system to harden into a specially administered branch of lawyers’ law, but for a long time the express discretionary element and changes in policy within the limits of the discretion are likely to be prominent. The compulsory arbitration of industrial disputes in Australia and New Zealand by industrial courts and Com¬ missioners exhibits similar features; ‘a new province for law and order’, it was hopefully called by one of its pioneer administrators.



Justice H. B. Higgins, but the periodical phases in which the system has looked like settling into a lawyer’s law system have been resented by one or both sides to the class struggle which the tribunals mediate, there has been a persistent effort to keep the participation of professional lawyers in the system to a mini¬ mum, and the Commonwealth Conciliation and Arbitration Commission has often been described as an economic legislature. Two of the celebrated paradoxes of the law are: law must be general and abstract, but justice requires attention to the in¬ dividual case and its concrete detail; law must be stable and yet it cannot stand still. These questions are usually discussed in the context of judicial administration. But once law and legisla¬ tion are seen as instruments of social control, methods for moulding social behaviour, then the problems of adaptation to the individual and of adaptation to changing circumstances arise also in relation to law-making by parliaments and by administrative agencies. In the U.S.A. the extensive use of legislative sub-committees, proceeding by way of public hearing on proposed Bills, is in part a response to this problem, and in¬ cidentally makes it easier to obtain consideration for amendment of lawyers’ law. It is a weakness of the legislative process in the United Kingdom and in most parts of the British Common¬ wealth that such methods are under-developed, but the lack is made up to some extent by using methods of delegated legisla¬ tion. The operations of the English Restrictive Trade Practices Court and of the Australasian industrial tribunals are in sub¬ stance an example of delegated legislative activity rather than of adjudication, though if Hans Kelsen would permit a concept from his Pure Theory of Law (1934) to be expressed in sociological terms, it could be said that the concretizing of an abstract material norm in such a way is not formally distinguishable from what courts do under laws leaving them a wide discretion. The difference is one of degree. In the cases which one would more readily describe as examples of legislative delegation, policy considerations are frankly recognized and applied. For example, if the purely economic reasoning of the Restrictive Trade Practices Court in Re Net Book Agreement^ were to harden into a legal presumption, the result would be to validate nearly all price maintenance agreements; however, many factors I [1962] 3 All E.R. 751.



besides economic ones were considered by the tribunal when upholding the book trade arrangements, and the flexibility of the tribunal’s approach can be seen by contrasting decisions such as Re Motor Vehicles Agreement,^ in which retail price main¬ tenance was held invalid. The possibility of individuating and adapting law in the course of the legislative rather than the adjudicative process is ingeniously illustrated by the Tasmanian Vermin Destruction Acts, dealing with control of the European wild rabbit. This imported pest had for a century caused serious injury to Austra¬ lian pastures; effective control became possible only in the 1940’s, because of the discovery of a disease of American rabbits (myxomatosis) which was at first fatal to the European animal and reduced its numbers spectacularly. But natural selection then made the disease less effective and accordingly it became necessary to ensure that farmers used in addition other methods such as poisoning and destruction of warrens. The latter methods are expensive, can injure other animals, and require much variation in technique in accordance with the nature and location of the country. Each Australian State has for long had legislation, varying in details, which placed on farmers responsibility for keeping vermin under control, but this legisla¬ tion suffered from the characteristic vices of law in general terms; it did not take account of individual problems and changing conditions. Thus it applied to ‘vermin’ of all kinds— foxes, crows, hawks, locusts, &c.—and to country of all types. Experience showed that even when an Act was in apparently stringent terms, casting what looked like a strict liability on occupiers to keep down vermin, courts were reluctant to convict for breach. This was because although the prosecutions always related to the rabbit pest, the tests applied had to be referable to other kinds of vermin, and although the particular defendant might have had reasonably accessible cleared land, the test had to apply to rough mountain gullies and forests as well. A thorough programme for dealing with this problem requires positive action by government authorities, giving a lead on Crown land and supplying skilled aid to farmers, but in so far as pressure on individual farmers to help themselves is also required, some sort of legal compulsion is essential. “ [1961]


All E.R. 161.



The Tasmanian legislation first enacted in 1950 is admirably adapted to the need. It divides the problem into two parts; firstly, deciding what each individual farmer should do on his property from time to time, which is a question of legislative individuation; secondly, deciding whether he has taken reason¬ able steps to fulfil the obligation, which is a question of fact suitable for judicial decision. The Act requires the farmer to carry out a programme of poisoning or other destruction methods as directed by an official of the Department of Agricul¬ ture, who is a technical expert. If, however, the farmer thinks the direction of this official is harsh or unreasonable, he can appeal to an Appeal Board, two of whose members are nomin¬ ated by farmers’ associations and one by the Municipal (i.e. local government) Association. The latter men represent a strong group interest in rabbit control, but also have a good idea of the resources in money and time likely to be available to the indivi¬ dual farmer. Their decision on the reasonableness of the direction, which is the measure of the farmers’ obligation, is conclusive. But if it is thought that the farmer has failed to comply with an unappealed direction, or with a direction upheld on appeal, then he is prosecuted in the ordinary courts and it is for them to decide the question of compliance. Thus the reproach of by-pass¬ ing the courts is avoided, and although strictly the courts are not concerned with the reasonableness of the direction, they are con¬ cerned with its meaning which is one of the points apt to be in dispute. ^ Similar principles can be applied to many contemporary problems of social control through law; for example, to determine what guards should be provided on machinery, a question which when governed only by some general Factories Act provision can give rise to multitudes of often irreconcilable decisions. The problems of individuation and adaptation are also pro¬ minent in the field of lawyers’ law, and legislatures are in general glad to leave such questions, so far as possible, to auto¬ nomous action by courts and the legal profession. A study of the process by which this function is performed should be common ground between sociology and jurisprudence, since the relevant techniques are not exclusive to legal systems; they are processes common to many types of normative activity. For example, the Roman Praetors made civil-law remedies originally ' See The Simple Fleece, ed. Barnard (1962), ch. 18.



applicable only as between Roman citizens available to non¬ citizens by the fiction of directing a judex to proceed as if a non-citizen party were in fact a citizen. Similarly the course of moral development has required the conception of brother or neighbour to be extended from kin to tribe to nation to man¬ kind. The concept of equity is at first a type of fiction; a person is in a position to which the law has hitherto attributed ability to act in a particular way without breach of the law, but he is now restrained from so acting in a particular case, or required to render the fruits of his lawful conduct to another where before he could have kept them himself. The fictitious element arises from a frequent assertion that the legal right of the person directed is not abridged; he is only directed how to use his right. Similar situations arise in moral development when there is said to be a ‘higher’ and a ‘lower’ morality. A good deal of legal development depends on properties of propositions and of language which affect all thought; propositions can be more or less general, words can cover a wider or narrower syndrome of meanings, and small changes in context can produce changes in connotation. ‘Casuistry’ is an expression which has acquired pejorative overtones and is particularly associated with legal word-juggling, but the origins of the word and of the activity it indicates are theological; such thinking is inescapable in human affairs, owing to the open-ended quality of most normative concepts and the fluidity of most social situations. Hence when it is said above that lawyers’ law, which is the greater part of the content of most developed legal systems, is an expression of social order rather than of social control, this is not intended to convey an impression that lawyers’ law is (legislative change apart) rigid or stable. But the process of change is so diffuse and gradual that it can no more be described as involving social con¬ trol than can the general observance and use of such law in daily life. The demands of Geny and of the European ‘Free Law’ school can be interpreted, inter alia, as a demand that judges should use their position to ‘control’ society, in the sense of establishing new rules each time they think a social or moral advantage will be gained by doing so. But if the application of received law in the countless acts of observance where there is no serious doubt about the required conduct were infinitely open to the possibility of change by judicial decision, it would be



worth the while of anyone to take his chance of the possibility of persuading a court to try a new rule. This would indeed open wide the floodgates and is not what the Free Law advocates wanted to achieve. Their attention was directed towards the type of case in which fact scepticism or rule scepticism or both are justified; they wanted to abolish the unpersuasive fictions by which courts under all systems usually try to represent their decisions in such cases as logically necessary. But even if all cases coming before courts were of this type, they would be numerically insignificant as compared with the number of cases in which there is at first thought to be a dispute situation but in which on calmer reflection or after legal advice the legal position is seen to be reasonably clear and accepted as such. In the speculations of the American realists, and to some extent in the usual language of contemporary Anglo-American tort lawyers, reference is made to the function of courts where harm has been caused by what amounts to unavoidable acci¬ dent; the official language of the law may require findings of negligence, but in practice there can only be rough guesses at what happened and an adjustment or distribution of loss by judicial or jury' hunch. Certainly where the defence of contribu¬ tory negligence is abolished and courts are required to share loss in negligence claims in proportion to responsibility, this is usually done by guesswork. Similar problems can arise, though they are much less common, in relation to the frustration of contracts. There is no reason why courts should not be asked to discharge such functions, but there is a tendency for the number and im¬ portance of the examples to be kept to a minimum by the adop¬ tion of other adjustment devices or by prohibiting outright the kind of activity which gives rise to such litigation. Already in most modern countries insurance covers the main field of acci¬ dent adjustment in a manner which makes accident litigation—■ though it is the main cause of court congestion in several coun¬ tries—insignificant in quantity compared with the accident cases which never reach court. Various forms of strict liability tend to be established, de facto if not de jure, in a manner which makes loss distribution unnecessary. Thus in New South Wales, it is an almost irrebuttable presumption that a motorist is liable to a pedestrian he injures, since there is compulsory third-party insurance, and this is known to the juries which try all such 825208




claims. In France, the liability of motorists is in terms strict, and in Scandinavia is brought under a regime of social insurance similar to that which applies in most countries to claims by in¬ jured workmen. Once an insurance or strict liability situation is established, then the cost of paying for the uncontrollable injury becomes part of the cost of the activity or enterprise. However, the problem of distributing burdens where no party could have adjusted his conduct to the circumstances—or, consequentially, been controlled as to that conduct—is likely to keep occurring. More generally, one must always expect to find lawyers and judges performing a wide range of social functions which are not immediately related to the main characterisics or classifica¬ tions of a legal system but arise from attributes which lawyers and judges derive from the legal training or from mere considera¬ tions of practical convenience. Lawyers learn to marshal and present arguments, and anyone who wants to hire a ‘mouth’, for any purpose, is apt to turn to them. It has been the constant hope of Australian trade unions and Labour Party governments that they might exclude both legalisms and lawyers from the industrial arbitration process, but a great majority of the mem¬ bers of industrial tribunals are still lawyers and in every im¬ portant wage inquiry there is strong, usually successful, pressure from some trade unions to procure (as is possible) mutual con¬ sent to the employment of leading counsel. An outflanking tactic may now be in course of development by which legally trained men not formally admitted to practise as lawyers will obtain trade union office in order to carry out the task of in¬ dustrial advocate. Judges are chosen to make important in¬ quiries and advise governments not only because their charisma lends authority to the report, but because they are accustomed to dispassionate and disinterested inquiry and the weighing of evidence. Courts require buildings and clerical officers, and these can conveniently be used for a variety of administrative purposes, and the judges may then be drawn in as the convenient people to supervise those purposes—one of the factors which made English Courts of Petty Sessions into administrative as well as judicial beasts of burden from the fifteenth to the nine¬ teenth centuries. The hand of history is heavy on these matters, but they illustrate a general social tendency to use the tool lying most conveniently to hand.

POSTULATES, INTERESTS, AND INSTITUTIONS The material content of a legal system has always been seen to reflect in some sense the needs or demands of societies, whether of all societies or of a particular historically conditioned society or of a particular society considered as a type in a range of types. Various attempts have been made to classify these social rela¬ tions of law, of which the best known are Kohler’s theory of jural postulates and Ihering’s theory of social interests; Roscoe Pound uses both approaches. The word ‘postulate’ suggests an a priori approach to the requirements of social life, and derives from the Hegelian metaphysics which strongly influenced Kohler. It appears to involve deduction from the assumed or directly apprehended general or essential qualities of a stage in human culture. ‘Interests’, on the other hand, are derived from inspection of the claims actually made in societies—an inductive method. But Kohler in fact engaged in extensive studies of comparative law and used them when deriving his postulates and it is doubtful whether the actual difference in intellectual approach is as sharp as were the nineteenth century disputes between the neo-Hegelian and the anti-Hegelian com¬ parative ethnologists who together began this kind of study. In the treatment by Pound the only obvious differences are in degree of generality and system of classification. A similar analy¬ sis is involved in one of the uses of the word ‘Institution’ in European legal thought, for example in Karl Renner’s Mensch und Gesellschaft (1952), but although the last notion has the earliest origins it is less coherent than the other two, and is conveniently considered after them. The ‘jural postulates’ of twentieth-century North American society as identified by Roscoe Pound' are, in summary form: security of the person from intentional aggression; security of possession and property in things discovered and appropriated, ' Jurisprudence (1959), vol. iii, pp. 8-15.



created by one’s own labour, or acquired under the existing social and economic order; assumption of good faith in the making of representations and promises; assumption that things inherently dangerous unless controlled will be kept under con¬ trol. The expression jwra/ postulate is open to criticism, since it suggests that these postulates are statements in very general form of legal principles from which courts can by appropriate reasoning deduce the more particular rules of their system. It would be better to call them social postulates of legal systems, since as beginning points for legal reasoning they are far too vague, whereas they do correspond to some widely held assump¬ tions as to social claims which the law should enforce. However, the table is a mixture of the enduring and the contemporary, and there are surprising omissions. Security of the person and of property are ancient demands of men in society, but the property claim is increasingly qualified by claims of groups or of the whole society to restrict and regulate the control of things by persons. Any general claim that promises should be kept and representa¬ tions made good comes late in social history and it is still far from true in North American or any other law of English origin that contractual liability extends even to all promises seriously intended to be kept, or that all misrepresentations are actionable or create an estoppel. The last two of Pound’s postulates are ways of stating liability in tort or delict for negligence and for dangerous things. A strict liability for dangerous animals goes far back in history, but general liability in negligence is modern, and once established it tends to make the surviving heads of strict liability look like anomalous historical survivals. The sur¬ prising omissions concern group activities as distinct from the individual claims to which the above postulates refer. There is the long-standing but now weakening postulate of the sexually based monogamous family. A contemporary social postulate with a fairly long history is that men should be able to associate in sub-groups in such a way that the mutual relations and shared interests of the members are defined and protected. Then there is the whole question of government and the state; it is a present and long-standing social postulate that there should be a government whose relations with the governed and mode of exercising authority are in some degree specified by rules, and the existence of such a government can be regarded as a



condition of the existence of law at all. Or the governmental postulate can be treated as a special case of the associational postulate. Julius Stone' relates that Pound was tempted at times to add further postulates peculiar to contemporary society, for example security of employment and enterprise liability for em¬ ployment injuries. One might add, for North America at least, the maintenance of a system of competitive private enterprise by the prevention of monopoly and of practices restricting com¬ petition. But these additions do not appear in the Jurisprudence. E. A. Hoebel in his The Law of Primitive Man attempts to use the notion of ‘Jural postulates’ in order to explain the legally relevant social features of the peoples with whom he deals. But he interprets the concept as referring only to features of society which are peculiar to the people in question. Even so they are mostly in general terms; for example. Postulate VI of the Ifugao asserts that there is some obligation not to injure people living close by, even though they are not kin, and that the obligation diminishes with distance. But he adds many ‘corollaries’ of more particular nature; thus the corollaries to the Ifugao postulate just mentioned are that strangers from a distance may usually be killed on sight, and that people should avoid quarrels and settle disputes with neighbours even though not kin. This version of the postulate theory illustrates the intellectual process by which all such exercises are carried on. The corollaries are given as if inferred from the postulates, but clearly it is the corollaries which correspond to actually observed uniformities of behaviour or recorded statements of obligation, and the postulates are afterthoughts, attempts at constructing a general principle under which the more detailed statements can be subsumed. However, the Hoebel statements are at least in terms state¬ ments of social claims or attitudes which could be expected to affect legal development, whereas the Pound statements are a mixture of such social claims and of the legal formulations into which they tend to be translated. For example, his last two postulates, derived from two branches of the law of torts, are ' Province and Function of Law (1946), p. 367. Stone makes other criticisms, to which Pound replies in the Jurisprudence as cited on p. 147, n. i. And see Stone’s further comments in (1962) 75 H.L.R. 1240. See also E. K. Braybrooke in (1961) 5. Univ. ofW.A. Annual L.R. 288.



technical legal formulations of ways in which, inter alia, the property interests mentioned under the second postulate are pro¬ tected. If the reference to intentional aggression in the first postu¬ late were omitted, and that postulate given as security of the person from harm, then the last two postulates could be omitted as merely criteria by which legal liabilities corresponding to the first two postulates are adjudged. It is simpler, and less preten¬ tious, to say that in all societies with legal systems (including contemporary Russia and Communist China) it is usual to find legal rules dealing with the following matters; government; other forms of association; the family; security of the person; security of property; enforcement of promises; making good representations. But the relative importance of these matters varies enormously from society to society and the detailed legal rules by which they are handled can never be inferred from the general demand for some such rules. The ‘interests’ approach embodies the same type of reasoning as the theory of postulates, but goes into greater detail. The law is conceived as a method of giving effect to ‘interests’. The task of the law is to classify these interests, to decide in the light of some system of values which interests should be given effect to and to what extent, and if some interests conflict so that there has to be a choice among them, to make this choice. The in¬ terests are conceived as existing independently of the law; Pound speaks of them as ‘pressing for recognition and security’. What is an ‘interest’? If interpreted in a positive manner as meaning a claim actually advanced by defined individuals or groups, and considered and dealt with by defined law¬ makers and courts, this way of stating relations between law and society is attractive and clearly corresponds with much ob¬ served fact. For example, between 1945 and 1962, in several non-Communist countries the members of trade unions (which them¬ selves represented an ‘interest’ pressed and given protection only within the previous century) found themselves advancing two conflicting claims, corresponding to the interests of two groups in their membership. One was a claim to protection for the majority of non-Communist members of these unions against the use of fraud and force by Communist minorities in order to obtain and retain control of the executive bodies of the unions;



the methods used by the Communists included forging election papers, covert removal and destruction of ballot boxes likely to contain a majority of votes against Communist candidates, and intimidation of non-Communist candidates. On the other hand, not only the Communists, but a good many non-Communists, claimed that such abuses, if they existed, should be dealt with, not by laws and courts, but by the members of the trade unions; this was a claim to the preservation of a sphere of social auto¬ nomy, and was reinforced by the fact that many Communist trade union officials had obtained and retained their positions honestly, because they were the most competent and vigorous men available; it was also a widely held view of trade unionists that laws and courts were mainly the creation and tool of the bosses anyhow. In the U.S.A. and Australia, the demand for protection of the non-Communist majority against the Com¬ munists led to legislation, but its principles differed materially. The American^ was aimed mainly against Communists as such, and did little to rid trade unions of racketeers (often much more lethal in their habits than the Communists) who were also antiCommunist. It involved both judicial enforcement and action by an administrative body, the National Labor Relations Board. The Australian^ was designed to ensure clean union elections, and if such an election still returned a Communist official, then no further steps were taken. This was enforced by the specialized industrial tribunals. In Britain, there was no special legislation but ordinary judicial remedies were found sufficient to deal with especially bad cases, and there were similar cases in the U.S.A.^ However, the amount of interference by law in all cases was limited by some respect for the competing demand for union autonomy. Indeed, a serious weakness in the arguments of the Communists and others who fought legal interference in Australia and Britain was that the interference they fought was intended to ensure control of the union by its membership, rather than by the Communist Party, so that those in favour of interference could also claim to be protecting the interest of ‘union autonomy’. ‘ Labor Management Relations Act, 1947, s. 9; C.I.O. v. Douds 339 U.S. 382. 2 Conciliation and Arbitration Act, Part IX; Federated Ironworkers Assn. v. Commonwealth (1951), 84 C.L.R. 265. 3 Byrne v. Foulkes, London Times, 29 June, 4 July 1961- Labor Relations and the Law (1957). 918 ff.



