¹ Quoted by Gray, J. C., The Nature and Sources of the Law (2nd ed., 1921), p. 2.Google Scholar

² The analogy is taken from Eddington, A. S., The Nature of the Physical World (1928), pp. 53, 87.Google Scholar

³ The present paper is based on a public lecture delivered at the University of Hull in December 1965. Hurst, J. W., Justice Holmes on Legal History (1964)Google Scholar puts forward a similar idea. The present author would like to refer to it in support of his own broad thesis which, however, was evolved independently. The germ of this is traceable to his Jurisprudence (2nd ed., 1964), pp. 531–532Google Scholar, and was later alluded to in [1965] C.L.J. 158–159; (1965) 28 M.L.R. 418–420; [1968] C.L.J. 255–258; and in the “Enquete and Answers” in (1968) 2 Annual of Natural Law Study of the Institute of Legal Philosophy, Osaka City University. Apart from some similarity in the basic idea, Professor Hurst develops his thesis along an altogether different line.

⁴ “However, I shall just mention another limb to the taxpayer's argument, namely, that any unlawful purpose for which a statutory enactment may be made vitiates the enforcement of that statute. As was pointed out by the Crown, if that argument were correct, it would mean that the supremacy of Parliament would, in effect, be overruled…. What the statute itself enacts cannot be unlawful, because what the statute says and provides is itself the law, and the highest form of law that is known to this country“: per Ungoed-Thomas, J. in Cheney v. Conn [1968] 1 W.L.R. 242, 247.Google Scholar See also Lee v. Bude and Torrington Railway Co. (1871) L.R. 6 C.P. 576; R. v. Jordan [1967] Crim.L.R. 483.Google Scholar

⁵ See further on this Fuller, L. L., “Positivism and Fidelity to Law—a Reply to Professor Hart” (1957–58) 71Google Scholar Harv.L.R. 630, and the author's “The Value of a Value-study of Law” (1965) 28 M.L.R. 415.

⁶ Law, Liberty and Morality, p. 51. He makes this admission in the course of his attack on Lord Devlin's Maccabaean Lecture, 1959, now reprinted in The Enforcement of Morals (1965), Chap. 1.Google Scholar Lord Devlin stresses the importance of the shared morality of every community. For a further allusion to this polemic, see post, p. 90.

⁷ Lipstein, K., “The Reception of Western Law in Turkey” (1956) 6 Annales de la Faculty de Droit d'lstanbul 10, 225Google Scholar; “The Reception of Western Law in a Country of a Different Economic and Social Background: India” (1957–58) 8–9 Revista del Institute de Derecho Comparado 69, 213. F. C. von Savigny's thesis that law is the expression of a Volksgeist has some truth: On the Vocation of our Age for Legislation and Jurisprudence (2nd ed., trans. A. Hayward, 1831). But it does not apply to all laws, perhaps only in the family sphere. It seems also that the function of the Volksgeist is adaptative and abrogative of new material, rather than creative.

⁸ 347 U.S. 483 (1954).

⁹ Olivecrona, K., Law as Fact (1939), pp. 147–148.Google Scholar

¹⁰ General Theory of Law and State (1949), p. 119Google Scholar; Pure Theory of Law (trans. Knight, M., 1967), p. 112.Google Scholar

¹¹ Madzimbamuto v. Lardner-Burke, N.O., and Others, 1968Google Scholar (2) S.A. 284, on which see Dias, “Legal Politics: Norms Behind the Grundnorm” [1968] C.L.J. 253–255.

¹² The Concept of Law (1961).Google Scholar

¹³ Op. cit., p. 203; see also pp. 203–207, and “Legal Positivism and the Separation of Law and Morality” (1958) 71 Harv.L.R. 598.

¹⁴ The Morality of Law (1964), Chap. 2.Google Scholar

¹⁵ Op. cit., p. 154.

¹⁶ Blackstone, Commentaries, I, pp. 74–97; Allen, C. K., Law in the Making (7th ed., 1964), Chaps. 1–2.Google Scholar

¹⁷ On which see Schechter, F. I., “Popular Law and Common Law in Medieval England” (1928) 28 Col.L.R. 269.Google Scholar

¹⁸ Azo, (d. 1230), quoted by Plucknett, T. F. T., A Concise History of the Common Law (5th ed., 1956), p. 308Google Scholar; and see also Legislation of Edward I (1949), pp. 6–10.Google Scholar

¹⁹ Salt, H. E., “The Local Ambit of a Custom” in Cambridge Legal Essays (eds. Winfield, P. H. and McNair, A. D., 1926), p. 279.Google Scholar

²⁰ There is no consistency in the interpretation of “reasonableness”: see, e.g., Bryant v. Foot (1868) L.R. 3 Q.B. 497; Lawrence v. Hitch (1868) L.R. 3 Q.B. 521; A. F. Beckett Ltd. v. Lyons [1967] Ch. 449.

²¹ “International Law and the Controversy Concerning the Word ' Law'” in Philosophy, Politics and Society (ed. Laslett, P., 1956), Chap. 9.Google Scholar

²² The Concept of Law, Chap. 10.

