Law › Confusions
Day, Henry Noble. 1876. The Science of Ethics. G. P. Putnam’s Sons: New York
[216-217] The Organic Law of a state is the expressed will of the political community in reference to the principles and forms of its government. It is the fundamental law by which the entire action of the political community is to be ruled, and which is ever to be recognized as supreme. From it there is no appeal but to the original seat of all political authority — the community itself. … The organic law thus creates and shapes the outward organism through which the social life of the community is so far to be expressed.
Mulford, Elisha. 1877. The Nation. Hurd and Houghton: New York.
[25] Government, which is the central organization of the nation, is not an evil. Its substance is in itself good, and is implicit in the conception of the good. Law, which is the ground and expression of its authority, is in its ultimate apprehension the manifestation of the divine will, as has been said of it in imperishable words, ‘Its home is the bosom of God, and its voice is the harmony of the world.’ And freedom, which in the nation is constituted in law, is the sphere of the normal development of man. And the nation is not a mere negation, only a restriction of evil tendencies and an impediment to evil courses, as this theory assumes. It has a positive character and content. It is the manifestation of the life of the organic people, after a moral order, and in the institution of justice and of rights. It is a constructive power in history. It is not a local and temporary expedient, and its elements are not those which the scientific culture of another and a later age may set aside.
Miller, William Galbraith. 1884. Lectures on the Philosophy of Law. Charles Griffin and Co.: London.
[9] A Positive law, in its widest sense, may be defined as the expression of the idea of right involved in the relation of two or more human beings.
[21] But, instead of saying that laws are intended to cause the greatest pleasure to the greatest number, it would be more correct to say that they are designed to cause the least pain to the fewest number. Positive laws, like medicines and other human contrivances, are intended to alleviate a certain description of pain. If great wrongs are perpetrated on individuals or classes of the community, or on nations, it may be necessary for judicial or legislative bodies to interfere for their redress, and without doubt pleasure will result from their inference to all concerned…
[29-30] Thus, if the work of a legislator is merely syllogistic, if he merely discovers certain external or internal phenomena called ‘natural laws,’ and certain other facts to which these apply, then the positive law is nothing. It is merely a repetition of the natural law in the particular case. As we shall see hereafter, a statute is only an indefinite number of hypothetical judgments, and so a decision founded on a statute does not contain anything which is not already implied in the statute. And this leads me to observe a fact which cannot be too early and too strongly insisted on, that whenever a natural law is expressed in words it becomes a positive law. There is not and cannot be such a thing as a natural law apart from concrete positive laws…. What are sometimes called natural laws in the jural sense—e.g., the obligation to maintain infant children—are only higher generalisations of positive laws, and are as true positive laws as the statutes of the realm…. If, therefore, the phrase ‘natural law’ is used in jurisprudence—and I think it ought to be avoided—it should only be in the sense of a generalised statement of a series of facts, keeping in view, however, that the generalisation involves thought, or it may be used, as it is by Hegel and Trendelenburg, as equivalent to the ‘science of law.’
[381] A more modern use of the phrase is to denote an ideal law or body of laws. In this view every positive law is an attempt to reach a natural law, which serves as a model. Positive laws are asymptotes which approach, but do not ever reach, natural laws.
Laurens Perseus Hickok (1798 – 1888) was an American philosopher and divine. He took his degree at Union College in 1820. Until 1836 he was occupied in active pastoral work, and was then appointed professor of theology at the Western Reserve College, Ohio, and later at the Auburn Theological Seminary.
Hickok, Laurens Perseus. 1885. A System of Moral Science. Ginn, Heath, and Co.: Boston.
[117] Man is thus manifestly made to be governed. Without positive law society cannot exist. It cannot be shown that even holy beings can be kept holy without positive enactments; and in a community of depraved beings, the public freedom cannot be safe an hour without law. A state of anarchy is a state of violence and wrong. Man, as a social being, is in his normal condition only when under law.