Where an extra-legal demand has recently been made and satisfied, the result is usually felt to be an example of the law of social administration, social control in a direct sense, and the relation between the law and the demand is a relatively simple one. We can identify the ambit of the demand, and the ambit of the law, and explain with some confidence the reasons why the demand was satisfied, and satisfied in the particular way, by reference to many current social influences or forces. Thus in the trade union case mentioned above, important immediate factors were personal feuds between Ministers and trade union leaders, the general political warfare between left and right in the community as a whole and in the labour movement, the cold war between Russia and the Anglo-American bloc, and public indignation at the effect of wild-cat strikes on post-war reconstruction. But there was also a longer-term assertion of a public interest in the domestic affairs and mode of government of organizations whose economic and political influence had come to affect the whole community. Hence even after the short-term interests served by this legislation and litigation had ceased to matter, it was still easy to relate the resulting law to ‘interests’ likely to supply for a long period both explanation in social terms and a guide to interpretation of the relevant laws. But when the origins of particular laws are some distance in the past, there is a possibility, increasing with the age of the laws, that the interests which they originally served, even if known, are not the interests which they serve now. If positive historical explanation of a law is lacking or is no longer relevant to its present social significance, we are cast back on other, more speculative methods of assessing the interests which it now serves. For example, the English law of libel was devised in the Elizabethan Star Chamber in order to protect the grandees from the printing press; it has been broadened to pro¬ tect a generalized interest in personal reputation. But owing to the extreme strietness of the liability, and doubts about the scope of the defence of fair comment on matters of public interest, libel has also come to protect the trading interests of manufacturers and distributors in preventing the publication of reports on their products by consumers’ organizations. Until the latter have considerable reserve funds, they cannot afford



even to be involved in a defamation action, leave alone to lose one, and so must proceed with a discretion which the laymen on their executive bodies and their subscribers sometimes find frustrating. At a very general level of juristic thought, defama¬ tion law serves the same social interest throughout—the pro¬ tection of reputation; but at a more detailed level of analysis, the protection of reputation in relation to trade and property raises different issues from the protection of reputation in relation to more personal attributes and to social prestige in non¬ economic relations. Ihering and his followers attempted to classify and tabulate the interests served by law in a manner sufficiently detailed to have some impact on the understanding and application of actual law, and yet sufficiently general to be true of many countries and over appreciable periods of time. Thus in Pound’s presentation,' interests are divided into individual, public, and social. Individual interests are subdivided into interests of per¬ sonality, domestic (family) interests, and interests of substance; individual interests of personality are subdivided into the physical person, freedom of the will, honour and reputation, privacy, belief and opinion; domestic interests are subdivided into those of parents, children, husbands and wives, with further subdivisions in each case and with a cross-division of claims by the members of the family against each other and against out¬ siders ; interests of substance, meaning interests concerned with livelihood, are subdivided into property, freedom to carry on enterprises and enter into contractual relations, promise-reliance, protection of enterprise relations against interference, freedom of association, continuity of employment. Public interests are the interests of the state or of organized government, and are sub¬ divided into interests of the state as a juristic person and inter¬ ests of the state as a guardian of social interests. The juristic person aspect is subdivided into integrity of the state ‘person¬ ality’, protection of the machinery of government, and state claims of substance corresponding to the first four individual claims of substance. Social interests are interests of society as a whole and are subdivided into general security, protection of social institutions, general morals, conservation of social re¬ sources, general progress and the individual life. ■


vol. iii, pp. 15 ff.



Pound himself refers to the many detailed criticisms which have been levelled against this tabulation and to the alternative schemes which may exist; for example, he mentioned the diffi¬ culty of deciding whether defamation protects mainly personal reputation or the property interest in reputation, though not the particular illustration of that difficulty given above. But he advanced the optimistic theory that the course of legal develop¬ ment was tending to solve such difficulties, which he thought were due mainly to classificatory or procedural confusions and fictions in past legal history. The course of law reform, especially reform of lawyer’s law, has certainly been in the direction of simpler and more rational classification of branches of law, and consequent clearer views as to the social relations of the laws in question. Thus in both Roman and English law, ‘quasi¬ contract’ became a rag-bag of obligations, enforced by pro¬ cedures devised in relation to contract, but not arising from a promise or agreement; for example, the obligation to repay money paid by mistake. The reclassification of these obligations has gone far, especially in North America where the Restate¬ ment has firmly established a general concept of ‘Restitution’. But in the first place, it is very unlikely that courts and legisla¬ tures will adopt Pound’s or any other sociologically inspired table of interests as the basis of their classification; they will con¬ tinue to apply the conceptions of the past or conceptions which they find convenient in a particular case without regard to the opinions of academic classifiers. Secondly, the difficulty of cross¬ classification and of alternative possible classification is not merely the result of legal history; it is inherent in the social situation. Thus reputation considered as a personal and non¬ economic attribute is in a commercial society closely connected with economic reputation; in a decaying aristocracy such as that of eighteenth-century France, noblemen could fail to pay their tailors but must not fail to pay their gambling debts, but in contemporary plutocracies a reputation for not paying bridge debts will affect ability to obtain commercial credit. Pound’s table of interests, unlike his table of postulates, gives adequate recognition to the claims of government, but does not separately acknowledge the claims of groups outside the state; it treats such groups as merely a manifestation of in¬ dividual interests. Although sociologists today have mostly



abandoned the nineteenth-century theories which attributed real personality, will, &c., to social groups, they still insist on the reality of such groups, the impossibility of treating them merely as the sum of the individuals making them up. And this corresponds with common experience. In large and complex societies it becomes increasingly difficult for individuals to make effective claims, so that legislation and the interpretation of the law are increasingly concerned with the adjustment of the claims of groups such as trade unions, employer organizations, farmers’ unions, consumer groups, churches, universities, asso¬ ciations of writers and artists; political scientists are even beginning to think of political parties less as the representatives of individuals and other groups and more as groups seeking to serve their own interests as a group. Judges have interests as a group, and so do legal professions. Pound’s heads of individual interest cannot all be applied to group interests without straining or metaphor. It seems attractive to speak of the internal organi¬ zation of a group as its physical personality, its ‘public image’ as equivalent to personal reputation, and so on; beyond ques¬ tion, groups have interests in the property and contract classi¬ fications closely comparable with those of individuals. But such identifications can be misleading if the element of metaphor is not recognized. Thus in the first stage of combating Communist tactics in trade unions as mentioned above, the Australian Labour Government in 1949 required that a courtsupervized election should still be carried on by the trade union concerned, in accordance with its rules; but this respect for the ‘personality’ of the union made it difficult to achieve the main purpose of the law—to ensure clean elections—since in such circumstances it is always the case that a strong group of offi¬ cials and members wishes to circumvent the action taken. The succeeding Liberal-Country Party Government authorized the industrial court to direct election of officers in a ballot conducted by the Commonwealth Electoral Officer, whose usual function is the conduct of elections to Parliament. The ability of unions to control their own industrial policy has not been affected by these provisions. The fact is that the operation of the rules of an organization bears only a slight resemblance to the integration of human personality. The state can be considered as merely one of many social groups, and indeed there are dangers in



thinking of it differently for legal purposes, since superstitions about sovereignty as a necessary attribute of states may give Pound’s ‘public’ claims an appearance of superiority to other claims which they do not deserve. Thus in the present writer’s opinion there is little justification for the priority commonly given to governmental claims in bankruptcy and insolvency, and no justification at all for the constitutional mysticism which caused the High Court of Australia to exempt federal claims of this type from the operation of State insolvency laws.i In this as in other connexions what looks like a taxonomic scheme may conceal value judgments. However, individual, group and government interests can be identified, and the extent to which the law gives effect to them or protects them can be worked out, and Pound discusses and illustrates such relations with a wealth of knowledge of AngloAmerican law and legal history. But the position of his social interests is different. There is no empirically identifiable person or group of persons with which these claims can be associated, unless it be all individuals and groups put together, or the group known as the State in its character as representative of all individuals and all other groups for the very purpose of generalizing individual and group claims. An intelligent citizen is likely to appreeiate that his interest in security from the assaults of X is best secured if all his neighbours likewise are secured against X and against all persons of similar tendencies, and furthermore if he himself surrenders any claim ever to act like X. Indeed it is very uncommon to find any so-called indi¬ vidual interest being asserted in title of an individual. It is not the business of a developed legal system to attend to the interests of a particular individual as such, and every individual claim needs to be capable of expression as the interest, present or potential, of a class, preferably a class which potentially can include at some time every member of the society. In this sense all Pound’s ‘individual’ claims are also social. Thus the private landlord will fight for his common-law right to levy distress for rent, without first applying to a court, on be¬ half of himself and all such landlords against his tenant and all such tenants. Is there a wider ‘interest’ which can be distin¬ guished from these elass claims? The landlord may argue that ' Commonwealth


Cigamatic Pty. Ltd. (1962), 108 Comm. L.R. 372.



unless he and all landlords have a right to distrain, they will not be prepared to put capital into building and buying houses for purposes of rental, so that the provision of housing will fall entirely on public housing authorities, if there are any; other¬ wise individuals lacking the money to buy houses will be left without shelter. This, then, appears to assert a general interest in the provision of shelter which is best served by being kind to landlords. Or the matter may be expressed even more generally by mentioning the advantages of a private enterprise economy. On the other hand, the tenant will argue that landlords with right to distraint may make an unreasonable use of the power, which many tenants will be too poor to question or resist, that such a power tends to provoke resistance and cause social insecurity, and that landlords can be adequately protected by ability to obtain judgment in a court and issue execution. This points to an interest in social order, served by being kind to tenants, with perhaps more general remarks about the advan¬ tages of private enterprise placed under a degree of ‘welfare state’ control. The landlord can mention that one day his tenant may become a landlord, and the tenant can retort that landlords are sometimes reduced to becoming tenants. Yet there seems artificiality in asserting that behind the landlord interest and the tenant interest is a general interest which both share in the provision of shelter, and still more if the ‘interest’ asserted is an interest in social order or in a general social policy such as private enterprise or collectivism. The artificiality is greatest in the case of ‘social interests’ so vague as ‘general security’, ‘general morals’, and ‘general progress’. Here we move from the sphere of actual claims actually made to that of speculations in the field of social philosophy; statements of the consequences for social development of having a legal system at all, or of social ideals which all good men will acknowledge but which are likely to figure in the reasoning and speech of legislators and judges mainly as literary ornament. ‘Conservation of social resources’ may be an aim of government policy, but as a social interest it has no higher standing than ‘maximization of use of social resources’, which Pound does not include, and both so far as specific are reducible to claims of groups. The ‘interests’ concept has been discussed extensively by political scientists and social philosophers, since politics has long



been considered as the organized pursuit and defence of in¬ terests, and the State as a means of reconciling the conflict of such interests and in doing so achieving a unifled or ‘highest’ interest of all. These discussions are summarized and criticized and the literature cited in S. L. Benn’s paper, ‘“Interests” in Politics’;' the distinctions made by these writers are relevant to legal sociology, though the legal case also brings out special difficulties. First, the behaviour associated with an interest needs to be distinguished from the discourse concerning it. Next, in the discourse concerning it there is a slide from description of the behaviour to arguments in which evaluation and ‘ought’ state¬ ments become increasingly important. Next, it is necessary to distinguish two ways in which the interest may be regarded, namely the ‘internal’ and the ‘external’ view. The internal view is that of the persons asserting the interest, the claimants; how they actually see their own interest. The external view is that of other people—especially, in legal contexts, a legislator or court —who have examined the position. The external observer may think that the claimants mistake their interest or misdescribe it or fail to express it in the argumentative setting which is most advantageous. The claimants, on the other hand, may think they are better informed about their own interest and about the best way of relating it to the social system. Or the external and internal sides may learn from each other. Pound’s ‘social in¬ terests’ are most likely to be an exterior and normative account of a situation, and the felt ‘artificiality’ in such statements arises because such a way of putting the matter corresponds so little to the motives and purposes of particular, identifiable claimants. In the landlord and tenant case, the landlord wants to get his overdue rent by the cheapest and most expeditious method, while the tenant wants to put him to as much trouble as possible. A powerful determining factor in the actual development of the law on distraint has been the contrast between the general common-law position of creditors, who have to obtain a court judgment before they can issue execution, and the position of landlords at common law; in that legal setting, the landlord position is seen as an anomalous historical survival, a special privilege, something more appropriate to an age when self-help was more common. But to try to translate these propositions '

Aristotelian Society Proceedings,

vol. lx (1959-60), pp. 123-40.



into a social interest in legal consistency falsifies the actual course of the argument. Tenants would not themselves make too mueh of the consistency issue, since they want in various ways to establish a better position than that of most ‘hirers’, for example by restricting the landlord’s power to evict. As far as they are concerned, then, consisteney is not an interest; it is an argument whieh they will use for what it is worth and abandon when it beeomes inconvenient. This does not mean, however, that the argument as to consisteney, equal proteetion of laws, due process, and so on, is unimportant nor that it will fail to be felt and understood as a main issue by someone. The point is that the ‘someone’ is likely to be an official of the State whose social task it is to take account of such ‘interests’. Soeial interests are in a sense the interests of everyone, but they are also the interests of no one in particular, and may be better stated not as interests but as values served by social leaders. The interest theorists have said that interests must be stated at the same level before they can fairly be compared; otherwise the problem of deciding between them will be begged by the way in which they are described. Such reduction or elevation to a common level is always theoretically possible, though the ‘highest’ level interests can turn out to be identical, so that the conffiet is only at a ‘lower’ level. The assumption made in this view about levels is that an interest asserted in Poundian terms as soeial must prevail over one which is stated as public, and both social and public must prevail over an interest stated as individual. But in practice interests at various levels of state¬ ment are commonly pitted against each other and there is no a priori reason why social interests should prevail over the others, nor public over private, either in fact or as a matter of evalua¬ tion. On the contrary, one of the problems of social organization is to obtain a fair hearing for the more general social interests as against the more specific interests of a definable group. The political scientists see this as the problem of the pressure group whose organization and power enable it to overcome the more diffuse, less well organized claims of‘the public’. But there is a similar difficulty in judicial administration, arising not from power and organization but from the combination of logical and emotional impact on judicial minds which some types of claim may make as compared with others. Generally speaking, the



most effective interest from the point of view of impact is neither the claim peculiar to an individual or small group, nor the very diffuse social interest, but an intermediate range of group interests or aggregated individual interests which concern large numbers. The interests of the very few are easily assumed (not always justifiably) to be too selfish for legal protection; the very general social interest is too diffuse for its precise signifi¬ cance to be grasped in a particular context, and there is usually a good deal of room for argument as to the course which will best secure that interest. In between come the interests which can be illustrated in behavioural terms, intuitively apprehended, and satisfactorily managed. For example, consider the problem in fF. v. W. (TVo. 4).'^ The husband petitioner in a nullity suit applied for an order requir¬ ing that blood tests be taken of himself, the respondent wife and a baby born after the ceremony of marriage, to prove that he could not be the father of the baby. A Rule of the Supreme Court authorized Judges to order that ‘samples ... be taken’ and ‘any .. . experiment... be tried’ as part of the evidentiary pro¬ cess, and its terms were wide enough to extend to compulsory blood testing. But Cairns J. rejected the application on the ground that such general words should be read as not displacing the strong presumption against ‘interference with a person’s body’. His Honour said that if the forcible taking of blood tests from the unwilling wife and from the baby who had no capacity to consent were authorized, then so would be an order for an exploratory surgical operation in order to establish a disputed diagnosis relevant to the damages in a running-down case. In a jurisdiction more accustomed to the explicit weighing of socio¬ logical factors, it might have been said, misquoting Holmes J., that the power to order experiments need not be a power to order major operations so long as the courts sit. But even without the horrible example, so often used and misused in English forensic argument, one can almost feel Cairns J. wincing as he imagined the thumb-prick going in. As against the interest of personal inviolability, so poignantly illustrated, the competing public or social interest in using scientific knowledge to discover facts relevant to a legal decision had little chance. But although ' [1964] P.Sy Affirmed by C. A.,ibid.,p. 73, but the discussion of the main point at first instance is more illuminating.