²³ Roscoe Pound long ago drew attention to these: “Juristic Science and Law” (1917–18) 31 Harv.L.R. 1047; and see now Dworkin, R. M., “Is Law a System of Rules?” in Essays in Legal Philosophy (ed. Summers, R. S., 1968), p. 25.Google Scholar

²⁴ The doctrine of contractual privity, for example, pre-existed the common law, having been evolved in Roman law.

²⁵ Weyrauch, W. O., The Personality of Lawyers (1964)Google Scholar; Llewellyn, K. N., The Common Law Tradition. Deciding Appeals (1960).Google Scholar

²⁶ On which see Silving, H., Sources of Law (1968), pp. 84Google Scholaret seq.

²⁷ Ante, p. 79.

²⁸ McWhinney, E., “The Union Parliament, the Supreme Court and the ‘Entrenched Clauses’ of the South Africa Act” (1952) 30 Can.B.R. 692Google Scholar; Judicial Review in the English-speaking World (2nd ed., 1960)Google Scholar, Chap. 6.

²⁹ N.V. Algemene Transport-en Expeditie Ondereming Van Gend en Loos v. Nederlandse Tariefcommissie (No. 26/22) [1963]Google Scholar Common Market L.R. 105; Costa v. Ente Nazionale per Energia Ellettrica (ENEL) (No. 6/64) [1964]Google Scholar Common Market L.R. 425; Wilhelm v. Bundeskartellamt (No. 14/68) [1969]Google Scholar Common Market L.R. 100. The same has been held in national courts: Re Import Duties on processed Beef (No. 10144) [1966]Google Scholar Common Market L.R. 346 (Holland); Re Import of Pork (No. IVc 20–21/63) [1966]Google Scholar Common Market L.R. 491 (Germany); Grundig Werke G.m.b.H. and J. N. J. Sieverding N.V. v. P.V.B.A. Common Market Import and Trade Co., [1968]Google Scholar Common Market L.R. 97 (Belgium).

³⁰ For an actual judicial assertion, see ante, “Case and Comment,” pp. 49–51.

^30a Hale answered Hobbes with this very argument: Pollock, F. and Holds-worth, W. S., “Sir Matthew Hale on Hobbes: an Unpublished Manuscript” (1921) 37 L.Q.R. 274Google Scholar, reprinted in Holdsworth, A History of English Law, V, App. III. The tragedy of the Rhodesian revolution is that the judiciary there ultimately accepted a Grundnorm which enshrines white supremacy indefinitely. “Equal treatment of equals, unequal treatment of unequals” is indeed an Aristotelian axiom of justice; and no one doubts that at present Africans, as a whole, are not as advanced as whites. The injustice lies (a) in the perpetuation of the inequality in order that the latter may enjoy a more agreeable way of life than they would otherwise enjoy; (b) in the fact that it is the latter alone who decide how far, if at all, and at what rate Africans are to progress; and (c) in the unlikelihood, in the face of human nature and all history, that any privileged class will ever voluntarily relinquish its advantages. It is not a little cynical that under the new Constitution the judges continue pledging themselves to “do right to all manner of people after the laws and usages,” which will be designed to ensure that neither right nor justice will be done to the overwhelming majority of the population.

³¹ For a recent judicial statement on sanctionless duty, see Lord Devlin in United Dominions Corporations (Jamaica) Ltd. v. Shoucair [1969] 1 A.C. 340, 347Google Scholar; and more generally the author's “The Unenforceable Duty” (1959) 33 Tulane L.R. 473Google Scholar, and Jurisprudence, Chap. 8.

³² For the distinction between scientific laws as descriptive and lawyers' laws as prescriptive, see Wright, Lord, “Precedents” (1948) 8 C.L.J. 124Google Scholar; Goodhart, A. L., English Law and the Moral Law (1955), p. 9.Google Scholar For the distinction in terms of Sein and Solien, see Kelsen, H., Reine Rechtslehre (2nd ed., 1960Google Scholar, translated by Knight, M. as Pure Theory of Law, 1967Google Scholar).

³³ e.g., the abolition of capital punishment and the criminality of homosexual acts between consenting adults.

³⁴ Legal Duties (1931), p. 200.

³⁵ The law may “uphold” morality by the imposition either of duties or of disabilities, i.e., refusal to help immorality. Thus, even though the duty forbidding homosexuality has been abolished, the morality which disapproves of such conduct can still be “upheld ” by the refusal to countenance the validity of contracts, for example, for such ends.

³⁶ For references, see ante, p. 78.

³⁷ Law, Morality, and Religion in a Secular Society (1967).Google Scholar

³⁸ The concept of “right” in the two time-frames is interesting. The Hohfeldian analysis is seen to be appropriate to the present time-frame: “The Hohfeldian scheme is a calculus which cannot be used to express the dynamics of legal development since it assumes stable relations.” The two concepts in it that stand out in a continuum are duty and power. Professor Hart, a Hohfeldian, fastens-on these as providing the clue to his concept of law as an on-going legal system which, according to him, comes about with the union of “primary” and “secondary” rules (duties and powers): The Concept of Law, Chaps. 5 et seq.