[118] The duty is made plain by the distinct declaration of the law. Where ignorance might hesitate from its weak apprehension, the law speaks clearly; where practical principles are equivocal, the law expresses them distinctly and definitely; where practice must have some standard, and which from the nature of the case might be any one of many methods, the law directly settles which and how. Statute law, thus, in all practical measures, gives clearness to duty beyond what the reason in pure morality would supply. The state must legislate, and by legislation it meets the want of social freedom.
Ernest Belfort Bax (1854 – 1926) was an English socialist journalist and philosopher, associated with the Social Democratic Federation (SDF).
Bax, Ernest Belfort. 1891. Outlooks from the New Standpoint. Swan Sonnenschein and Co.: London.
[149] Law, the positive coercion of the individual by the State, will become modified into the coercion of a public opinion which leaves the offender so severely alone that he dreads the alone-leaving even more than the actual violence of the goal. The development of penal methods along lines somewhat similar to the foregoing, viz., the reversion to the principle of a negative rather than a positive action on the part of the social body as against the individual offender—must, I think, without doubt be a sequel of the change from Civilised to Socialistic conditions.
Wilson, Woodrow. 1892. The State. D. C. Heath & Co.: Boston.
[613] That deliberate formulation of new Law to which the name Legislation is given is for us of the modern time, of course, the most familiar as well as the most prolific source of Law. For us Legislation is the work of representative bodies almost exclusively; but of course representation is no part of the essential character of the legislative act.
[632] Private law, on the other hand, is that portion of positive law which secures to the citizen his rights as against the other citizens of the state. It seeks to effect justice between individual and individual; its sphere is the sphere of individual right and duty.
[635] Law, then, is the determinate will of the state concerning the civic conduct of those under its authority. Spoken first in the slow and general voice of custom, it speaks at last in the clear, the multifarious, the active tongues of legislation. It grows with the growth of the community: it cannot outrun the conscience of the community and be real, it cannot outlast its judgments and retain its force. It mirrors social advance: if it anticipate the development of the public thought, it must wait until the common judgment and conscience grow up to its standards before it can have life; if it lag behind the common judgment and conscience, it must become obsolete, and will come to be more honored in the breach than in the observance.
David George Ritchie (1853 – 1903) was a Scottish philosopher who had a distinguished university career at Edinburgh, and Balliol College, Oxford. He was later elected professor of logic and metaphysics at St Andrews.
Ritchie, David George. 1893. Darwin and Hegel, with Other Philosophical Studies. Swan Sonnenschein: London.
[191-192] It is not, therefore, the individuals as individuals that have ‘mixed their labour’ with Nature, but the individuals as members of a society. Therefore, if we translate the facts into Locke’s phraseology, we must say that, by the law of Nature, i.e. according to reason, apart from any explicit or tacit consent of the individuals composing the community, the loaf belongs to the society as a whole, and not to this or that individual. To what individual it belongs must depend, not on natural law, but on the positive law of the land; and it is the natural right of the individuals to see to it, that the positive law of the land is in accordance with the common good of the society.
Ritchie, David George. 1895. Natural Rights. Swann Sonnenschein and Co.: London.
[139-140] Thus, liberty in the sense of positive opportunity for self-development, is the creation of law, and not something that could exist apart from the action of the State.
Taylor Jr., T. W. 1896. “The Conception of Morality in Jurisprudence” The Philosophical Review 5(1): 36-50.
[48] The jurist’s erroneous conception of life involves him of necessity in further errors. He treats law as something fixed and static, the artificial creation of governments. The mistake made is in regarding law as identical with a body of laws. Law is more than a mass of rules; it is fuller and broader that any code ever divised by the wisest legislator; it is the livening product of the State, the highest organic form of the moral life.
Keeler, John E. 1896. “Survival of the Theory of Natural Rights in Judicial Decisions,” Yale Law Journal 5(1): 14-25.
[24-25] The doctrine of natural right above law and not created by law has been maintained in academic discussion, in philosophic dissertations on government, and in kindred works which have been aptly said to treat of ‘jurisprudence in the air,’ for centuries; and it will probably always continue to be defended in company with perpetual motion, circle squaring and the Baconian authorship of Shakespeare. But it has always been rejected by the healthy instinct of the community, when practical matters of government are concerned. It does not work. A sound political philosophy can only be deduced by observation of the working of political institutions past and present.