the interest preferred was in Pound’s terms individual, it was potentially an interest of every individual—a social interest by aggregation, and more effective when so stated than if stated in abstract terms as the social interest in the individual life. This sort of ‘concretization of the basic interest’ can be criticized as merely a rhetorical or forensic device. There was a nice illustra¬ tion of its use in Ex p. Nelson [No. i)p an Australian High Court case concerning the validity of provisions in the Stock Act of New South Wales and proclamations thereunder which sought to prevent cattle being imported into the State from parts of Queensland where it was suspected there were infestations of cattle tick. Dr. H. V. Evatt, then a rising constitutional junior, argued on behalf of an interested cattle dealer that the law was invalid as contravening section 92 of the Constitution, guaran¬ teeing freedom of trade between States. His opponent Dr. Brisscnden K.C., then a leader of the constitutional bar, is thought to have won the case in his opening sentence, when he said that if he understood his young friend Evatt aright, section 92 conferred on every cattle tick in Queensland a constitutional right to cross the border into New South Wales. However, the rhetorical success of such sallies is related to an important social tendency—namely that of preferring a claim whose be¬ havioural implications can be apprehended in a specific way to a claim whose behavioural implications are heterogeneous and speculative.^ Pound himself abandoned any attempt at stating enduring value systems by which interests, even when stated at the same level, can be adjudged when in competition. The choices actually made at particular times are much influenced by historical considerations and often seem fortuitous, though over relatively short periods it is not difficult to establish some orders of preference likely to obtain. Legal systems sometimes them¬ selves contain general principles which provide a priority of interests. The English judge-made principles of public policy can be so regarded; so can the Directive Principles of State Policy in Part IV of the Indian Constitution which call for a ' (1928) 42 C.L.R. 209. * Cf. OrmerodJ. in Chetwynd-Talbot v. C., [1963] 2 All E.R. at 566; ‘The fifth consideration—the interest of the community at large—raises questions which are as far-reaching as they are nebulous.’ 825208



postulates, interests, and institutions

welfare-state socialism. Moreover, the choice is not always between one broadly stated interest and another broadly stated interest. Even in Parliament, it is usually a question of more or less as between interests already protected, and this is almost invariably the case with judicial choices. Thus in Bolton v. Stone, ^ the contest could be represented as between the aggregated individual interest in personal integrity, represented by an injured passer-by, and the aggregated group interest in playing cricket, represented by the defendant club from whose ground came the mighty ‘sixer’ which injured the plaintiff. Or the interests could be ‘socialized’ by putting the plaintiff under the head of social interest in the individual life and the defendant under the head of social interest in the protection of social institutions, namely those concerned with healthy sport. But none of these general interests were actually at stake; all re¬ ceive a great deal of legal protection, and the actual task of the House of Lords was to establish a boundary line between com¬ peting interests in a marginal case. It held that although there is a duty on cricket clubs to prevent passers-by from being in¬ jured by big hits, this did not extend to the hit of the century. The ground was in fact of such a size, the pitch so placed and surrounding walls so built that the probability of even the sixer of the century hitting someone was very small. The reasoning of the House is open to criticism but the adjustment of estab¬ lished interests involved was typical. Similarly in W. v. W. it was not a matter of abandoning the public or social interest in ascertaining the truth for purposes of litigation; other eviden¬ tiary methods were open to the petitioner. It is then usually a question of preferring one type of interest to another in a particu¬ lar setting or relation. The consequences for the relevant social structure are not to be found by considering the whole of an interest at a particular level as compared with the whole of another interest at a similar or any other level, but by working out the operation of the particular decision on the legal struc¬ ture. As far as judicial decisions in the Anglo-American tradi¬ tion are concerned, this requires attention to the status of the particular court, and to the terms of the judgment in the light of the doctrines of precedent. It does not matter how generally the court may have stated the issues, in terms of interests ’ [1951] A.C. 850.



involved, or how generally some soeiological commentator states them in such terms; the subsequent application of the decision will certainly be related to the facts before the court, and so narrowed to specific instances of the generally stated interest. It has been objected that ‘interests’ are simply the other side of the operation of rules of law, and that in any present on-going society it is the laws, not the interests supposed to be protected, which are found; the supposed interests are only the logical constructs of legal theorists. Pound answered that one could point to the time, place, and persons when, where, and by whom an interest was asserted by reference to which appropriate laws were enacted or judges manipulated existing laws so as to give the desired protection. Both sides to this argument are correct. Laws breed interests; people sometimes learn that there are laws and that they may be able to assert interests in virtue of those laws before it occurs to them to assert the interests in¬ dependently. Thus shortly before this book was written, the Canberra Consumers’ Association discovered, what had been forgotten, that a local ordinance required fuel to be sold by certified weight, where it was in fact invariably sold by the bag. Consumers then discovered an interest in having their fuel weighed and proceeded to assert it vigorously. But when the trade union majorities mentioned above, who had for years been bullied and defrauded by Communist minorities, asserted a claim to clean ballots, no reliable legal rules and remedies existed which poor men could invoke. The proceedings in respect of the English E.T.U. in Byrne v. Foulkes^ lasted a month and cost a fortune. Both laws and moral sentiments of the societies concerned encouraged a belief that clean union elections might be regarded as an interest likely to prevail over the alternative claim to union autonomy, but union corruption was an old problem and the factor finally determining the date when the claim was made and the legislative outcome of the claim in North America and Australia was completely extralegal, namely the hostility of dominant social groups towards the Communists who were currently the chief culprits. There is an infinite range of possibilities in the relations between existing law and the assertion of interests. Probably at any time it is unlikely that a new claim will be so entirely new ' Supra, p. 151, n. 3.



that no existing legally protected interest is in the slightest degree analogous with it. But an example of a highly novel claim was that of the first successful aviators, in the early twentieth century, to fly over land and through air-space which under English legal principles was owned so far as heaven by the tenants in fee simple of the terrestrial surface. When the aviators were few, this was literally an individual interest, but it soon became an aggregated or social interest in the ability to advance transport by aviation without the crippling handicap of securing consent to passage from surface owners. In the U.S.A. the in¬ terest produced a judicial response—doctrines which restricted the ancient definition of land-holding rights so as to treat flight over land as not constituting a trespass;' in England and the British common-law realms the courts might have arrived at the same adjustment, but in many of these realms judicial legislation was rendered unnecessary by Parliamentary enactment which at the same time imposed on aviators a novel type of strict liability for material harm their flight might cause.2 Another possibility is that created by ‘emergent’ or ‘dormant’ law; some people may have reasons for asserting a claim which they would not bother to press if its protection required legisla¬ tion, still less if it required constitutional amendment, because the political odds are stacked against them, but their legal advisers may be able to discover in existing law a basis on which to press the claim, depending on the willingness of the courts to modify hitherto unfriendly doctrine. Thus in the long history of the Australian section 92, guaranteeing freedom of trade between the States, there was a period between 1932 and 1949 when it seemed hopeless for inter-State road hauliers to claim immunity from discriminatory State licensing laws and savage taxation designed to protect the State-owned railways from their competition, even though these laws were plainly invalid on any rational theory of the purpose of section 92. Several decisions of the High Court had held the relevant legislation and adminis¬ trative action thereunder to be valid and these decisions had, it was thought, been approved by the Judicial Committee of the Privy Council. But persistent dissents in the High Court pointed ‘ U.S. V. Causby (1945), 328 U.S. 256. ^ (U.K.) Civil Aviation Act, 1949, s. 40.



to an interpretation of section 92 which would invalidate the transport control Acts, and between 1945 and 1948 decisions of the High Court drifted in the direction of the dissenting doc¬ trine; many features of that doctrine were adopted by the Judicial Committee of the Privy Council in 1950, though in relation to attempted federal nationalization of banking, a topic apparently far removed from transport control. This doctrinal development encouraged the road hauliers to urge afresh their particular interest in immunity from the State laws; they could generalize this interest as a constitutionally guaranteed interest of all interstate trade and traders in immunity from undue legisla¬ tive interference, and they were finally successful.^ Some of the Justices concerned with this development expressly put it on the basis of a choice of laissez-faire, Spencerian social principles in preference to collectivism, but the most powerful factor was an interest in simplicity of legal administration relevant only to lawyers and having no independent relevance for either inter¬ state traders or their main enemies, the State governments. Judges had found it difficult to assess legislative motive and pur¬ pose, as expressed in complex legislation whose application and economic significance varied from time to time; such assess¬ ments were required in order to apply the doctrine which held sway from 1932 until 1949. Sir Owen Dixon, later Chiefjustice, hoped he could devise a formula, based on scholastic manipula¬ tion of the words of section 92, which would avoid this em¬ barrassing task and make the application of section 92 a matter of simple logic. The hope has proved vain, as shown by the persistence of dissents in a court all of whose members purport to follow the new doctrine. This doctrine has even less relation to the history and context of section 92 than the one it replaced, so that it has become a popular sport for constitutional counsel to discover unlikely interests which can be brought under the protection of section 92. The joint significance of social interest and of legal rules relating to that interest is more clearly contemplated in the Romanist conception of a ‘legal institution’, which is defined by Renner as ‘a governing legal relationship regulating a basic circumstance of life’; he gives as examples marriage, the family, property, tenancy and hiring, succession, and the relationship ' Sawer,

Australian Constitutional Cases,

3rd ed. (1964), pp. I5^~345-



of master and servant. In accordance with the Marxist type of thinking which dominates his work, he claims that in the social substratum there are social relations to which the legal rules under these headings conform, and that the social relations and the legal rules together constitute the ‘Institution’; he asserts as fact that in the Romanist systems lawyers keep refer¬ ring back to the social substratum in order to maintain the unity and completeness of each such institution. There is, however, a good deal of looseness in the concept, because of the great differences in specificity and in social coherence between the different sorts of social relation to which he refers, and also because of the great differences in generality and abstractness in the relevant types of legal rule. Thus the family as a social unit is without difficulty con¬ sidered independently, and the clusters of legal rules concerning marriage, care and custody of children, relations between husband and wife, and aspects of succession resulting from marriage are readily isolated and seen to have a good deal of specificity. Archaic law bears traces of marriage being regarded as a sort of sale of women, and the position of women and children therein may have resemblances to that of slaves or serfs, but the working law of even archaic societies of which we have extensive knowledge and certainly all contemporary legal systems deal with marriage as a unique relationship. The aver¬ age picture of this social relationship and especially the judicial picture of it are apt to be stereotypes, reflecting a social ideal and often an ideal of the immediate past rather than of the present, but the trend is towards special procedures for handling marriage questions in such a way as to ensure detailed attention to the facts of each particular marriage—to maintain and re¬ build marriages if possible, but only if the possibility of doing so actually exists. Specificity is thus a feature of both marriage law and of accompanying law' and procedure. But there is no unique, discrete set of social relationships corresponding to ‘property’. Claims by persons to the exclusive occupation, use, and disposition of things occur in every phase of social existence, in all societies including those like Russia where there is an official prejudice against property; where a social demand is so general and diffuse and extends over so many different social relationships, it is unlikely that one will be able to identify any



particular ‘substratum’ to which the cluster of legal rules cor¬ responds. The manorial economy of England from the twelfth to the middle of the fourteenth century constituted an ‘institu¬ tion’, in which the social organization and a particular set of rules concerning tenancy in land and personal relations between villein and manor lord formed a discrete unit. In many con¬ temporary countries irrigation farming can be treated as a similar institution; there are social relations between the farmers, the public authorities concerned with provision of water, credit, and marketing assistance, and the co-operative marketing bodies; there are legal rules (mainly statutory) specific to these relation¬ ships. But the general laws of property (and of master and servant) have in modern states reached a degree of generality and abstractness, a type of social neutrality, which makes them adaptable to many different social situations. This capacity of law for social neutrality is further considered in the next chapter. Hence although the ‘institution’ approach can be a more rewarding one than the ‘interest’ approach where the required conditions of an identifiable social unit and a set of rules specific to that unit exist, the ‘interest’ approach is the only fruitful one where these conditions do not obtain. It might be expected that the impersonal, disintegrated, bureaucratically controlled type of life in modern industrial cities is particularly unlikely to breed ‘institutions’, excepting the city itself which is too large and heterogeneous a unit. How¬ ever, even in the worst types of concrete jungle, such as New York, Tokio, Moscow, Hamburg, and Sydney, social clusters with appropriate law-clusters can be identified. In the capitalist cases there are industrial, commercial, and financial corpora¬ tions, trade unions, universities, churches, and organized pro¬ fessions. Berle and Means’s The Modern Corporation and Private Property (1948) is a now classic integrated study of social and legal relations in such a setting. In the Russian Communist case similar foci of social and legal development are appearing in spite of the attempts at subordinating spontaneous social groups to Communist Party leadership. In all cases the flow of metropolitan automobile traffic constitutes a discrete social unit with its highly specific set of laws and administrative organs, a perfect example of Durkheim’s ‘mechanical solidarity’, both in the sense intended by him and in a further punning



sense which he would not have found amusing. Owing to the technical specialization of contemporary agriculture, and a tendency for regional location of each specialization, the trend is towards the development of specific social-legal clusters where at earlier less differentiated stages the law of agricultural land ownership and of farming employment and commerce had tended to be generalized and abstracted. Thus in Australia the sugar-growers of coastal Queensland and northern New South Wales, the wool-growers of the inland plateau, the egggrowers of southern Victoria, and the orchardists of southern Tasmania have each distinctive types of tenure, credit arrange¬ ments, employment systems, and marketing methods which are reflected in law. The operational significance of statements about the relation between laws and social phenomena varies with the person making them. To the sociologist, concerned with understanding and perhaps altering the social structure as a whole or distinct sub-structures, such relations are always important, at least if the law is an integral feature of the total situation under study. But for the lawyer the significance of such statements varies much from case to case, time to time, and country to country. The legal system as it exists for the time being can be considered by the lawyer as itself constituting so much of the system of social relations as he is concerned to deal with. The case in favour of a jurisprudence of conceptions can be put on this sociological ground, and it is a better case than the usual ‘divi¬ sion of powers’ argument—leave policy adjustment to the legislature—since it takes into account the lawyers’ law sector where as previously explained legislative adjustment is apt to be sporadic. On this view, once the legal system has attained a certain degree of complexity and capacity for development by logical inference, then provided the system was in the first place reasonably well fitted to the social system, and provided there have been no gross changes in the social system, the best legal sociologist may be a competent lawyer or lawyer-judge com¬ petently applying traditional methods of casuistry and sub¬ sumption. At least he may do no worse than the lawyer or lawyer-judge who consciously endeavours to adjust the law to social relations, since the independent evaluation and systemati¬ zation of social factors is not always such as to provide any more



reliable guides to legal action. But the conditions in which a jurisprudence of concepts can thus be sociologically identical in operation with other forms of legal development rarely occur and rarely last for long. Tensions develop because legal relation fails to correspond with social relation, even within the elastic degrees of tolerance permitted by human conduct; then adjust¬ ment of the law becomes inevitable, in ways beyond conceptual manipulation. Even where a legal rule or concept is in terms sufficiently abstract or generalized to extend to a new develop¬ ment, there may be so strong an identification of the rule or concept with its original social interest or institution that the extension of the rule would be considered, at least by laymen, as a legal fiction.