³⁹ “Introduction” to Renner, K., The Institutions of Private Law and their Social Functions (ed. Kahn-Freund, O., trans. Schwarzchild, A., 1949), p. 6.Google Scholar

⁴⁰ Taken from MacGuigan, M. R., Jurisprudence: Readings and Cases (1st ed., 1963), p. i.Google Scholar The passage does not appear in the second edition (1966), which is encouraging, but it has been quoted because the sentiment it expresses is still prevalent.

⁴¹ e.g., Oxford Essays in Jurisprudence (ed. Guest, A. G., 1961), Chaps. 1, 2, 4–6Google Scholar; Goodhart, A. L., Essays in Jurisprudence and the Common Law (1937), Chaps. 1, 3–7.Google Scholar

⁴² Cf. the remark of the reviewer, who wound up in effect a personal manifesto with the cry: “Can some kind of sociological jurisprudence become the new orthodoxy or will it remain the mark of a radical fringe and will we never get those analytical positivists off our backs?” [1966] C.L.J. 151. The only persons whom this shaft is likely to touch are thinking sociological jurists, who cannot but feel that their case has hardly been improved. Even while sympathising wholeheartedly with the spirit of the utterance, one wonders what this reviewer makes of Professor Hart's The Concept of Law, which the author himself describes in the Preface as an essay both in analytical jurisprudence and descriptive sociology. Is this work, which has been hailed as probably the outstanding contribution to jurisprudence of the decade, part of the incubus to be sloughed off?

⁴³ Legal System and Lawyers' Reasoning (1964), p. 16.Google Scholar

⁴⁴ Ehrlicb, E., Fundamental Principles of the Sociology of Law (trans. Moll, W. L., 1936)Google Scholar; Pound, R., “Law in Books and Law in Action” (1910) 44 Am.L.R. 12.Google Scholar

⁴⁵ Sprott, W. J. H., Sociology (1966), p. 39.Google Scholar Sociology is important and worth developing. The point is that this subject, along with criminology and psychology, in all of which it is easy to weave plausible theories but which have not yet worked out sufficient wherewithal by which one can know when one is wrong, is apt to impart only intellectual indiscipline because there is little, or nothing, to which self-criticism can be geared. Moreover, irreparable damage can be done by giving effect to theories of such immature subjects, as the permissive state to which psychology has already reduced society testifies. This is only now beginning to be appreciated. Cf. Dr. B. Spock's attempts to undo his own past handiwork in the third edition of his Baby and Child Care (1969), especially p. 12.Google Scholar

⁴⁶ In this respect the author agrees entirely with the contentions of Mr. Jolowicz, J. A., “Fact-based Glassification of Law,” Supplement to Vol. X (1969) Jo.S.P.T.L., p. 1.Google Scholar

⁴⁷ As to this: “While it is true that all observation is in terms of a conceptual scheme, this does not mean that one must have a fully worked out theory in order to do any observation at all”: Sheldon, R. C., “Some Observations on Theory in the Social Sciences” in Towards a General Theory of Action (eds. Parsons, Talcott and Shils, E. A., 1954), p. 36.Google Scholar It is also to be noted that nowhere in Julius Stone's original treatise, The Province and Function of Law (1946)Google Scholar, was there a definition of “law,” and after close on 20 years of reflection he still does not see any need for one: Legal System and Lawyers' Reasonings (1964), pp. 184–185.Google Scholar See, too, Jennings, W. I., “The Institutional Theory” in Modern Theories of Law (ed. Jennings, W. I., 1933), p. 83.Google Scholar

⁴⁸ For an attempt to construct a natural law theory along these lines, see Wild, J., Plato's Modern Enemies and the Theory of Natural Law (1953)Google Scholar; and see also the critiques by Kelsen, H., “A Dynamic Theory of Natural Law” in What is Justice? (1957), p. 174Google Scholar; and Slone, J., Human Law and Human Justice (1965), pp. 196–201.Google Scholar

⁴⁹ Emmet, D., Rules, Roles and Relations (1966), pp. 37Google Scholaret seq.; and see Searle, J. R., “How to Derive ‘Ought’ from ‘Is’” (1964) 73 Phil.Rev. 43.Google Scholar

⁵⁰ St. Thomas Aquinas made the relation between means and ends the basis of his system comprising eternal law, natural law, divine law and human law: Summa Theologica (trans. Dominican Fathers, 1915). In this connection might be mentioned the fact that there is a fundamental difference between the natural law, e.g., of Aristotle and Aquinas, and the 18th-century versions, which sought to deduce detailed, universal rules from reason. For this distinction, see Montrose, J. L., “Edmund Burke and the Natural Law” in Precedent in English Law and Other Essays (ed. Hanbury, H. G., 1968)Google Scholar, Chap. 8. The sort of natural law envisaged in this paper is in line with the former rather than with the latter.