Sir George Cornewall Lewis, 2nd Baronet (1806 – 1863) was a British statesman and man of letters.
Lewis, George Cornewall. 1898. Remarks on the Use and Abuse of Some Political Terms, new ed. Clarendon Press: Oxford.
[39] Law properly signifies a general command of the sovereign, whether conveyed by the way of direct legislation, as in the case of statutes, or of permissive legislation, as in the case of legal rules established by courts of justice. The only proper mode of determining a dispute as to the existence or construction of a law, is by application to a competent tribunal, which alone has authority to decide it.
[39-40] Law, however, is often used to denote, not the commands of a sovereign, but certain moral rules, the existence of which can only be determined by the arguments of private individuals, and not by the authority of public officers. It is in this sense that we speak of the law of God, the law of nature, the laws of honour, &c. The same confusion of legal and moral rules is likewise transferred to the adjectives derived from this term: for, as Archbishop Whately has observed, ‘The words lawful and unlawful are sometimes employed with reference to the law of the land, and sometimes to the law of God and the dictates of a sound conscience: so that the same thing may be lawful in one sense, which is unlawful in another.’
King, James Marcus. 1899. Facing the Twentieth Century. American Union League Society: New York.
[63] Law is briefly defined to be a rule of order or conduct established by authority. Liberty is briefly defined to be the state of a free man. But neither law nor liberty can be thus abstractly defined. The enjoyment of valued rights and privileges is implied in liberty.
Liberty is something which cannot be made for the individual; he must make it for himself. Civil government does not make it for the citizen, but in and by the civil government citizens make it for themselves and formulate its privileges and limitations in what they denominate law.
Warvelle, George William. 1902. Essays in Legal Ethics. Callaghan and Company: Chicago.
[9] We have seen that in the objective theory of ethics the jural idea is the controlling motive. The theory rests on the notion of law, and conduct is regulated and governed by rules. The framers of this theory, however, did not distinguish between law and morals, but only between a higher and a lower law and the higher law was always made to supersede the lower whenever they came in apparent conflict. This view prevailed for many years and finds expression, even in legal treatises, until as late as the middle of the last century. But, in modern jurisprudence the word ‘law’ has now come to have a fixed and definite meaning. The old classification of the schoolmen has been rejected, and, instead of an ascending scale of positive, natural and moral law, we now use the term ‘law,’ with no qualifying words whatever, as indicative of a rule of human action, referring only to external acts, and enforcible by a sovereign political authority. All other rules for the guidance of human action are called laws merely by analogy.
[15-16] Where the moral convictions of a community generally coincide it produces a force called public opinion, which, if sufficiently strong and long continued, eventually crystallizes into a law. When this consensus of moral opinion has developed into a law of the state the words ‘right’ and ‘wrong,’ as they may represent ethical concepts, are no longer applicable. The law is always right, even though it be iniquitous from the moral point of view of the individual. Any other theory inevitably leads to civil disruption and anarchy.
[17] Organized society—the state—came into being, and a new and controlling element was introduced. This element we call law, but it is practically nothing more than the embodied conscience of the political community. To this paramount assertion of control and direction each individual of the community is bound to submit. Obedience to law is a moral duty.
Nathan Roscoe Pound (1870 – 1964) was a distinguished American legal scholar and educator. He was Dean of Harvard Law School from 1916 to 1936. The Journal of Legal Studies has identified Pound as one of the most cited legal scholars of the 20th century.
Pound, Roscoe. 1905. “The Decadence of Equity,” Colombia Law Review 5(1): 20-35.
[20] Without entangling ourselves in the discussion as to the definition of law, we may say that laws are general rules recognized or enforced in the administration of justice. But the very fact that laws are general rules, based on abstraction and the disregard of the variable and less material elements in affairs, makes them mechanical in their operation.