X FOLKWAYS, LAW-WAYS, AND STATE-WAYS T o this point, the assumption has been that law matters—the law, that is, which judges apply, which lawyers refer to when advising clients, and which legislative authorities from time to time enact. A picture has been built up of laws and legal pro¬ cedures developing as society develops, having in the first place more the appearance of an expression of legal order than of a coercive system, but with coercive sanctions and then conscious social control becoming increasingly prominent; in modern states there is a continual and fairly rapid process by which the ‘accepted social order’ element in law, here called lawyers’ law, is modified and added to both by juristic interpretation, and by legislative amendments, some of which are at first experienced as social administration but are later absorbed into the body of lawyers’ law. This is the law with which legal professions and courts are concerned most of the time; the positive social admini¬ stration characteristic of modern states is carried on largely by a bureaucracy, and as to those activities the courts and legal profession perform an auxiliary function—hearing and deter¬ mining prosecutions for offences which are created to protect the activities of the bureaucracy, and ensuring that the admini¬ strative authorities act within their powers. The body of laws existing at any time can be related to a small number of genera¬ lized social postulates, and can be fitted into tables of types of social interest which the laws protect and between which they establish compromise adjustments in case of conflict; some units of social action, such as the family, can be shown to have asso¬ ciated clusters of laws which are specific to those units. But it has not been assumed that the social behaviour connected with law has any necessary historical, logical, or cause-and-effect priority with respect to associated law. If anything, it has been assumed that in a mature, stable system, the law has priority, in



the sense that it will be given effect to, carried into behaviour or enforced where necessary, unless the tension between social behaviour and relevant law becomes very great when legal change may occur. At least a two-way process has been assumed, in which the relative roles of social behaviour, considered inde¬ pendently, and legal norm, considered independently, are both important. There is, however, a recurrent theory, attitude, or assump¬ tion, manifested in both popular speech and in academic specu¬ lation, which attributes a secondary role to law and a primary role to social behaviour conceived of as existing independently of law. Thus the lawyer often hears laymen with whom he is collaborating in a social activity—trade union, social club, academic governing body, and so on—describe a legal difficulty which he has raised as ‘purely legal’ or ‘only legal’, or even by the pejorative expression ‘legalistic’. The last expression ought probably to mean pseudo-legal, but it often refers to a legal rule which stands in the way of a strongly urged claim or interest felt to be socially desirable and morally inoffensive, and there¬ fore the sort of legal obstacle which can and must be overcome; that the legal difficulty exists is not doubted, but the primacy of the social claim is strongly felt and the legal obstacle is considered artificial, arbitrary, and probably the consequence of a con¬ spiracy of lawyers to obstruct honest citizens. A view that social relations established independently of positive law, the actual practices of people in society, are either all-important or most important was put with special fervour at about the same time by the American sociologist W. G. Sumner, especially in his Folkways (1906), and the Austrian jurist E. Ehrlich, especially in his Grundlegung der Sogiologie des Rechts (1913, English translation 1936).! In a study of Ehrlich,^ P. H. Partridge comments on his slipperiness, the frequency with which he asserts a position with confidence and then qualifies it. Partridge writes, ‘it is difficult to nail him down, because he persists in claiming more than he is willing to defend; whenever he puts a card on the table you can be sure that within a few pages he will have snatched it away again’. The same ' References here are to the latter, by W. L. Moll, titled of the Sociology of Law. -

(1961) 39

Australasian Jour, of Phil.


Fundamental Principles



comment can fairly be made about Sumner. However, in each case there is a central core of social theory. In Folkways Sumner wrote: ‘Acts of legislation come out of the mores’; ‘Legislation . . . has to seek standing ground on the existing mores, and it soon becomes apparent that legislation, to be strong, must be consistent with the mores’; ‘The mores . . . build up new laws ... in time.’^ In the context of these state¬ ments, ‘legislation’ and ‘laws’ appears to mean the general body of positive law in a community, while the ‘mores’ are described as ‘the folkways, including the philosophical and ethical genera¬ lizations as to societal welfare which are suggested by them, and inherent in them, as they grow’.^ But in his later The Science of Society^ (1927), Sumner distinguished between law made by judges and that made by legislatures, and suggested that the former is by its method of growth necessarily related to the mores; it is only legislatures which tend to ‘mount the high horse of doctrine and set up ideal principles in order to deduce laws from them’. This latter version seems to put Sumner close to Savigny. On this view, the folkways include the ‘law-ways’, the law developed by organized legal professions in the course of advising their clients and devising transactions and forms of association to satisfy the needs of those clients, by legal commen¬ tators and teachers such as the European glossators, and by courts in the course of deciding specific cases. The folkways and the law-ways are then set off against what are often described as ‘state-ways’, conscious creation by legislatures of legal rules created as the expression of a social policy which may or may not be related to existing folkways. Much subsequent discussion of Sumner has been related to this aspect of his numerous writings —his distrust of legislation, the ‘juristic pessimism’ which he shared with Savigny. It has been pointed out that he did not deny the possibility of legislation performing a creative role and being used as a positive instrument of social control.^ In the same way it could be said that Savigny in his Uber den Beruf unserer feit fiir Gesetzgebung und Rechtswissenschaft (1814) did not deny the possibility and utility of codification; he only argued that it was premature because of the then state of German national ' PP; 55. 57^ P- 303 With A. G. Keller, vol. i, pp. 661-2. * (1962) Jour, of Legal Education, Q.QQ.



development and legal science. Similarly, when Karl Renner inveighed against the ‘decretinism’ of the Russian Bolsheviks, who imagined that revolutionary edicts could abolish overnight the existing Russian society and economy and establish a socialist millennium, he was not thereby advocating an end to all legisla¬ tion. ^ But after making all such allowances, one is left with the impression that Sumner would always have regarded radical legislative amendment of the existing legal structure as likely to be unsuccessful and certain to be undesirable. Similarly Savigny would not readily have conceded, however long he had lived, that a time had arrived ■when the vocation was for legislation rather than for juristic science. There is, however, an important difference between the posi¬ tion of Sumner and that of Savigny. The latter associated the Roman law of the glossators and the post-glossators, as accepted in Germany, with the German Volksgeist only by an act of faith or of the metaphysical imagination; he did not assert it on the basis of a precise sociological account of the relations between the lawyers and the people. And the operational consequence of what he said was to assign to the lawyers, not to the people, the main constructive role in the development of law. Sumner did try to establish as social fact, observed in history and in contem¬ porary society, the primacy of the folk in this matter. The most important feature of the situation as he saw it was that a good deal of the detailed process by which folkways developed was ‘irrational’ in the sense of unplanned or lacking purposive deli¬ beration ; even so far as individual steps in the development of a custom or usage might be rational or purposive, the structure achieved by the aggregation and interlocking of such steps was not planned. For example, initial decisions about where to seek a wife, whether ‘rational’ or not, built up into the elaborate rules concerning exogamy among primitive and archaic peoples. Views of this sort easily lead to the conclusion that an attempt by a small group of individuals at a particular time to under¬ stand the whole of a complex social situation and to control or direct that situation by laws ‘artificially’ contrived is bound to fail, or can succeed only by coincidence. Even if the required knowledge were present, the required empathy was very likely to be lacking. It is not inconsistent with such a view to think ■

Studies in the Sociology of Law

(1961), p. 151.



that jurists and judges concerned only with the tiny day-to-day adjustments of rules required in individual cases can carry out their functions without distorting the mores, at least if it is assumed that the body of law from which they start is itself mainly ‘traditional’ in content; Sumner was probably also thinking mainly of the Anglo-American system of judge-made law, which for the institutional reasons previously mentioned is particularly likely to be related to the mores of the people or at least of the governing classes. Sumner, however, did not assert that the folkways are the law; only that folkways breed law. Ehrlich took the further step and asserted that folkways are law, the most important part of the law. He coined a number of phrases which have passed into currency among sociologists and legal theorists, possibly not always in the sense intended by Ehrlich. The most important of these were ‘living law’, ‘inner order of associations’, ‘law for decision’, ‘state law’, and ‘juristic law’. The expression ‘living law’ has often since been used to mean law that is actually observed by most people, as distinct from law which has become a dead letter, but referring in either case to law found in statutes or judicial decisions. Thus until the rediscovery of the Australian Capital Territory ordinance concerning sale of fuel by weight mentioned in Chapter IX, this law was dead, because the persons bound by it and the persons whose interests it was intended to protect were unaware of its existence, and the authorities who might have enforced it were not doing so because of lack of staff, ignorance, incompetence, or a policy of not enforcing such laws. Such cases interested Ehrlich, but he used the term ‘living law’ to describe something quite different. Even if the A.C.T. ordinance in question had been widely known and enforced, and had corresponded with usual actual behaviour, he would still have regarded it as but a norm for deci¬ sion, not as ‘living law’. This is because in general he regarded as ‘living law’ only the actual regularities of behaviour in social groups. According to him law is living only while being lived. A judi¬ cially applied norm corresponding precisely with how people behaved cannot itself be lived; it is only what he called a legal proposition. He distinguished ‘living law’ from other regulari¬ ties in group behaviour which were the result merely of fashion, etiquette, the technical usages of craftsmen, or habit, by the



presence in the case of law of a sense of obligation to behave in accordance with the norm in question. This ‘living law’ is sup¬ posed to be created by the ‘inner order of associations’, the way in which social groups actually express their societal quality; possibly the ‘inner order’ is the feature of societal life which should be equated with Sumner’s ‘folkways’, as being the funda¬ mental mores out of which the living law emerges but not neces¬ sarily identical in detailed content with the latter. Ehrlich contrasted this living law with ‘law for decision’, meaning thereby the law applied in the decision of disputes by lawyers and courts. He was willing to concede that law for decision might coincide in content with living law, but he ex¬ pected that even this would be unusual and sometimes undesir¬ able. Thus he criticized the German Civil Code for adopting ‘husband managership’ as an element in the matrimonial pro¬ perty regime, notwithstanding that this agreed with the living law of most actual marriage groups, because it was appropriate only to the ‘relation of peace’ with which the living law was concerned; once litigation is embarked on, there is a dispute situation which demands a different type of solution. Ehrlich’s conception of ‘association’ for the purpose of deriving ‘inner orders’ and hence ‘living law’ was vague. Husband and wife constitute an asso¬ ciation, and so for some purposes do the entire population of a nation-state. His law for decision is subdivided into state law (legislation) and juristic law. But in his view juristic law, which might have had origins in custom or in the legal convictions of the people, soon itself becomes merely law elaborated by lawyers who do not themselves live that law, and hence it cannot be other than mere law for decision. Thus although Ehrlich had many links with Savigny and his school, especially a romantic and mystical attitude towards nationalism and the folk, he re¬ jected altogether Savigny’s dogmatic assumption that the jurists always distilled the folk consciousness in legal matters. Perhaps he would have conceded that there was more possibility of a satisfactory relation between living law and juristic law, than there was of such a relation between living law and state law, but even this is doubtful. Certainly he thought that a good deal of jurist’s law was in European practice derived from state law, and hence likely to have the worst defects of mere law for decision.



If Ehrlich had been content to draw attention to the many striking cases of dead official law, statutes or juristic doctrine disregarded in practice and only brought catastrophically to life in sporadic cases, to the discredit of the legal system, he would have engaged in a useful critical task. He lived in the Austro-Hungarian Empire, at a time when its Civil Code pur¬ ported to apply a uniform system of private law, but when in fact varying customary usages survived in different parts of the Empire; in any event the paragraphs of the Code were in short general terms which needed to be filled out and could often be filled out most readily by reference to usage. But on this foun¬ dation of social fact he built a monstrous theoretical structure which, so far as intelligible, is self-contradictory. He recom¬ mended the study of the living law and conducted an institute for the purpose, but what on his views could such studies produce but norms for decision? The students in his institute did not live the law they studied. As mentioned above, he implied, with¬ out plainly stating, that norms for decision should usually be directed to ‘war’ situations and could not therefore be in the same terms as the living law directed to ‘peace’ situations. His criticism of the German Civil Code provision about husbandmanagement of the wife’s property is a typical example of the confusions and rhetorical tricks with which his work abounds. It did not seem to occur to him that a husband and wife who were not in dispute might want to know what was the law about their property relations, and refer to the Code for that purpose. Moreover, even when they were in dispute, the law had to indi¬ cate the basis on which transactions before the dispute were to be considered, so as to protect persons who dealt with the husband while the situation was still one of peace. Of course, as he says, once the spouses are at war, it would be ridiculous if the court could not deprive the husband of his management powers. But norms for decision need not be solely concerned with the con¬ sequences of a broken legal relationship. Thus the declaratory remedies which have proliferated in modern law are designed to provide guidance for parties who merely want to know their rights, and who propose to carry on as the declaration recom¬ mends. The most striking example of Ehrlich’s card-snatching proclivity mentioned by Professor Partridge is the following. As already mentioned, Ehrlich regards the entire nation as an



‘association’ for some purposes, though this does not make him regard constitutional and administrative law as a type of living law; he thinks they are mainly ‘mere’ norms for decision. But he does say: ‘respect for the life, the liberty, and the property of every man is today not merely a norm for decision and a policy of the state, but has actually become a principle ofthe living law. To this modest extent, the whole human race has already become a vast legal association’.' One inquires then, did this happen by virtue of the living law taking over principles of conduct from state and juristic law, and what is the social machinery of such a development? If this organic unity between living law and law for decision is possible in such fields of legal regulation, why not in others? And are the laws concerning life, liberty, and property really so ‘modest’ a part of the social system? Sumner did not get himself into such difficulties, because he did not identify folkways with law. However, his interests were mainly historical and his examples drawn largely from primi¬ tive and archaic peoples, so that like Ehrlich he over-generalized from historically determined field material. But he also made a concession whose ambit he apparently did not appreciate. He wrote: ‘The mores of different societies, or of different ages, are characterized by greater or less readiness and confidence in regard to the use of positive enactments for the realization of societal purposes.This clumsy sentence seems to mean that in some societies, legislation canht used to change social behaviour. The question seems to be, then, what circumstances produce this result? The form of the statement may be intended to provide a verbal defence in case some critic produces an example of a society in which legislative change is rapidly effective though not, when introduced, ‘consistent with the mores’; this would be because in that society, the most important feature of the mores is a willingness to accept legislative leadership. The various Marxist accounts of law have a resemblance to those of Sumner and Ehrlich, because Marxists too assert the primacy of social forces independent of law, the ‘substratum’, and the relative dependence and lack of causative significance of the legal system, which is with religion and art treated as part of the social ‘superstructure’. In a crude Eeninist form this theory treats law as possible only in pre-Communist societies and as I p. 81. 825208

^ N


p. 56.



constituting in all such societies, in all its parts, a weapon by which the governing and exploiting class maintains its domi¬ nance. Accordingly the development of a legal system in the U.S.S.R. created theoretical difficulties for Communist Party apologists; the results are traced in Schlesinger’s Soviet Legal Theory (2nd ed., 1951). But Soviet legal writers have been occu¬ pied mainly with trying to fit their own developments into the prevailing Communist Party ideology and have eschewed any long-range general theory. The most rewarding Marxist dis¬ cussion of law is from the Austro-Marxist, Karl Renner; see par¬ ticularly his The Institutions of Private Law and their Social Functions d Shorn of its Marxist phraseology and socialist slogans, Renner’s thesis emphasizes the instrumental quality of legal concepts, the high degree of adaptability which they tend to possess in mature systems, and the consequent possibility that law may seem to change little notwithstanding profound changes in the structure of the society in which that law is found. Renner concentrated his analysis on the way in which Romanist conceptions of property, sale, employment, and the family had served with little formal change through the stages of a patriarchal, ‘simple commodity production’ society such as that of Western Europe in the eighteenth century, and well into the period of the capitalist, socially disintegrated system of the later nineteenth century. He identified three aspects of such a process. First, the social significance of a norm changes quanti¬ tatively, because the number of persons or things affected or the rate of turn-over of relevant legal transactions varies. To take a contemporary Soviet example, the provisions of the Civil Code concerning negotiable instruments, which are derived from ‘capitalist’ law on these topics, have now little social significance because the use of such documents has greatly declined. Simi¬ larly, in Australia bills of exchange have almost disappeared, being replaced by banking documents. Secondly, norms come to be used in social connexions different from those in relation to which they developed. Thus the absolute ownership of the Roman-law paterfamilias developed in a social setting of family enterprise, where the relevant items of property were actually managed and used by the patriarch, and by his family and ^ First published in German in 1904, English translation with notes by O. KahnFreund, 1949.



slaves working under his supervision; under capitalism, the same property concept suffices as the basis of absentee and corporate ownership in which the actual managers and workers have no filial relation to the legal owners and the latter take no part in the conduct of the enterprise. A particular case of this is the extent to which ownership of tools of trade by individual crafts¬ men, which tended to give them an independent social status, has been replaced by ownership of the tools by employers, the craftsman having only the lowly form of ‘possession’ which in English common law is called ‘custody’, with accompanying decline in social status. Thirdly, legal elements going to make up a complex relationship may be dissociated and recombined so as to perform a different social function. An outstanding example of this in current British Commonwealth law is the hire-purchase agreement. The la^v concerning sale of goods (under which purchasers in possession can make title to third parties) and the law concerning registration of chattel mortgages (which requires expensive formalities and enables creditors to veto a transaction) together created serious obstacles to the development of instal¬ ment sales under which the purchaser obtained possession while payingfor the goods. Such credit sales, however, became increas¬ ingly important for the private enterprise economy. The diffi¬ culty was solved by putting what was in economic terms, an instalment sale into the form of a hiring of the goods for a periodic rent, accompanied by an option to purchase the goods by paying a specified total of instalments. The ‘hire’ includes both purchase price and interest payments for the element of economic loan involved. This social use of both ‘hire’ and ‘option to purchase’ was systematically different from the previous social use of these concepts, and incidentally enabled the ‘bailor’ to escape many of the obligations to which he might have been subject either as legal vendor or as legal mortgagee. Hirepurchase also fits conveniently into a tripartite arrangement involving a vendor, for example the local dealer in motor-cars, who cannot afford to be out of his selling price, and a customer who cannot pay cash, and a (usually corporate) money-lender who for a suitable interest rate can supply the finance. The dealer sells for cash to the money-lender (who, however, never sees nor takes possession of the vehicle); the money-lender hires, with option to purchase, to the customer, to whom the vehicle is