Salmon, John William. 1907. Jurisprudence or The Theory of the Law. Stevens and Hayes: London.
[117] The expression source of law (fans juris) has several meanings which it is necessary to distinguish clearly. … A formal source is that from which a rule of law derives its force and validity. It is that from which the authority of the law proceeds. The material sources, on the other hand, are those from which is derived the matter, not the validity of the law. The material source supplies the substance of the rule to which the formal source gives the force and nature of law.
The formal source of the whole body of the civil law is one and the same, namely, the will and power of the state as manifested in courts of justice. Whatever rules have the sanction and authority of the body politic in the administration of justice have thereby the force of law; and in such force no other rules whatever have any share. The matter of the law may be drawn from all kinds of material sources, but for its legal validity it must look to the tribunals of the state and to them alone.
Wilson, Woodrow. 1911. The State, revised. D. C. Heath and Co.: Boston.
[610] Law is the will of the State concerning the civic conduct of those under its authority…. But for the existence of Law there is needed in all cases alike (1) an organic community capable of having a will of its own, and (2) some clearly recognized body of rules to which that community has, whether by custom or enactment, given life, character, and effectiveness.
Houston Stewart Chamberlain (1855 – 1927) was an English author of books on political philosophy, natural science and son-in-law of the German composer Richard Wagner; he is described in the Oxford Dictionary of National Biography as a "racialist writer". Chamberlain's two-volume book, The Foundations of the Nineteenth Century, published in 1899, became one of the many references for the pan-Germanic movement of the early 20th century, and, later, of the völkisch antisemitism of Nazi racial policy.
Chamberlain, Houston Stewart. 1912. The Foundations of the Nineteenth Century. John Lane: London.
[142-143] Considered from this point of view it is easy to comprehend that in reality the idea ‘natural law’ (jus naturae) contains a flagrant contradictio in adjecto. As soon as a legal agreement is come to among men—it does not at all need to be written, a convention silent or by word of mouth is in principle the same thing as a bulky civil code of law—for the state of nature has ceased; but if the pure natural impulse still prevails, eo ipso there is no law. For even if men in a natural state were to live together in association, no matter how mild and humane they might be towards one another, there would be no law, no jus; there would be just as little law as if the brutal power of the fist were the decisive factor with them. Law is a regulation of the relations of an individual to others, artificially arranged and enforced upon him by the community. It is an employment of these instincts which impel man to live together in societies, and, at the same time, of that necessity which forces him nolens volens to unite with his like: love and fear, friendship and enmity.
Sir Paul Vinogradoff (1854 – 1925) was a highly reputable Anglo-Russian historian and medievalist. In 1903 he was appointed Corpus professor of jurisprudence in the University of Oxford, and subsequently became a fellow of the British Academy.
Vinogradoff, Paul. 1914. Common-Sense in Law. Henry Holt: New York.
[59] Therefore law may be defined as a set of rules imposed and enforced by a society with regard to the attribution and exercise of power over persons and things.
[61-62] We can hardly define a right better than by saying that it is the range of action assigned to a particular will within the social order established by law. Just because every person under the rule of law divests himself of an unlimited liberty of action, a certain liberty of action limited in extent and direction is conceded and guaranteed to him by right. A right therefore supposes a potential exercise of power in regard to things and persons. It enables the subject endowed with it to bring, with the approval of organized society, certain things or persons within the sphere of action of his will.
Thomas Nixon Carver (1865 – 1961) was an American economics professor. He was Secretary-Treasurer of the American Economic Association (1909–13) and was elected its President in 1916.
Carver, Thomas Nixon. 1915. Essays in Social Justice. Harvard University Press: Cambridge.
[10] The rules of justice, that is, the rules according to which these conflicting interests are to be adjusted, may be embodied in positive law, or in mere public opinion or social sentiment. They may emanate from the sovereign group, called the nation, in which case they take precedence, in practice, over all others, or they may emanate from indefinite and intangible groups, variously called ‘the community,’ ‘society,’ or even ‘civilization’ or ‘Christendom,’ in which case they become effective in proportion as they are embodied in positive law and are enforced by the sovereign group.