delivered by the dealer, and who pays (often without knowing it) instalments to the money-lender. Other contemporary ex¬ amples of ‘dissociation and recombination’ are the unit-trust and vending machine arrangements described earlier, under which the concepts of trust and of bailment are given a new commercial setting. Renner was quite carried away by the dexterity with which the lawyers of nineteenth-century Western Europe had adapted inherited legal concepts to serve the rapidly changing social demands of the industrial revolution. Hence he formu¬ lated three general propositions about law and society; first, that fundamental changes in society are possible without any change in law; secondly, that it is not changes in law which cause social changes; thirdly, that social changes do not auto¬ matically and immediately cause changes in law. Indeed, he would have liked to say that social changes never change law, but even his enthusiasm for bold general theses could not blind him to the patent fact that eventually social change breeds legal change. To some extent Renner exaggerated the ‘timelessness’ of legal norms. For example, in eighteenth-century Western Europe, it was not the case that absolute or allodial ownership of land prevailed; the Roman law on this point was overlaid by a tangle of customary feudal tenures which so far from facili¬ tating the development of capitalist society were an obstruction to its growth; legislation was needed to get rid of this feudal encumbrance. Indeed, Renner’s own grandfather, a prosperous farmer, used legislation of Maria Theresa to convert his holdings from fief to allodium. In England, the process of getting rid of feudal land tenures and their consequences extended over a long period and required much legislation, such as the Statute of Tenures of 1660 and the Fines and Recoveries Act of 1833. As to property in chattels, in England it was not a case of the pre¬ capitalist law providing the basis for capitalist manipulation; instead, the pre-capitalist law was so undeveloped that it hardly knew a concept of title to chattels at all, and hence facilitated nineteenth-century development mainly by leaving a clean slate. On the other hand, Renner could have made more of features in legal technique and reasoning other than the content of substantive norms; general notions of court procedure, and



the classification of legal relations under such heads as legal personality, capacity, property, contracts, delict, and so forth, have influenced European law in successive stages and are still apparent even in Soviet law. Although this logic about the law is in a sense external to law, it has had a profound influence on legal administration. Renner should also have paid more attention to the qualities of law which enable it to be regarded as merely a social tool or as socially neutral. The reason for this adaptability lies partly in the nature of language—in the possibility, which affects all human thought, of making class and general and abstract statements. If very heterogeneous situations are found to have a common feature and a rule can usefully be devised to deal with that feature, there is an inherent likelihood that the rule will be applicable in new circumstances and notwithstanding social changes. This happened with some of the concepts of property and contract at an early stage in the history of Roman law. One of the characteristic features of legal scholarship, as soon as a legal profession and legal teaching emerge, is a deliberate effort at maximizing the possibility of such generalization, partly to economize learning and recording effort and partly because of the drive towards organization of ideas which the human mind possesses. But there is also a tendency for some social claims or needs to be repeated in successive stages of culture. Thus the need for physical security against assaults by other human beings is no less pressing in Soviet society than it is in contemporary Western Europe or than it was in Norman England or in the China of the Former Han. There is therefore nothing surprising in the long duration, with little change in doctrine, of laws dealing with trespass to the person, assault, battery, manslaughter, and murder. If such interests are con¬ sidered at a sufficient level of generality, then the problem is rather to explain why so many laws and legal techniques have in fact changed with social changes, even laws dealing with the fundamental postulates of social existence. Whether the critical features of successive situations remain sufficiently alike for the application of old doctrines is one way of stating both the prob¬ lem of precedent and the problem of code interpretation. Thus in Parker v. Reg.,^ the High Court of Australia considered the ‘ (1963) 37 a.lj.R. 3.



history of the doctrine of provocation as ground for reducing murder to manslaughter; Dixon C. J., dissenting, after referring to the part which the prickly honour and ready use of lethal weapons among sixteenth-, seventeenth-, and eighteenth-century Englishmen had played in the development of the law on pro¬ vocation, said: ‘but we are not living in the conditions of the sixteenth, seventeenth or eighteenth century’. A majority of his brothers, however, were content to treat the conditions of the twentieth century relevant to this matter as not markedly dif¬ ferent, so that the old doctrines could still be used as the basis for interpretation of the Crimes Act of New South Wales. The adaptability of law to social demand varies greatly with the techniques of interpretation adopted in particular systems, or in parts of particular systems, and there is no uniform corre¬ lation between type of interpretation and social consequence. Narrow, literal interpretation can result in a law failing to protect a new though analogous interest, but it can equally well result in an existing prohibition being confined within limits which permit unchecked a new though analogous practice. Thus the English courts refused to extend the conception of nuisance so as to create a right to privacy from overlooking.^ On the other hand, the many provisions in contemporary British Commonwealth Com¬ panies Acts designed to restrict newspaper advertising of share and debenture issues and to regulate the contents of a prospectus are frequently evaded; a company intending to issue a prospectus and to advertise for money first engages in a course of ‘goodwill’ or ‘public relations’ advertising, puffing its activities and prospects in ways which would not be permitted in a registered prospectus nor in a lawful advertisement inviting subscriptions, but not making any reference to a share or debenture issue. Then after a cautious interval comes the ‘bite’, in forms comply¬ ing with the law. This practice depends on a view that the courts will not extend legislative offences by analogy, notwithstanding their occasional willingness to extend common-law crimes.^ Con¬ stitutional law is to a considerable extent made to be got around. That is how in Australia and the U.S.A., horse-and-buggy federalism has been made to serve the needs of highly indus¬ trialized societies in which the relative authority of the federal ^ ^

Taplingw. Jones Shaw Y. D.P.P.,

(1865), ii H.L.C. 290. A.G. 220.



legislature, executive and judiciary, as compared with those of the States, has profoundly altered, notwithstanding the reluc¬ tance of the people to endorse formal change. However, the central point remains—in a dynamic theory of society, is it the case that social developments independent of law happen first, and that law merely reflects those changes or is used as an instrument for facilitating them? One might expect that legal response to social stimulus would often be slow, because the need for change does not quickly become apparent, because men will put up with inconvenient and even painful tensions between practice and precepts of all kinds—religious and moral as well as legal—and because the structure of the legal profession, judiciary, and legislature usually operates to put a brake on legal change, especially on changes in lawyers’ law. But eventually the legal response occurs. Although the evidence for such a view is not capable of very precise testing or weighing, it is one which would probably now be accepted in general terms by most sociologists, social historians, and lawyers. The rough correspondence between social structure and legal structure in any society is evident on inspection. It is especially marked in relation to the aspect of social structure which tends to be most different as between one society and another— economic organization. The laws of the Middle Ages are much occupied with questions of land tenure and its incidents; the laws of present-day Western European and American society are much occupied with business corporations, trade unions, and the control of automobile traffic; the laws of the U.S.S.R. are much occupied with relations between state economic enterprises. The history of most legal change is symbolized by the observation of Edward I to the judges in Parliament who were wrangling over the form of a writ—T have nothing to do with your disputations, but, God’s blood! you shall give me a good writ before you arise hence. The futility of law which does not have a reasonable degree of social support or at least tolerance has always been admitted; it is a commonplace that no government could afford the police or the jails which would in the last resort be necessary if even a large minority of the people systematically broke a law which the government thought should be enforced. The Prohibition ^ Cited in R. E. Megarry,


(1955), p-




experiment in the U.S.A. is often cited as the great example of decretinism, but examples on a smaller scale abound. A variant on the theme is that of automobile speed limits; the average speed of motor traffic is always about live miles an hour faster than the official maximum, unless the highway is regularly patrolled by police. Indeed, if preventing accidents rather than indulging the ego of motorists were the main aim of policy, a sharp increase in the number and conspicuousness of police road patrols might be the cheapest method, since this is one of the few cases where enforcement by continuous supervision is tech¬ nically possible. But it could then hardly be said that the speed limit law was socially determining; the determining law would be that concerning police organization. The control of illegal gambling usually becomes a system of taxation by fines. When Kinsella J. of the Supreme Court of New South Wales was con¬ ducting a Royal Commission on betting in 1962-3, the ‘startingprice’ off-course bookmakers of the State, whose business was as the law stood illegal, wished to present a case to the Commis¬ sioner in support of changing the law by legalizing, licensing, and taxing their activities; this was not because of an over¬ whelming desire to become respectable, but because they feared the destruction of their business if His Honour recom¬ mended (as he eventually did) another way of providing offcourse betting facilities, namely a legal State-owned totalisator system with betting offices throughout the country. So these ‘criminals’ formed an association and briefed counsel, who was given audience by His Honour for a short time. But the em¬ barrassments caused by thus officially admitting the existence and ‘interests’ of a large illegal organization became too great and the leave to appear was withdrawn. Distinctions between the law in books and the law in life, however, do not rest only on the occasional unwillingness of citizens to behave in accordance with law and inability of the enforcement agencies to coerce them. There are many ways in which such disparities occur. One is a limit case of the ‘turn¬ over’ point raised by Renner; the formal law of most countries is cluttered with rules which are not observed because occasions for observing them no longer arise. Differences can arise within the professional and judicial structure itself; different sections of the legal profession, and courts at different levels of the



hierarchy, can understand or apply a rule in different senses for considerable periods before the chances of litigation produce an authoritative ruling, and in such circumstances there is often professional literature which supports one or other of the contending views or which seeks a coinpi'omise course. These differences are reflected in the behaviour of citizens and offi¬ cials who act on professional advice. Thus at the time of writing, there were current in Australia two conflicting views as to the law concerning production in court of documents whose pro¬ duction is alleged to be contrary to the public interest; the con¬ flict traced back to conflicting decisions of the House of Lords and of the Privy Council on the point, and was reflected in conflicting decisions of the Supreme Courts of New South Wales, Victoria, and the Northern Territory; it was reflected also in varying practices of officials in such daily occurring matters as the production by police officers of statements, maps, and photographs relating to motor-car collisions.^ The pre¬ valence of popular misunderstandings of legal rules or ignor¬ ance of their existence, though probably exaggerated by Ehrlich, is likely to be at any time considerable. It is a probable con¬ sequence of the basic social fact so often emphasized by legal sociologists—that most people have as little to do with law, lawyers, and courts as they can manage. Probably M‘Alister (or Donoghue) v. Stevenson^ is the most famous case in the whole history of the English common law of torts, and the adventures of the snail (if there was one) in the bottle of lemonade and its consequences are widely known. One of the main points of the case was to free the law of the old superstition that if there was a contractual obligation between a retailer and a customer touching the condition of an article, the customer could not have any non-contractual rights against the manufacturer of the article but must sue the retailer. Among some of the retail shop¬ keepers of Canberra, however, this development has entered the popular legal consciousness in the form of a supposed rule that the buyer from a retailer has no remedy against the retail seller for defects in an article; his sole remedy is against the manufac¬ turer. The favourite Australian lawyers’ anecdote illustrating this problem concerns a young man charged with having had improper relations with a girl of sixteen; his defence was the I (1963) 36 Austral. L.J.


37 ibid. 67.

^ [1932] A.C. 562.



consent of the girl, but the presiding judge patiently explained to him that under an amendment to the Crimes Act of some years’ standing, consent was now no defence unless the girl was over seventeen. After conviction, he was asked if he had any¬ thing further to say, and replied that he would like the judge to arrange for an urgent telegram to be sent to his mates back in the bush telling them of the amendment, since they were still working under the old law. But there is a false assumption underlying a good deal of the thought which assigns a secondary or derivative role to law, whether state law or juristic law or both. It is the assumption that on all relevant matters or at least on most of them there is a positive, strongly held view among the people at large or among the people making up a relevant sub-group; that there is a folkway, or a law that is lived with conviction, or a sub¬ stratum, to which determining force can be attributed. In fact, over the vast range of matters with which the law-ways and the state-ways of a modern country are concerned, the attitudes of the folk to particular laws can vary from passionate or sullen hostility to enthusiastic support; in between are various degrees of divided views, conflicting practices, puzzlement, indiffer¬ ence, or inability to understand. It is an accepted function of leadership in the community to initiate proposals for the amend¬ ment of existing law, or the introduction of new law, or to exploit possibilities of adaptation which existing law provides by reason of dormant principles or generality of statement or fresh combinations of concepts. The role of giving this sort of lead is usually divided between the lawyers and courts, and the other organs of government; the former deal with lawyers’ law, the latter with all branches of law. It is not necessary that the folk should enthusiastically support a law; it is enough that they are not violently opposed. This leaves a large area in which the initiative can come from within the law-ways or state-ways. A law thus initiated will still not be effective unless most of those concerned observe it, but this can be mainly a question of communieation, explanation, persuasion, and an efficient en¬ forcement process to deal with deviants and provide an example to the rest. Take the example of judge-made law embodied in the decision of the House of Lords in Hedley Byrne & Co. Ltd. v. Heller



& Partners Ltd.' F or seventy years it had been settled law that there was in general no liability in tort for failure to exercise reason¬ able care when giving advice or information, and this view had been adhered to notwithstanding the possibilities of a widely generalized duty of care created by the decision of the House in Donoghue v. Stevenson.'^ There had, however, been criticism of the rule by jurists and some dissenting opinions. The question now arose in a case where plaintiff bank inquired of defendant bank whether a particular firm was credit-worthy, and after¬ wards complained that the advice it received was carelessly given, and that by relying on it the plaintiff bank suffered damage. The House of Lords held unanimously that there can be a duty of care in such circumstances, breach of which will give rise to an action, though they also held that the person ask¬ ing the advice or the person giving it can do so in terms excluding responsibility and that this had happened in the present case. This change in the law was possible because no previous decision of the House of Lords was squarely against it, and the House was prepared to develop the law in the direction sug¬ gested by professional thought and discussion. Lord Devlin was particularly frank about the intellectual and evaluative process involved; after giving reasons for thinking that a contrary decision would be offensive to ‘logic’ and ‘common sense’, he said: ‘I will not in this matter yield to persuasion but only to compulsion.’ That is, he first decided what the law ought to be and then considered the authorities. It could not be said that this development of the law was in the slightest degree the con¬ sequence of a demand from the citizenry in general, or from commercial men, or from those responsible for the national state-ways. Indeed, inquiries by this writer suggest that the decision was unwelcome to a large section of the community. In the commercial world, people will have to go to a good deal of trouble and be constantly on the alert to avoid giving advice or information in terms which will attract the new liability; in particular, the provision of employment references may become even less frank than it was before. But there is not the remotest possibility that the folk will attempt to repudiate the new law, nor that parliaments will seek to reverse it. Nor will the pro¬ liferation of devices and practices designed to avert the new I [1964] A.C. 465



p. 185, n. 2.



liability make this law ‘dead’, because they will be adopted by reference to and in response to the new law and in the expecta¬ tion that where liability is not averted it must be accepted. Claims will be met or compromised on that basis. It is effective change in the law initiated within the law-ways. Or take again the Australian federal Matrimonial Causes Act, 1959, which established an Australia-wide code and in doing so changed the divorce law of each of the six States and two federal territories, whose separate laws previously governed the matter. There had been some popular and professional support for the idea of a uniform federal law, but the general popular attitude was one of indifference or ignorance and there were many active minorities opposed to any change, since it was not possible to have uniformity without in some States either adding to or subtracting from the grounds of divorce previously available. In fact, the Act added to the grounds in most States and hence encountered strong religious opposition. In particular, it added for most States the ground of having ‘separated and thereafter lived separately and apart for a continuous period of not less than five years’, which was regarded by many as opening the way to divorce by consent. The Act was an enthusiasm of the Attorney-General and of a small group of politicians and lawyers who persuaded Parliament to endorse the proposals and counted, correctly, on sufficient indifference or tepid sup¬ port in the community to outweigh the vocal opposition. But again there was no question of the law failing to operate. The people, the profession, and the courts give effect to it daily. Or consider the part played by the decision of the Supreme Court of the U.S.A. in Brown v. Board of Education^ in the emancipation of the negro. The modification of laws and practice discriminating against the negro had long been an object of policy with sections of the white as well as most of the negro population, and with sections of the national political parties and in particular most of their Presidential leaders for a half century, but the opposition was also powerful and widespread; the constitutional doctrine established in 1896 which treated ‘separate but equal’ facilities in transport, education, and other services as sufficient to satisfy equal protection of the laws had strong support, even among people who did not uphold the ' (1954) 347 U.S. 483.



Mississippi version of white supremacy. The political balance of power held by the Southern whites, both within the national parties and as a trans-party bloc, and the persistence of segrega¬ tion in many aspects of northern society, had brought about a stalemate on the question. This was broken by the vehement, unanimous opinion of the Supreme Court in Drown, covering a group of cases from four States; the court held that public education on a ‘separate but equal’ basis no longer satished the Constitution. The decision initiated a long, difficult process in which the federal courts have had to turn themselves into supervisory administrative authorities, in order to ensure that eventually de-segregation in relevant areas occurs with the ‘deliberate speed’ required by the court. But the decision gave such a moral lead to governments and people that ever since the trend towards de-segregation has accelerated. It is not, then, possible to make simple statements about the relations between folkways, law-ways and state-ways. Excepting in societies effectively controlled by the terror weapons of a dictatorship or oligarchy in the grip of an ideology, it can be expected that law will be in accord with folkways in two senses; first, there will be a body of lawyers’ law, probably the result of a long process of evolution, in which both the basic postulates of existence in society (such as laws restraining physical aggres¬ sion) and postulates of the culture of the time (such as laws facilitating commercial dealings in liberal capitalist societies) will be strongly represented; secondly, there will be a process of legal change in which the main initiative may come directly from the folk, or a section of it, but even if the initiative comes from the lawyers or the political leaders it is unlikely that any widely held and deeply felt value of the folk will be disregarded, and likely that the change will be proposed as a means of advancing or better protecting some interest which has a good deal of popular support. But the range of possibilities which this situation leaves open is enormous.