Keller, A. G. 1919. “Law in Evolution,” The Yale Law Journal 28(8): 769-783.
[771] Push the man who talks about natural law, and he will either admit his ignorance, fly to the ‘Natural’ of which his ‘natural’ is but a thin and bloodless survival, or set to work to dig out some real evidence. As temperament and previous experience determine, he will show a blockhead’s indifference, the antique recourse to unverified authority, or the modern procedure of the positivist. If he adopts the last course, he is on the way to the truth of the matter, for he will shortly find that ‘natural law’ exists about as little as ‘natural rights,’ or any other of those philosophical figments that have not been checked up with realities. He will soon come to see that law, like all other living things, is evolutionary, persisting only as it secures adjustment to a changing environment. Then he will change his tune about absolutes, finalities, and universals.
Rickaby, Joseph. 1919. Moral Philosophy: Ethics, Deontology and Natural Law. Longmans, Green and Co.: London.
[310] To be a State, it is requisite that these septs and villages should agree to regulate the conduct of their individual members by a common standard of social virtue, sufficient for their well-being as one community. This common standard is fixed by common consent, or by the decision of some power competent to act for all and to punish delinquents. The name of this common standard is law.
Wilde, Norman. 1920. “The Attack on the State,” International Journal of Ethics 30(4): 349-371.
[354] The law which expresses this social unity is not a law of causation, but of social purpose; it appears, not as a relation, but as an imperative in human consciousness. The rule of conduct founded upon this fact of social purpose, is, in brief, co-operate in the realization of social solidarity. We have here a rule based, not on any metaphysical considerations, but solely on the facts of human psychology, and, as based on human interests, it is a rule valid for all men of whatever rank and power, holding for the strong equally with the weak, for the rulers as well as for the ruled. And since the state is only a collection of individuals, essentially the group of stronger individuals, this rule is binding on, and limitative of, the state. The social purpose, shared in by all individuals, is the determining principle of the state and it is this purpose that can alone justify the actions of the governing group. …These rules may properly be called laws irrespective of their formulation and enforcement by the state since they have what is characteristic of laws, a sanction.
Vinogradoff, Paul. 1920. Outlines of Historical Jurisprudence, Vol. I. Oxford University Press: London.
[84] It is impossible to think of law without some political organization to support it; nor is it possible to think of a State without law. The first alternative is absurd, because, law requires for its existence and application an organization to put it into force.
[85] Although from a wider aspect the function of law may be attributed to all forms of social organization, it cannot exist anywhere without leaning directly or indirectly on some kind of political union acting as a safeguard of social order. In this sense, law required the state as a condition of its existence.
Williams, James Mickel. 1920. The Foundations of Social Science. Alfred A. Knopf: New York
[243-244] The doctrine of the natural rights of the individual has continued to affect the development of jurisprudence in the United States down to the present time. The judicial inclination to regard natural law as above positive law has survived in American jurisprudence in the form of the inclination to regard as unconstitutional, laws which, in the opinion of judges, in any way interfere with that natural right of a citizen to acquire wealth which the judges assume to be guaranteed by certain provisions of the Constitution. And certain judicial decisions have even assumed freedom of economic contract to be guaranteed by the Declaration of Independence and therefore binding. Natural law has been used to guarantee the inviolability of vested propertied rights and freedom of contract, and to forbid legislatures to exercise ‘arbitrary power’ against these rights. Both these rights work for the advantage of reactionary capitalistic interests against the workers. Judicial insistence on freedom of contract has annulled much labour legislation. This judicial action culminated in the dictum of Justice Harlan that ‘the employer and the employee have equal right, and any legislation that disturbs that equality is an arbitrary interference with the liberty of contract, which no government can legally justify in a free land.’ The prejudice of judges in favour of the individualistic attitude to property, which has prevailed among business men up to the present time, subconsciously inclined judges to the acceptance of the conception of natural rights, which served legally to justify that attitude.
Mecklin, John Moffatt. 1920. An Introduction to Social Ethics: The Social Conscience in a Democracy. Harcourt, Brace and Howe: New York.
[433-435] No body of laws can possibly be the last word of political wisdom since they are the result of a social process which is itself constantly accumulating new facts and demanding new interpretations of these facts. … It is this dynamic conception that inspires social democracy.
Benjamin Nathan Cardozo (May 24, 1870 – July 9, 1938) was an American jurist who served on the New York Court of Appeals and later as an Associate Justice of the Supreme Court. Cardozo is remembered for his significant influence on the development of American common law in the 20th century.
Cardozo, Benjamin Nathan. 1921. The Nature of the Judicial Process. Yale University Press: New Haven.
[131-132] The old Blackstonian theory of pre-existing rules of law which judges found, but did not make, fitted in with a theory still more ancient, the theory of a law of nature. … For a time, with the rise and dominance of the analytical school of jurists, it seemed discredited and abandoned. Recent juristic thought has given it a new currency, though in a form so profoundly altered that the old theory survives in little more than name. The law of nature is no longer conceived of as something static and eternal. It does not override human or positive law. It is the stuff out of which human or positive law is to be woven, when other sources fail. The modern philosophy of law comes in contact with the natural law philosophy in that the one as well as the other seeks to be the science of the just. But the modern philosophy of law departs essentially from the natural-law philosophy in that the latter seeks a just, natural law outside of positive law, while the new philosophy of law desires to deduce and fix the element of the just in and out of the positive law—out of what it is and of what it is becoming. The natural law school seeks an absolute, ideal law, ‘natural law’…by the side of which positive law has only secondary importance.
Hoxie, Robert Franklin. 1921. Trade Unionism in the United States. D. Appleton and Co.: New York.
[216-217] As such, [the law of the United States] is individualistic rather than socialized. It postulates the individual as the center of the universe and does not recognize fully the existence of social groups and group relationships. It therefore does lot know how to deal with social groups and group relationships except to deny their normal existence. It knows no society apart from an aggregation of individuals and no social welfare apart from individual welfare. It is concerned, therefore, primarily in upholding individual rights, or in acting as the arbitrator in contests between individuals over their rights. In short, it is thoroughly atomistic.
As such, our law tends to place private property rights above personal and social rights. It places private property very close to the center of its social philosophy and therefore tends everywhere to emphasize private property rights at the expense of all other rights of the individual, and to overlook the rights of society.
Hence, the law, being absolutistic, individualistic, and concerned with property rights, is stiff, inflexible, inelastic, and ill-adapted to meet the conditions of a changing socialized situation. Its decisions are based on a system of fixed assumptions and rules. These assumptions and rules do not reflect existing conditions, and the law does not know how to create new assumptions and rules, since from its standpoint no such new assumptions and rules can have any valid existence, and even if it should admit this, its eye being ever fixed on the past, it is not sufficiently acquainted with and cannot understand the existing developing situation.
Franklin Henry Giddings (1855 – 1931) was an American sociologist and economist. For ten years, he wrote items for the Springfield, Massachusetts Republican and the Daily Union. In 1888 he was appointed lecturer in political science at Bryn Mawr College; in 1894 he became professor of sociology at Columbia University. From 1892 to 1905 he was a vice president of the American Academy of Political and Social Science.
Giddings, Frank Henry. 1922. Studies in the Theory of Human Society. The Macmillan Company: New York.
[278] Sovereign power may act fitfully, unexpectedly, or at random; or it may act methodically, after a declaration of purpose and adhering to promulgated rules. Sovereign purpose formulated, promulgated, and enforced is law, and governmental action within the bounds of law is ‘due process of law.’
Cardozo, Benjamin N. 1924. The Growth of the Law. Yale University Press: New Haven.
[44] We shall unite in viewing as law that body of principles and dogma which with a reasonable measure of probability may be predicted as the basis for judgment in pending or in future controversies.
Vinogradoff, Paul. 1924. “Legal Standards and Ideals,” Michigan Law Review 23(1): 1-8.