XI LEGAL SCIENCE AND SOCIAL SCIENCE In mature societies, legal science is systematic knowledge of the law and the technique of its interpretation and administra¬ tion as understood and applied by organized legal professions and courts. Legislatures and administrative authorities are also much concerned with legal science, and in some systems, including most West European ones, there are special Adminis¬ trative Courts. But it is from the administration of lawyers’ law in the non-specialized or ‘ordinary’ courts, and from the view of such law which lawyers develop by reference to the likely decisions of those courts, that legal science develops its most characteristic features; the legislature and the other administra¬ tive authorities can influence the growth of law and of legal administration in many ways, but unless they are prepared to destroy the regularly operating system of lawyers’ law in order to set up a revolutionary and terrorist regime, they have to adjust themselves to the outlook and methods of the lawyers. How specific and how different from other social thought of the time are the thinking processes of lawyers depends mainly on the cyclical recurrence in legal systems or parts of them of a ‘jurisprudence of conceptions’. When such an outlook is most pronounced among lawyers, there is an emphasis on the con¬ struction of abstract legal concepts and on methods of verbal analysis and inference. The concepts are likely to be abstracted from social relations as they were experienced at a time earlier than the period when the conceptual reasoning becomes most developed, and non-lawyers regard the system as increasingly arbitrary because they are usually more alive than the lawyers to the incongruities and the sense of injustice which adherence to the conceptual system may involve. It is possible that pro¬ fessional and legislative reaction against the worst features of conceptualism, when it develops, is likely to be more rapid in most modern societies than it has been at various times past.



However, there is no reason to suppose that legal conceptual¬ ism is dead or likely to die. There is a basic conceptualism which the legal system of a society of some size and social com¬ plexity must have, and there is always likely to be some excess of this quality from time to time. Law has to be to some extent in general terms, and it must provide for equality of treatment for reasonably comparable cases over appreciable periods of time. If the creation of legal obligations could be managed case by case like the obligation to destroy rabbits in Tasmania mentioned in Chapter VIII, the need for general legal defini¬ tions, concepts, principles, standards, and rules would be much reduced, though even then the job of deciding whether breach of an obligation had taken place would require some nonindividualized prescriptions, and the conduct of the officials themselves would probably require generalized regulation. But the administrative organization which would be required to supervise the making of every contract, the carrying out of every dealing with property, and the entering into every relation from which a delictual or criminal liability might arise would be beyond the means of the wealthiest society, not to mention the practical and logical absurdity of having to apply to an official before knowing whether the tortious or criminal enter¬ prise you contemplate will indeed count, if carried out, as tres¬ pass or house-breaking. The need for generalized statement is not peculiar to law, but it is in law that the consequences of generalized and abstract rule statement are worked out in greatest detail. It is also among lawyers that such processes can most readily be carried to extremes. Lawyers and judges find it convenient to have an easily memorable law, such that relatively few concepts and rules of operation will enable them to calculate the appropriate solution for paradigm cases. They are apt to take an intellectual pride and joy in the development of such systems, especially if the lawyers have social cohesion and prestige as a group and want to express it in terms of a craft mystery. It may be advantageous to the society as a whole that the lawyers should have a cohesion and prestige of this kind, since without it they may not have attributes of probity, dili¬ gence, and fearlessness which citizens require from lawyers. Over-stretching of concepts may be due to historical peculiari¬ ties, such as the stress on seisin in English land law, and the



stress on the will in the European law of contracts. There are practical considerations in the administration of justice which are likely to bring about similar abstractions in all systems. Courts cannot sit indefinitely to hear the same case—even the unreformed English Court of Chancery felt some pressure to conclude a matter. Only the sketch of a complex factual situa¬ tion can be presented in a court, and often the imperfections of human observation, memory, record, and truthfulness leave doubt about the outlines of the sketch; hence presumptions as to what happened and rules as to the onus of proof often have to supply gaps. Corresponding mental operations occur in the daily affairs of non-lawyers, but among the lawyers the opera¬ tions are reduced to rules, and a rule sometimes persists when actual ability to obtain information on the point has improved. The tendency for general conceptions and principles to express not current but some earlier state of the society is likewise not confined to lawyers; it is just as marked among politicians, moralists, business men, and trade union leaders, but again in the legal case the preservation of past outlooks in generalized concepts and rules is more systematized, and more likely to influence many phases of the legal system besides the ones most obviously affected by the ‘dead hand’. It is also more difficult for judges than for political leaders to mouth incantations in¬ herited from the past and actually operate under a private rule more related to the needs of the moment. However, so long as a religious view of the world and a fairly specific body of moral and ethical teachings predominated in particular societies, especially in Western Europe, there was no great gulf between legal science and other social thought. It was assumed that human actions fitted into normative systems of various kinds, one of which was legal, and that individuals fitted into the legal as into the other systems by virtue of a capacity for choosing to obey the relevant rule and a correspond¬ ing responsibility for failing to do so. In so far as theories concerning non-human phenomena affected the matter, the tendency was to treat the ‘natural’ world as also fundamentally normative in structure, as if its uniformities were due to moral acceptance of divine precepts. A different view of natural science, stressing cause-and-effect uniformities of behaviour, can be traced back to the Greeks, who even applied such notions



to social behaviour; it has become the predominant view of natural science since the seventeenth century, and since the eighteenth century this view has increasingly influenced social science as well. So far as non-human phenomena are concerned, this view rejects any notion of ‘obligation’ in the uniformities of sequences of action, or as now usually described the func¬ tional relations, which scientists observe. The view was thought until this century to involve an assumption that for every hap¬ pening in non-human (or perhaps non-living) nature, a cause for that happening could be stated, and notwithstanding the possible absence of a cause-and-effect sequence in sub-atomic physics, the vast majority of natural scientists still operate on the determinist assumption and a large number of physicists hope to re-establish its validity even for particle physics. To the extent that the determinist assumption has influenced modern social science, the possibility has been created of fundamental cleavage between the outlook of the social sciences or many branches of them, on the one hand, and on the other hand of legal science and of those branches of social science in which it is still assumed that the nature of man is in some respects unique and involves the possibility of normative disciplines not depending or not depending mainly on cause-and-effect. The problem can be put crudely as one of determinism versus freewill in human affairs, but the variety of views which are held and can be held is very large and it is not appropriate here to embark on the formidable philosophic problems which these views all involve, even if the author felt competent to do so.^ Probably criminal law is the area in which a ‘natural science’ view of human nature has had the most profound in¬ fluence on actual legal doctrines and practice and in which such views conflict most sharply with traditional legal science. The dramatic and melodramatic characteristics of crime have con¬ tributed to this. So has the unsatisfactory history of criminal administration in nearly all systems; denial of legal representa¬ tion, use of torture, gross prejudice and partiality of judges and juries when dealing with crime, and use of cruel punishments have been all too common, and the slow improvement of English and European criminal administration in the seven¬ teenth and eighteenth centuries was due more to the spread of * See Determinism and Freedom in the Age of Modern Science (ed. S. Hook) (1958). 826208




humanitarian practices than to any change in the letter of the law. Although retribution and deterrence as main principles of punishment gradually gave way to reformatory notions, deter¬ rence has remained a powerful influence in the sentencing of adult, sane offenders. In the U.S.A., criminal administration has been especially affected by corrupt police administration, jury fixing, and political appointments to the Bench, and has at times attracted the worst practitioners among the most demoral¬ ized sections of the legal profession. Hence it is not surprising that many criminologists tended to regard law and lawyers as their enemies. New Horizons in Criminology (2nd ed., 1951) by two American sociologists, H. E. Barnes and N. K. Teeters, is habitually scornful in its references to law. The writers also adopt throughout a determinist view of human conduct; for example, they say ‘Modern physiological chemistry, dynamic psychology, and sociology have proved the free moral agent theory of human eonduct preposterous in its assumptions and its implications. Every human being finds his conduct and his thoughts determined by the combined influences of his biological heredity and his social surroundings.’^ The quarrel between psychologists and psychiatrists, on the one hand, and the law on the other, has been exacerbated in British countries and the U.S.A. by the unfortunate history of the M‘Naghten Rules as to insanity.^ The admission of insanity as a defence was not a con¬ cession to any ‘natural-seience’ view of human nature, so long as the insane were thought to be possessed and a sharp dividing line between sane and insane was presumed. But even in M‘Naghten, the judges spoke of ‘disease’ of the mind, and the modern psychologist has extended the concept of ‘personality disorder’ in such a way as to make any legal definition of non-responsibility or diminished responsibility seem arbitrary. Murder trials in particular often develop into three-cornered battles between prosecutor and his psychiatrists, accused and his psychiatrists, and a bewildered judge and jury who suspect that somewhere in the argument conceptions of moral responsibility are being dissipated and those who murder are being made out less to blame than those who are murdered. This is particularly apt to happen where capital punishment remains, as was ’ P-355“ See P. J. Fitzgerald’s Criminal Law and Punishment, in this series, pp. 131-43.



exemplified in the unedifying history oftheTait case in Victoria; Her Ma,jesty’s State government felt unable to undertake that the convicted accused would not be hanged pending judicial deliberations as to his sanity and the High Court had to order that he be not hangedd If determinist views of human conduct are a necessary con¬ sequence of modern psychology and psychiatry, any effect this might have on traditional legal concepts of individual responsi¬ bility extends to every aspect of the law, not merely to criminal law. It is formally possible to restate the civil law in purely ob¬ jective terms, as rules defining the consequence of actions without regard to knowledge, foresight, or desire, considered as elements in the making of a moral choice; Justice O. W. Holmes tried to express the law of contracts in this fashion, as a system designed not to provide sanctions for the breach of contracts, but to give parties the morally neutral alternative of performing a contract or of paying a sum of money to the other party.^ Such a system, however, would fail to give effect to the primary needs of society, which are met only by acceptance of most rules as intended to be observed,and of most contracts as intended to be performed. Responsible rule-consciousness is predicated; a different system would indeed illustrate Ehrlich’s theme of living law and law for decision inhabiting different worlds. Disputes concerning moral responsibility also contribute to the tardiness which lawyers display about using scientific pro¬ cesses as an adjunct to the taking of testimony. Where the testing in question has no relation or only a remote relation to the prob¬ lem of human personality, failure to make full use of established modern discoveries is usually due to mere conservatism and irrational prejudice. There can sometimes be doubt about some aspects of the test results, but even then new methods will often be more reliable than traditional legal methods of adducing and testing evidence. Thus Professor Alf Ross has summarized the results of world-wide scientific experience of blood-testing and the use of blood-testing in Scandinavian Courts; there seems no doubt that after making all statistical allowances, this is a more reliable method of establishing the impossibility of paternity in ■ See ‘Time and thejudicial Process’ by C. Howard (1963), 37 Australian L.J. 39. Tait was eventually certified insane. * The Common Law (1881), p. 298.



certain cases than alternative types of evidence are likely to provided He shows how the small possibility of error in testing can be accommodated by varying the evidentiary rules with the type of case. A residual judicial discretion to act on overwhelm¬ ing evidence of access only by the ‘scientifically impossible’ father would solve any remaining difficulties. ‘Breathalyser’ and blood tests for being under the influence of alcohol while in charge of a motor vehicle approach nearer to the ‘free will’ difficulty; they also encounter the difficulty that individual reaction to alcohol varies within wide limits. Nevertheless, opposition to such tests is based more than anything else on the sporting theory of criminal justice, and on the social interest of most drivers (at least a quarter of the adult population in the affluent societies) and of a majority of lawyers in being allowed to drive with enough alcohol under the belt to show up on a test. The breathalyser system was adopted in Victoria in 1961 and after initial criticism has been accepted.^ In this case, it is not contended that the tests, though made compulsory, should be treated as more than admissible evidence, subject to displace¬ ment by other evidence indicating that the accused was able to control the vehicle. One of the reasons for accepting such evidence is that in an appreciable number of cases, breathalyser tests will show that apparently ‘drunken’ conduct was not the consequence of alcohol. Closer to the heart of the ‘free will’ problem are general tests for establishing whether or not testimony is ‘true’—that is, whether at the time of making a statement, a witness is to his knowledge telling an untruth. Psychologists have developed several tech¬ niques for testing credibility, some using drugs and others using the effect of mental tension on breathing, blood pressure, and pulse.3 The latter type, embodied in the machine called a ‘poly¬ graph’, is widely used in the U.S.A. as an aid to police detection and is commercially exploited. If such methods provided a simple test of truthfulness which could be applied by court officers and its results made immediately apparent to a court, the consequences for trial jurisdictions and especially lower trial jurisdictions would be remarkable. In these courts, which in all ^ (^95^) 71 H.L.R. 466. 2 Breath Test Evidence Act, 1961. 3 G. H. Dession and others in (1953) 62 Y.LJ. 315; J. H. Skolnick in (1961)

70 Y.LJ. 694.



countries deal with a large majority of all cases, the most fre¬ quently arising problem is conflict of testimony and in a con¬ siderable proportion of cases conscious lying, perjury, is the main reason for the conflict. Moreover, the average standard of examination and cross-examination of witnesses is mediocre, so that scientific devices would not need to reach anything like infallibility to provide at least a desirable auxiliary method. As they stand at present, however, such tests are not capable of ready use in court at all. The drug techniques are quite out of the question; they involve an invasion of the personality of the person under test which opinion in democratic countries would never allow to be used against a person’s will. It is doubtful whether truth-testing will ever be satisfactory unless it can be applied to all testimony. But both the drug and the polygraph technique also require an elaborate series of tests and interviews, including ‘trap’ questions, which can be conducted only out of court, and the psychologists emphasize the need for the tests to be conducted by experienced psychological specialists who make themselves acquainted with the total personality of the person under test and who ‘interpret’ the test results in the light of this appreciation. In other words, no reading the result off a scale. Hence to adopt such tests would involve handing over to the experts a task of evaluation, in which beliefs about moral responsibility can play an important part. Hence also it is not surprising that even in the U.S.A., where such techniques have been most developed, the results of truth tests are not admissible in court save by consent and not always then. It is possible that the techniques will be improved and brought to a condition where courts can directly understand and interpret the results —as they can with breathalyser tests—and if this happens, lawyers may by yet another route be brought up against a determinist difficulty and its consequences for legal responsi¬ bility. The difficulty is to accept the determinist approach to proving the untruth, and yet maintain a non-determinist view as to the moral responsibility of the person for the actions under investigation. Generally, the success of scientific techniques and methods of thought, especially the success of technologp, is bound to in¬ fluence social sciences and law. Court-houses are beginning to be built with some regard for optimum conditions of seeing and



hearing. When one examines old pictures of the three Common Law Courts simultaneously sitting in Westminster Hall, with a crowd of spectators and litigants surging around from one to the other, one wonders how oral pleading and argument could be carried on and why a wholly written system was not forced upon the judges. Until very recently it has been a first principle of the architecture of English criminal courts, imitated all around the Empire, that of judge, counsel, jury, and accused any two might be allowed to hear each other without straining but no more. In Australia, shortage of court stenographers has led to experiments with tape recording of proceedings; this may com¬ pel judges and counsel to pay greater attention to orderly argu¬ ment as well as to voice-production. The monstrous proliferation of reported cases, especially in the U.S.A., produces demands for court opinions in standardized forms which can be electroni¬ cally stored and retrieved, a process which may demonstrate to lawyers that the judgments they have most admired owed more to literary artifice than to logical coherence. The expert witness is becoming an increasingly common ingredient in all forms of litigation, and many of the experts are becoming increasingly restive about the false position in which they are often put by the adversary procedural systems, and about the tendency of some lawyers and judges to distort their evidence in order to fit legal categories. It is not possible to hear evidence from a succession of eminent physicians, surgeons, and psychologists, day after day, as happens in tribunals having many workers’ compensation cases or specializing in their determination, with¬ out developing some of the half-humourous, half-resigned belief of such experts that all men are at the same time unwell and malingering. And whatever doubts about psychology and psychiatry may be entertained by the average man and lawyer, especially after the latest case of murder by a convict released on parole-board recommendation, it is the case that no demo¬ cratic country has been able to resist the hope that lies in penal reform. Probably humanitarianism without psychological theo¬ ries would have made the criminal law and prison administration progressively less harsh, but in addition trial, sentencing, prison administration, and rehabilitation work have been increasingly influenced by the theories, advice, and practical participation of psychologists and psychiatrists.