[6-7] The modern revival of speculation as to natural law undoubtedly marks a step in advance as against the theories of the rationalists, which did not make any allowance for relativity in law. The historical school has an easy task against the older adherents of a law of nature because they were able to ask: how can you speak of universal law where concrete rules differ so widely? … It was contended that law was traditional, historical, that no law of nature can be shewn to be recognized everywhere and at all times.
Willoughby, Westel Woodbury. 1924. The Fundamental Concepts of Public Law. The Macmillan Company: New York.
[97] Law…constitutes the medium or space…in which it lives and moves and has its being. No action of the Sovereign State can, therefore be illegal; and no illegal act can be an act of a State.
[129] As opposed to the description of Law as the sequences of events in the physical universe…the jurist uses the word as declaring a rule or principle for the governance of human action. Its characteristic in this sense is that it is capable of being expressed as a distinct proposition to rational beings in the form and character of a command.
[143] In result, then, we are justified in defining law, in the strict positive or juristic sense, as those rules of conduct that courts of justice apply in the exercise of their jurisdiction.
Blake, Ralph Mason. 1925. “On Natural Rights,” International Journal of Ethics 36(1): 86-96.
[88] And now it is necessary to point out a very significant difference between the conception of a ‘law’ in the sense of a fundamental principle of natural morality, and a law in the sense of a positive law or legal precept. The latter is in essence a command or imperative issued by some competent authority and backed by the force of some sanction, some penalty or reward to accrue from the authority in question, whether this authority be state, church, public opinion, or the customs of society. Natural moral laws, on the other hand, are not necessarily to be thought of as commands or precepts issued by any authority whatever. If they chance to be backed by some authority, that is conceived to be a wholly accidental circumstance. Nor are they necessarily enforced by any sanctions whatever. A positive law issued by no authority is a contradiction in terms. Laws of nature, on the other hand are [89] conceived to be independent of any authority. … A law of nature may be enacted into a positive law—indeed many have held that in default of enactment by any human authority they must be conceived to form part of the positive law of God, and to enforced by supernatural sanctions. But the very conception of a law of nature is that it does not derive its being or its validity from any enactment of positive command whatever, but would remain valid even if every positive law were to contravene it. It is not only independent pf positive laws, it is also deeper and more fundamental than they, and possessed of a higher validity.
[91] It seems impossible to bring any real order out of such chaos, and the attempt to find any standard of ‘what ought to be’ from a contemplation of ‘nature’ may thus well appear to be wholly futile. ...And in fact, as this attempt has usually been conceived, is really futile. I do not believe it to be possible to derive any principles with regard to what ought to be, any principles of ‘natural morality’ or ‘laws of nature,’ from contemplation, no matter how earnest, disinterested and thoroughgoing, of the facts of nature, as these are reported to us by the ordinary descriptive science of nature.
Willis, Hugh Evander. 1926. “A Definition of Law,” Virginia Law Review 12(3): 203-214.
[212] Law is a scheme of social control, backed and sanction by the power of the state, for the protection of social interests, by means of legal capacities and legal redress.
John William Burgess (1844 – 1931) was a pioneering American political scientist. He spent most of his career at Columbia University and is regarded as having been the most influential political scientist of the period.
Burgess, John W. 1928. The Sanctity of Law. Harper and Brothers: New York.
[7] …[W]e may therefore say that law is a rule of human conduct prescribed by a sovereignty, either directly, or indirectly through some body authorized by it thereto, and enforced by the infliction of physical punishments for disobedience to the same on the part of any person subject to its jurisdiction.
Beach, Walter G. 1929. “Opportunity in the Modern World,” Social Forces 8(1): 50-56.
[52] Opportunity rests permanently, not on bare nature and unrestrained individual freedom to exploit her, but upon social organization and the law which expresses social organization. And since social action rests upon social organization, it may be briefly stated that opportunity is determined by social organization. Moreover social organization as a form of control over men usually is embodied in law. Law is the expression and result of the ideas which characterize social organization, as far as economic and political life is concerned, and the terms of law and social organization may for some purposes be used interchangeably, depending upon whether emphasis is to be laid upon the nature of the social organization or upon its result in the form of social control through law. … We have come through an era of ‘individual law,’ which simply defines the limits within which the individual may move without restraint. It is negative than positive; it is regulative, but not constructive; it is individual, not social.