However, although the view that determinism and predicta¬ bility are incompatible with ‘moral responsibility’ has a per¬ suasiveness today which it lacked in the past, many specialists in this field reject the view and it has not destroyed or even seriously weakened the general conception of normative order, purpose, argument, and answerability which ^are expressed in legal systems. Indeed, as mentioned in Chapter I, some social theo¬ rists have claimed that since cause-and-effect relations may be absent in quantum theory, this in some way establishes moral free will. To the objection that quantum physics may not have much relevance to legal phenomena—unless free will is eventu¬ ally located by the particle physics of the synapse—it may be added that random happenings are no satisfactory basis for moral responsibility. Indeed one of the difficulties about the free¬ will problem is that moral responsibility requires some causal relations in human conduct, such as the possibility that moral argument or the threat of sanction can affect human choice, and the question is whether this view can be held without adopting a completely determinist position. Quite apart from those still adhering to religious or philosophic views which involve moral responsibility, social scientists are much divided on the question of moral responsibility, and on the extent to which prediction, control, and social engineering are possible in human affairs. Even psychiatrists are divided about free will. Thus in F. Alexander and H. Staub, The Criminal, the Judge and the Public,^ expressing the views of a German school of psychoanalysis, a conception of moral responsibility is regarded as essential to human society and indeed the authors thought there was no¬ thing fundamentally wrong with the ordinary administration of the criminal law in Germany. It seems a fortiori that they would regard the general doctrines of legal accountability in the civil law as compatible with medical psychiatry. Furthermore, even criminologists likes Barnes and Teeters fall in the class of‘piece¬ meal social engineers’,^ who are content to assert the existence of some causal relations in human conduct, rather than the class of‘hard determinists’,3 who insist that determinism must go all the way and admit no degree of free will. They assume that there ' Revised ed., translated G. Zilboorg, 2 See Karl Popper, The Poverty of Historicism (1957), ss 20, 21. 3 See P. Edwards, Determinism and Freedom, p. 104.



are better and worse courses, that men can choose between them, and that arguments can ‘cause’ legislatures, lawyers, courts, and relevant officials to choose the course which the criminologists recommend rather than the course which these authorities are at present (because so conditioned?) following. Indeed, one of the fundamental difficulties with determinists is that they usually talk as if their own adherence to determinism was a matter of choosing that view because it is rationally per¬ suasive, not because they were conditioned to adopting it irrespec¬ tive of its rationality. So long as the possibility of choice affected by rational argument is conceded, the determinist difficulty need not seriously affect the main structure of legal thought. And even the most determined determinist is likely to concede that at present our knowledge is insufficient for us to be able to carry on our lives on a basis oifactual prediction. Hence we have no option but to assume that so far as ‘natural science’ types of prediction are not socially available, we must make do with the kinds of prediction and control which normative and in particular legal systems, as traditionally understood, may provide. The prevailing approach, then, is one of ‘soft’ determinism, which leaves ample room for theories of value and of obligation but requires those mainly concerned with the ‘ought’ to consider how far they or the persons they deal with may be compelled to behave as they do behave or how far persuasion can change that behaviour. It is in this spirit that F. K. Beutel, in his Experimental Jurisprudence (1957), urges that on many matters we can at least postpone the more difficult questions of value and of choice; to the extent that there is agreement on social purposes, and wide desire to adopt courses which will achieve those purposes, natural-science techniques and methodo¬ logical assumptions may be useful and even sufficient. The title of his book is misleading in so far as it suggests a method applicable to the whole field of legal administration. What he advocates is only a rational approach to legislation—the enact¬ ment of new law. He wants to see the problem which calls for legislative attention examined much more systematically, and using whatever scientific knowledge and techniques may be appropriate; also—and this may be his most original contribu¬ tion—he wants the resulting legislation to be regarded as merely



a hypothesis under test, so that its operation should be con¬ tinuously examined and the legislation modified as needed. The actual practice of some legislatures occasionally conforms to this programme, but it is not a procedure systematically observed by any legislature and some never observe it at all. There is a strong tendency for legislators to rely on ill-digested and in¬ complete information, to adopt measures because of conformity to general moral views or political platforms without any atten¬ tion to field inquiry, and to abide by a legislative policy because of political pride, dignity, apathy, or diversion to other in¬ terests when change of policy is indicated by field experience. But the subjects which Professor Beutel indicates as particularly suitable for his methods are ones in which natural-science techniques and their sociological and psychological equivalents are particularly appropriate; for example, traffic and public health laws. The automobile is a most prolific breeder of legal problems. In criminal law, misappropriation of vehicles and fuel is not only a very common crime but one of the commonest beginning points of juvenile delinquency; automobile accidents provide the bulk of litigation in countries (the majority) still misguided enough to allow such issues to be litigated; the pro¬ vision of roads and parking space and the regulation of traffic require enormous public expenditures and complex combina¬ tions of civil engineering and social engineering. The natural science involved is extensive; the social science involved tends to require attitude- and behaviour-measurement and statistical correlation of a kind which sociology and social psychology even in their present primitive state can provide without undue suspicion of ‘scientism’. Beutel suggests that from such detailed programmes it may be possible to proceed to more general ‘jural laws’, but these turn out to be hypotheses about the social and political operation of laws which while important to legis¬ lators are not capable of use in the ordinary operations of lawyers’ law; for example, he writes: ‘Obsolete and unenforced or unenforceable laws left on the books are likely to cause a spread of the breakdown of law enforcement into related areas.’ While these and similar observations have the vague and some¬ what commonplace quality of most attempts at high-level social generalization, they can at least direct attention to prob¬ lems of a specific character, and are preferable to the even



higher level and completely vacuous generalizations which the politicians tend to employ. In the field of lawyers’ law, the most specific and potentially interesting applications of natural-social-science techniques are the inquiries into judicial method and the springs of judicial action mentioned in Chapter V. In a large majority of all crimi¬ nal cases, the accused pleads guilty and the main problems are those particularly within the sphere of criminology—methods of punishment and reclamation. In a large majority of cases com¬ ing before lower trial courts, whether civil or criminal, in which a specific legal problem is presented, there is no serious dispute about relevant law and the problem is to obtain a reasonably reliable account of the facts. The methods by which evidence is presented and tested are capable of much detailed improvement, but until the natural-science approach to evaluating testimony achieves more manageable results, if it ever does, the personal judgment of the trial magistrate and judge will be finally deter¬ minative. Moreover, it is a judgment with which the appeal courts are unwilling to interfere. This is also the point at which the varying personal sympathies and antipathies, conscious and subconscious, of the magistrate or j udge are likely to be most influential, and where the sociology of the court-room situation may also have a marked influence. As the law stands, it does not even attempt to lay down rules to determine how one estimates the capacity for observation, soundness of memory, ability to express what is observed and remembered, and truthfulness of witnesses. The matter is left entirely to ‘experience and common sense’. If non-human testimony—documents, skid marks, &c.— or the testimony of substantially disinterested persons is avail¬ able, or if, a very rare happening, cross-examination induces a change of testimony or fatal admission, then an objectively probable decision is indicated, but in a majority of cases these resources are not available. Sometimes there is a more probable pattern of events which can be reconstructed without direct reliance on disputed testimony, though such reconstructions are very liable to subjective variation.^ In the large residue of cases, probably the only clearly rational decision is one in which the court confesses its inability to decide between conflicting versions of the facts and decides in accordance with applicable ’ See, e.g., Tyne v. Rutherford (1962), 36 A.L.J.R. 333.



presumptions or the burden of proof, a procedure which the parties and even many lawyers will tend to condemn as ‘legal¬ istic’. If the judge does try—as he frequently does—to arrive at an impressionistic view that, on the whole, one witness or set of witnesses is to be preferred to another, the parties are more likely to feel that they have had their day in court, but the scientific observer is more likely to be left in agreement with the fact sceptics. These are the levels and the issues on which systematic sociological and psychological observation would be most valuable. Legal practitioners have their own estimates of the characteristic bias which different magistrates and judges exhibit, and an important part of the practical lore of every Bar concerns the individual peculiarities of the magistrates and judges with whom for the time being they have to deal. It is a good working hypothesis for social psychologists that where such common sense or intuitive lore exists, there is a foundation for more precise and organized investigation. Moreover, since the number of judicial officers in the middle and lower trial juris¬ dictions is large, and they handle repetitive runs of cases, there is a good basis for statistically significant correlations; the re¬ sults could be helpful for the development of policy in relation to the training and selection of such judges, as well as for the presentation of cases. However, the work at this level has as yet been on a very nar¬ row front, as in G. Warren’s Traffic Courts (1942), and in R. Hood’s Sentencmgin Magistrates' Courts (1962). The more adven¬ turous work of American political scientists has been concerned with appellate courts, and in particular with the Supreme Court of the U.S.A. In these tribunals the main problems con¬ cern decisions on questions of law where the courts have a choice because of the vagueness or ambiguity of legal rules, or because latent conflicts exist between apparently consistent rules which have an overlapping factual reference, or because a court is asked to make a quasi-legislative extension of existing concepts. Such cases are few in the total flow of litigation and sometimes of much less importance for the mass of citizens than the political scien¬ tists seem to think, but they can be very important. However, they are precisely the cases in which the main factors in decision are likely to be most public and least in need of elaborate statis¬ tical treatment in order to bring home to social scientists and



the legal profession the likely line-up of judges on repetitive issues. For example, in ‘Judicial Power as a Variable Moti¬ vating Supreme Court Behaviour’,^ H. J. Spaeth examines a series of decisions of the Supreme Court of the U.S.A. from 1953 to i960, with a view to ascertaining how far ‘judicial restraint’, the view that the court ought not to concern itself with certain issues because another authority was better fitted to decide them, had been the main factor in decision. He has no difficulty in showing that such a view is genuinely determinative in some types of cases but that in others countervailing judicial policies or types of bias will prevail over the influence of ‘judicial re¬ straint’. But general conceptions of judicial restraint and judi¬ cial activism, in whatever discipline they originated, have long since been taken over as part of the conceptual equipment of constitutional lawyers; they are rational categories of thought which have an argumentative force so that it may not be necessary or illuminating to submit them to quantitative analysis. A wider possible inference from the material is that the more value-laden types of affective preferences, such as hostility or friendship toward business or labour, are likely to prevail over rational preferences concerned with technical considerations, such as convenience and manageability of different legal procedures; this could be another example of the psychological problem of impact mentioned above in re¬ lation to the weighing of interests. The significance of party affiliation in the case of American Courts, where such affiliation has been a major factor in appointment, is explored by S. S. Nagel in (1961) 55 American Political Science Review A He deals only with State appellate tribunals and the upshot is to show with great precision the extent of the influence, and also to show that its incidence, while statistically appreciable, is much smaller than might be expected. In the individual case, value judgments other than those connected with party affiliation are likely to be decisive, and some of the material suggests that the party affiliation and the characteristic decision are both products of a more basic value judgment. So far as such work has gone, its authors insist on its narrow scope; the results are considered significant only for the ‘uni¬ verse’ within which the decisions, and the correlated factors * {1Q62) Alidwest Jour, of Polit. Science,

^ p. 843.



such as party affiliation or economic liberalism or conservatism, are tabulated and scaled. That is, this is so far only a more accu¬ rate and discriminating way of ^vriting a history of individual judges and courts over a very short period. Even within such a limited ‘universe’, there has been interesting failure to predict. Before Baker v. Carr'^ was heard by the Supreme Court its pros¬ pects were discussed by constitutional lawyers who relied on less quantitative methods for their predictions; there were also in exis¬ tence scales such as those of Professor G. Schubert from which probability of line-up could be inferred. The plaintiff claimed that distribution of electorates for elections to the State legisla¬ ture in Tennessee was so grotesquely unequal as to infringe the guarantee of equal protection of the laws in the Fourteenth Amendment. Previous decisions had suggested that distri¬ bution of electorates was a ‘political question’ with which the courts should not interfere, one of the areas ofjudieial restraint. There were procedural difficulties in the way of ensuring that any court order was carried into effect, and embarrassing pos¬ sibilities of head-on collision between courts and the gerry¬ mandered legislatures. However, there was also a basis for dis¬ tinguishing earlier decisions and Brown v. Board of Education^ had initiated a policy of procedural adventurism. The prophets said that four Justices would be for plaintiff, four (including Justices Clark and Whittaker) for defendant, and that Justice Stewart’s view, most difficult to predict, would favour plaintiff. In fact, Stewart J. was indeed for plaintiff, but so was Clark J., and Whittaker J. did not sit, so plaintiff won not 5-4 but 6-2. But although these correlation tables in their present form are solely of historical interest, the multiplication and elaboration of such studies is quite likely to provide the basis for bolder sociological hypotheses about the ‘springs of judicial action’, applicable to a wider universe of discourse and even to one including future time. In jurisdictions where the obviously political types of issue, especially those influenced by constitutional limitations and guarantees, arise never or infrequently, and where cases are heterogeneous in character, the behaviour variables appro¬ priate for study are not likely to be those usually considered by political scientists. In such jurisdictions the sort of general ' (1961) 369 U.S. 186.

^ Supra, p. 188, n. i.



determining factor most likely to operate is that indicated by Denning L.J., as he then was, in Candler v. Crane, Christmas & Cod—the distinction between ‘timorous souls’ and ‘bold spirits’. The ‘bold spirits’ need not be men of the left; they are just as likely to be men of the centre or even Tory radicals. In 1951 the Australian Law Council held a convention in Sydney to com¬ memorate fifty years of federalism, and among the English visitors were Lord Jowitt, then Lord Chancellor in a Socialist Government, and Sir Raymond Evershed M.R. (as he then was). During a discussion of some matters of lawyers’ law, it be¬ came apparent that a number of the Australians were prepared to criticize decisions of the House of Lords on policy grounds, a procedure which the Americans present took as a matter of course, but which the Socialist Lord Chancellor felt impelled to oppose; he gave a little lecture on the theme that the House of Lords as a judicial body was never concerned with policy questions, and only gave effect to the law. It was the sort of conventional incan¬ tation which Jerome Frank would have delighted to hear and preserve. But Evershed M.R., neither a Socialist nor a pro¬ nounced ‘bold spirit’, protected the reputation of English legal scholarship by saying that he wished respectfully to dissociate himself from the conservative, the extremely conservative—‘of course, not in any political sense’—view of judicial function which the Lord Chancellor had expounded. Sir Owen Dixon, O.M., Chief Justice of the High Court of Australia, had so far as is known conservative political opinions and his constitu¬ tional doctrines usually operated to obstruct collectivist policies. But on questions of lawyers’ law he was often among the ‘bold spirits’^ and on an important issue of Austra¬ lian national policy, namely the relation between the common law of Australia and the common law of England, he led his court to a most radical step—a declaration of independence from the authority of decisions of the House of Lords.3 Considera¬ tions of this sort are not irrelevant to the study of lower juris¬ dictions. Even Courts of Petty Sessions must from time to time decide difficult questions of law involving conflicting interests, ' [1951] 2 K.B. 164. ^ e.g. R. V. Porter (1933), 55 C.L.R. 182 (extending the M'Naghten rules to a type of irresistible impulse); Commissioner for Railways v. Cardy (i960), 104 C.L.R. 274 (extending and generalizing the tort liability of occupiers). 3 Parker v. Reg. (1963), 37 A.L.J.R. 3.



public policies, and views as to the direction of legal de¬ velopment, and among magistrates as well as appellate courts will be found Democrats and Republicans, Socialists and Tories, and bold and timorous spirits. But in a majority of their cases the main question is why they accept one set of evidence rather than another and in England and Australia a much debated question has been whether they do and should assume in favour of the testimony of policemen, and when they do how you pick the case in which the policemen will be disbelieved. It is at such levels of particularity that most lawyers are working all the time, and the achievements of natural-social-science will mean little to them until it provides a foundation for prediction at such levels. However, there are fundamental theoretical difficulties in the way of social prediction and of control based on such prediction. They are sometimes likened to the natural-science difficulties where the experiment or even the observation can itself affect the relevant relations of the object under investigation. As Pro¬ fessor Hook points out in Determinism and Freedom, it is often possible in the natural-science context to calculate the experi¬ mental or observational effect and allow for it, and this too can sometimes be done in social contexts. Moreover, so far as the business of finding out the personal qualities and beliefs of judges and drawing conclusions from them is done in private, there is no insuperable logical or practical impediment to pre¬ diction and no question of control arises except in the sense that a plaintiff may abandon a case or a defendant plead guilty. But social scientists wish to preserve the natural-science tradition— itself a matter of social morality as well as of scientific efficiency —by which observations and theories are publicly announced and open to the criticism of the world. If observations and theories using determinist assumptions lead to a prediction that, on issue X, Mr. Justice Y will decide for the plaintiff although legal conceptualism regards the issue as open to decision for either plaintiff or defendant, what would Justice Y do? The prediction is itself a factor which might cause him to decide the other way, so falsifying the prediction, or it may be that the prediction was wrong and that Justice Y had already made up his mind to decide for defendant but that the considerations advanced in the prediction cause him to change his mind, in which case the prediction though false in one sense will be


legal science AND SOCIAL SCIENCE

satisfied. There are many other possibilities. One possible conse¬ quence of analysis of judicial decision is that the influence of irrational factors, value judgments, and sub-conscious motiva¬ tions will be much reduced by bringing them into the open. Under such conditions, rational grounds for decision may be strengthened, even to the extent of rendering a mos geometrica necessary and achieving Chief Justice Dixon’s ideal of a strict and complete legalism. The older kinds of speculative legal sociology, exemplified in the work of Max Weber, Ehrlich, Renner, and the sociological jurists, do not offer the same possibilities of providing general theory to support a legal technology, but neither do they in¬ volve such difficulties of method and of theoretical assumption. So far as they produce practical advice for lawyers, it is little more than to distrust conceptual legal systems and to cherish the Holmesian epigram—‘the life of the law has not been logic; it has been experience’. Labour relations is a field of municipal law in which institutional sociology is particularly important and concepts notably fluid, unless as in Australia constitutional limitations compel respect for or at least manipulation of legal concepts. International law has become in the hands of some writers almost indistinguishable from the sociology of interna¬ tional relations and international institutions.^ Since there is no international legislature, there is no possibility of the ‘decretin¬ ism’, which Karl Renner criticized—the tendency of legisla¬ tures to imagine that passing a law necessarily changed conduct —and since the operation of judicial tribunals is very limited, neither Juristenrecht nor Professorenrecht has been as influential as the early history of the subject might have led one to expect. Grotius’s hope that Roman civil law would provide the basis for the development of a law of nations has not been realized to any considerable extent and the long exposition of natural law based on Roman law in the second book of the ‘De Jure Belli ac Pacis’ now seems an indigestible irrelevancy. Nevertheless, written con¬ stitutions of international organizations provide the beginning of a more conceptualized system and a body of lawyers’ law even in this area of human relations. * e.g. P. E. Corbett,

Law and Society in the Relations of States

Legal Controls of International Conflict (i954)j C. Public International Law (transl. Corbett, 1957).

de Visscher,

(1951); J. Stone,

Theory and Reality in



It seems impossible that law and lawyers should ever again be inattentive to the social relations of law or to the part which natural science and systematized social knowledge can play in solving legal problems. Science and technology are pervasive. Social science, and scientism, are prominently displayed in contemporary literature, journalism, and the pattern of edu¬ cated speech. Nevertheless, there is a contemporary possibility of a new sort of legal narrowness, caused by the overwhelming bulk of the law and the impossibility, for most law students and practitioners, of doing any more than to keep up with the letter of the law in its various manifestations. The trend of the law is not towards the generalization and formal simplicity, and ac¬ companying rigidity, against which Iheringand Geny protested; it is towards complexity and specificity with no organizing concepts. From the point of view of the legislator, this facilitates matching rule to social situation, since society itself has become extremely complex and fluid in structure. But from the point of view of the practitioner, it involves either extreme speciali¬ zation, which imperils one kind of general social awareness, or else reliance on dictionary meanings, eked out by reference to a narrow documentary context, without any attempt at under¬ standing of the social context. In legal education the trend has been towards removing the humanities and even subjects such as constitutional and legal history and jurisprudence, in order to substitute subjects such as taxation, divorce, and procedure. Practitioners likewise demand postgraduate courses not in sociology or psychology but on topics such as company law or industrial property. In the U.S.A. the consequences for legal education have been mitigated because the principal law schools require that students should flrst have taken a general tertiary education, often an Arts degree, though even there the earlier humanities and social sciences are apt to be overlaid rather than integrated by the legal training. But in the United Kingdom, Western Europe, and Australasia, where most students begin their legal training at eighteen or so and are at once plunged into technical law, the situation is less satisfactory. Until welfare increases to the point at which in those countries too the average duration of legal training can be extended to six or seven years, the best hope for maintaining a satisfactory standard of social awareness among law students may be the 826208




growing practice of incorporating reference to sociological fac¬ tors in the technical subjects themselves—putting some politics into constitutional law, some economics into company law, and so on. Such a teaching method indeed corresponds with the programme of the sociological jurists for legal administration itself. Every lawyer and judge his own sociologist may be an ambitious slogan, but it can be achieved, at least if the lawyers eschew grand theory. They may also have to learn to count.