Harold Joseph Laski (1893 – 1950) was a British political theorist, economist, author, and lecturer. He was active in politics and served as the chairman of the British Labour Party during 1945–1946, and was a professor at the London School of Economics from 1926 to 1950.
Laski, Harold J. 1929. “Law and the State,” Economica 27(Nov.): 267-295.
[277] Constitutions, Bills of Rights, and the rest, are, after all, nothing more than ways of declaring that the ends of law make law valid, and not the mere source from which it emanated. It is because of this, also, that every age has seen a revival of the idea of natural law. That revival is nothing so much as an effort on the part of thinkers to recall the state to the purposes by which alone the exercise of authority can be justified. It is an announcement that positive law must run in the leading-strings of principle, that it is the thing it is seeking to establish which makes it binding upon those whose behavior it is to control.
Sir John William Salmond (1862 – 1924) was a legal scholar, public servant and judge in New Zealand.
Salmond, John. 1930. Jurisprudence, eighth ed. Sweet and Maxwell: London.
[27] The term natural law…is now fallen almost wholly out of use.
[39] The law may be defined as the body of principles recognized and applied by the State in the administration of justice. In other words, the law consists of the rules recognized and acted on in courts of justice.
[174] The will of the state is…the one and only formal source of law; but it does not follow from this that the word of the state is the sole form of that material source of the law which is called legislation.
[143] The common law of the realm and the common custom of the realm were synonymous expressions. It may be confidently assumed, indeed, that this doctrine did not at any time express the substantial truth of the matter, and that from the earliest period of English legal history the common law was in fact to a very large extent created and imposed by the judicial decisions of the royal courts of justice, rather than received by these courts from the established customs of the community.
Harper, Fowler Vincent. 1930. “Law in Action and Social Theory,” International Journal of Ethics 40(3): 305-329.
[305] Law, from the functional standpoint of the sociologist, is one of the most important and vital agencies for social control. It is through law, along with other agencies, that the conduct of persons is so regulated that human being ‘fit’ into the increasingly complex social and human surroundings of life and that a certain necessary uniformity in behavior in given direction is produced.
[306] Law, in this sense, will be regarded as a specialized form of control exercising the systematic pressure of politically organized society.
Ketcham, E. H. 1930. “Sources and Forms of Law,” International Journal of Ethics 40(3): 363-371.
[363] Law exists because there is government, and is the expression of the relationships between people, or people and things, owing to the official relationships of those in authority to the governed.
Macmillan, Murdock. 1937. Law and Other Things. The University Press: Cambridge.
[11] In a limited sense law may be said to be merely the vehicle of politics, for its is by legislation that the politician gives expression and effect to his policy—at least in countries which enjoy…representative government.
Pennock, J. Roland. 1937. “Law and Sovereignty,” The American Political Science Review 31(4): 617-637.
[629] Up to this point we have argued that solidarity, moral obligation, obedience, sanction, and sense of right or recognition of moral obligation all in turn, break down as definitive tests of law.
[633] For practical purposes…the law of a group is said to possess sovereignty when it depends upon no rule external to itself, when it contains no absolute restriction upon its own elaboration and growth, and when it imposes upon itself a definite procedure for the precise and definitive determination of what the law is in a particular case.
Feibleman, James. 1938. “Democracy and the Middle-Class Rule of Reason,” Ethics 48(4): 536-542.
[542] Laws are the rules of the democratic game. They are found by men in search of the truth in terms of which there can be rules; not by men eager for ruling. Men may rule; but it is reason which should rule the rulers. … In the choice between law as restrictive and law as liberating there should be but one alternative. The rule of men is restrictive, but the rule of law is liberating. … Nothing finite is final, and democracy can serve its highest purpose by uniting under common bonds of interest and sympathy all those who acknowledge the rule of reason.