INDEX Academic law, see Law teachers. Adaptability, see under Law. Adjective law, see Procedure. Administrative law, 87, 91, 103, 106, 119, 185. Adversary, see Procedure. African tribal law, 27, 42, 50, 53, 60, 61. Agriculture, law of, lo-ii, 142-3, 168. Air law, 164. Alexander, F., 199. Anachronism, see Law (persistence). Analogy, see Logic. Anthropology, 31-32, 43-47, 177. Arbitration, 41, 71. And see Industrial la\v. Archaic law, 29, 48-69, 166. Associations, see Company law. Groups. Austinian theory, 1-2, 5, 8, 38. Australia aboriginal tribal law, 39, 42, 60. modem law, 68, 71, 131-2, 134-6, 139, 142-3, 146, 151-2, 155, 164-5, 168, 174, 178, 182, 184, 185, 188, 196. courts, 6, 18, 70, 101, 105. judges, 88-89, 91-92, 96-97, 101-2. lawyers, 125, 129. Babylonian law, 49, 58-60, 62. Barnes, H. E., 194, 199. Barrister, see Lawyers. Bartolus, 116. Barwick, Sir G., 135. Battle, trial by, 42, 51, 82-83. Benn, S. L., 158. Bentham, Jeremy, 17. Berle, A. A., 167. Beutel, F., 200. Birkenhead, Lord Chancellor, 128. Birks, M., 121. Blackstone, Sir W., 117. Bohannan, P., 61. Braybrooke, E. K., 149. Brissenden, R., K.C., 161.

Cairns, Lord Chancellor, 129. Cairns, Sir David, Judge, 160. Canon law, 72, 77. Cardozo, Benjamin, Justice, 106. Cases Baker v. Carr (U.S.), 6, 205. Bank of N.S.W. v. Commonwealth (Australia), 6. Bolton v. Stone (U.K.), 162. Bonsor v. Musicians' Union (U.K.), 6. Brown v. Board of Education (U.S.), 188, 205. Byrne v. Foulkes (U.K.), 151, 163. Candler v. Crane, Christmas & Co. (U.K.), 206. C.I.O. v. Douds 151. Commsr. for Railways v. Cardy (Aus¬ tralia), 206. Donoghuev. Stevenson {XJ.K..), 185, 187. Ellis v. Johnstone (U.K.), 10. Federated Ironworkers’ Assn. v. Com¬ monwealth (Australia), 151. Medley Byrne & Co. Ltd. v. Heller & Partners Ltd. (U.K.), 186. Jones v. National Coal Board (U.K.), 73Motor Vehicles Agreement, Re (U.K.), 142. Nakkuda AH v. Jayaratne (U.K.), 107. Nelson, ExP. (No. i) (Australia), 161. Net Book Agreement, Re (U.K.), 141. Parker w. Reg. (Australia), 181, 206. Priestley v. Fowler (U.K.), 25. R. V. Porter (Australia), 206. Ridge v. Baldwin (U.K.), 104. Rylands v. Fletcher (U.K.), 127. Television Case (West Germany), 6. Tyne v. Rutherford (Australia), 202. W. V. W. {No. 4) (U.K.), 160, 162. Casuistry, 144. Causation, 5-6, 9, 15, 19-20, 24-26, 192-4, 196, 199, 200, 207-8. Charisma, 12, 86, 94, 95, 98, 133, 146. China, Imperial law, 41, 52, 53-58, 60, 62, 64, 109. Cities, 167-8. Clark, Tom C., Justice, 205.



Dixon, Sir Owen, Chief Justice, 18-

Cleisthenes, 74. Codes, 55, 58-59, 60, 62, 117, 119, 176.

19, 165, 182, 206, 208. Douglas, W. O., Justice, 89.

Coke, Sir Edward, 117. Commission on Uniform Laws, 129.

Duel, see Battle.

Common employment, 25.

Duguit, L., 119.

Company law, 9-10, 12, 14, 130-2,

Durkheim, E., 86, 167.

182. Conceptual law, 17, 21, 60-62, 70, 116, 168-9, 190-2. Conciliation, see Industrial law. Concretization, 141, 161.






182, 185, 205. Contract, law of, 36, 38, 54, 56, 59, 65-69, 113, 127, 148, 195. Control, see Social control. Prediction. Corbett, P. E., 208. Courts

administrative, 87. Babylon, 59-60. China, 54-55. England, 75, 77-80, 82. Europe, 80. feudal, 50, 77. function, 29, 70-73, 86-87, 146. Germany, 80. Greek, 73-74. housing, 93, 198-9. reform, 84-85. Rome, 74-76. U.S.A., 81.^3, 188-9. Cowan, T. A., 9. Crime,



77-78, 80-81, 87,





181-2, 184, 193-5, 202. Cross, R., u. Cujas, 116. Custom, 20, 26, 27, 37, 144, 171-7, 183-8, 192. Decision,


Delict, law of, 10, 145-6, 148, 152-3, _ 182, 185, 187. Denning, Lord, 91, 92, 206. Dession, G. H., 196. Determinism, see Causation. Devlin, Lord, 187. Diamond, A. S., 39, 41, 49, 64. Dicey, A. V., 103. Divorce, see Family law.

Ehrlich, E., 7, 13, 171, 174-7, I95> 208. Elias, T. O., 27, 30, 38. Elliott, Shelden, 84.

Confucius, 57-58. Conservatism, legal, 18-19, ^24-5. And see

Edwards, P., 199.

Employment, see Industrial law. England, see United Kingdom. Eskimo law, 41—42. European medieval law, 66, 77-80, 114, 183. Evatt, H. V., 101, 161. Evershed, Lord, 206. Evidence, law of, 11-12, 42, 56-57, 59, 72, 160-1, 192, 195-6, 202-3. Exogamy, 34, 173. Fact-sceptics, 42, 71-72, 86. Facultative law, 56. Family law, 33-34, 55, 65-66, 132-3, 135, 148, i66, 176, 188. Feud, 40, 52, 81. Feudalism, 50-53, 77. Fictions, 9, 36, 62, 144, 145, 169. Folkways, see Custom. Foster, Sir M., 112. Frank, Jerome, i 8, 70,82, 83,86,106. Frankfurter, Felix, Justice, 89. Frauds, Statute of, 136. Frederico, H. T., Judge, 92. ‘Free law’, 22-23,


Free will, see Causation. French law, 21-23, 116, 119, 124, 146. Friedmann, W., 16. Gains, III. Geny, F., 16, 17, 20-23, 86, 105, 144, 209. German law, 6, 20-21, 73, 80, 83, 89, 102-3, ii4> 138, 175-6. Ghana, 133. Glossators, 115-16, 119. Gluckman, M., 41, 43, 60. Goodhart, A. L., 30, 38. Greek classical law, 73-74, 109-10. Grotius, H., 208.

Groups, 13, 155, 174, 177. Guttman, L., 3.

INDEX Haldane, Lord Chancellor, 128. Hangover institution, see Law (per¬ sistence) . Hart, H. L. A., i. Hauriou, M., 119. Hazard, J. N., 104. Hebrew law, 49, 60, 61. Henry, Jules, 3. Hewart, Lord Chief Justice, 91. Higgins, H. B., Justice, 141. Hire purchase law, 14, 179-80. Hoebel, E. A., 27, 31, 41, 43, 44, 149. Hohfeld, W. N., 43. Holmes, O, W., Justice, 18, 37, 106, 160, 195, 208. Hood, R., 203. Howard, C., 195. Ifugao, 41, 149. Ihering, R. von, 16, 17, 19, 20, 22, 105, 147. 153, 209.

Ilbert, Sir C., 127. Indeterminacy, see Causation. India, 89, 161-2. Individuation, 141-3. Indonesia, 133. Industrial law, 68, 140-1, 143, 146, 150-2, 208. Inns of Court, 90, 121-2, 124. Inquisitorial, see Procedure. Insanity, 194-7. Institution, legal, 165-9. Interests, 20, 147, 150-63. International law, 208. Interpretation, 21-23, 181, 182. Intuitive law, 22-23, 70, 87. Irnerius, 21, 114, 116, 120. Jackson, R. M., 95, 97. Jolowicz, H. F., III. Jowitt, Lord Chancellor, 206. Judges appointment, 98-102. decision process, 9-12, 104-8, 160-1, 204-8. independence, 90-93. tenure, 92. training, 88-90, 96-97. And see Courts. Judicature Acts, 124. Judicial legislation, 18, 22, 120, 123. Jural categories, 24, 43-47> 61. Jural postulates, see Postulates.


Juries, see Lay judges. Jurisprudence analytical, 1-3. experimental, 200-1. historical, 23-24, 62. realist, 5, 18, 70-71, 82, 86, 106, 145. sociological, 16-26, 145, 168-9, 209-10. And see Conceptual law. Jural categories. Justices of the Peace, 6, 94-98, 112, 146, 206. Justinian, 21, iii, 113. Kantorowicz, H., 115. Kelsen, H., i, 5, 141. Kinsella, E. P., Justice, 92, 184. Kiralfy, A. K. R., 104. Kohler, J., 17, 147. Koschaker, P., 116. Labour relations, see Industrial law. Landlord and tenant, 156-9, 180. Language, legal, 123. Law adaptability, 52, 62-63, 65, 141-5, 178-86, 189. as art, 24-26. between man and man, 130. for decision, 13, 175-6. living, 13, 174-89. persistence, 50, 148, 152, 158, 164, 166, 176. reform, 123-5, 127, 129-30. Law teachers, 89,114-15,116,118-20. Law-ways, see Lawyers’ law. Lawyers Australia, 125. China, 109. conservatism, 85, 124-5, ^92England, 90, 109, 111-12, 117, 120-4. Europe, 113-20. France, 116, 119, 125. function, 7, 29, 124-5, 146, 191Germany, 114. Greece, 110. primitive, 109. Rome, 48, 109-13. U.S.A., III, 125. U.S.S.R., 125. Lawyers’ law, 112, 116, 126-36, 172, 175, 183, 186, 190, 202-3, 208.



Petrazycki, L., 104.

Lay Judges, 76-80, 87, 94-98. And see Justices of the Peace.

Phenomene Magnaud, 22.

Lazarsfeld, P., 3.

Philippines, see Ifugao. Police, 29, 104-5, I37> 184.

‘Legalistic’, 18, 171. Legislation,







Political organization, see State. Pollock, Sir F., 112.

Lenin, 124.

Polynesia, 48.

Levirate, 33, 61.

Popper, Karl, 199.

Liberty, see Jural categories.

postulates, 24, 50, 147-50.

Lie-detectors, 196-7.

Pound, Roscoe, 16, 17, 23-24, 43, 84,

Living law, see under Law.

126, 147-50, 153, 163.

Llewellyn, K., 4.

Precedent, lo-ii, 120, 181.

Logic, 9-12, 17-19, 21, 46, 123, 181, 208.

Prediction, 6, 16, 23, 202-9. Primitive law constitutional, 32-33.

MacKinnon, F. D., Lord Justice, 121.

family, 33-34.

McTiernan, Sir E. A., Justice, loi.

flexibility, 37.

Madison, James, 124.

jural categories, 43-47.

Maine, Sir Henry, 62-69.

lawyers, 109.

Maitland, F. W., 124.

morality, and, 37-38.

Malaysia, 102.

mutual gifts, 36.

Malinowski, Bronislaw, 27, 38.

normative quality, 36-37.

Manorial system, 167.

postulates, 149.

Marriage, see Family law.

property, 35-36, 43, 46.

Marxism, 177-8. Mathematical techniques, 3-5,

religion, and, 34-35, 39.. 7,

16, 107-8.

sanctions, 38—43. trials, 41-42.

Means, G. C., 167.

Privilege, j-fe Jural categories.

Mills, C. Wright, 2.

Procedure, law of, 41, 62-64, 72-78,

Models, 2.

80-6, 176, 181.

Mogey, J., 3.

Proof, see Evidence.

Monopolies, 138-9, 140, 141-2.

Property, law of, 35-36, 50-52, 55,

Morality, see Custom. Mores, see Custom. Nagel, S. S., 204. Natural law, 116. Natural science, see Causation.

127, 166, 179-80. Prosecutors, 137-8. Psychology,



Puchta, G. F., 20. Pufendorf, S., ii6*

New Guinea tribal law, 32-37, 39, 42.

Purpose, see Causation.

Nigeria, 102, 133-4, 137Norms, see Laws. Obligation, 14, 30, 193, 195, 199-200. And see Jural categories. Ordeal, 42, 59. Pareto, V., 3, 86. Parsons, Talcott, 2, 6, 7, 8, 12. Partridge, P. H., 13, 171. Paston family, 122.


Public policy, 161-2.

Negligence, see Delict.

New Zealand, 140.



Radcliffe, Lord, 92. Reay, Marie, 31. Religion, 39, 53, 62, 63, 192. Renner, Karl, 147, 163, 173, 178-81, 208. Responsibility, see Obligation. Restatement of the Law, 129, 154. Restrictive



Monopolies. Riesman, David, 4. Right,

Jural categories.

Robespierre, 124.


INDEX Roman law, 20-21, 66,



109-13, 115-17, 144, 178.


Sumner, W. G., 171-4, 177. Sumptuary law, 55-56.

Roosevelt, Franklin Delano, loi.

Swiss law, 23.

Ross, Alf, 195. Ross, E. A., 126.

Talion, 43, 60, 64.

Rule-scepticism, 71, 86.

Technology, 197-8, 209.

Russia, see U.S.S.R.

Teeters, N. K., 194, 199. Thomism, 22.

Salisbury, R. F., 31, 43. Sanctions,




Timashev, N. S., 38. 62-63,


Tort, see Delict. Trade unions, 138, 150-2, 155.

Savigny, F. C. von, 9, 17, 117, 172.


Scandinavia, 5, 146.

Courts, 95.

Sceptics, see Fact-sceptics, Rule-scep¬

Law, 167-8, 184, 196, 201.


Tribonian, 116.

Schlesinger, R., 178.

T’ung-Tsu Ch’ii, 55, 109.

Scholasticism, 119. Schubert, G. A., 107-8, 205.

United Kingdom

Science, see Causation.

courts, 10, 53, 70, 77-78, 82-83, 187,

Scullin, J., loi.

192judges, 57,

Seagle, W., 27. Selborne, Lord Chancellor, 129. Self-help, 40-42, 63.



90-92, 95-96,


law, 10, 25, 51-53, 63, 73, 84, 118,

Serjeants, 90.


Shakespeare, 113.

167, 180, 182, 186-8, 194.

Skolnick, J. H., 196. 8, 130, i39-4i> 152Social control, 126, 130, 135-41, 152,



United States of America courts, 5, 6, 16, 73, 81, 95, 114, 203, 205. judges, 79, 88-89, 98-100.

207. Social evolution, 27-29, 47-49.

law, 25, 68, 73, 81-85, 129, 138-9,

Social insurance, 87. order,


lawyers, 109, iii, 117, 120-4.

Social administration, law of, 127-




141, 151, 164, 182, 188-9, 194> Lawyers’


Social control. Sociology, 2-5, 8, 12, 20, 168, 173, 201, 203, 208.

197. 205. lawyers, 112, 115, 124-5. Universities, see Law teachers. U.S.S.R.

Sociology of law, 12—26, 49, 168.

judges, 103.

Solicitors, see Lawyers.

law, 173, 178, 183.

Solon, 74.

lawyers, 124-5.

Sorcery, 39-40. Soviet, see U.S.S.R. Spaeth, H. J., 204. Spencer, Herbert, 139, 163. Sporting theory of law, 71. Sprenkel, S. van der, 57Stammler, R., 17. State, 32-33, 48-49> 156State law, 30, 48-49, 58, 172, 174. State-ways, see State law. Status, see Contract. Staub, H., 199. Stone, Julius, i, 13, 149, 208. Substratum, 166-8, 177-8.

Values, 7-9, 46, 104-8. Vanderbilt, A. T., Chief Justice, 85. Visscher, C. de, 208. Wade, H. W. R., 87. Warren, G., 95, 203. Weber, Max, 3, 7, 12, 86, 208. Westminster, Statute of, 136. Whittaker, C. E., Justice, 205. Williston, S., 112. Yurok Red Indians, 41. Zeisel, H., 84.